                                                                                       06/01/2018
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                     AT KNOXVILLE
                             April 24, 2018 Session

            STATE OF TENNESSEE v. QUINTIS MCCALEB

            Appeal from the Criminal Court for Hamilton County
                   No. 294000 Barry A. Steelman, Judge
                 ___________________________________

                       No. E2017-01381-CCA-R9-CD
                   ___________________________________

The State, pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure,
appeals the trial court’s grant of Defendant’s motion to suppress inculpatory
statements made during his post-polygraph interview. The trial court found that
the statements were voluntary but determined that they were inadmissible under
Tennessee Rule of Evidence 403 because Defendant would be required to
reference the polygraph examination to provide context for Defendant’s
statements made during the post-polygraph interview. Concluding that the trial
court abused its discretion by excluding the statements, we reverse the judgment
of the trial court and remand this case for further proceedings consistent with this
opinion.

 Tenn. R. App. R. 9 Interlocutory Appeal; Judgment of the Criminal Court
                         Reversed and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Leslie Ann
Longshore, Assistant District Attorney General, for the appellant, State of
Tennessee.

Steve E. Smith, District Public Defender, and Joseph Lodato, Assistant District
Public Defender, for the appellee, Quintis McCaleb.


                                    OPINION

                       Factual and Procedural Background
       Defendant, Quintis McCaleb, agreed to take a polygraph examination while
facing allegations of sexual contact with the victim, Defendant’s minor relative.
Sergeant Malcolm Kennemore of the Chattanooga Police Department conducted a
polygraph examination on Defendant. Before the polygraph examination was
administered, Defendant told Sergeant Malcolm Kennemore that he had been
subjected to inappropriate sexual contact as a child. He stated that whoever had
sexual contact with the victim in this case must have gone through something
similar in the past. However, Defendant maintained that he did not engage in any
sexual contact with the victim. Still prior to the polygraph, Sergeant Kennemore
confronted Defendant with the specific allegations made against him, and
Defendant denied that the allegations occurred. Defendant claimed that he was
sick on the day of the alleged crime, and the only time that the victim came into
his room was to retrieve her dog. Defendant claimed that “somehow” on the day
of the alleged crime, the victim told her father and mother that he “touched her and
did all that extra stuff with her.” Throughout the polygraph examination,
Defendant denied the allegations against him.

       Immediately after the polygraph examination and under questioning by the
Sergeant Kennemore, Defendant broke down and admitted to the allegations
during the post-polygraph interview. The examination machinery was removed
from Defendant, but while seated in the same chair as he was during the
examination, Defendant was faced with the results of the polygraph examination
and many pointed and accusatory questions by Sergeant Kennemore. The
following are just some of the references to the polygraph examination made
during the post-polygraph interview:

      I’m going through the polygraph charts, evaluating them, and it’s
      obvious that something happened with you and her. . . . But it’s
      obvious that some kind of contact like this happened with you and
      her.

      When I asked you those questions specifically about, like “Did you
      touch her bare vagina?” “Did she touch your bare penis?” It’s
      obvious there’s something happening there, that something occurred
      with that, so I’m going to help you through this. We’ll work this
      out, okay?
      ...

      I sit here and do these polygraph exams every day, so I’ve had
      circumstances and situations just like this on many times, all right?
                                        -2-
...

There are some people that come in here that talk to me [that] I do
polygraphs with who they [sic] are bad people. . . .
...

Now, again, I – doing the polygraph charts, I see something
happened with her.
...

Well, let me be real clear, okay? The polygraph, it doesn’t get into
your subconscious . . . or anything like that. It doesn’t look at
anything that you’re not thinking about right now. It doesn’t have
that capability. I can’t do that. I can’t get into your . . .
subconscious mind. All I can do with a polygraph is look at and say,
ask you specific questions and say “You’re thinking about
something with that question,” okay? . . . I’m going to ask you a
question, for instance, “Did you touch that girl’s bare vagina?” I can
tell without any question whatsoever that, yeah, you did. I can tell it
with a polygraph. There’s no question at all in my mind with that.
...

I can tell that with the polygraph. I can see it on that, the charts
there as I look at the charts on the computer screen. When I print
out the charts, I do a – I can see it on the charts themselves when I
print these charts. It’s not just my judgment, okay? In the whole
mathematical scoring rhythm that I do with these; right? I’ve been
doing this for years, okay it’s a whole mathematical process and you
come out with plus and minus numbers, basically. When you get
down here to the bottom, this is what really is concerning.
...

[T]hat means deception indicated, so it shows that you were being
deceptive about these questions.
...

This is a computer printout.         It says “deception indicated.
Probability of deception is greater than 99 percent.” And it never
says a hundred. It’s programed with that.
...

                                 -3-
      I can’t put words in your mouth. I know that something happened
      with this girl. There’s really no questions whatsoever in my mind
      with that.
      ...

      I’m going to have to write a report that says, “I asked him these
      questions you wanted to know the answer to, and yes, he absolutely
      did this with this girl. He was lying to me, and he did this with this
      girl.” . . .
      ...

      Okay. Well, you may not remember any of those, but what I can tell
      from the polygraph when I asked you those questions . . . what I can
      tell from the polygraph is that you absolutely do remember touching
      her vagina. I mean, there is no question about that.
      ...

      Well, from my part there’s a hundred percent chance because I can
      tell that with the polygraph, there’s no question, okay? That’s not
      even, like, a yes or no at this point . . . whether you did or not. It’s
      obvious that you did.

Faced with these references to the polygraph examination results, Defendant
admitted to the sexual contact with the victim. The entire polygraph examination
procedure, including the pre-polygraph interview and the post-polygraph
interview, was video recorded.

        Thereafter, a Hamilton County Grand Jury indicted Defendant with two
counts of rape of a child and one count of aggravated sexual battery. In the pre-
trial proceedings various hearings were held on the admissibility of the post-
polygraph interview.

        At the hearing on the motion to suppress the post-polygraph interview, the
State explained that they sought to introduce only the video of the post-polygraph
interview and not “anything related to his willingness to take a polygraph or the
results of the polygraph.” The State conceded that there were portions of the post-
polygraph interview that would have to be redacted because they referenced a
polygraph examination or ran afoul of other rules of evidence.

      Defense counsel argued that the video could not be redacted without
causing Defendant’s statements to be taken out of context. Additionally, Defense
                                        -4-
counsel argued that Defendant had a right to have either the whole interview
admitted or none of it. Defense counsel referred to the rule of completeness and
argued that there were times in the video where Defendant denied the allegations
against him and that, after the video was redacted, Defendant would not be able to
introduce those denials because they were interwoven with references to the
polygraph examination. Defense counsel argued, “[Defendant is] entitled to the
context of the full interview, but there’s so much in there that is inadmissible that
it’s basically impossible to introduce it in a redacted form or complete [form] that
it should be excluded.” Defense counsel went on to say, “Surely the State’s not
prejudiced by its omission, Your Honor. Sergeant Kennemore can testify to
anything that was said during the polygraph itself if he doesn’t reference the
polygraph, and he can relay all of [Defendant’s] answers during the interview
without actually showing it.” Defense counsel went on to say that the video would
be cumulative.

      The State conceded that any direct reference to the polygraph examination
would have to be excluded but argued that some of Sergeant Kennemore’s
statements regarding whether Defendant was withholding information or lying
were derived from Sergeant Kennemore’s observations during the interview.

        During the hearing in which the trial court made its oral ruling excluding
the post-polygraph interview, the trial court recounted the various references to the
polygraph examination. The trial court noted that testimony about polygraph
examinations is not admissible for any purpose. However, the trial court also
noted that voluntary statements made at or around the time of a polygraph
examination could be admissible. The trial court factually distinguished this case
from State v. Damron, 151 S.W.3d 510 (Tenn. 2004) because Defendant was
subject to an interrogation in this case. The court then quoted the following
language from Damron saying, “‘Voluntary statements made during the course of
a polygraph examination are admissible,’ and the Court emphasizes these words,
‘so long as they are consistent with other applicable constitutional and evidentiary
rules.’” 151 S.W.3d at 516.

       The trial court found that Defendant’s statements were voluntary, but the
trial court excluded the statements under Tennessee Rule of Evidence 403,
commenting:

       [W]here our courts have ruled that polygraph examinations and the
       results of those examinations are inherently untrustworthy, that
       they’re not probative, the fact that [Defendant] would need to refer
       to the polygraph examination in order to explain the context of his
                                        -5-
      statements so that the jury could fully understand his statements and
      why he may have said what he did, that creates a danger, a high
      danger of unfair prejudice, because a jury might speculate about the
      results of the polygraph, and our courts have found that polygraph
      results are not probative.

After weighing the probative value against the likelihood of unfair prejudice
according to Tennessee Rule of Evidence 403, the trial court held that “evidence
of the defendant’s statements, even though voluntary, should not be admitted
because the probative value of any statement would be substantially outweighed
by the danger of the unfair prejudice that would come from the jury being aware
that those statements were made post-polygraph.” The trial court clarified that his
ruling applied to both the video and any oral recitation of Defendant’s statements
by Sergeant Kennemore.

      With the trial court’s permission, the State’s interlocutory appeal soon
followed.

                                     Analysis

       The State argues that the trial court abused its discretion when it excluded
the video of the voluntary statements of Defendant and Sergeant Kennemore’s
testimony regarding the voluntary statements of Defendant during the post-
polygraph interview. Defendant disagrees and argues that the trial court did not
abuse its discretion.

       Let us begin by restating what should by now be obvious. Polygraph
evidence is never admissible in Tennessee. State v. Randall Kenneth Reed, No.
E2015-01638-CCA-R3-CD, 2017 WL 1959497, at *8 (Tenn. Crim. App. May, 11,
2017) (citing State v. Sexton, 368 S.W.3d 371,409 (Tenn. 2012)), no perm. app.
filed. Our supreme court has repeatedly held that the results of a polygraph
examination are inherently unreliable. Sexton, 368 S.W.3d at 409 (citing State v.
Torres, 82 S.W. 3d 236, 252 n.20 (Tenn. 2002); State v. Hartman, 42 S.W. 3d 44,
61-62 (Tenn. 2001)). Additionally, evidence of a defendant’s willingness or
refusal to submit to a polygraph examination is likewise inadmissible. Randall
Kenneth Reed, 2017 WL 1959497, at *6 (citing Sexton, 368 S.W.3d at 409). Thus,
it is abundantly clear that any direct or indirect reference to the polygraph
examination or the polygraph examination results is generally inadmissible.

     However, “[s]tatements are not inadmissible merely because they were
made during the course of a polygraph examination.” State v. Damron, 151
                                       -6-
S.W.3d 510, 516 (Tenn. 2004). If a statement made during the course of a
polygraph examination is voluntary, it is admissible as long as it is consistent with
“other applicable constitutional and evidentiary rules.” Id. The mere fact that
polygraph examinations are neither reliable nor admissible does not undermine the
reliability of voluntary statements made by a defendant during the polygraph
examination. Id. at 517. Also, “[c]onfronting a suspect with polygraph results
ordinarily is not coercive or unreasonable.” Id. at 518 (citing Wyrick v. Fields,
459 U.S. 42, 48 (1982). We view voluntary admissions of guilt as inherently
desirable. Id. at 517 (citing Oregon v. Elstad, 470 U.S. 298, 305 (1985)).

       The trial court did not exclude Defendant’s statements in the post-
polygraph interview because they were involuntary, and that issue is not before us
on this appeal. Rather, the trial court ruled that the statements were inadmissible
under “other applicable constitutional and evidentiary rules,” namely Tennessee
Rule of Evidence 403. Tennessee Rule of Evidence 403 states, “Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice[.]” Tennessee Rule of Evidence 403
favors the admissibility of relevant evidence. See Neil P. Cohen, Sarah Y.
Sheppeard & Donald F. Paine, Tennessee Law of Evidence, § 4.03[4] (6th ed.
2011). Courts should “sparingly” take the “extraordinary step” of excluding
otherwise relevant evidence under Tennessee Rule of Evidence 403. White v.
Beeks, 469 S.W.3d 517, 528 (Tenn. 2015) (citing Levine v. March, 266 S.W.3d
426, 439 (Tenn. Ct. App. 2007)).

       The admissibility of evidence is within the sound discretion of the trial
court, and this Court will not interfere with the exercise of that discretion in the
absence of a clear showing of abuse appearing on the face of the record. See State
v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014); State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993). An abuse of
discretion occurs when the trial court (1) applies an incorrect legal standard; (2)
reaches an illogical or unreasonable decision; or (3) bases its decision on a clearly
erroneous assessment of the evidence. State v. Mangrum, 403 S.W.3d 152, 166
(Tenn. 2013) (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2010)).

       Our analysis must focus on the admission of the voluntary statements made
by Defendant during the post-polygraph interview. Those statements amount to a
confession to the alleged crime. Though many of Defendant’s answers are “mm-
hmm” or “hmm-mm” to leading questions by Sergeant Kennemore, there are other
times where Defendant clearly answers “yes” or “no.” Additionally, Defendant
explains some of the details regarding the crime in the second half of the
                                        -7-
interview. The probative value of Defendant’s statements is extremely high. They
amount to, at some level, a confession to the crime.

        Next, we turn to the danger of unfair prejudice. The trial court determined
that the danger of unfair prejudice was the fact that Defendant “would need to
refer to the polygraph examination in order to explain the context of his statements
so that the jury could fully understand his statements.” Therein lies the trial
court’s erroneous assessment of the evidence and abuse of discretion. First, the
trial court incorrectly evaluated the danger of unfair prejudice resulting from
Defendant’s presumed response to the evidence and not the danger of unfair
prejudice resulting from the statements themselves. See State v. James, 81 S.W.3d
751, 757 (Tenn. 2002) (stating that the probative value of the evidence is weighed
against “the risk that the evidence will unfairly prejudice the trial”). The
statements, in and of themselves, would not unfairly prejudice Defendant because
with adequate redaction, Defendant’s statements would appear as nothing more
than a confession. Secondly, Defendant’s responses to the proffered statements
need not include a reference to the polygraph examination. Without a reference to
the polygraph examination, Defendant could still provide context for the
statements by showing that they were part of an extended interrogation where
Defendant was repeatedly confronted with the accusations, asked leading
questions, and accused of lying.

       Additionally, Defendant is not required to do anything at all in response to
the introduction of the statements. Tennessee Rule of Evidence 106 says that
Defendant “may require” the introduction of another part of the writing or
recorded statement to provide context and promote fairness, but it does not require
Defendant to provide context to the statements.             Though in different
circumstances, our supreme court has held that redaction of a statement to exclude
mention of a polygraph examination “did not offend the fairness concerns of
[Tennessee Rule of Evidence] 106” because there were other avenues for the
defendant to provide context. State v. Hartman, 42 S.W.3d 44, 61-62 (Tenn.
2001). We believe the same is true for the case before us. Defendant has the
ability to provide context for the statements even without mention of the
polygraph examination.

       Furthermore, Defendant cannot be required to testify to provide context.
See U.S. Const. amend. V; Tenn. Const. art. I, § 9; State v. Jackson, 444 S.W.3d
554, 585 (Tenn. 2014). The quandary Defendant has herein of either presenting
his side of the story, without reference to the polygraph, or allowing the evidence
to be admitted without testifying to his version of the events is no different than
the dilemma that any criminal defendant faces when making the onerous decision
                                        -8-
about whether to testify at his own trial. If Defendant chooses not to testify or
provide context with reference to the polygraph examination, Defendant’s
statements from the post-polygraph interview could possibly be admitted into
evidence uncontroverted. On the flip side, if Defendant chooses to testify, he is
subject to cross-examination. At any rate, our analysis must focus on Defendant’s
statements, in and of themselves, and not Defendant’s reaction to those statements.

       To hold that the presumed need to reference a polygraph examination to
establish context of a post-polygraph statement runs afoul of Tennessee Rule of
Evidence 403 would eviscerate our supreme court’s holding in Damron that
voluntary statements made during the course of a polygraph examination are
admissible. So broad of a holding would cause nearly every voluntary statement
made in such a scenario to be inadmissible under Tennessee Rule of Evidence 403,
and such cannot be the case.

       Therefore, we determine that the trial court abused its discretion by
excluding Defendant’s voluntary statements made during the post-polygraph
interview under Tennessee Rule of Evidence 403. Subject to redactions consistent
with this opinion and other applicable constitutional and evidentiary rules, the
video of the post-polygraph statements by Defendant and the testimony of
Sergeant Kennemore recounting Defendant’s statements are admissible.

       We envision a video being played to the jury that has been edited to splice
together the admissible statements of Defendant. Not only should the video be
edited to remove any statements about the polygraph examination, but it should be
cropped to the extent that it is possible to eliminate obvious visual cues that would
lead a casual observer to connect Defendant’s statements to a polygraph
examination. If it is believed that the jury may be able to ascertain that portions of
the video have been cut out, it may be necessary for the trial court to instruct the
jury that those portions of the video were removed to ensure that the jury did not
make a decision on an impermissible basis.

                                     Conclusion

       For the aforementioned reasons, the judgment of the trial court is reversed
and this case is remanded for further proceedings.


                                       ____________________________________
                                       TIMOTHY L. EASTER, JUDGE

                                         -9-
