Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Cathell, Dale R. (Retired, Specially Assigned), JJ.
"In criminal prosecutions, the polygraph test is a pariah; 'polygraph' is a dirty word." State v. Hawkins, 326 Md. 270, 275, 604 A.2d 489, 492 (1992). In this case, we consider whether defense counsel's reference, during opening statement, to his client's willingness to take a lie detector test creates manifest necessity for a mistrial, where the trial judge gave a curative instruction to the jury immediately following the improper reference and the prosecutor did not request a mistrial for reason of that improper remark until two days further into the trial. We shall affirm the judgment of the Court of Special Appeals and hold that the trial judge did not abuse his discretion in granting a mistrial two days after the improper statement and immediate curative instruction.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner Stephen Simmons was charged in the Circuit Court for Prince George's County with murder and other related offenses arising out of the shooting death of Christopher Wright on July 1, 2009. On that date, Petitioner was standing outside the apartment building where the victim and his roommate, Razaq Sarumi, resided. Simmons became angry after Sarumi spit out of his apartment window overlooking the building entrance where Simmons was standing. Sarumi joined Simmons outside, where the two engaged verbally. Simmons displayed a firearm, began "rubbing" it, and then went into an apartment on the first floor of the building. He shortly returned outside with the gun and fired one shot, which grazed Sarumi's leg. After he was shot, Sarumi ran toward the road and heard more shots in the building. He turned around and saw Simmons come out of the building and fire a shot from the sidewalk. Sarumi ran across the road, got in a car with some friends also present during the incident, and began driving to the hospital. None of the witnesses saw the shooting of Wright or who shot him, but he was dead when the police arrived. Simmons was arrested in connection with this incident. He was held for a nearly ten hour recorded interrogation and gave the police a taped statement. During the interrogation, Simmons offered to take a lie detector test. No test was ever performed.
Prior to trial, Simmons moved to suppress the taped statement given to police during his interrogation, arguing that it was involuntary. After a hearing on June 11, 2010, the Circuit Court denied the motion to suppress. Trial began on August 16, 2010. Defense counsel's opening statement proceeded as follows:
[DEFENSE COUNSEL]: You will hear that when my client was arrested, he was held for ten hours in a frigid interrogation room. He was given no food. He was allowed to make no phone calls. He had no grandmother or paid lawyers rushing down to help him. He was entirely alone. And a rotation of experienced homicide detectives tried every trick in the book to try to get Stephen Simmons to admit that he had shot Christopher Wright.
They even lied to him. They told Stephen Simmons that Christopher Wright had survived and had identified him as the shooter. But even though he was shivering cold, he was exhausted and utterly alone, Stephen Simmons had one thing on his side that protected him. He was actually innocent of the death—
[DEFENSE COUNSEL]:—of Christopher Wright.
THE COURT: The objection is sustained as to innocence. The State's burden is to prove guilt beyond a reasonable doubt. That's a factual issue for you. The assertions by the attorneys are to be ignored in that regard.
You may continue, counsel.
[DEFENSE COUNSEL]: Thank you, Your Honor.
You will hear him protest his innocence through the long hours of questioning, tell the detectives over and over again the one thing that he knew to be true, "I did not shoot that man. I did not shoot that man." Stephen Simmons offered to take a lie detector test.
THE COURT: The objection is sustained. Let me just tell you jurors when all the evidence begins, you're going to have to consider the evidence as opposed to what counsel says, what the State says, and what the defense says. But I sustained the objection with regard to the reference to a lie detector test. That's not something you can consider. It's not something you can be permitted to consider.
(Emphasis added). The State made no further objection to defense counsel's reference to a lie detector test and did not protest the adequacy or effectiveness of the court's instruction. Between the first two days of trial, August 16 and 17, 2010, the State presented the testimony of four witnesses. On August 17, 2010, the court recessed early, around 1:00 PM, to consider the admissibility of testimony by the State's firearms expert, which was ultimately excluded.
At the beginning of proceedings on August 18, 2010, the State moved for a mistrial claiming that defense counsel's reference to the lie detector test had prejudiced the jury, such prejudice could not be overcome, and the State was deprived of a fair trial. The prosecutor acknowledged the time delay between the improper statement and the motion for mistrial, stating that he "spent all night thinking about whether to make this motion." Defense counsel objected to the motion, arguing that any prejudice arising from his "fleeting reference" to the lie detector test was cured by the court's immediate instruction, and suggested that the prosecutor's timing in requesting a mistrial was evidence of ...