State v. Key

[Cite as State v. Key, 2017-Ohio-4098.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27199
:
v. : T.C. NO. 15-CR-3377
:
DARIUS D.D. KEY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___2nd ___ day of _____June_____, 2017.
...........
MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, Assistant Public Defender, 250 E.
Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Darius Key, filed
July 25, 2016. Key filed a delayed appeal from his June 8, 2016 Judgment Entry of
Conviction, following a jury trial, on one count of rape (victim under ten), in violation of
R.C. 2907.02(A)(1)(B), a felony of the first degree. Key was sentenced to 15 years to
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life. At issue herein is the trial court’s refusal to allow Key to testify that he volunteered
to take a polygraph examination. We hereby affirm the judgment of the trial court.
{¶ 2} Key was indicted on November 12, 2015, and a not guilty plea was entered
on November 18, 2015. On December 21, 2015, Key filed a “Motion for Funding for
Expert Witnesses,” which provides in part that he “is also asking the Court for funding for
an experienced polygraph expert to administer a polygraph examination to determine the
truthfulness [of his] assertion of innocence. Mr. [Key] has been warned that he will be
bound by the results of the polygraph examination, but is nevertheless eager to clear his
name by submitting to such testing.” Key directed the court’s attention to State v.
Sharma, 143 Ohio Misc.2d 27, 2007-Ohio-5404, 875 N.E.2d 1002 (C.P.), wherein the
Summit County common pleas court granted Sharma’s request for an evidentiary hearing
to qualify his polygraph examiners as experts and admitted the nonstipulated results of
the testing at trial. Key argued as follows:
In Mr. [Key’s] case, the Court may wish to conduct an evidentiary
hearing to evaluate the reliability of the polygraph evidence, to allow the
polygraphist to testify as to the general acceptance of polygraph use and
methodology, and further, to acknowledge that the defendant was not being
deceptive in his answers to questions pertaining to the charges against him.
Sharma, supra. This may help the charges against Mr. [Key] to be fairly
evaluated and dealt with without the necessity of trial.
In view of the potentially substantial sentence of incarceration Mr.
[Key] is facing, as well as other collateral consequences, particularly as they
relate to sexual predator standing and reporting, the Defense urges the
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Court to permit Mr. [Key] to undergo a polygraph examination by a
competent examiner, to hold any pretrial hearing that the Court finds to be
appropriate, and to find the results admissible.
{¶ 3} The trial court overruled Key’s request on December 30, 2015, after a
hearing. At the hearing, the State noted that it did not intend to stipulate to the
admissibility of the polygraph testing, and the court indicated that it “has no authority to
order a polygraph examination, or to allow its admissibility, unless that State stipulated to
such.”
{¶ 4} At trial, in the course of questioning about DNA samples that Key provided in
the course of the investigation of his offense, the following exchange occurred:
Q. And you voluntarily did this, right?
A. Yes, sir.
Q. Okay.
A. I took one Q-tip and swabbed my left cheek, and I took another
one is one of my right [sic]. And she inserted them into a little package and
let me see that she inserted them. And I think I initialed them, and she
sealed them up.
Q. Okay.
A. And after that, I was questioned again by the other detective,
basically, the same questions. They may have been a different form, but
the same questions. And then they asked me would I agree to a polygraph
test, I told them yes, but - -
MS. CONNELLY: Judge.
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BY MR. STENSON:
Q. All right. Stop again.
THE COURT: That object [sic] is sustained.
MR. STENSON: Yeah. I - -
THE COURT: The remark concerning a polygraph test is stricken.
MR STENSON: Correct. It’s - -
THE COURT: You’re to give it no consideration.
{¶ 5} Directing our attention to the above exchange, Key asserts the following
assignment of error:
THE TRIAL COURT ERRED BY PREVENTING MR. KEY FROM
TESTIFYING THAT HE OFFERED TO TAKE A POLYGRAPH
EXAMINATION.
{¶ 6} Key argues that “several jurisdictions have expressly permitted the
introduction of offers to take a polygraph examination.” According to Key, the “reason
polygraph offers are different from polygraph results is that polygraph examinations are
unreliable tests that the public often incorrectly views as reliable.” He argues that the
“evidentiary value of an offer to take a polygraph examination is only as strong as the
declarant’s belief in the reliability of the test.” Key asserts that jurors “may not be able to
assess the scientific reliability of a polygraph examination results, but jurors can assess
how a witness’s perception of the reliability affects the credibility of his statements, and
that is all that would have been at issue in this case because credibility was the central
issue.” Finally, Key argues that “[b]ecause the evidentiary value of an offer to take a
polygraph does not depend on whether a polygraph is scientifically valid, the evidence
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was more probative than prejudicial.”
{¶ 7} The State responds that this “Court is in good company in disallowing the
use of a defendant’s offer to take a polygraph as evidence of consciousness of innocence.
The Court should not accept Key’s invitation to adhere to the minority view.” The State
further asserts that “Key took the stand in his own defense and, in addition to his attempt
to present his willingness to take a polygraph, adamantly denied that he raped [the
victim.]” According to the State, “[m]oreover, [the victim’s] family members related how
Key denied the assault at the time of the incident, and the detective who interviewed Key
noted that he denied the allegations during his interview. With this in mind, any probative
value derived from Key’s bare willingness to submit to a polygraph was negligible.” The
State asserts that given “the low probative value of Key’s self-serving statement regarding
a potential polygraph test and the high risk that such a statement would needlessly
confuse the issues before the jury, the trial court struck the proper balance in excluding
the evidence.” Finally, the State asserts that since “any error committed by the trial court
did not affect Key’s substantial rights, the error would have been harmless, and Key’s
argument must be rejected for this final reason.”
{¶ 8} “ ‘The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.’ State v. Sage, 31 Ohio St. 3d 173, 180, 510 N.E.2d 343
(1987).” State v. Williams, 2d Dist. Montgomery No. 26369, 2016-Ohio-322, ¶ 17. “A
trial court abuses its discretion when it makes a decision that is unreasonable, arbitrary,
or unconscionable. State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463,
¶ 24.” Id. “The Supreme Court of Ohio has defined ‘abuse of discretion’ as an
‘unreasonable, arbitrary, or unconscionable use of discretion, or as a view or action that
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no conscientious judge could honestly have taken.’ State v. Kirkland, 140 Ohio St. 3d 73,
2014-Ohio-1966, 15 N.E.3d 818, ¶ 67.” Id.
{¶ 9} In State v. Russell, 2d Dist. Montgomery No. 21458, 2008-Ohio-774, this
Court held that it was error for the State to elicit testimony from its witness that she had
agreed to submit to a polygraph examination, and that her plea agreement was contingent
upon her passing the test, since “[b]y clear implication, the prosecutor in this case
informed the jury that she was vouching for Hargrove’s credibility because she wouldn’t
have put Hargrove on the witness stand if Hargrove hadn’t taken, and passed, the
polygraph examination.” Id., ¶ 118. This Court noted as follows:
As a general rule, results of polygraph tests are not admissible to
prove the guilt or innocence of the accused because such tests have not
been recognized by the scientific community as being a reliable method for
determining the veracity of the examinee. State v. Rowe (1990), 68 Ohio
App.3d 595, 609, 589 N.E.2d 394; State v. Hegel (1964), 9 Ohio App. 2d 12,
13, 222 N.E.2d 666. Pursuant to this general rule, some courts have also
held that, in addition to the results of a polygraph test, testimony expressing
either the willingness or the refusal to submit to a polygraph examination
should not be admitted in evidence. Hegel, 9 Ohio App. 2d at 13, 222 N.E.2d
666; State v. Smith (1960), 113 Ohio App. 461, 463–65, 178 N.E.2d
605. However, polygraph test results may be admissible for the purposes
of corroboration or impeachment, providing that the conditions set forth
in State v. Souel (1978), 53 Ohio St. 2d 123, 132, 372 N.E.2d 1318, are
strictly followed. See Rowe, 68 Ohio App. 3d at 609–10, 589 N.E.2d
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394; State v. Lascola (1988), 61 Ohio App. 3d 228, 234–36, 572 N.E.2d 717.
***
Initially, it should be noted that the State argues that we have held in
a number of cases that it is permissible for the prosecution to ask one of its
witnesses whether he or she agreed to submit to a polygraph examination
as part of a negotiated plea deal, citing: State v. Schlosser (May 24, 1996),
Montgomery App. No. 14976, 14968; State v. Ballard (Nov. 22, 1996),
Montgomery App. No. 15410; State v. Perry (Nov. 25, 1998), Miami App.
No. 97CA61, 98CA5; and State v. Scott (August 4, 2006), Montgomery
App. No. 21260, 2006–Ohio–4016.
Id., ¶ 87, 107.
{¶ 10} In Schlosser, 1996 WL 280038, *15 (May 24, 1996), this Court noted that
“[w]e see no abuse of discretion on the part of the trial court in admitting evidence which
reflected a witness’ mere willingness to take [a polygraph] examination.” As this Court
noted in Scott, ¶ 11-12:
In Ballard, we held that the trial court did not err in denying a mistrial
where a prosecution witness who was a co-defendant testified that his plea
agreement required him to take a polygraph test if necessary. Likewise,
we held in Perry that the trial court did not err in denying a mistrial where a
prosecution witness testified that the defendant had asked to take a
polygraph test. In both cases, we noted the existence of conflicting case
law as to whether evidence of a willingness or refusal to submit to a
polygraph test is admissible. We also expressed our view that a trial
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court’s admission of evidence about a witness’ willingness to take a
polygraph test was permissible and did not constitute an abuse of
discretion.
It does not follow, however, that the trial court was required to admit
evidence of Scott’s willingness to take a polygraph test merely because the
admission of such evidence may not constitute an abuse of discretion. To
the contrary, a trial court also has the discretion to deny the admission of
evidence concerning the willingness to take a polygraph test. As we
recognized in Perry, the admission of such evidence necessarily invites a
jury to speculate about whether a test was taken and what the results were.
Such issues are “too remote from competent evidence to reasonably and
fairly be probative of guilt or innocence.” Perry, supra, at *7.
{¶ 11} After reviewing the authorities cited by the State in Russell, this Court
noted as follows: “We conclude that we were wrong in holding that a witness’s willingness
to take a polygraph examination may properly be admitted in evidence over objection.
In reaching this conclusion, the members of this appellate panel are unanimous.” Id., ¶
114. Finally, this court noted that to “the extent that our prior jurisprudence is inconsistent
with this conclusion, we disapprove of that jurisprudence, and hereby signal our
unwillingness to follow it in future cases.” Id., ¶ 119.
{¶ 12} Based upon the foregoing analysis, we conclude that Key’s assigned error
lacks merit. In other words, the trial court did not err in refusing to allow Key to testify
that he volunteered to take a polygraph test. Key’s assigned error is overruled, and the
judgment of the trial court is affirmed.
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WELBAUM, J. and TUCKER, J., concur.
Copies mailed to:
Michael J. Scarpelli
Stephen P. Hardwick
Hon. Steven K. Dankof