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State v. McCaleb

Supreme Court of Tennessee, Knoxville

August 21, 2019


          Session January 9, 2019

          Appeal by Permission from the Court of Criminal Appeals Criminal Court for Hamilton County No. 294000 Barry Steelman, Judge.

         We 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.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed; Case Remanded to the Trial Court

          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 Tennessee.

          Steve 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.



         Factual and Procedural Background

         Quintis 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.

         Upon 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.

         The 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.

         At the 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.[1] We summarize here those portions of the video reviewed by the trial court that are relevant to the issue before us.[2]

         The 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 and her.
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?

         A short 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 concerning.
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.

         The 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, okay?"

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?

         A short 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."

         A short 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 anything.'"

         In total, Sergeant Kennemore spoke the word "polygraph" fifteen times during the course of the post-polygraph interview.[3] Eventually, the Defendant admitted that the minor female had touched his penis and that he had touched her vagina.

         In 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 suffered.[4]

         At the 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."

         The 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.

         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.

         The 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.[5]

         The 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. Accordingly, the

         Defendant 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 admitted:

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 ...

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