Session January 9, 2019
by Permission from the Court of Criminal Appeals Criminal
Court for Hamilton County No. 294000 Barry Steelman, Judge.
granted permission to appeal to determine whether the Court
of Criminal Appeals misapplied the standard of review
applicable to trial court decisions to admit or exclude
evidence. In this case, the trial court determined that the
defendant's statements during a post-polygraph interview
were inadmissible pursuant to Tennessee Rule of Evidence 403.
On interlocutory appeal, the Court of Criminal Appeals
concluded that the trial court abused its discretion by
excluding the statements. The Court of Criminal Appeals
reversed the trial court's ruling and remanded the matter
for further proceedings. We granted the defendant's
application for permission to appeal. We now hold that the
Court of Criminal Appeals erred when it concluded that the
trial court abused its discretion. Accordingly, we reverse
the judgment of the Court of Criminal Appeals and remand this
matter to the trial court for further proceedings consistent
with this opinion.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Reversed; Case Remanded to the Trial
Herbert H. Slatery III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General; Courtney N.
Orr, Assistant Attorney General; Neal Pinkston, District
Attorney General; and Leslie Ann Longshore, Assistant
District Attorney General, for the appellee, the State of
E. Smith, District Public Defender, and Joseph Lodato,
Assistant District Public Defender, Chattanooga, Tennessee,
for the appellant, Quintis McCaleb.
Jeffrey S. Bivins, C.J., delivered the opinion of the Court,
in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and
Roger A. Page, JJ., joined.
JEFFREY S. BIVINS, CHIEF JUSTICE.
and Procedural Background
McCaleb ("the Defendant") was charged with
committing one count of aggravated sexual battery, Tenn. Code
Ann. § 39-13-504(a)(4) (2014), and two counts of rape of
a child, id. § 39-13-522(a) (2014), all on or
before October 2, 2014. These charges arose from allegations
made by a minor female.
learning of the allegations, the Defendant agreed to take a
polygraph examination. The examination and ensuing interview,
both conducted by Sergeant Malcolm Kennemore of the
Chattanooga Police Department, were videotaped. In response
to repeated assertions by Sergeant Kennemore that the
polygraph indicated that his denials were false, the
Defendant made some incriminating statements. The Defendant
subsequently was indicted.
Defendant filed a motion to suppress the video of the
post-polygraph interview as well as any testimony
"relating to" the interview. Evidence and argument
on the motion were adduced at two hearings, the first in
December 2016, and the second in March 2017.
first hearing, the Defendant and the State agreed that the
video of the polygraph examination itself could not be shown
to the jury. The State asserted that it intended to offer
"the video of the post-polygraph interview" while
acknowledging that "there may be a need for redaction of
certain things," including the interrogating
officer's many references to the polygraph examination
and its alleged results. The State claimed that "there
are a couple of starting points [in the video] that the State
believes would make sense, that we could start just at that
point and go forward with minimal chopping up after
that." However, the State made no proffer of a redacted
version of the video recording. Rather, the video of the
entire meeting between the Defendant and Sergeant Kennemore
was made an exhibit to the hearing. Only that portion of the
video memorializing the post-polygraph interview was viewed
by the trial court, however. We summarize here those portions
of the video reviewed by the trial court that are relevant to
the issue before us.
post-polygraph interview began with Sergeant Kennemore
telling the Defendant,
Quintis, I'm, I'm going through the polygraph charts,
evaluating them, and it's obvious that something happened
with you and her. We're going to get through this,
though, okay? We're, we're going to sort this out and
figure out what's going on there, okay? But it's
obvious that some kind of contact like this happened with you
When I asked you those questions specifically about, like,
"Did you touch her bare vagina?" "Did she
touch your bare penis?" It's obvious there's
something happening there, that something occurred with that,
so I'm going to help you through this. We'll work
this out, okay?
time later, Sergeant Kennemore said, "Tell me
specifically what happened with her. Now, again, I-doing the
polygraph charts, I see something happened with her."
Asked again, "[W]hat happened with her?", the
Defendant responded, "I can't, I can't find
nothing that I can remember me doing." Sergeant
Kennemore then said,
Well, let me be real clear, okay? The polygraph, it
doesn't get into your subconscious or anything like that.
It doesn't look at anything that you're not thinking
about right now. It doesn't have that capability. I
can't do that. I can't get into your subconscious
mind. All I can do with a polygraph is look at [it] and say,
ask you specific questions and say[, ] "You're
thinking about something with that question," okay? Are
you thinking about it right now? And that's obviously
that you are.
I'm going to ask you the question, for instance,
"Did you touch that girl's bare vagina?" I can
tell without any question whatsoever that, yeah, you did. I
can tell it with a polygraph. There's no question at all
in my mind with that.
You know, when I, when I say, "Did you do that while at
your residence?" Yeah, abs-there's no question. I
can tell that with the polygraph. I can see it on the, the
charts there as I look at the charts on the computer screen.
When I print out the charts, I do a-I can see it on the
charts themselves when I print these charts. It's not
just my judgment, okay? In the whole mathematical scoring
rhythm that I do with these; right? I've been doing this
for years, okay? It's a whole mathematical process and
you come out with plus and minus numbers, basically. When you
get down here to the bottom, this is what really is
It's a minus 9 is what this comes out. I'm not going
to try and confuse you with all this because it gets very
complicated, but I will show you that when it shows a minus
nine, you go over here and you look at this and say,
"What does that mean?" All right. If you look in
this area right here, minus three or any less
(unintelligible) or minus in these numbers as a grand total,
that means deception indicated, so it shows that you were
being deceptive about these questions.
. . . .
This is a computer printout. It says "deception
indicated. Probability of deception is greater than 99
percent." And it never says a hundred. It's
programmed with that.
Defendant responded to these assertions by saying, "I
have no idea. I wish I could tell you. I, I put this on my
life, I wish I could tell you what happened. I just don't
know." Sergeant Kennemore then said, "Well,
Quintis, I can say with a polygraph that you absolutely do
know, okay? I can, I can say that without question,
Sergeant Kennemore then told the Defendant,
If you leave here without us talking about this and without
us really getting down from your part what happened and that
kind of thing with this girl, okay? If you leave here with
that, what I'm going to have to do is write a report and
send it over to Detective Bell, and all he does is this type
of investigation. That's his full-time job as well.
I'm going to have to write a report that says, "I
asked him these questions you wanted to know the answer to,
and yes, he absolutely did this with this girl. He was lying
to me, and he did this with this girl." That's the
way it is. That's all I can write, okay?
And I can write down and say, "I asked him these
questions and he did it, he absolutely did it," and
that's all he's going to look at; nothing else, okay?
time later, Sergeant Kennemore stated, "I can't look
at the polygraph and say 'he doesn't know what
happened.' All I can do is say, 'Listen, man, he does
know what happened.' And it's obvious you know what
happened with her, okay?" Sergeant Kennemore
subsequently told the Defendant, "[W]hat I can tell from
the polygraph is that you absolutely do remember touching her
vagina. I mean, there is no question about that."
time later, Sergeant Kennemore said, "Let's just
start step by step, okay? And I know you remember this, okay,
so please don't tell me you don't remember, all
right? Because it's obvious that you do."
Subsequently, Sergeant Kennemore said, "I can say for
sure-because I just did this polygraph-I can say without any
question that you remember touching her bare vagina. I can
say for sure that you remember her touching your bare penis,
okay? I can say those without any question whatsoever."
Sergeant Kennemore later warned the Defendant, "We
don't want to go to court and, and say, 'Listen,
Judge, this is what happened, I can tell you what happened
and this is it,' okay? Just like that, and say, he, he,
'He said nothing happened, he's not saying
total, Sergeant Kennemore spoke the word
"polygraph" fifteen times during the course of the
post-polygraph interview. Eventually, the Defendant admitted that
the minor female had touched his penis and that he had
touched her vagina.
addition to repeatedly referring to the polygraph
examination, Sergeant Kennemore referred numerous times to
the alleged victim's accusations and also spoke with the
Defendant about past sexual abuse the Defendant had
first hearing, the Defendant argued that allowing the jury to
see only those portions of the interview that did not include
the officer's references to the polygraph would violate
the "rule of completeness" and also, more
significantly, would violate his constitutional rights.
Defense counsel also speculated that the State would not be
prejudiced by excluding the video because the officer himself
could testify so long as he did not refer to the polygraph.
The court responded that it was "interested maybe in
hearing more from you at a later time about the . . .
possibility that the jury won't be able to consider these
statements in the context if part of it is redacted."
Defendant also argued that the officer's frequent
references to the polygraph examination during the
post-polygraph interview rendered the Defendant's
incriminating statements coerced and involuntary and,
therefore, inadmissible. Proof on this point was adduced at
the second hearing through the testimony of Sergeant
Kennemore described his position with the Chattanooga Police
Department as "the polygraph examiner and psychological
advisor." He described his training as a polygraph
examiner. He then reviewed the consent forms the Defendant
signed regarding the polygraph examination as well as the
Defendant's written waiver of his Miranda
rights. These documents were admitted into evidence. Sergeant
Kennemore testified that the polygraph examination began at
1:25 p.m. on October 27, 2014, at the Chattanooga Police
Department. The Defendant arrived with his parents and was
not under arrest. Sergeant Kennemore learned that the
Defendant was nineteen years old, had completed the eleventh
grade, and was home-schooled. Sergeant Kennemore confirmed
that the entire interview had been videotaped.
State did not examine Sergeant Kennemore about the
Defendant's incriminating statements. Rather, most of the
questions directed to Sergeant Kennemore by both the State
and the defense involved the process of the polygraph
examination and the post-polygraph interview.
trial court took the matter under advisement and issued its
ruling from the bench several weeks later. Initially, the
trial court determined that the Defendant's statements
during the post-polygraph interview were voluntary.
was not entitled to the suppression of his statements on the
basis that they were coerced and, therefore, obtained in
violation of his constitutional rights. However, the trial
court then ruled as a matter of law under the Tennessee Rules
of Evidence that the Defendant's statements should not be
And so then that gets us to [Tennessee Rule of Evidence] 403,
and the defendant's responses to questions, although
relevant and although they have some probative value, the
probative value does not get the statements admitted if the
probative value is substantially outweighed by the danger of
unfair prejudice. And where our courts have ruled that
polygraph examinations and the results of those examinations
are inherently untrustworthy, that they're not probative,
the fact that the defendant would need to refer to the
polygraph examination in order to explain the context of his
statements so that the jury could fully understand his
statements and why he may have said what he did, that creates
a danger, a high danger of unfair prejudice, because a jury
might speculate about the results of the polygraph, and our
courts have found that polygraph results are not probative.
So under Rule 403, evidence of the defendant's
statements, even though voluntary, should not be admitted
because the probative value of any statement would be
substantially outweighed by the danger of the unfair
prejudice that would come from the jury being aware that
those statements were made post-polygraph, so the Court will
suppress any statement of the defendant secured by ...