Maldonado v. Wilson ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0299p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner-Appellant, -
HENRY MALDONADO,
-
-
-
No. 03-4528
v.
,
>
JULIUS WILSON, Warden, -
Respondent-Appellee. -
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 02-01566—Kathleen McDonald O’Malley, District Judge.
Argued: March 18, 2005
Decided and Filed: July 15, 2005
Before: MERRITT and ROGERS, Circuit Judges; HOOD, Chief District Judge.*
_________________
COUNSEL
ARGUED: Theresa G. Haire, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
Mark Joseph Zemba, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for
Appellee. ON BRIEF: Theresa G. Haire, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for
Appellant. Mark Joseph Zemba, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cleveland,
Ohio, for Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Henry Maldonado appeals the district court’s denial of his petition
for a writ of habeas corpus. Maldonado was convicted in Ohio of murder, tampering with evidence,
and abuse of a corpse. The district court granted a certificate of appealability on two related issues:
whether the state court’s admission of a police officer’s testimony that the chief prosecution witness
passed a “test” for truthfulness rendered Maldonado’s trial fundamentally unfair in violation of the
Due Process Clause; and whether the prosecutor improperly vouched for the chief prosecution
witness’s credibility by eliciting the police officer’s testimony about the test. While admission of
the comment may have been improper, the Ohio Court of Appeals’ rejection of Maldonado’s due
*
The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District of Kentucky, sitting
by designation.
1
No. 03-4528 Maldonado v. Wilson Page 2
process claim was not contrary to or an unreasonable application of clearly established federal law.
Maldonado has forfeited his prosecutorial misconduct claim. Therefore, we affirm.
I. Background
This court presumes the state court’s findings of fact to be correct. 28 U.S.C. § 2254(e)(1)
(2005). The Ohio Court of Appeals recited the facts underlying Maldonado’s conviction as follows:
On November 23, 1999, at approximately 8 p.m., firefighters
discovered the body of fifteen-year-old Virginia Velez in a field behind a
residential neighborhood in Lorain, Ohio. The body was burned. The
coroner later determined that Virginia had been strangled first, then her body
was set on fire. Just two hours before the grisly discovery, Virginia was with
two girlfriends at one girl’s home. Virginia told the girls that she was going
to see her sometimes-boyfriend Henry Maldonado, who lived a few blocks
away. The field where Virginia’s body was found was directly behind
Maldonado’s house.
The police investigation included interviews with a number of
persons who knew both Virginia and Maldonado. The police also received
a tip that Maldonado was seen depositing a garbage bag behind a local
convenience store, possibly disposing of it in the dumpster. It contained
certain items belonging to Virginia. The police uncovered sufficient
evidence implicating Maldonado that a grand jury indicted him on two counts
of murder, one count of aggravated murder, abuse of a corpse, and tampering
with the evidence.
On December 11, 2000, the case against Maldonado proceeded to a
jury trial. Numerous witnesses appeared on behalf of the state, including the
coroner, police officers, several of Virginia’s relatives, and a number of
teenage friends of Maldonado and Virginia. Maldonado offered nothing in
his own defense. The jury returned guilty verdicts on all counts. The
aggravated murder count and two counts of murder were merged. The trial
court sentenced Maldonado to consecutive terms of twenty years to life for
aggravated murder, three years for tampering with evidence and twelve
months for abuse of a corpse.
State v. Maldonado, No. 01-CA-007759, 2001 WL 1044078, at *1 (Ohio Ct. App. Sept. 12, 2001).
Testimony about Tyrone Price, the state’s key witness, forms the basis for the due process
claims on which the district court granted a certificate of appealability. The Ohio Court of Appeals
found that Price entered a plea agreement under which Ohio agreed to prosecute Price as a juvenile
and to charge Price only with tampering with evidence, in return for Price’s testifying against
Maldonado. Id. at *2. Price had to pass a computer voice stress analysis test (“CVSA”) in order to
enter the agreement. Id. Price testified at trial that he pled guilty to tampering with evidence and
was sentenced to confinement in a juvenile facility. At issue here is whether a police detective’s
testimony that he believed Price because Price “was tested,” violated Maldonado’s due process
rights.
On direct examination at trial, Price testified that he went to Maldonado’s house to watch
movies on the night of the murder. When Maldonado went to the basement in the middle of a
movie, Price followed him. Price knew that Virginia was there when he got to the basement,
because he heard the two talking. Price watched as Maldonado strangled Virginia with shoelaces;
it took several minutes. Maldonado asked Price to help him take the body outside, and Price
No. 03-4528 Maldonado v. Wilson Page 3
refused. Maldonado put the body in a garbage can and dragged it outside. Price followed him. The
garbage can tipped over once Maldonado and Price reached the edge of a woods behind the house.
Maldonado asked Price to help him move the garbage can, and Price did this. Price saw Maldonado
rub alcohol on the victim’s body, and then Price ran home.
The Ohio Court of Appeals made the following findings of fact concerning the disputed
admission of the detective’s testimony:
The state’s strongest evidence against Maldonado came from the testimony
of Tyrone Price, a teenage friend of Maldonado. Price testified that he saw
Maldonado strangle Virginia, drag the body into the open field, and douse it with
rubbing alcohol. Price initially told police investigators two different stories, neither
of which implicated Maldonado in the murder. Price finally cooperated with police
as part of a plea agreement. . . . As part of the plea agreement, Price had to pass a
voice stress test to establish his truthfulness.
During his testimony Price began to state, without solicitation, that he had
taken the polygraph test.[1] Defense counsel objected when Price said, “I took a lie
—.” The objection was sustained and the statement was stricken. Later, a detective
[Detective Moskal] testified about his investigation in the case. Defense counsel
strongly challenged the quality of Price’s testimony, and suggested that the police
prematurely identified Maldonado as the 2primary suspect, notwithstanding Price’s
prior contradictory statements to police.[ ] In an attempt to restore the detective’s
1
Maldonado’s counsel on cross-examination impeached Price’s credibility by questioning Price about the
discrepancies between Price’s testimony and his previous statements to a police detective. Defense counsel put particular
emphasis in cross-examination on Price’s differing accounts concerning how, when, and where the victim’s clothes were
removed. The cross-examination included this exchange:
Q: You go to the adult system on a murder, it ain’t til you’re 21, is it?
A: No, it’s not.
Q: How long you talking about then?
A: Rest of your life.
Q: So then you got yourself a lawyer and he set up a meeting for you and Det. Moskal,
Mr. Rosenbaum, and you started to give a little bit more of the truth?
A: Yes, I did.
...
Q: So you told them that you weren’t there when the killing took place, but Henry told
you about it?
A: That’s right.
Q: That’s what you told them. And you figured that was going to be good enough,
right?
A: Right.
Q: You were going to get your little deal, and, once you got your little deal, then you
didn’t have to worry about it anymore?
A: No.
Q: Did you get out of the detention home after you told them that little story?
A: No.
Q: So then you decided you were going to tell [the police] another story, right?
A: I was – I took a lie –
Defense counsel then interrupted Price, and the state objected to the interruption. After a sidebar conference, the court
sustained an objection to Price’s volunteering information about the test. Price never finished his sentence.
2
When the prosecution requested at sidebar to question Moskal about having administered a CVSA test to Price,
the court stated, “I don’t believe the CVSA test results are going to come in, but I think there’s enough of an opportunity
of an open door from the Defendant’s perspective in that he really did rely solely upon [sic] his things, so I’ll allow some
latitude. . . .” The re-direct included this exchange:
No. 03-4528 Maldonado v. Wilson Page 4
credibility, the prosecution announced at sidebar its intention to ask [Moskal] on re-
direct if he believed Price’s story and why.
Defense counsel strongly objected to the prosecution’s announced intention
to question the detective about the methods he used to corroborate Price’s story. The
court allowed this line of questioning to proceed. The detective stated that he
believed Price’s third interview which incriminated Maldonado, “[b]ecause he was
tested.” Defense counsel objected, but the court overruled the objection. After a
sidebar, the court refused to strike the testimony.
Maldonado, 2001 WL 1044078 at *3.
On direct appeal, Maldonado stated as his fifth assignment of error, “The trial court erred
in allowing the state to elicit testimony regarding the fact that Tyrone Price had taken a [CVSA] test
to determine whether or not he was telling the truth and the prosecutor committed misconduct when
he elicited testimony vouching for the credibility of state’s witness Tyrone Price.” Maldonado
argued both that evidence about the CVSA was inadmissible under Ohio law, and that “[t]he trial
court’s failure to exclude this testimony violated Mr. Maldonado’s constitutional due process rights
to a fair trial.” The Ohio Court of Appeals affirmed the conviction. The court read the prosecution
decision to present evidence concerning Price’s taking the CVSA, as an attempt to rehabilitate
Detective Moskal’s credibility. Id. at *3. The court stated that Moskal’s testimony that he believed
Price’s last account because he was tested, “implied that Price passed the test and the police then
found his story sufficiently credible to investigate Maldonado for the murder.” Id. The court stated
that “the better practice would be to sustain the objection and strike the detective’s statement that
Price was tested.” Id. Nonetheless, the court held, it could not conclude that “the brief mention of
Q: Now, when Mr. Bradley first asked you about Tyrone Price’s statement and your
determination as to when he was lying and when he wasn’t, he asked you if that was partially
based upon his statement?
A: Yes.
Q: And then he later got you to say that it was based on that statement, which is more accurate,
and why?
A: One more time with that, please.
Q: Well, how do we know that [Price] is telling the truth? Did we take precautions to verify
that?
A: Yes, we did.
[Defense counsel]: Objection.
The Court: Overruled.
Q: [Defense counsel] is at least inferring that . . . that you went over [Price’s] statement with
him until he got it straight?
A: That’s not correct.
Q: Did [Price] --
The Court: That would be overruled.
Q: Did [Price] lie to you?
A: At the beginning, yes.
Q: And you were able to confront him with those lies through various means and determine --
A: Yes.
Q: – what the truth was and what it wasn’t?
A: Yes.
Q: Do you believe everything he told you to this day?
A: I do.
Q: Everything?
A: No, just the last interview is what I believe.
Q: And why do you believe that?
A: Because he was tested.
[Defense counsel]: Objection.
The Court: Overrruled.
No. 03-4528 Maldonado v. Wilson Page 5
the test, without further explanation or detail, was prejudicial.” Id. The court did not address
Maldonado’s prosecutorial misconduct claim. The Ohio Supreme Court denied review of the case.
Maldonado petitioned for a writ of habeas corpus on August 9, 2002, in the United States
District Court for the Northern District of Ohio. The district court adopted a magistrate judge’s
recommendation that the petition be dismissed. With regard to the due process claims at issue here,
the district court found that the state court evidence ruling did not deprive Maldonado of a
fundamentally fair trial. It decided that the Ohio Court of Appeals correctly “concluded that the
wealth of evidence against Maldonado rendered the trial court’s erroneous evidentiary ruling
harmless.” The Ohio Court of Appeals “reasonably applied federal constitutional law in reaching
[its] conclusions,” the district court held. The district court treated Maldonado’s improper vouching
claim only in a footnote, observing that the same evidentiary error—admitting testimony about
Price’s having been tested—gave rise to both due process claims. The court concluded, “The fact
that Maldonado analyzes this single evidentiary error from two angles does not alter the Court’s
conclusion that the admission of this testimony does not warrant” a grant of the habeas petition.
The district court granted a certificate of appealability on Maldonado’s claims that his due
process rights were violated when the trial court admitted Moskal’s testimony about having tested
Price, and when the prosecutor elicited the testimony.
II. Standard of Review
This court reviews de novo the district court’s decision to deny a petition for habeas corpus.
Northrop v. Trippett, 265 F.3d 372, 376 (6th Cir. 2001). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, this court reviews
deferentially state court decisions affirming the conviction of a habeas petitioner. State court
determinations of fact “shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
With regard to any habeas claim adjudicated on the merits in state court, the federal court may not
grant a petition for habeas corpus unless the state court adjudication “(1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” Id. § 2254(d). A state court’s determination is contrary to federal law when the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or
on indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court’s
decision is an unreasonable application of federal law when the state court correctly identified the
applicable legal principle from Supreme Court precedent, but applied that principle to the facts
before it in an unreasonable manner. Id. at 413.
A modified form of AEDPA deference applies to Maldonado’s claim that the state court’s
admission of Moskal’s testimony about having tested Price deprived Maldonado of due process.
Maldonado’s brief before the Ohio Court of Appeals argued that the trial court’s admission of
Moskal’s comment violated both Ohio evidence law and the Due Process Clause. The Ohio Court
of Appeals ruled that “the better practice would be to sustain the objection and strike the detective’s
statement,” but it concluded that the brief mention of the test was not prejudicial. The Ohio Court
of Appeals did not use the terms “due process” or “fundamentally unfair”; the court appeared to
decide the issue solely on the basis of state evidence law.3 2001 WL 1044078 at *3.
3
Ohio courts, after determining that a trial court improperly admitted evidence, then address “whether the
admission . . . constituted prejudicial error.” State v. Rowe, 589 N.E.2d 394, 404 (Ohio Ct. App. 1990). The prejudice
inquiry determines whether reversal of the conviction is warranted. Id. The Ohio Court of Appeals has cited five factors
relevant to the prejudice inquiry in cases involving improper admission of polygraph evidence:
No. 03-4528 Maldonado v. Wilson Page 6
In Howard v. Bouchard, 405 F.3d 459 (6th Cir. 2005), this court held that a modified form
of AEDPA deference applied in a setting similar to this case. In Howard, the petitioner argued that
admission of a prosecution witness’s identification testimony violated state evidence law and the
Due Process Clause. The state appeals court had held that the testimony was admissible and, even
if it were not, the error was “harmless beyond a reasonable doubt.” Id. at 468. As here, the state
court in Howard was silent as to whether its harmless error finding was rooted in state evidence law
or in federal constitutional law. Id. at 469. This court applied the form of AEDPA deference
articulated in Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). Harris held that when a state court
“decides a constitutional issue by form order or without extended discussion,” the habeas court must
conduct an independent review of the record and applicable law. Id. at 943 n.1. Ultimately,
however, the inquiry remains the AEDPA standard of whether the state court result is contrary to
or unreasonably applies clearly established federal law. Id. at 943. This court in Clifford v.
Chandler, 333 F.3d 724, 730 (6th Cir. 2003), as in Howard, applied AEDPA deference where the
petitioner had appealed a state court evidentiary ruling both as a state evidence law error and as a
due process violation. In Clifford, the state’s highest court had ruled only that the trial court
correctly applied state evidence law. Id. at 729.
Our conclusion that AEDPA deference applies is unaffected by the abrogation of Clifford.
This court held in Maples v. Steagall, 340 F.3d 433, 437 (6th Cir. 2003), that “[b]oth Clifford and
[Doan v. Brigano, 237 F.3d 722 (6th Cir. 2001)] were abrogated by Wiggins v. Smith, 539 U.S. 510
(2003).” In Maples, the state court had summarily rejected the petitioner’s ineffective assistance
of counsel claim; this court applied de novo review, concluding that the claim was not “adjudicated
on the merits in state court.” Id. at 435, 437. Howard, in applying Harris, did not distinguish
Clifford. Although Clifford is no longer good law (and therefore, by implication, Maples mandates
that de novo review apply in a Clifford situation), Clifford is sufficiently distinguishable from this
case that applying AEDPA deference does not violate this court’s precedent. In Clifford, the highest
state court found that the trial court did not err, under state evidence law, in admitting the challenged
evidence. 333 F.3d at 729. It did not address the due process aspects of the challenge. In this case
and Howard, on the other hand, the state court either found that the evidence was improperly
admitted and proceeded to a “prejudice” or “harmless error” analysis; or found that the trial court
properly admitted the evidence, but made findings in the alternative on harmless error. In each case,
the defendant had presented a constitutional claim, and the court’s prejudice inquiry bore some
similarity to a determination, under the Due Process Clauses of the Fifth and Fourteenth
Amendments, of whether the admission of the challenged evidence rendered the trial fundamentally
unfair. Therefore, here, as in Howard, modified AEDPA deference is appropriate. This standard
of review requires the court to conduct a careful review of the record and applicable law, but
nonetheless bars the court from reversing unless the state court’s decision is contrary to or an
unreasonable application of federal law. Howard, 405 F.3d at 467 (citing Harris, 212 F.3d at 943).
(1) [w]hether defendant objected and/or sought a cautionary instruction; (2) whether the reference was
inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to
bolster a witness’s credibility; and (5) whether the results of the test were admitted rather than merely
the fact that a test had been conducted.
Id. (quoting People v. Rocha, 312 N.W.2d 657, 661 (Mich. App. 1981)). Rowe, on which the Ohio Court of Appeals
relied in finding that Maldonado’s argument lacked merit, does not equate the prejudice inquiry under Ohio law with
the question of whether the defendant received a fundamentally unfair trial under the Due Process Clause. See id. at 404.
However, other Ohio cases, some of which are cited in Rowe, do make this connection. See State v. Hegel, 222 N.E.2d
666, 669 (Ohio Ct. App. 1964).
No. 03-4528 Maldonado v. Wilson Page 7
III. The Admission of Moskal’s Testimony
Because the Supreme Court has not held that admission of testimony relating to a truth test
renders a trial fundamentally unfair, the Ohio Court of Appeals’ decision to uphold Maldonado’s
conviction, despite the arguably improper admission of Moskal’s statement about having tested
Price, was not contrary to or an unreasonable application of federal law.
The Due Process Clause provides a remedy when the admission of unduly prejudicial
evidence renders a trial fundamentally unfair. Payne v. Tenn., 501 U.S. 808, 825 (1991) (citing
Darden v. Wainwright, 477 U.S. 168, 179-183 (1986)). On the other hand, “it is not the province
of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991). The Ohio Court of Appeals indicated that the trial court
misapplied Ohio law when it overruled defense counsel’s objection to Detective Moskal’s statement
that he believed Price because Price “was tested.”4 Nonetheless, the state court held, the error did
not prejudice the proceedings. The question before this court is whether, regardless of the propriety
under Ohio law of admitting Moskal’s statement, the statement rendered the trial fundamentally
unfair. Payne, 501 U.S. at 825; Moore v. Tate, 882 F.2d 1107, 1109 (6th Cir. 1989).
The Ohio Court of Appeals’ decision was not unreasonable under the AEDPA standard. The
Supreme Court has never held that statements implying the results of a polygraph or similar test
render the defendant’s trial fundamentally unfair, in violation of the Due Process Clauses of the Fifth
and Fourteenth Amendments. Further, we are aware of no federal court of appeals that has found
a due process violation warranting a grant of habeas relief under these facts. Indeed, three circuits
have rejected habeas petitioners’ claims that testimony about truth testing violated the petitioners’
due process rights. Notably, two reached this conclusion under pre-AEDPA de novo review.
Weston v. Dormire, 272 F.3d 1109, 1113 (8th Cir. 2001) (AEDPA deference); Cacoperdo v.
Demosthenes, 37 F.3d 504, 510 (9th Cir. 1994) (de novo review); Escobar v. O’Leary, 943 F.2d
711, 720 (7th Cir. 1991) (de novo review). While these cases are distinguishable from the present
one in important respects,5 they do not imply that testimony regarding truth testing violates due
4
The district court noted, “No one disputes that it was error for the state court to admit the testimony that is at
the heart of this claim.” The warden argues, however, that it did assert proper application of Ohio evidence law in its
answer / return of writ, where it stated that Maldonado’s petition “is designed to create the specter of error where none
occurred.” The prosecution asked Moskal about “what steps were taken to verify Price’s account” only as a way of
rehabilitating Moskal, in response to defense counsel’s impeachment of Moskal’s credibility, the warden argues.
Appellee’s Br. at 19. Further, the warden contends that Moskal’s reference to Price’s having been “tested,” because it
was brief , not repeated, and did not disclose the results, was innocuous. Id. at 22.
Ohio law appears to lend little support to these arguments. Ohio allows the results of a polygraph examination
to be admitted if numerous conditions are satisfied, including the defendant’s stipulating to their admission. State v.
Souel, 372 N.E.2d 1318, 1323 (Ohio 1978). The rule does not appear to distinguish between admitting results of the test
to prove the guilt of the accused, and admitting them to accredit a witness. The same standard applies to the testing of
defendants and to the testing of prosecution witnesses. State v. Rowe, 589 N.E.2d 394, 404 (Ohio Ct. App. 1990). The
mere mention of a witness’s having taken a lie detector test—not just admission of test results—may be prejudicial error.
State v. Smith, 178 N.E.2d 605, 607 (Ohio Ct. App. 1960). The Ohio Court of Appeals stated that Moskal’s citing the
test as a reason he believed Price’s last story strongly implied that Price had passed the test. 2001 WL 1044078 at *3.
While the reference was brief, it formed the centerpiece of the prosecution’s re-direct.
5
Two principal circumstances supported these courts’ holding the trial to have been fundamentally fair:
(1) testimony about the test did not divulge the results and therefore did not play a key role in rehabilitating or
discrediting a witness, see Weston, 272 F.3d at 1113; Cacoperdo, 37 F.3d at 510; Escobar, 943 F.2d at 720; and (2) the
court struck the testimony or offered to give a corrective instruction to the jury, see Cacoperdo, 37 F.3d at 510. In
contrast, Moskal’s comment not only disclosed that Price took a test, but also strongly implied that the test proved Price
to be truthful in his final version of the facts behind the murder—the version that most strongly implicated Maldonado.
Moskal stated that Price was credible because he was tested. With forewarning of the prosecution’s plan to question
Moskal about the test, the trial court stated in a sidebar conference that it would “allow some latitude” for questioning
about the test but would not permit the results to be admitted. Therefore, the prosecutor structured his questions (“Did
No. 03-4528 Maldonado v. Wilson Page 8
process. Finding a due process violation here would necessarily imply that the Constitution requires
all states to have rules of evidence precluding some testimony about truth tests. No Supreme Court
precedent demands this result, and the state court’s decision therefore was not unreasonable under
28 U.S.C. § 2254(d).
The district court therefore properly denied Maldonado’s due process claim.
IV. Prosecutorial Misconduct
The district court granted a certificate of appealability on ground one of Maldonado’s habeas
petition, which includes his claims both that the trial court improperly admitted Moskal’s testimony,
and that the prosecutor improperly vouched for Price’s credibility by eliciting testimony about
Moskal’s having tested Price. In his brief on appeal, Maldonado does not assert a due process
violation based on prosecutorial misconduct as a ground for habeas relief. Instead, he refers to this
claim only indirectly. See Appellant’s Br. at 12 (“Moreover, both the investigating detective,
Detective Moskal, and the prosecutor vouched for Price’s veracity.”). Therefore, he has forfeited
this claim on appeal. See United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999) (quoting
McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997)) (“[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived. . . .”).
For the foregoing reasons, we AFFIRM the district court’s denial of Maldonado’s petition.
we take precautions to verify that?” “And why do you believe that?”) in order to imply that Price had “passed” a truth
test. This situation stands in contrast to cases in which a polygraph test was mentioned merely inadvertently or in
passing. See Weston, 272 F.3d at 1113; Cacoperdo, 37 F.3d at 510. Further, testimony about Price’s having been tested
played a central role in the prosecution’s strategy. Price’s admission at trial that he had lied repeatedly to the police
undermined the credibility of his eyewitness account, and therefore formed the main obstacle to the prosecution’s theory
of the case. Moskal’s comment served to rehabilitate the credibility of the prosecution’s key witness. Finally, unlike
in Cacoperdo, the trial court overruled the defendant’s objection without offering to strike the evidence or to give a
curative instruction to the jury.