Smouse, Gregory R.

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Recent Developments: Kosmas v. State: Unsolicited Statement by Witness Inadmissible as Evidence of Defendant\u27s Refusal to Take Lie Detector Test

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University of Baltimore Law ForumVolume 20Number 2 Winter, 1990 Article 91990Recent Developments: Kosmas v. State:Unsolicited Statement by Witness Inadmissible asEvidence of Defendant's Refusal to Take LieDetector TestGregory R. SmouseFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationSmouse, Gregory R. (1990) "Recent Developments: Kosmas v. State: Unsolicited Statement by Witness Inadmissible as Evidence ofDefendant's Refusal to Take Lie Detector Test," University of Baltimore Law Forum: Vol. 20 : No. 2 , Article 9.Available at: http://scholarworks.law.ubalt.edu/lf/vol20/iss2/9because the Supreme Court had twice held that proceedings for the issuance of search warrants are not open. Id. (citing Franks v. Delaware, 438 U.S. 154, 169 (1978); United States v. United States Dist. Court, 407 U.S. 297, 321 (1972». Although the Supreme Court addressed the issue in reference to the public, the court of appeals stated that "the common sense reason why proceedings for search warrants are not open to the public convinces us that the same principles apply when the press seeks disclosure." Id. After rejecting the Sun's claim of a first amendment right of access, the court ex-amined the press's common law right of access. The court held that at common law the press and the public have a quali-fied right to judicial records. Id. at 65 (relying on Nixon v. Warner Communi-cations, Inc., 435 U.S. 589, 597-99 (1978». "Federal Rule of Criminal Proce-dure 41 (g) facilitates observance of this right by directing the judicial officer to file all papers relating to the search war-rant in the clerk's office." Id. The court held that "the common law qualified right of access to warrant pa-pers is committed to the sound discre-tion of the judicial officer who issued the warrant." Id. The court noted that an abuse of discretion standard applied to the judicial officer's decision. When someone seeks to inspect sealed papers, the judicial officer may deny access if sealing is "essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 65-66 (quotingPress-Enterprise v. Superior Court, 464 U.S. 501,510 (1984». In the instant case, the magistrate and the district court both decided that the public interest in the investigation of crime outweighed the Sun's interest in publishing the affidavit. However, the court of appeals noted that "conclusory assertions are insufficient to allow review; specificity is required." Id. at 66. Moreover, the district court failed to examine the affidavit. Id. Upon denying access to sealed papers, the judicial officer must consider alterna-tives. "This ordinarily involves disclosing some of the documents or giving access to a redacted version." Id. In the instant case, the magistrate complied by unseal-ing the warrants and the returns. How-ever, the district court erroneously de-clined the government's offer to disclose a redacted version of the affidavit. Id. The court of appeals resolved what was an ongoing dispute between the press and the government. By recognizing the Sun's common law right of access to the affidavit, the court broadened the free-26-The Law Forum/20.2 dom of speech and granted greater privi-leges to the press. No longer can a judi-cial officer rely on the government's position and summarily seal warrant papers. Rather, the judicial officer must exercise independent judgment in reaching such a decision. -Richard E. Guida Kosmas v. State: UNSOLICITED STATEMENT BY WITNESS INADMISSIBLE AS EVIDENCE OF DEFENDANT'S REFUSAL TO TAKE LIE DETECTOR TEST The Court of Appeals of Maryland re-cently reversed a defendant's murder conviction "because the introductien of evidence that he refused to take a lie detector examination prejudiced his case beyond the point that an instruction to disregard the testimony reasonably could be expected to effect a cure." Kosmas v. State, 316 Md. 587, 589, 560 A.2d 1137,1138 (1989). In so ruling, the court of appeals reversed the court of special appeals. Moreover, this case re-flects the continuing trend in Maryland that evidence of a defendant's refusal to submit to a lie detector exam is inadmis-sible and remains inadmissible even if it is the result of a witness's unsolicited "blurt out." Stanley Kosmas suspected his wife Maria was committing adultery. He hired a private detective, retired Baltimore City police sergeant Edward Mattson, to fol-low her. In early 1985, Mattson discov-ered Maria and her employer in a hotel room. Two months later, Kosmas saw his wife with the same man in her car. In De-cember, 1985, Maria was discovered murdered within a mile of her home. The eldest of the Kosmas children tes-tified that his father subjected Maria to verbal and physical abuse and that Kos-mas once threatened to kill her if she left him.Id. at 590, 560A.2dat 1139. Mattson testified that Kosmas offered him $10,000 to murder Maria. Id. Kosmas, who had an excellent reputation in his business and home communities, denied these allegations. The case turned on Mattson's testi-mony at trial. He testified that on Decem-ber 20th, Maria had been missing for four days. That morning he went to the defen-dant's home where he found a detective interviewing Kosmas. While Mattson was on the stand, the prosecutor asked him if he heard the content of the conversation between Kosmas and the detective. Mattson responded that it was "[iJust the typical police interview" in' which the detective asked Kosmas if he had seen his wife or knew of her whereabouts. Id. at 592, 560 A.2d at 1140. The prosecutor next asked Mattson, "[a)nd then you talked to the defendant?" Id. Mattson replied, "[t)hen I talked to [Kosmas) .... I said, 'Would you take a lie detector?' He said no." [d. The defendant's attorneys immediately requested a mistrial. The trial judge denied the motion, then in-structed the jury to ignore any testimony concerning a lie detector test. Id. at 591-92, 560 A.2d at 1139-40. The court of appeals first noted that evidence that the defendant refused to submit to a lie detector test was inadmis-sible. Id. at 592-93, 560 A.2d at 1140. Having established this premise, the court concentrated on the damage done to the defendant by the inadmissible evi-dence and the extent to which the jury instruction cured this damage. Id. at 594, 560 A.2d at 1141. As a result, the precise question before the court was "whether the prejudice to the defendant was so substantial that he was deprived of a fair trial." Id. at 595, 560 A.2d at 1141. The recent decision of Guesfeird v. State, 300 Md. 653, 480 A.2d 800 (1984), established factors to help answer this question. These factors include: whether the reference to a lie detec-tor was repeated or whether it was a single, isolated statement; whether the reference was solicited by coun-sel, or was an inadvertent and unre-sponsive statement; whether the wit-ness making the reference is the principal witness upon whom the entire prosecution depends; wheth-er credibility is a crucial issue; whether a great deal of other evi-dence exists; and whether an infer-ence as to the result of the test can be drawn. Kosmas, 316Md.at594, 560A.2dat 1141 (quoting Guesfeird, 300 Md. at 659,480 A.2d at 803). The state emphasized that the lie detec-tor test was mentioned only once and that this reference was unsolicited by the prosecutor. The court, however, re-sponded that the state was not entirely blameless for this "blurt-out" because Mattson testified on behalf of the state. Id. at 595, 560 A.2d at 1141. The court suspected that Mattson's fifteen years as a police officer should have made him aware of the inadmissibility of his state-ment. The court was also wary of Mattson's motives for disclosing this evi-dence since he was once suspected for the murder. !d. at 595-96, 560 A.2d at 1141-42. Nonetheless, the court was more con-cerned with whether Kosmas' credibility was a crucial issue. The state's case de-pended on circumstantial evidence that the defendant mistreated his wife and that he tried to put out a contract for her murder. The court said the evidence of Kosmas' refusal to take a lie detector test "cut to the heart of the defense." Id. at 597, 560 A.2d at 1142. Finally, the curative effect of the jury instruction was addressed. Judge McAu-liffe opined that the instruction was in-sufficient to cure the substantial preju-dice poisoning the jurors' opinion of the defendant. He relied on Bruton v. United States, 391 U.S. 123 (1968) to support this position. In that case, the Supreme Court said, "[t]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practi-cal and human limitations of the jury system cannot be ignored." Kosmas, 316 Md. at 597, 560 A.2d at 1143 (quoting Bruton, 391 U.S. at 135). Accordingly, Kosmas v. State indicates that Maryland courts are becoming in-creaSingly intolerant of any evidence that a defendant refused to take a polygraph exam. This case also warns prosecutors not to ask open-ended questions on di-rect examination unless they are confi-dent that the information solicited will not be substantially prejudicial to the defendant. -Gregory R. Smouse Wilson v. Morris: EVIDENCE OF PRIOR AND SUBSEQUENT PATIENT MONITORING POLICIES IS ADMISSIBLE TO DEMONSTRATE THE STANDARD OF CARE In Wilson v. Morris, 312 Md. 284, 563 A.2d 392 (1989), the Court of Appeals of Maryland held that evidence of prior and subsequent procedures for transporting patients was relevant and admissible as a consideration of the required standard of care. Thus, the court of appeals af-firmed the decision of the court of special appeals, which had remanded the case for a new trial. Irene Ragland, appellee, brought an action against a hospital director and a county health department receptionist as a result of personal injuries sustained while she was a patient in the Western Maryland Adult Day Care Treatment Center ("the Center''). Wilson, 312 Md. at 287,563 A.2d at 393. Ragland was re-turning from a doctor's office adjacent to the Center when Ann G. Wilson, the re-ceptionist, temporarily left Ragland unat-tended in a wheelchair at the top of a handicapped access ramp. When the wheelchair rolled down the access ramp, Ragland fell forward on to the pedals and fractured two vertebrae. Approximately eighteen months prior to the accident, and again, beginning the day after the ac-cident, the Center's policy was for an at-tendant to remain with a patient while transporting the patient between the two facilities.Id. at 288, 563 A.2d at 393. At the time of the aCcident, however, the Center's policy was to have an attendant accompany the patient to and from the adjacent facility, but not to wait there during the course of treatment. Id. at 288 n.5, 563 A.2d at 393 n.5. The trial court refused to admit the evidence of the Center's prior and subsequent practices and concluded that such evidence was irrelevant and inadmissible. Id. at 288, 563 A.2d at 393. The court of special appeals reversed the trial court's ruling. The intermediate appellate court held that the Center's prior and subsequent procedures demonstrated a pattern of conduct which made those procedures relevant and admissible. Id. at 288, 563 A.2d at 394 (citing Morris v. Wilson, 74 Md. App. 663, 668,539 A.2d 1151, 1153-54 (1988». The Court of Appeals of Maryland granted certiorari to consider the law under which evidence of prior and sub-sequent practices is admissible to prove an alleged breach of the applicable stan-dard of care. [d. at 289, 563 A.2d at 394. The issue concerning the admissibility of prior policy evidence was one of first impression in Maryland. Consequently, the court examined the case law of other jurisdictions. In Welsh v. Burlington N. R. R., 719 S.W.2d 793 (Mo. App. 1986), an injured employee provided evidence that a railroad company had abandoned a policy that supplied employees with carts for the purpose of loading propane tanks. The Missouri Court of Appeals held that the testimony regarding the previous use of the carts to load pro-pane tanks was relevant and probative on the issue of whether the defendant was negligent in failing to provide reasonably safe employee equipment. Wilson, 317 Md. at 292, 563A.2d at 396 (citing Welsh, 719 S.W.2d at 797). In another case, a woman tripped and fell upon a store entrance floor mat. Id. (relying on Swiler v. Baker's Super Market, Inc., 277 N.W.2d 697 (Neb. 1979». InSwiler, the evidence revealed that on wet and rainy days, it was the store owner's usual prac-tice to tape the mat to the floor to protect against slipping. The Supreme Court of Nebraska ruled that the trial court prop-eclyallowed the plaintiff to introduce evi-dence relative to the store-owner's past practice of taping or securing the mat in question to the floor to prevent bulging. Wilson, 317 Md. at 294, 563 A.2d at 396 (citingSwiler, 277 N.W.2d at 700). Applying the holdings in Welsh and Swiler, the court of appeals held the prior practice of the Center was relevant under the circumstances. [d. at 295, 563 A.2d at 397. The court also found the evidence of the prior policy a material fact to be considered in analyzing whether the current policy was reasona-bly safe or whether other methods could have been easily adopted. Id. Moreover, the court stated that the trial judge should consider the following test for de-termining whether prior policies should be allowed as evidence: 1) The remoteness in time of the prior policy; 2) The degree and significance of the change in relation to the substan-tive issues presented; 3) The reasons for the change in policy; and 4) The likelihood that any prejudi-cial effect of the proffered evidence will outweigh the probative value of the evidence. Id. Thus, the court held that the Center's prior policy of remaining with patients taken for medical care was probative in revealing the Center's knowledge and perception of its duty to patients. [d. at 294-95,563 A.2d at 397. Next, the court discussed whether subsequent policy evidence was admis-sible to prove the scope of the duty of care owed to the plaintiff. The court recognized that there was "a standard of care exception" to the general rule ex-cluding evidence of subsequent reme-dial measures when such evidence "provi~es circumstantial proof that the applicable standard of care had not been met at the time of the accident or other occurrence in question." [d. at 298, 563 A.2d at 395 (quoting 51. McLain, Mary-land Practice: Maryland Evidence § 407.1 (1987, 1989 Supp.». The court's opin-ion stated that although a jury should not consider the evidence of the immediate change in patient monitoring policies as an admission of negligence, it was admis-sible as evidence of the standard of care required under the circumstances. Id. at 301, 563 A.2d at 400. Therefore, the court ruled that the trial judge erred in precluding counsel from offering the ------------------------------------ 20.2/fhe Law Forum-27 

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Recent Developments: Kosmas v. State: Unsolicited Statement by Witness Inadmissible as Evidence of Defendant\u27s Refusal to Take Lie Detector Test

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