People v. Paffhousen
Citation | 20 Mich.App. 346,174 N.W.2d 69 |
Decision Date | 03 December 1969 |
Docket Number | Docket No. 5791,No. 3,3 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marshall PAFFHOUSEN, Defendant-Appellant |
Court | Court of Appeal of Michigan (US) |
Charles C. Wickett, 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.
Before J. H. GILLIS, P.J., and R. B. BURNS and V. J. BRENNAN, JJ.
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.
Defendant contends that the trial court erred in denying his motion for a mistrial. To so hold would be tantamount to requiring a mistrial every time the word 'polygraph' is mentioned in a criminal prosecution. It was not established that the complainant had submitted to a polygraph examination nor was an attempt made to introduce the results of any such examination. The word 'polygraph' was not used by counsel but was volunteered by the witness. It was properly objected to and the trial court properly ruled that the subject not be pursued any further. It was not, in fact, pursued and no prejudicial error resulted. Compare the situation here with that in People v. Brocato (1969), 17 Mich.App. 277, 169 N.W.2d 483.
On direct examination of the complainant, the prosecutor inquired about a book and certain photographs which defendant had surrendered to the police, allegedly under duress, at the time of his arrest. The complainant testified that defendant had shown them to her at various times before the time of the alleged offense. When these items were offered into evidence, defense counsel moved to suppress them as evidence on the ground that they were illegally seized. He also objected to their admission as evidence on the ground that they were incompetent, irrelevant and immaterial. The trial court denied the motion to suppress, stating,
'We cannot now interrupt the trial of the case--the defendant obviously, from his statement, knew that the pictures and book had been taken--so, we can't interrupt the trial for that purpose.'
Under the circumstances, the denial of the motion to suppress was proper. People v. Ferguson (1965), 376 Mich. 90, 135 N.W.2d 357; People v. Harper (1966), 3 Mich.App. 316, 142 N.W.2d 496; People v. Bradley (1966), 4 Mich.App. 660, 145 N.W.2d 390.
'A defendant with knowledge of facts constituting an alleged search and seizure before trial has the responsibility of communicating same to his attorney who then has the responsibility of moving to suppress in advance of trial.' People v. Wilson (1967), 8 Mich.App. 651, 658, 155 N.W.2d 210, 213.
As for defendant's objection on the ground of incompetency, irrelevancy and immateriality, the trial court concluded:
The book and the photographs were thereupon admitted as evidence. The book is an alphabetically arranged handbook of sexual terms. Of the fifteen photographs allegedly shown the complainant, seven are snapshots of young women posing alone in the nude or semi-nude. The remaining eight photographs need be described only as vividly depicting aberrant sexual behavior.
The ruling of the trial court appears to be based on the holding in People v. Williams (1965), 2 Mich.App. 91, 94, 138 N.W.2d 498, 500:
The above-stated exception was explained in People v. Askar (1967), 8 Mich.App. 95, 101, 153 N.W.2d 888, 891:
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People v. Johnson
...to take a polygraph test. People v. Tyrer, 19 Mich.App. 48, 50, 172 N.W.2d 53 (1969). Particularly helpful is People v. Paffhousen, 20 Mich.App. 346, 350, 174 N.W.2d 69, 70 (1969), where the complaining witness explained she had changed her story because 'you don't fool a polygraph machine'......
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People v. Kosters
...385 Mich. 484, 189 N.W.2d 226 (1971). The mere mention of a polygraph by a witness is not grounds for mistrial. People v. Paffhousen, 20 Mich.App. 346, 351, 174 N.W.2d 69 (1969), lv. den., 383 Mich. 825 (1970). The answer of defendant's ex-wife was responsive to a poorly phrased question. B......
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People v. Brown, Docket No. 55779
...has not been made, the trial court has discretion to consider the issue but need not do so. Inter alia: People v. Paffhousen, 20 Mich.App. 346, 351-352, 174 N.W.2d 69 (1969), lv. den. 383 Mich. 825 (1970); People v. Wilder, 51 Mich.App. 280, 285, 214 N.W.2d 749 (1974), lv. den. 394 Mich. 77......
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People v. Mitchell
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