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State v. Key

Court of Appeals of Ohio, Second District, Montgomery

June 2, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DARIUS D.D. KEY Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 15-CR-3377

          MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, Assistant Public Defender, Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the Notice of Appeal of Darius Key, filed July 25, 2016. Key filed a delayed appeal from his June 8, 2016 Judgment Entry of Conviction, following a jury trial, on one count of rape (victim under ten), in violation of R.C. 2907.02(A)(1)(B), a felony of the first degree. Key was sentenced to 15 years to life. At issue herein is the trial court's refusal to allow Key to testify that he volunteered to take a polygraph examination. We hereby affirm the judgment of the trial court.

         {¶ 2} Key was indicted on November 12, 2015, and a not guilty plea was entered on November 18, 2015. On December 21, 2015, Key filed a "Motion for Funding for Expert Witnesses, " which provides in part that he "is also asking the Court for funding for an experienced polygraph expert to administer a polygraph examination to determine the truthfulness [of his] assertion of innocence. Mr. [Key] has been warned that he will be bound by the results of the polygraph examination, but is nevertheless eager to clear his name by submitting to such testing." Key directed the court's attention to State v. Sharma, 143 Ohio Misc.2d 27, 2007-Ohio-5404, 875 N.E.2d 1002 (C.P.), wherein the Summit County common pleas court granted Sharma's request for an evidentiary hearing to qualify his polygraph examiners as experts and admitted the nonstipulated results of the testing at trial. Key argued as follows:

In Mr. [Key's] case, the Court may wish to conduct an evidentiary hearing to evaluate the reliability of the polygraph evidence, to allow the polygraphist to testify as to the general acceptance of polygraph use and methodology, and further, to acknowledge that the defendant was not being deceptive in his answers to questions pertaining to the charges against him. Sharma, supra. This may help the charges against Mr. [Key] to be fairly evaluated and dealt with without the necessity of trial.
In view of the potentially substantial sentence of incarceration Mr. [Key] is facing, as well as other collateral consequences, particularly as they relate to sexual predator standing and reporting, the Defense urges the Court to permit Mr. [Key] to undergo a polygraph examination by a competent examiner, to hold any pretrial hearing that the Court finds to be appropriate, and to find the results admissible.

         {¶ 3} The trial court overruled Key's request on December 30, 2015, after a hearing. At the hearing, the State noted that it did not intend to stipulate to the admissibility of the polygraph testing, and the court indicated that it "has no authority to order a polygraph examination, or to allow its admissibility, unless that State stipulated to such."

         {¶ 4} At trial, in the course of questioning about DNA samples that Key provided in the course of the investigation of his offense, the following exchange occurred:

Q. And you voluntarily did this, right?
A. Yes, sir.
Q. Okay.
A. I took one Q-tip and swabbed my left cheek, and I took another one is one of my right [sic]. And she inserted them into a little package and let me see that she inserted them. And I ...

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