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March 12, 1998



Before Schwelb and KING,[fn*] Associate Judges, and Pryor, Senior Judge. [fn*] Associate Judge King concurs in the result.

The opinion of the court was delivered by: Schwelb, Associate Judge:

These consolidated appeals present the question — one of first impression in this jurisdiction, though much-litigated elsewhere — whether the trial judge committed prejudicial error by refusing to declare a mistrial after a key prosecution witness volunteered, during his redirect examination, that he had taken a "lie detector" test. The issue is a troubling one, for even an indirect reference to the administration of a polygraph examination has a substantial potential for prejudice. In this case, however, the trial judge's prompt, thorough and effective admonition to the jury [709 A2d Page 66]

minimized the possibility of such prejudice, and we conclude, in light of that admonition, that the judge did not abuse her discretion by denying appellants' motions for a mistrial. We are likewise unpersuaded by appellants' other contentions on appeal. Accordingly, we affirm their convictions.



A. Background.

On April 17, 1996, a jury found appellants Dwayne Peyton and Darrell Jackson guilty of first-degree murder while armed *fn1 and related weapons offenses *fn1 in connection with the shooting death on October 13, 1990 of Billy Hopkins. Hopkins was apparently murdered because Jackson believed that Hopkins was the man who shot and killed Jackson's friend, Cedric Boyd, on August 29, 1990. The principal prosecution witness, Kenneth Curtis, was with Boyd and Jackson when Boyd was murdered. Curtis claimed at trial that he was also on the scene of the October 13 retaliatory slaying, and that he had seen both Peyton and Jackson fire the fatal shots at Hopkins.

On October 30, 1990, seventeen days after Hopkins' death, Peyton was arrested, *fn2 charged with the murder, and detained without bond. On February 7, 1991, while Peyton remained in jail, Curtis appeared before a grand jury and testified that he had no knowledge of the identities of Hopkins' killers. Five days later, bail was set in Peyton's case, and he was ultimately released after posting bond. No indictment was returned against Peyton in 1991 and, on June 17 of that year, the case was dismissed for lack of prosecution.

More than three years later, on November 7, 1994, Curtis appeared before a grand jury for the second time. On this occasion, he testified that Peyton and Jackson were the two men who shot Hopkins. Two days later, on November 9, 1994, the grand jury returned an indictment charging both defendants with premeditated murder while armed, PFCV, and CPWOL. The government subsequently represented to the trial court that it was the emergence of Curtis as an eyewitness that "provided the breakthrough the government needed to refocus the investigation and indict [sic] *fn3 the defendant."

B. The evidence at the trial. *fn4

Kenneth Curtis was the prosecution's star witness. He testified that on October 13, 1990, Peyton and Jackson were in a blue BMW near the intersection of East Capitol Street and Benning Road, near Texas Avenue. Curtis was behind them in another vehicle. Observing a man on the street, Jackson rolled up his window and asked Curtis: "Ain't that the dude that killed Ced?" *fn5 Curtis answered "Naw," but Jackson insisted that "[i]t is that motherfucker." Curtis testified that "I slowed up and came to the light and the next thing I know, I seen Darrell Jackson and Dwayne Peyton shooting the man down."

Curtis also testified that, some time prior to the shooting of Hopkins, he (Curtis) had purchased a number of firearms, including a 9mm Browning pistol and a 9mm Tanfoglio semi-automatic handgun, and that he had provided the Browning to Peyton and the Tanfoglio to Jackson. These weapons, which were apparently used in the fatal shooting of Hopkins, were subsequently recovered from the two defendants. *fn6 [709 A2d Page 67]

On cross-examination, Curtis was impeached with prior statements to the grand jury and to the police in which he had denied any knowledge of the identities of the murderers. Curtis also admitted that he had previously been convicted of conspiracy to commit murder, several drug offenses, and a firearms offense. Curtis acknowledged that he did not disclose his knowledge of the Hopkins murder to the police until after he had been convicted of the most recent charges against him and faced the possibility of imprisonment for life. Curtis also testified that in return for his cooperation with the government, the prosecutor had requested major sentencing concessions on Curtis' behalf. Curtis was further impeached with alleged inconsistencies in his testimony; he had stated at different times, for example, that he had witnessed the events of October 13, 1990 through his side window, his windshield, and his rear-view mirror.

Curtis was the only witness who identified Jackson as one of the shooters. Crystal Walker, who was fifteen years old at the time of the killing, testified that she had seen Peyton, whom she knew, shooting at the decedent. Ms. Walker admitted, however, that she had lied to the police and to the grand jury, and that she had implicated two men other than Peyton and Jackson in the murder, even though she knew that these other men were innocent. *fn7

Finally, the prosecution presented evidence showing that Peyton had lied to the police regarding the circumstances under which his car came to be at the murder scene, and that he had induced his girlfriend, Sabrina Pannell, to back up his lie. *fn8 There was also evidence that Jackson lied to the grand jury on the same subject. *fn8 The government argued that this deceptive conduct on appellants' part reflected consciousness of guilt.

Neither defendant testified. Peyton did not present a defense. Jackson called two witnesses, Dwight Sullivan and Sean Hatton. Sullivan testified that he had known Curtis for seven years, and that Curtis had a reputation in the community as a liar. Hatton claimed that, a few days after Hopkins' death, Curtis admitted to Hatton that he (Curtis) had killed the man who shot Cedric Boyd. *fn9 [709 A2d Page 68]

C. The reference to the polygraph test.

After Curtis had been impeached on cross-examination with his failure in 1991 to disclose to the grand jury or to the police his knowledge of the circumstances of Hopkins' murder, the prosecutor attempted to rehabilitate his witness and to elicit the reasons for Curtis' initial lack of candor:

Q. My question, sir, is . . . — if you saw this, why didn't you just tell the grand jury what you saw?

A. Because the first time — I mean, the first time I went in front of the grand jury, it was a lie. So the second time when I went up to the grand jury, they had — they had me put on a lie detector test —

MR. JONES (Counsel for Peyton): Objection.

MR. DAUM (Counsel for Jackson): Objection. May we approach?

THE COURT: Sustained. No.

THE WITNESS: — a lie detector ...

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