Fowlkes v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, McClanahan and Haley
Argued at Richmond, Virginia

KENNARD FOWLKES
OPINION BY
v. Record No. 3092-06-2 JUDGE ROBERT P. FRANK
JULY 8, 2008
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
L.A. Harris, Jr., Judge

William T. Linka (Richmond Criminal Law, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.

Kennard Fowlkes, appellant, was convicted, in a jury trial, of two counts of murder in

violation of Code § 18.2-32, one count of burglary while armed with a deadly weapon, in

violation of Code § 18.2-90, and three counts of use of a firearm in the commission of a felony,

in violation of Code § 18.2-53.1. On appeal, he contends the trial court erred in not granting a

mistrial as a result of the prosecutor’s questioning of a witness about polygraph examinations.

For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND

Appellant was accused of killing two people in Henrico County in June 2005. There

were no witnesses or physical evidence linking appellant to the murders. The primary evidence

of appellant’s guilt was the testimony of two witnesses, appellant’s girlfriend at the time of the

murders, Natalie, and appellant’s friend, Leonel.

In March 2004, Leonel began cooperating with the U.S. Drug Enforcement

Administration (DEA), providing the agency with information involving drug activity.
Appellant approached Leonel in June 2005, shortly after the murders, and confessed his

involvement to Leonel. In August 2005, Leonel related appellant’s confession to DEA Special

Agent Steve Miller, who then contacted Henrico County police. Henrico authorities interviewed

Leonel about the murders.

Subsequently, in October 2005, Leonel entered a plea agreement with the federal

government concerning the federal drug conspiracy charges pending against him. The plea

agreement was introduced, without objection, during appellant’s trial. As a condition of the plea

agreement, Leonel was to provide “full, complete and truthful cooperation” regarding any

criminal activity known to him. To that end, Leonel agreed, upon request of federal authorities,

to voluntarily submit to polygraph examinations. At appellant’s trial for murder, Leonel testified

that he was never asked to take a polygraph test by federal agents.

During the prosecutor’s examination of Agent Miller, the following dialogue occurred:

[Prosecutor:] The plea agreement that ultimately Leonel []
entered into in October of ’05, did that
require him to submit to a polygraph or a lie
detector?

[Agent Miller:] It, it would, it doesn’t, yes, it does require if
--

[Prosecutor:] -- If asked --

[Agent Miller:] -- If requested, yes. Yes, sir.

[Prosecutor:] Did you ever request it?

[Agent Miller:] No, sir.

[Prosecutor:] Is that polygraph language, is that standard
in all plea agreements of the sort that
[Leonel] entered into?

[Agent Miller:] Yes, sir. Yes, sir.

[Prosecutor:] What made him special for his case?

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[Agent Miller:] No, it’s just, it’s just, it’s standard language.
And it also reinforces that if we think that
you’re not telling the truth, then we’re going
to, you know, explore, basically that we’re
going to have to use all means to be able to
prove or disprove that.

* * * * * * *

[Prosecutor:] Was [the fact that you did not ask Leonel to
submit to a polygraph] different in your
experience dealing with other confidential
informants?

[Agent Miller:] Yes.

[Defense Counsel]: Objection --

[Trial Court]: -- Sustain the objection.

[Prosecutor]: Okay.

[Prosecutor:] The polygraph, is that, to your knowledge,
admissible in court?

[Trial Court]: Sustain the objection.

[Defense Counsel]: In a motion, please, Judge.

[Trial Court]: Yeah, you’re getting close, [Prosecutor].
Get away from it.

[Prosecutor:] Now --

[Defense Counsel]: -- The --

[Trial Court]: -- I hear you. Hold on.

[Prosecutor:] The use you all make of that is just to
evaluate the person’s worth, is that correct?

[Defense Counsel]: Objection, Judge.

[Trial Court]: Sustained. Ask the jury to step out, please.

[Trial Court]: All right. The jury is out.

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[Defense Counsel:] Judge, move the case to be declared a
mistrial, Judge. Now, we have a situation
where [Leonel] was asked about the
polygraph. He was asked and he was
permitted to answer whether or not he’d
been asked to provide a polygraph.

Now, we have Agent Miller here who is
asked at least five questions about the
polygraph, Judge.

[Trial Court:] Two after an objection had been sustained.

[Defense Counsel:] Yes, sir, thank you. And additionally,
Judge, the next question, whether the jury, I
believe he started to answer, I was standing
up and speaking before, I don’t know if the
jury heard it, but –

[Trial Court:] -- What you want him to say is he didn’t
think he needed a polygraph because he
believed him. That is totally improper, and
it shouldn’t have been asked. It’s as simple
as that.

[Defense Counsel:] And, and to evaluate his performance in
other words, Judge.

[Trial Court:] Sure.

[Defense Counsel:] So even if that’s the end of the questioning,
Judge, the jury is left with the impression
that there’s no need for the polygraph, he’s
fine, he’s telling us the truth about
everything, we believe him.

And, Judge, I couldn’t get into whether or
not he’d taken a polygraph and failed the
polygraph. Judge, the -- should be true. I
think it’s impermissibly tainted at this point,
Judge. And I think you have to mistry the
case.

[Prosecutor:] What we have, Judge, is a situation where
the evidence at this point is that he --

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 [Trial Court:] -- Why did you ask him? Why did you ask
him? After I sustained the objection, why
did you ask him about the polygraph?

[Prosecutor:] I was moving into what I thought --

[Trial Court:] -- You were moving in because you wanted
to make the impression he didn’t think he
needed to test him because he was telling the
truth. Now, isn’t that correct?

[Prosecutor:] Based on his other information.

[Trial Court:] That is absolutely improper. Now, I’m
going to tell you something now,
[Commonwealth’s Attorney]. You keep him
[Prosecutor] under control or get him out of
this case.

[Comm.’s Attorney:] Yes, sir.

[Trial Court:] This is the second time, and you’re skirting
the issues, and you’re trying to get in the
back door what you can’t get in the front
door. I am not going to put up with it.

The trial court then denied the motion for a mistrial and immediately instructed the jury

that any questioning to Agent Miller “concerning anything to do with a polygraph is improper

questioning. It should not be here. You should disregard any questions or answers concerning

anything to do about a polygraph.”

This appeal follows.

ANALYSIS

Appellant argues that the prosecutor’s series of questions should have resulted in a

mistrial. Essentially, he contends the references to the polygraph suggested Leonel was willing

to take the test, thereby allowing the jury to infer Leonel was a credible witness. Appellant

maintains that this improper questioning “bolstered” Leonel’s credibility. Appellant focuses, in

particular, on the prosecutor’s persistence in asking Agent Miller about the polygraph after the

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trial court sustained appellant’s objections and after the trial court admonished the prosecutor to

abandon that line of questioning.

“A trial court exercises its discretion when it determines whether it should grant a motion

for mistrial. Whether improper evidence is so prejudicial as to require a mistrial is a question of

fact to be resolved by the trial court in each particular case.” Beavers v. Commonwealth, 245

Va. 268, 280, 427 S.E.2d 411, 420 (1993). “Thus, a trial court’s denial of a motion for a mistrial

will not be reversed on appeal unless there exists a manifest probability as a matter of law that

the improper evidence prejudiced the accused.” Mills v. Commonwealth, 24 Va. App. 415, 420,

482 S.E.2d 860, 862 (1997).

“Following the improper admission of evidence, juries are presumed to follow a court’s

‘prompt, explicit, and curative instructions’ to disregard the evidence.” Bennett v.

Commonwealth, 29 Va. App. 261, 274, 511 S.E.2d 439, 445 (1999) (quoting Beavers, 245 Va. at

280, 427 S.E.2d at 420).

As an exception to this rule, “the admission of incompetent
evidence is reversible error notwithstanding the fact that the trial
court, after its admission, instructed the jury to disregard it, if such
illegal evidence was so impressive that it probably remained on the
minds of the jury and influenced their verdict.”

Id. (quoting Mills, 24 Va. App. at 420, 482 S.E.2d at 862).

Before determining whether the failure to declare a mistrial was prejudicial error, we first

must decide if the series of questions addressed to Agent Miller about the polygraph was

improper.

“Because a polygraph examination has no proper evidentiary use, neither the results of a

polygraph, nor ‘[e]vidence of a person’s willingness or unwillingness to submit to a polygraph’

is admissible in court.” Bennett, 29 Va. App. at 271, 511 S.E.2d at 444 (quoting Gray v.

Graham, 231 Va. 1, 10, 341 S.E.2d 153, 157 (1986)) (other citation omitted). “Furthermore,

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evidence concerning a polygraph is not admissible to establish the guilt or innocence of an

accused or to impeach a witness’ credibility.” Id. (citing Robinson v. Commonwealth, 231 Va.

142, 155-56, 341 S.E.2d 159, 167 (1986)).

In a long line of cases, spanning almost thirty years, [the Supreme
Court of Virginia has] made clear that polygraph examinations are
so thoroughly unreliable as to be of no proper evidentiary use
whether they favor the accused, implicate the accused, or are
agreed to by both parties. The point of these cases is that the
lie-detector or polygraph has an aura of authority while being
wholly unreliable.

Robinson, 231 Va. at 156, 341 S.E.2d at 167 (citations omitted). “The mention of polygraphs in

the presence of the jury impermissibly suggests that there is a scientific way to find the truth

where in reality, in our system of justice, the jury decides what is true and what is not.” Id.

Based on these principles, any mention of the polygraph examination and its use as a tool

to establish the credibility of Leonel was improper evidence and inadmissible at trial. However,

the admission of improper evidence does not necessarily require the trial court to grant a mistrial;

as noted above, where, as here, the trial court has issued a cautionary instruction to the jury to

disregard the evidence, we will not reverse the trial court’s decision to deny a motion for mistrial

unless we find that “‘such illegal evidence was so impressive that it probably remained on the

minds of the jury and influenced their verdict.’” Bennett, 29 Va. App. at 274, 511 S.E.2d at 445

(quoting Mills, 24 Va. App. at 420, 482 S.E.2d at 862).

“Whether a manifest probability exists that . . . improper evidence prejudiced the accused

despite [a court’s] cautionary instruction depends upon the nature of the incompetent evidence

when considered in relation to the nature of the charges, the other evidence in the case, and [the]

manner in which the prejudicial evidence was presented.” Mills, 24 Va. App. at 420-21, 482

S.E.2d at 862-63.

Additionally, a court’s failure to take any action in response to an
improper question is relevant to determining prejudice because the
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 jury may infer from such inaction that the court approved of the
impropriety. Lewis v. Commonwealth, 211 Va. 80, 84, 175 S.E.2d
236, 238 (1970) (finding the defendant suffered no prejudice from
the improper admission of testimony and a statement by the
prosecutor where the court expressly disapproved of the improper
remarks with a cautionary instruction). . . . The number of
references to an error is also relevant to our consideration of
whether prejudice influenced the jury. Ward [v. Commonwealth],
205 Va. [564,] 574, 138 S.E.2d [293,] 300 [(1964)] (“In this
instance, the first error was compounded by the second and it
would be hard to blot the information from the minds of a jury.”).

Bennett, 29 Va. App. at 274-75, 511 S.E.2d at 445. When considering these factors under the

circumstances of this case, we cannot find that there was a manifest probability that the

prosecutor’s line of questioning so impressed the jury that it remained on their minds and

influenced their verdict, notwithstanding the trial court’s cautionary instruction.

While questioning Agent Miller, the prosecutor made a number of references to a

polygraph examination. First, the prosecutor asked Agent Miller if Leonel entered into a plea

agreement requiring Leonel to take a polygraph at the request of the government. Defense

counsel did not object to this question, and evidence of the plea agreement and its contents were

already before the jury, as the prosecutor had introduced it during direct examination of Leonel.

The prosecutor then asked Agent Miller if the government had requested Leonel to take a

polygraph test, and Agent Miller replied in the negative. Again, defense counsel raised no

objection, and this information was already before the jury, as the same questions had been asked

of Leonel on direct examination without objection from defense counsel.

The prosecutor then inquired whether the polygraph requirement was standard in all plea

agreements. Agent Miller responded affirmatively, and defense counsel did not object. In

response to the prosecutor’s further questioning about the polygraph, Agent Miller explained that

the government uses a polygraph examination as a method for determining the veracity of an

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informant when the government suspects that the informant is “not telling the truth.” Defense

counsel did not object either to the prosecutor’s question, or to Agent Miller’s answer.

Thus, before any objection was raised by appellant, the jury had already heard testimony

that Leonel’s plea agreement contained a provision for polygraph examinations to be conducted

at the request of the government, that the government used the polygraph examination to

determine whether an informant was lying if they had reason to question the information they

had been given, and that the government had never requested Leonel to take such an

examination.

Defense counsel did not object until the prosecutor asked Agent Miller whether the fact

that Leonel had not been asked to take a polygraph examination was “different in your

experience dealing with other confidential informants.” The trial court sustained the objection.

Nevertheless, the prosecutor, undaunted, asked Agent Miller if polygraph results are admissible

in court. The trial court, not allowing Agent Miller to answer the question, immediately

intervened, saying, “Sustain the objection.” The trial court admonished the prosecutor to “[g]et

away from it.” Again, undeterred, the prosecutor asked Agent Miller, “[t]he use you all make of

that is just to evaluate the person’s worth, is that correct?” Defense counsel objected. The trial

court sustained the objection and sent the jury out. At this time, defense counsel moved for a

mistrial.

This last question from the prosecutor about the polygraph, which prompted appellant’s

motion for mistrial, sought the exact information that had been volunteered earlier by Agent

Miller, namely that the government used polygraph examinations to “prove or disprove” the

information given by confidential informants when the government thought that an informant

was “not telling the truth.” Defense counsel did not object to the earlier exchange.

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 Thus, defense counsel raised only two objections to the prosecutor’s questions seeking

information that was not already before the jury without objection: first, the question regarding

the admissibility of polygraph results and, second, the question regarding whether it was unusual

in Agent Miller’s experience for the government not to request a confidential informant to

submit to a polygraph examination.

We must examine the nature of these questions when considered in relation to the

charges, the other evidence in the case, and the manner in which the evidence was presented.

Mills, 24 Va. App. at 420, 482 S.E.2d at 862. We also consider the number of references made

to the improper evidence and the trial court’s reaction to the improper questioning. Bennett, 29

Va. App. at 274, 511 S.E.2d at 445.

While we acknowledge that, under well-settled principles, it is improper to introduce any

evidence regarding a polygraph examination at trial, we must consider the nature of this

reference in terms of whether the trial court erred in failing to grant appellant’s motion for a

mistrial. The polygraph examination at issue here was one that was never performed on a key

prosecution witness. This is not a case involving commentary on the willingness of a criminal

defendant to take a polygraph examination, Barber v. Commonwealth, 206 Va. 241, 250-51, 142

S.E.2d 484, 491-92 (1965), or a case where the results of a polygraph examination are sought to

be entered into evidence, Robinson, 231 Va. at 156, 341 S.E.2d at 167. While the evidence

elicited here was still improper, clearly less prejudice accrued to appellant in the instant case than

would have in either of the situations noted above.

The manner in which the prosecutor continued the questioning, despite the trial court’s

rulings and repeated admonitions, is more troublesome. 1 However, the trial court’s reaction to

1
Appellant cites Maxey v. Hubble, 238 Va. 607, 385 S.E.2d 593 (1989), for the
proposition that the prosecutor’s persistence in continuing the line of questioning after the trial
court sustained objections and admonished the prosecutor is alone sufficient basis for a mistrial.
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the prosecutor’s improper questions is a circumstance that mitigates any finding of prejudice to

appellant, as it clearly expressed to the jury that the trial court did not approve of the prosecutor’s

impropriety. Lewis, 211 Va. at 84, 175 S.E.2d at 238 (finding the defendant suffered no

prejudice from the improper admission of testimony and a statement by the prosecutor where the

court expressly disapproved of the improper remarks with a cautionary instruction).

The Supreme Court of Virginia in Maxey, a medical malpractice action, stated:

The injured party’s right to a new trial is especially strong where
his opponent has persisted in an objectionable course of conduct
after the trial judge has expressed disapproval of it, sustained an
objection to it, or instructed the jury to disregard it. In that
situation, an appellate court will presume that the prejudicial effect
of the improper conduct was too strong to be removed by further
admonitions or jury instructions.

Id. at 616, 385 S.E.2d at 597.
However, the nature of the “objectionable course of conduct” in Maxey is much more
egregious than in the instant case. In Maxey, the trial court ruled, prior to trial, that opposing
counsel could interview the plaintiff’s treating physicians, some of whom were named as expert
witnesses for the defense. Id. at 610, 985 S.E.2d at 594. Before trial, plaintiff’s counsel sent a
letter to all of plaintiff’s treating physicians, advising them that testifying as experts on behalf of
the defense could be viewed as a breach of their fiduciary duty to the plaintiff. Id. At trial,
plaintiff’s counsel objected to the testimony of the treating physicians as a violation of
physician-patient privilege. Id. at 610-11, 985 S.E.2d at 594. The trial court overruled the
objection and cautioned plaintiff’s counsel not to get into “any ethical standards.” Id.
Nevertheless, plaintiff’s counsel persisted in inquiring about medical ethics, even after the trial
court had sustained two objections and issued a cautionary instruction to the jury. Id. at 611-13,
985 S.E.2d at 594-95. Additionally, plaintiff’s counsel attempted repeatedly to discredit
defendant’s witnesses, from opening statements through closing arguments, by implying that
these doctors perjured themselves as part of a “conspiracy of silence” among physicians
designed to protect their colleagues. Id. at 613-14, 985 S.E.2d at 595-96. Plaintiff’s counsel
persisted in this theory despite the trial court’s several admonitions to avoid this line of
argument. Id.
The questioning here was brief in nature and time, and it was related to facts already
before the jury. The proper analysis is whether, despite the trial court’s cautionary instruction,
the “‘illegal evidence was so impressive that it probably remained on the minds of the jury and
influenced their verdict,’” Bennett, 29 Va. App. at 274, 511 S.E.2d at 445 (quoting Mills, 24
Va. App. at 420, 482 S.E.2d at 862), not whether the prosecutor acted in “good faith or bad
faith.” While certainly such a consideration could factor into the overall analysis, it cannot form
the sole basis for a mistrial, as appellant contends. See Brady v. Maryland, 373 U.S. 83, 87
(1963) (holding that “the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution”). Here, as in Brady, the analytical
focus is not on the “punishment of society for misdeeds of a prosecutor but avoidance of an
unfair trial to the accused.” Id.

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 The questions and answers that appellant cites as grounds for a mistrial were merely

duplicative of information that had already been elicited at trial. As noted above, through

evidence already before them without objection, the jury knew Leonel had agreed to take a

polygraph, but did not do so because the federal authorities had never requested it. The jury also

knew that the polygraph would be employed to determine the credibility of their informants, but

was not used on Leonel. From these facts alone the jury could have concluded that the federal

authorities did not give Leonel a polygraph examination because they believed him to be a

credible witness. 2 Yet, defense counsel never objected to this information when it was elicited

on direct examination of Leonel and Agent Miller.

Perhaps the most persuasive factor mitigating against a finding of prejudice to appellant

is the other evidence of appellant’s guilt. Leonel’s testimony was not the only evidence

implicating appellant in the murder. Appellant’s girlfriend at the time of the murder, Natalie,

also testified that appellant had recounted details of the murder to her on the night the crime was

committed. Natalie’s testimony mirrored that of Leonel regarding the details of the murder,

indicating that appellant had told both individuals the same story. The details that appellant

divulged to these witnesses matched the evidence at the crime scene, including the location of

the crime, the point of entry into the residence, the number and gender of the victims, the

location where the bodies were recovered, the location of the gunshot wounds on the bodies of

the victims, the caliber of the weapon used to commit the crimes, and the presence of, and

approximate ages of, the children in the residence when these crimes were committed. These

details also matched the date and time that an independent witness living near the crime scene

heard gunshots. Detective McCune of the Richmond City Police Department testified that these

2
It is also possible that the jury could have interpreted the federal government’s failure to
require Leonel to submit to a polygraph examination as the result of careless law enforcement
efforts, particularly as this particular informant had been shown to be untrustworthy.
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details had not been released to the public and that he had not disclosed these details to either

witness when he interviewed them. Leonel and Natalie had approached police with information

about the murders independently, approximately six months apart. The prosecution established

that appellant had a motive for the murder, as he believed that the victims had participated in the

stabbing of his cousin approximately two months before the murders.

Thus, taking into account the nature of the improper evidence when considered in relation

to the charges, the other evidence in the case, the manner in which the improper evidence was

presented, the number of references made to the improper evidence, and the trial court’s reaction

to the improper questioning, we cannot say that the improper evidence remained on the minds of

the jurors and influenced their verdict. The trial court properly evaluated the prosecutor’s

questioning regarding the polygraph, considered its impact, and correctly concluded that the

cautionary instruction was an adequate corrective measure. Thus, the trial court did not abuse its

discretion in issuing a prompt curative instruction instead of granting a mistrial.

CONCLUSION

We find that, under the particular facts of this case, the trial court did not err in denying

appellant’s motion for a mistrial in response to the prosecutor’s improper line of questioning

about a polygraph examination. We affirm the trial court’s decision and appellant’s convictions.

Affirmed.

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