Poole v. State

Davidson, J.,

concurring and dissenting:

I agree with the majority that the convictions of the appellant, Timothy Clyde Poole (accused), for the felony murder of his co-felon, Steven Scott Horad, and the use of a handgun in a crime of violence must be reversed. I therefore join in the views expressed in that portion of part 1 of the opinion that reach that conclusion. I further agree with the majority that the death penalty imposed for the accused’s conviction for the premeditated murder of David C. MacLarty must be vacated both because of the jury’s improper consideration of the accused’s conviction for the felony murder of Horad and because of the prosecutor’s improper comments on the possibility of parole. I therefore join in the views expressed in part 8 and that portion of part 1 that reach that conclusion. However, I cannot join in part 2 b of the opinion because I do not agree that the accused’s convictions for the murder of MacLarty and for robbery with a dangerous weapon should be affirmed. In my view, both convictions should also be reversed because of an improper comment made by the prosecutor that improperly impeached the credibility of the defense’s only alibi witness, and thereby prejudiced the accused and deprived him of a fair and impartial trial. Accordingly, to this extent, I respectfully dissent. Under these circumstances, I do not reach the other issues addressed in the opinion.

The record here shows that during closing argument defense counsel objected to, among other things, a comment *202 made by the prosecutor indicating that Yvonne Bethea Mitchell, the defense’s only alibi witness, had not volunteered to take a lie detector test. More particularly, the record shows as follows:

"MR. ANDERS [prosecutor]: ...

"Enough about the State’s case. I would just like to review with you briefly the Defense’s case as presented to you and I think you will agree with me that the sum total of the Defense is Mr. Poole and his girlfriend, Yvonne Bethea at that time, Mitchell today.

"And the Defense is, of course, alibi. An alibi defense.

"All right, her testimony was that Mr. Poole was there all night long and, of course, everything else, no one else came by, no one else was there, no one else can put him in the house, just his girlfriend.

"And my point in asking her where she was last year, a month or so before, was to test her memory and perhaps you to ask yourselves how difficult that is sometimes, to sit and all of a sudden to have to go back and pick out a day, a month or so before, to remember exactly what you were doing.

"That task becomes doubly hard when you are looking to pick out a day that is going to provide an alibi for a very, very close friend of yours charged with a very, very serious crime.

"Now, I don’t know if Yvonne Bethea is intentionally perjuring herself to protect Mr. Poole here in this case or whether she honestly believes that he was there on that day. I don’t know. I don’t know *203 whether she knows at this point, but the point is, and the only point I was trying to make is sometimes it is very difficult when you are asked long after an event to recall back.

"Another important thing that you always have to look for, I know none of you, perhaps none of you have ever sat on a jury before, you have never had an alibi defense before but one thing you have to always look for, because it is very important key to an alibi defense, is what did the person do when they found out that they were the only witness that could establish beyond any doubt that Mr. Poole was not the person that committed these horrible crimes.

"If you had been with someone, a very close friend, a relative, a spouse, a child, on a specific night and he was arrested and charged with two murders, in which the death penalty is asked, I think that you would beat it to the police station so fast to tell them he was with me, you have got the wrong guy, go look for someone else, he was here, I will take a lie detector test, I will do anything, but she never, never, in the years that have passed since this crime, has ever gone to the police, ever told them anything, ever done anything other than to, all of a sudden show up in the court at a prior proceeding to provide this alibi.

"That is something you have got to consider, again a very important piece of the puzzle.

"MR. McCARTHY [defense attorney]: We would enter the strongest objection of two comments from Mr. Anders, Your Honor. Move for a mistrial on both.

*204 "First, he has referred to Yvonne Bethea Mitchell’s refusal to contact the police and take a lie detector test. We believe that is totally inappropriate and grounds for mistrial.

"MR. ANDERS: ...

"As to the other motion for mistrial, as to, I mentioned a polygraph, I was referring to what another individual might do if they had been a witness to a crime, not that this witness should have done that.

"MR. MCCARTHY: I don’t think Mr. Anders’ intent is the question, I think it is the fact of his words on the jury.

"THE COURT: I will deny the motion for mistrial. I don’t think the remarks were intended, nor did they give the impression that Mrs. Bethea, now known as Mrs. Mitchell, was offered and refused a lie detector test.

"I don’t think that that has been any prejudice to the Defendant in this case and will deny the motion.” (Emphasis added.)

The majority concludes that despite the prosecutor’s reference to a lie detector test, "the appellant was not denied a fair trial.” In reaching this conclusion, the majority relies upon three factors. The majority agrees with the trial court that the prosecutor’s comment that the alibi witness had not volunteered to take a lie detector test " 'did [not] give the impression that.. . Mitchell [had been] offered [but] refused [to take] a lie detector test.’” In addition, the majority asserts that "[t]he reference to Mitchell’s failure to take a lie detector test was not stated as an isolated item standing starkly by itself; rather, it appeared along with several other *205 actions the witness could have taken.” Finally, the majority notes "that the appellant sought the most drastic remedy available rather than, for example, an admonition to the jury to disregard the statement.” Indeed, according to the majority, "the appellant sought too much.” Thus, on the basis of its independent review of the record, the majority holds that there was "no reversible error here.”

I agree with the majority that the prosecutor’s reference to a lie detector test did not support an inference that the alibi witness had been offered, but refused to take, a test, I also agree that a test was only referred to as one of several actions the witness could have taken. I further agree that the accused did not request a curative instruction to the jury. Nevertheless, in my view, the prosecutor’s reference to a lie detector test was sufficiently prejudicial to deny the accused a fair trial. Consequently, the trial court’s failure to grant a mistrial requires reversal.

In Maryland, as in virtually every other jurisdiction that has considered the question, the results of a lie detector test are inadmissible. 1 The fact of taking a test, the willingness to take a test, or the unwillingness or refusal to take an offered test are also generally inadmissible. 2 This principle *206 applies whether the person taking a test, willing to take a test, or unwilling or refusing to take an offered test is a witness 3 or the accused. 4 This principle also applies whether the evidence referring to a test is presented by a witness 5 or the accused. 6 Similarly, a comment made by an attorney in opening or closing arguments referring to a test may not properly come before the jury. 7

Whether the accused has been prejudiced by a reference to a test that has been erroneously admitted or otherwise comes before the jury, ordinarily depends upon the facts and circumstances of the case. 8 In Maryland, as in most other jurisdictions it has generally been recognized that when a reference to the results of a test is erroneously admitted or otherwise reaches the jury, the accused is prejudiced. 9 More particularly, in Kelley v. State, 288 Md. 298 , 418 A.2d 217 (1980), a person who had administered a test to an accused *207 testified that the accused had initially refused to take an offered test, and later agreed to do so after realizing that his refusal might mean dismissal from the police force; that statements made by the accused during a post-test interview were inconsistent with and directly opposite those made during a pre-test interview; and that in his opinion the accused was lying. This Court determined that the evidence supported an inference that the accused had failed the test. It held that evidence inferring the results of a lie detector test was "inherently prejudicial,” and that the admission of such evidence was reversible error. Kelley, 288 Md. at 303 , 418 A.2d at 220 .

The rationale underlying courts’ conclusions that inadmissible evidence of test results is prejudicial is that the tests are not sufficiently reliable to establish what they purport to show — whether the person taking the test is lying. Such test results, therefore, improperly bolster or impeach credibility. As this Court said in Kelley :

"[Ujntil such time as the reliability of this particular type of scientific testing has been appropriately established to the satisfaction of this Court, testimony which directly or indirectly conveys the results of such tests should not be admitted.” Kelley, 288 Md. at 302 , 418 A.2d at 219 .

In addition to references to test results generally being held inadmissible and prejudicial, in Maryland as in most other jurisdictions, it has generally been recognized that when the fact of taking a test, the willingness to take a test, or the unwillingness or refusal to take an offered test is erroneously admitted or otherwise reaches the jury, the accused is prejudiced. 10 More particularly, in State v. Driver, 38 N.J. 255 , 183 A.2d 655 (1962), a prosecutor, in an opening statement, stated that the accused was asked to take a test, and that he had repeatedly refused. There, the Supreme Court of New Jersey said:

*208 "[T]o tell a jury of laymen at the very outset of the trial that defendant refused a number of times to take a lie detector test was to create a probable aura of prejudice which would permeate the proceeding to the very end.” Driver, 38 N.J. at 260-61 , 183 A.2d at 658 .

The rationale underlying courts’ conclusions that a reference to the fact of taking a test, the willingness to take a test, or the unwillingness or refusal to take an offered test is prejudicial, is that such a reference supports an inference of what the test results were or would have been. Such an inference improperly bolsters or impeaches credibility because the test is unreliable. This rationale has been expressed in different ways by different courts.

In State v. Kolander, 236 Minn. 209 , 52 N.W.2d 458 (1952), a germinal case, the prosecutor, over objection, was permitted to adduce evidence from a deputy sheriff that the accused had refused to take an offered lie detector test. There, the Supreme Court of Minnesota, after determining that lie detector tests were not sufficiently reliable to permit test results to be admitted, said:

"There was no explanation to the jury of the operation or effect of a lie detector. As a matter of fact, it was not even shown what type of test defendant had refused to submit to. The impact upon the minds of the jurors of a refusal to submit to *209 something which they might well assume would effectively determine guilt or innocence, under these conditions, might well be more devastating than a disclosure of the results of such test, if given after a proper foundation had been laid showing how the apparatus functioned. Where a conviction rests so completely on circumstantial evidence, the erroneous admission of such action on the part of defendant might well be enough to tip the scales against him. We believe that it was prejudicial error to permit such refusal of defendant to submit to the test to be shown. ” Kolander, 236 Minn, at 222, 52 N.W.2d at 465-66 (emphasis added).

Thus, that Court held that a reference to an accused’s refusal to take an offered lie detector test was prejudicial and required reversal.

In State v. Driver, 38 N.J. 255 , 183 A.2d 655 (1962), a prosecutor in opening statement said that the accused had been asked to take a lie detector test, and that he had repeatedly refused. No objection was made. The Supreme Court of New Jersey, acknowledging that lie detector tests were not sufficiently reliable to permit test results to be admitted, said:

"If the results of polygraph examinations are not competent evidence, a fortiori, refusal by a defendant in a criminal case to submit to one cannot be made the subject of testimony. In terms of degree of prejudice, the average jury, unfamiliar with the present scientific uncertainty of the tests, might very well be even more affected by proof of a defendant’s refusal to take the test than by the evidence of results adverse to him coupled with proof of its scientific imperfection. A refusal might be regarded as indicating a consciousness of guilt — undoubtedly the reason here why the Assistant Prosecutor placed such emphasis upon it in his opening. Moreover, his remarks were calculated to prejudice the jury by implying that the mechanical device was the ultimate in tests for the truth.

*210 "Under the circumstances, we regard the remarks in the opening concerning the lie detector test as possessing such horrendous capacity for prejudice against the defendant as to constitute plain error.” Driver, 38 N.J. at 261, 262 , 183 A.2d at 658, 659 (emphasis added).

Thus, that Court held that a reference to an accused’s refusal to take an offered lie detector test was prejudicial and required reversal.

In Kaminski v. State, 63 So.2d 339 (Fla. 1953), cert. denied, 348 U.S. 832 , 75 S.Ct. 55 (1954), the prosecutor, over objection, was permitted to adduce evidence from the victim that he had taken a lie detector test. The Supreme Court of Florida, after acknowledging that lie detector tests were not sufficiently reliable to permit test results to be admitted, said:

’’When the trial judge allowed the evidence to be admitted, and sanctioned the submission by the statement he made, we are of the view that he committed as egregious an error as if he had admitted the results of the test to have been received in evidence over objection. For there can be no doubt that in initiating the inquiry the prosecutor intended to leave in the minds of the jurors the impression that because the witness Newbold had voluntarily submitted to a lie detector test prior to the time of trial he was a man of veracity and hence was telling the truth from the witness stand, no matter how inconsistent his tale might appear to be to the jurors when compared with the testimony offered by other State witnesses.

"Can it logically be argued that the putting of the questions and the allowance of the answers under the circumstances prevailing at the trial did not have a direct and profound tendency to influence or prejudice the minds of the jurors against the defen *211 dants? Can anything be clearer than that when defense counsel failed to cross-examine the witness as to the results of the test, after the court had announced that that course would be open to him in respect to 'what the test was on,’ an impression must have been implanted in the minds of the jurors that the result of the lie detector test had been unfavorable to the cause of defendants or else the inquiry would have been made?

"It was not fair to place the defendants in the entrapped position that required them at their peril either to pursue the inquiry as to the nature of the results of the test or to be damned by the adverse impressions which naturally would be expected to flow from their failure to do so. The practical effect of the admission of the testimony, as fortified by the remarks of the trial judge when he overruled the objection, was to allow, by inference, the admission of damaging evidence that would not have been legally admissible had it been submitted directly. In a situation where the State’s whole case depended entirely upon the testimony of a witness whose credibility appears to have been seriously shaken not only by cross-examination but by evidence given by other State’s witnesses as well, the defendants should not have been placed in this intolerable position.

"Whatever the guilt or innocence of the defendants may ultimately prove to be, there can be no escape from the fact that at the trial they were entitled to the presumption of innocence with which the law clothes all persons accused of crime until proven guilty beyond a reasonable doubt by legally competent evidence. The successful attempt by the prosecution by the means employed to implant in the minds of the jury the impression that because the witness had voluntarily submitted to a lie detector test prior to trial he must perforce be tes *212 tifying truthfully in the course of the trial, resulted, in effect, in the substitution of a mechanical device, without fair opportunity for cross-examination, for the time-tested, time-tried, and time-honored discretion of the judgment of a jury as to matters of credibility.” Kaminski, 63 So.2d at 340-41 (additional emphasis added).

Thus, that Court held that a reference to a witness’s willingness to take a test was prejudicial and required reversal.

I recognize that the reference objected to here did not involve the unwillingness or refusal of the alibi witness to take an offered test. Rather, the prosecutor in closing argument, over objection, stated that the only alibi witness did not volunteer to take a lie detector test. Nevertheless, in my view, the rationale underlying the general principle that a reference to test results, the fact of taking a test, the willingness to take a test, or the unwillingness or refusal to take an offered test, is inadmissible and prejudicial, dictates the result here.

Unlike the majority, I do not discern any meaningful difference between a reference to an unwillingness or refusal to take an offered lie detector test, and a failure to volunteer to take a test. Here, the alibi witness’s failure to volunteer to take a test supports an inference that her reason for not volunteering was that she would have failed a test. Thus, her failure to volunteer to take a test, like the unwillingness or refusal to take an offered test, supported an inference of what the test results would have been. Because the test is unreliable, such an inference improperly impeached the alibi witness’s credibility. Accordingly, in my view, the prosecutor’s reference improperly came before the jury and the accused was prejudiced.

Moreover, I do not agree with the majority that, because the reference to the lie detector test was not isolated, but rather was stated as one of several actions the witness could have taken, the reference was not prejudicial. Notwithstanding its context, the reference to the alibi wit *213 ness’s failure to volunteer to take a test nonetheless supported an inference that the alibi witness was lying. Thus, the reference improperly impeached her credibility and prejudiced the accused.

Finally, unlike the majority, I find that under the circumstances of this case, the failure of the accused to request a curative instruction, rather than a mistrial, is immaterial. I recognize that in Lusby, 217 Md. at 195, 141 A.2d at 895, this Court acknowledged that the prejudice resulting from an improper reference to a prosecuting witness’s willingness to take a lie detector test could be obviated by a curative instruction from the trial court. 11 There, the prosecuting witness, in response to a question from the prosecutor as to whether she had been given any tests, replied, "Yes sir, a lie detector.” Lusby, 217 Md. at 194, 141 A.2d at 895. An objection was sustained, and the trial court immediately instructed the jury to disregard the answer. This Court found that under those circumstances "the prompt action of Judge Gray, in instructing the jury to disregard the answer of the prosecutrix, fully satisfied the right of the defendant to a fair trial.” Lusby, 217 Md. at 195, 141 A.2d at 895.

*214 However, here, the circumstances are substantially different from those in Lusby. The record here shows that the accused objected to the prosecutor’s reference to the failure of the alibi witness to volunteer to take a test. In addition, he moved for a mistrial. The trial court overruled the objection and denied the motion for a mistrial because it found that there had not been "any prejudice to the Defendant. .. .” By finding that the prosecutor’s reference to a lie detector test was not prejudicial to the accused, the trial court effectively foreclosed the possibility that it would afford any remedy designed to obviate prejudice. Under the circumstances *215 here, any attempt to request a curative instruction, rather than a mistrial, would have been futile. The law does not require the performance of a futile act. 12

On the basis of my independent review of the record, I can only conclude that because any request by the accused for a curative instruction would have been denied, the remedy of a curative instruction relied upon in Lusby, and suggested here by the majority, was unavailable. It is for this reason, in my view, that the fact that the accused sought a mistrial, "the most drastic remedy available rather than, for example, an admonition to the jury to disregard the statement,” is immaterial. Indeed, under the circumstances here, I feel constrained to affirmatively disassociate myself from the majority’s view that a person’s life may depend upon the performance of a futile act.

When all is said and done, the unvarnished fact that emerges from this record is that the prosecutor referred to the alibi witness’s failure to volunteer to take a test. That reference supported an inference that her reason for not volunteering was that she would have failed the test, and therefore supported an inference of what the test results would have been. Such an inference improperly impeached the alibi witness’s credibility.

The central core of the accused’s defense was an alibi. The success of that alibi defense was dependent upon the credibility of the alibi witness. Under the circumstances here, I cannot declare a belief beyond a reasonable doubt that the improper impeachment of the alibi witness’s credibility did not influence the jury’s verdicts. Accordingly, *216 I would reverse the accused’s convictions for the murder of MacLarty, and for robbery with a dangerous weapon, and would remand for a new trial.

Judge Cole authorizes me to state that he joins in the views expressed herein.

. Kelley v. State, 288 Md. 298, 302-03 , 418 A.2d 217, 219-20 (1980); see, e.g., Frye v. United States, 293 F. 1013, 1013-14 (D.C.Cir. 1923); People v. Leone, 25 N.Y.2d 511, 517-18 , 255 N.E.2d 696, 699-700 , 307 N.Y.S.2d 430, 434-35 (1969); Commonwealth v. Brooks, 454 Pa. 75, 78 , 309 A.2d 732, 733-34 (1973). But see, e.g., State v. Dorsey, 88 N.M. 184, 184-85 , 539 P.2d 204,204-05 (1975); cf. Commonwealth v. Vitello, 376 Mass. 426, 453-56 , 381 N.E.2d 582, 597-99 (1978).

Courts in many jurisdictions have held that test results are inadmissible even upon stipulation of the parties. See. e.g., People v. Baynes, 88 Ill.2d 225, 239-40 , 430 N.E.2d 1070 . 1079 (1981); State v. Frazier, 252 S.E.2d 39, 46-49 (W.Va. 1979); see also, e.g., Akonom v. State, 40 Md.App. 676, 686-87 , 394 A.2d 1213, 1219-20 (1978). But see, e.g., Commonwealth v. A Juvenile (No. 1), 365 Mass. 421, 429-33 , 313 N.E.2d 120, 125-28 (1974); State v. McDavitt, 62 N.J. 36, 46-47 , 297 A.2d 849, 854-55 (1972).

. See Lusby v. State, 217 Md. 191, 194-95 , 141 A.2d 893, 895 (1958).

For cases holding that a reference to the fact of taking a test is inadmissible, see, e.g., Kaminski v. State, 63 So.2d 339, 339-41 (Fla. 1953); State v. Davis, 351 So.2d 771, 772-74 (La. 1977); State v. Edwards, 412 A.2d 983, 984-87 (Me. 1980); Mattox v. State, 240 Miss. 544, 557-61 , 128 So.2d 368, 370-73 (1961).

For cases holding that a reference to willingness to take a test is inadmissible, see, e.g., State v. Mower, 314 A.2d 840, 841 (Me. 1974); Common *206 wealth v. Saunders, 386 Pa. 149, 156-57 , 125 A.2d 442, 445-46 (1956); State v. Rowe, 77 Wash.2d 955, 958 , 468 P.2d 1000, 1003 (1970).

For cases holding that a reference to the refusal to take a test is inadmissible, see, e.g., People v. Carter, 48 Cal.2d 737, 751-52 , 312 P.2d 665, 674 (1957); State v. Hilton, 431 A.2d 1296, 1300-01 (Me. 1981); State v. Kolander, 236 Minn. 209, 221-22 , 52 N.W.2d 458, 464-66 (1952); State v. Driver, 38 N.J. 255, 260-61 , 183 A.2d 655, 658 (1962); State v. Britt, 235 S.C. 395, 425-26 , 111 S.E.2d 669, 684-85 (1959).

Some few courts have held that reference to a test is admissible when the taking or refusal to take a test is a circumstance preceding a confession, see, e.g., Tanner v. State, 259 Ark. 243, 248-50 , 532 S.W.2d 168, 174 (1976); State v. Bishop, 223 Kan. 539, 541 , 574 P.2d 1386, 1389 (1978). But cf. State v. Green, 271 Or. 153, 169-71 , 531 P.2d 245, 252-53 (1975).

. See, e.g., Commonwealth v. Ball, 254 Pa.Super. 148, 150 , 385 A.2d 568, 569-70 (1978); Nichols v. State, 378 S.W.2d 335, 336-38 (Tex.Crim.App. 1964).

. See, e.g., State v. Stafford, 213 Kan. 152, 161-62 , 515 P.2d 769, 777-78 (1973); State v. Perry, 274 Minn. 1, 12-13 , 142 N.W.2d 573, 580 (1966).

. See, e.g., Carter, 48 Cal.2d at 751-52 , 312 P.2d at 674 (prosecution witness); Ball, 254 Pa.Super. at 150 , 385 A.2d at 569-70 (defense witness).

. See, e.g., Rowe, 77 Wash.2d at 958 , 468 P.2d at 1003 .

. See, e.g., State v. Green, 154 Iowa 1379 , 1383-86, 121 N.W.2d 89, 91-92 (1963); Stafford, 213 Kan. at 161-62 , 515 P.2d at 777-78 ; Driver, 38 N.J. at 260 , 183 A.2d at 658 .

. See Lusby, 217 Md. at 194-95 , 141 A.2d at 895 ; see also, e.g., Davis, 351 So.2d at 774 ; Edwards, 412 A.2d at 985 .

. Kelley, 288 Md. at 302-03 , 418 A.2d at 219-20 ; see Lusby, 217 Md. at 194-95 , 141 A2d at 895 ; see also, e.g., State v. Lowry, 163 Kan. 622, 630 , 185 P.2d 147, 152 (1947).

Courts in some jurisdictions have held that a reference to test results is so prejudicial as to require reversal even when an objection has not been made, or the parties have stipulated to the admissibility of the test results. See, e.g., Baynes, 88 Ill.2d at 239-40 , 430 N.E.2d at 1079 .

. See Lusby, 217 Md. at 195 , 141 A.2d at 895 ; see also, e.g., Carter, 48 Cal.2d at 751-52 , 312 P.2d at 674, 678 ; Kaminski, 63 So.2d at 341 ; Green, 154 Iowa at 1383-86, 121 N.W.2d at 91-92 ; Stafford, 213 Kan. at 162-63 , 515 *208 P.2d at 778 ; Davis, 351 So.2d at 774 ; Edwards, 412 A.2d at 984-87 ; People v. Welke, 342 Mich. 164, 169 , 68 N.W.2d 759, 761 (1955); Kolander, 236 Minn, at 222, 52 N.W.2d at 465-66 ; Mattox, 240 Miss, at 561, 128 So.2d at 373 ; Driver, 38 N.J. at 260-61 , 183 A.2d at 659 ; Ball, 254 Pa.Super. at 150 , 385 A.2d at 569-70 ; Britt, 235 S.C. at 426 , 111 S.E.2d at 685 . But see, e.g., Meyer v. Commonwealth, 472 S.W.2d 479, 486 (Ky. 1971), cert. denied, 406 U.S. 919 , 92 S.Ct. 1771 (1972); State v. Refuge, 270 So.2d 842, 847 (La. 1972); Cook v. State, 388 S.W.2d 707, 709 (Tex.Crim.App. 1965).

Courts in some few jurisdictions have held that a reference to a test is so prejudicial as to require reversal even when an objection has not been made, see, e.g., Driver, 38 N.J. at 260-62 , 183 A.2d at 658-59 , or a curative instruction has been given, see, e.g., Nichols, 378 S.W.2d at 337-38 .

. I note that subsequent to Lusby , some courts in other jurisdictions have held that a curative instruction is not sufficient to obviate the prejudice resulting from improper references concerning lie detector tests. See, e.g.. Green, 254 Iowa at 1383-86 , 121 N.W.2d at 91-92 ; Nichols, 378 S.W.2d at 337-38 . But see, e.g., Pinkney v. State, 241 So.2d 380, 382 (Fla. 1970); Stallings v. Commonwealth, 556 S.W.2d 4, 5 (Ky. 1977). Moreover, at least one court has recognized, in a case strikingly similar to the instant case, that although ordinarily a curative instruction is enough to obviate such prejudice, it is msulticient m a death penalty case. State v. Britt, 235 S.C. 395, 426 , 111 S.E.2d 669 . 684-85 (1959).

In Britt , a witness, m response to a question, stated that one of three accused persons took a lie detector test but that the remaining two "were given the opportunity but refused.” Britt, 235 S.C. at 421 , 111 S.E.2d at 683 . An objection was overruled. Thereafter, the trial court, on its own motion, instructed the jury that it had erred in admitting the testimony, that it was to be stricken from the record, and that the jury was to disregard it. No motion for a mistrial was made.

There, the Supreme Court of South Carolina held that, notwithstanding the absence of a motion for a mistrial after a curative instruction had been given, it would consider the question whether the admission of an accused’s refusal to take a lie detector test constituted reversible error and held that it did. In reaching its conclusion, the Court pointed out that it had previously held that an error on the part of a trial court in admitting incompetent testimony was cured when the testimony was stricken, an objection was sustained, or the jury was instructed to disregard the testimony. The Court *214 further pointed out that it had previously held that where the objectionable nature of testimony was brought to the attention of the trial court and stricken, and the trial court had instructed the jury to disregard the testimony, the error was cured in the absence of a motion by the accused for a mistrial. Nevertheless, the Court then considered whether it would apply these procedural rules in a case involving the death penalty.

In reaching its conclusion that the procedural rules ordinarily applicable in criminal cases would not be rigidly applied in a death penalty case, that Court said:

"The power of the law to take the life of human beings for a violation of the law is one which should be and is exercised with extreme caution. The frailties of human nature are so manifold and manifest until the law should and does place around the defendant, whose life will be taken for a violation of the law, every safeguard to enable such defendant to secure a fair and impartial trial. This Court has taken the position that in all cases involving the life of the defendant, it is not bound down to a consideration of the exceptions raised, but if anything appears in the record which would warrant a reversal of the cause, this Court will consider that matter as if raised by the exceptions. What effect incompetent testimony may have on the minds of the jurors, even after instruction^ to disregard same, is impossible to say.

"We are convinced that the testimony directing the attention of the jurors to the fact that the appellant Britt had been guilty of previous crimes, and the testimony of his refusal to take a lie detector test, even though this testimony was finally stricken out and the jury instructed to disregard the same, constitutes prejudicial error and entitles him to a new trial.” Britt, 235 S.C. at 424, 426 , 111 S.E.2d at 684, 685 (emphasis added).

Thus, the Court acknowledged that, in light of the extraordinary character of a death penalty case, a curative instruction was insufficient to obviate the prejudice resulting from an improper reference to a lie detector test.

Under the facts of the death penalty case here, however, I need not depart from the principle expressed in Lusby .

. Rolfe v. Clark, 269 Md. 14, 18 , 304 A.2d 231, 233 (1973); Hylton v. Mayor of Baltimore, 268 Md. 266, 279 , 300 A.2d 656, 662 (1972); Parish v. Maryland & Virginia Milk Producers Ass’n, 250 Md. 24, 82 , 242 A.2d 512, 544 (1968), cert. denied, 404 U.S. 940 , 92 S.Ct. 280 (1971); Shoreham Developers, Inc. v. Randolph Hills, Inc., 248 Md. 267, 277-78 , 235 A.2d 735, 742 (1967).