COURT OF APPEALS OF VIRGINIA

Present: Judges Fran k, 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 COUR T OF HENRICO COUNTY L.A. Harris, Jr., Judge William T. Linka (Ric hmond Criminal Law, on brief), for appellant. Donald E. Jeffrey, III, Assist ant 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 burgl ary while armed with a deadly weapon, in violation of Code § 18.2-90, and three counts of us e of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. On appeal, he conte nds the trial court erred in not granting a mistrial as a result of the pr osecutor’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 a ppellant to the murders. The primary evidence of appellant’s guilt was the testimony of two witne sses, appellant’s girlfriend at the time of the murders, Natalie, and appe llant’s friend, Leonel. In March 2004, Leonel began cooperating with the U.S. Drug Enforcement Administration (DEA), providi ng the agency with informa tion involving drug activity.- 2 - Appellant approached Leonel in June 2005, shor tly 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 ente red a plea agreement with the federal government concerning the federal drug conspir acy charges pending against him. The plea agreement was introduced, without objection, during a ppellant’s trial. As a condition of the plea agreement, Leonel was to provide “full, comp lete and truthful cooperation” regarding any criminal activity known to him. To that end, Le onel 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 Agen t 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 do es 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?- 3 - [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, ba sically 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]: -- Su stain 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 wo rth, 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.- 4 - [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 --- 5 - [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 Mi ller “concerning anything to do with a polygraph is improper questioning. It should not be here. You shoul d disregard any questions or answers concerning anything to do about a polygraph.” This appeal follows.

ANALYSIS Appellant argues that the pr osecutor’s series of questions should have resulted in a mistrial. Essentially, he conte nds the references to the polyg raph 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- 6 - trial court sustained appellant’s objections and after the trial court admonished the prosecutor to abandon that line of questioning.

“A trial court exerci ses its discretion when it determines whether it should grant a motion for mistrial. Whether improper evid ence is so prejudicial as to requi re 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 co urt’s denial of a mo tion 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 decl are 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 willingn ess 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,- 7 - evidence concerning a polygraph is not admissibl e to establish the gui lt 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 almo st thirty years, [the Supreme Court of Virginia has] made clea r 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 th at there is a scientific way to find the truth where in reality, in our system of justice, the jury decides what is tr ue and what is not.” Id. Based on these principles, any mention of th e 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 necessar ily require the trial court to grant a mistrial; as noted above, where, as here, the trial court ha s issued a cautionary instruction to the jury to disregard the evidence, we will not reverse the tr ial 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 infl uenced 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 depe nds upon the nature of the incompetent evidence

when considered in relation to th e nature of the charges, the othe r 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 ta ke any action in response to an improper question is relevant to determining prejudice because the- 8 - 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 expre ssly disapproved of the improper remarks with a cautionary instru ction). . . . 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 cour t’s cautionary instruction. While questioning Agent Miller, the prosecu tor made a number of references to a polygraph examination. First, the prosecutor aske d 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 que stion, and evidence of the plea ag reement 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 th e 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 with out objection from defense counsel. The prosecutor then inquired whether the pol ygraph requirement was standard in all plea agreements. Agent Miller responded affirmativ ely, and defense counsel did not object. In response to the prosecutor’s further questioning a bout the polygraph, Agent Miller explained that the government uses a polygraph examination as a method for determining the veracity of an- 9 - informant when the government susp ects that the informant is “not telling the truth.” Defense counsel did not object either to the prosecu tor’s question, or to Agent Miller’s answer. Thus, before any objection was raised by appe llant, the jury had already heard testimony that Leonel’s plea agreement contained a provisi on 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 th ey 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 pros ecutor 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 conf idential informants.” The tria l court sustained the objection. Nevertheless, the prosecutor, undaunted, asked Ag ent Miller if polygraph results are admissible in court. The trial court, not allowing Ag ent Miller to answer the question, immediately intervened, saying, “Sustain the objection.” The trial court admonished th e 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 pe rson’s worth, is that correct?” De fense 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 informa tion that had been volunteered earlier by Agent Miller, namely that the government used polygra ph examinations to “pro ve or disprove” the information given by confidential informants wh en the government thought that an informant was “not telling the truth.” Defense counsel did not object to the earlier exchange.- 10 - Thus, defense counsel raised only two objecti ons to the prosecutor’s questions seeking information that was not already be fore the jury without objection: first, the question regarding the admissibility of polygraph results and, secon d, 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 questi ons 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 a nd 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 pr inciples, it is improper to introduce any evidence regarding a polygraph examination at tr ial, we must consider the nature of this

reference in terms of whether the trial court er red in failing to grant appellant’s motion for a mistrial. The polygraph examination at issue he re 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 resu lts 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 que stioning after the trial court sustained objections and admonished the pros ecutor is alone sufficient basis for a mistrial.- 11 - 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 appr ove 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 th e prosecutor where the court expressly disapproved of the imprope r 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 ha s 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 pr ejudicial 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 “obj ectionable 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 ph ysicians, some of whom were named as expert witnesses for the defense. Id. at 610, 985 S.E.2d at 594. Before tr ial, plaintiff’s counsel sent a letter to all of plaintiff’s treat ing physicians, advising them that te stifying 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 ph ysicians 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 plainti ff’s counsel not to get into “any ethical standards.” Id. Nevertheless, plaintiff’s counsel persisted in inquiring about medi cal 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 c ounsel 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 s ilence” 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 cour t’s several admonitions to avoid this line of argument. Id. The questioning here was brief in nature a nd 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 th e 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 pr osecution 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 pros ecution”). 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.- 12 - The questions and answers that appellant ci tes as grounds for a mistrial were merely duplicative of information that had already been elic ited 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 aut horities had never requested it. The jury also knew that the polygraph would be employed to determine the credib ility 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 exam ination 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 mitigati ng 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 murd er. Appellant’s girlfriend at th e time of the murder, Natalie, also testified that appellant had recounted detail s 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 stor y. 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 locati on 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 reside nce 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 Richm ond 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 examin ation as the result of careless law enforcement efforts, particularly as this particular informant had been shown to be untrustworthy.- 13 - details had not been released to the public and th at 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 si x months apart. The prosecution established that appellant had a motive for the murder, as he be lieved 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 thei r verdict. The trial court pr operly evaluated the prosecutor’s questioning regarding the polygraph, considered its impact, and correctly concluded that the cautionary instruction was an adequate corrective m easure. Thus, the trial court did not abuse its discretion in issuing a prompt curative in struction 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 impr oper line of questioning about a polygraph examination. We affirm the tr ial court’s decision and appellant’s convictions.

Affirmed.