174 N.W.2d 69 (Mich.App. 1969), 5791, People v. Paffhousen

Docket Nº:Docket No. 5791.
Citation:174 N.W.2d 69, 20 Mich.App. 346
Opinion Judge:V. J. BRENNAN, Judge.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marshall PAFFHOUSEN, Defendant-Appellant.
Attorney:Charles C. Wickett, [20 Mich.App. 349] Wickett, Erickson & Beach, Kalamazoo, for appellant. Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Donald A. Burge, Pros. Atty., Kalamazoo County, Kalamazoo, for appellee.
Judge Panel:[20 Mich.App. 350] Before J. H. GILLIS, P.J., and R. B. BURNS and V. J. BRENNAN, JJ.
Case Date:December 03, 1969
Court:Court of Appeals of Michigan

Page 69

174 N.W.2d 69 (Mich.App. 1969)

20 Mich.App. 346

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Marshall PAFFHOUSEN, Defendant-Appellant.

Docket No. 5791.

Court of Appeals of Michigan, Division No. 3.

December 3, 1969

Rehearing Denied Feb. 3, 1970.

Released for Publication Feb. 13, 1970.

Page 70

Charles C. Wickett, [20 Mich.App. 349] Wickett, Erickson & Beach, Kalamazoo, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Donald A. Burge, Pros. Atty., Kalamazoo County, Kalamazoo, for appellee.

[20 Mich.App. 350] Before J. H. GILLIS, P.J., and R. B. BURNS and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

Defendant was convicted of the statutory rape of a 15-year-old girl. M.C.L.A. § 750.520 (Stat.Ann.1954 Rev. § 28.788).

On appeal, defendant raises four issues, only two of which require our consideration. It was established at trial that the complainant had changed her story about the incident to the policewoman assigned to the case. The prosecutor asked her why she had changed her story and the question was repeated by the trial court. She replied, 'Well, I thought I had better tell the truth for one thing, and, another thing, you don't fool a polygraph machine.' Defense counsel objected and asked that the jury be excused.

Thereupon, the following colloquy took place:

'THE COURT: Now what is the objection?

'MR. BIRKHOLD (Defense Counsel): My objection is that to me it is obvious that counsel was trying to get the polygraph in his testimony.

'THE COURT: No, nothing indicates that.

'MR. BIRKHOLD: Because he kept asking why she changed her mind, and it is obvious he was working up to get that in, and I ask for a mistrial.

'THE COURT: No, he hasn't asked for that. I don't know that she has taken a polygraph test. She just decided she would tell the truth before she did. That is her answer.

'THE COURT: I don't see anything wrong--if you go much farther you are going to be in trouble--but I don't see

Page 71

anything wrong up until now. You asked the young lady why she changed her story.

'MR. BIRKHOLD: And I have objected to it.

'THE COURT: And she said, 'I changed my story because you don't fool a polygraph test.' We know [20 Mich.App. 351] a lot people confess before ever being put on that machine.

'MR. BIRKHOLD: But his whole tenor of questioning is that this is the thing he was trying to bring out.

'THE COURT: I think the Prosecutor had a right to ask her why she said something different the second time than she did the first. Now all she has said is that she decided she had better tell the truth and you don't fool a polygraph. Maybe you can fool a polygraph, but the question is whether she thought you could. So, at this point I see no error.'

Defendant contends that the trial court erred in denying his motion for a mistrial. To so hold would be...

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