People v. Baker

Decision Date01 August 1967
Docket NumberNo. 2,Docket No. 2223,2
Citation7 Mich.App. 471,152 N.W.2d 43
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Francis BAKER, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Gregory J. Forsthoefel, Beardsley, Conklin & Forsthoefel, Tecumseh, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Harvey A. Koselka, Pros. Atty. Lenswee County, Adrian, for appellee.

Before KAVANAGH, P.J., and GILLIS and McGREGOR, JJ.

T. G. KAVANAGH, Presiding Judge.

Appellant, an adult male, and John Dale Martin, a fifteen year old boy, were friends and 'shirt tail' relatives. As such, they spent some time together. Appellant gave John several small articles, including a watch and a transistor radio. He also financed the purchase of a Honda motorcycle for John.

John had on occasion stayed overnight at the apartment of appellant and on one of these occasions, on or about August 28, 1965, allegedly appellant and John Dale Martin, at appellant's encouragement and threats, committed an act of gross indecency 1 with each other. Appellant denied that such act took place.

In September, 1965 John Dale Martin was stopped for operating a Honda without a license and although the record does not disclose the connection, he was questioned with reference to the above activities. After three such interrogations, at different times, John admitted the alleged act of gross indecency.

Appellant was brought to trial on the charge of gross indecency, found guilty by a jury, and sentenced to three to five years in prison. He raises four questions on appeal:

1. Did the trial court err in admitting the testimony of a witness who was present during the testimony of other witnesses, after the court had ordered that all witnesses be excluded when testimony was offered into evidence?

2. Did comments by the prosecutor during his closing argument infringe appellant's right not to testify in his own behalf?

3. Did reference to a polygraph test in the testimony and in the final argument of the prosecutor prejudice appellant's right to a fair and impartial trial?

4. When the jury, during its deliberations, asked that the testimony of John Dale Martin be read back to then, did the court err in reading from its notes instead of waiting for a transcript of the testimony to be prepared?

Defendant acknowledges that the alleged errors were not objected to at trial, but he asserts that this does not preclude their being raised here for the first time. It is a settled rule that if appellant fails to raise a proper objection to alleged errors at trial, he is not entitled to raise them on appeal for the first time. See People v. Borowski (1951), 330 Mich. 120, 47 N.W.2d 42; People v. Martin (1965), 1 Mich.App. 265, 135 N.W.2d 560. Although our Court Rules have abolished the necessity of a formal exception to rulings and orders of the court, it is still necessary to make objections at trial to preserve questions for appeal. GCR 1963, 507.5. See Honigman and Hawkins, Michigan Court Rules Annotated (2d ed., 1963), p. 395.

However, this court, in observing this general rule, will exercise its 'prerogative of searching for error which reflects clear injustice.' People v. Hicks (1966), 2 Mich.App. 461 at 463, 140 N.W.2d 572 at 573. 'The inherent power of this Court to prevent fundamental injustice is not limited by what appellant is entitled to as a matter of right.' People v. Dorrikas (1958), 354 Mich. 303 at 316, 92 N.W.2d 305 at 307.

We think that appellant's third question, relating to references to a polygraph test, merits examination although no objection was made at trial. On cross-examination John Dale Martin testified in response to questions by appellant's counsel that on the occasions when he was interrogated by the police he had denied having an indecent association with appellant. Counsel then asked him, 'When did you admit this?' He answered, 'Went up and took a polygraph test.' Counsel asked that this answer be stricken as unresponsive. The court ruled that it was 'a response' and let the answer stand.

We believe the answer was not responsive and should have been stricken because it did not relate necessarily to the time of the admission. However, we do not regard this as reversible error in view of the fact that subsequent cross-examination established the fact that the answer did relate to time.

In his closing argument the prosecutor commented upon appellant's emphasis on John's denials to the police:

'Mr. Jameson (appellant's counsel) doesn't like to bring out the fact that his story was changed by John Martin as he told you, when arrangements were made for the polygraph. This is when his story changed. this is important.'

It is well settled in this State that the results of a polygraph test are not admissible into evidence. See People v. Becker (1942), 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171. Neither are the conclusions of the person administering the test admissible. See People v. Welke (1955), 342 Mich. 164, 68 N.W.2d 759. However, so far as we can determine, the question whether the fact that a polygraph test has been made is admissible has not been passed upon. We hold that because the results of a polygraph test are incompetent evidence, the fact that such a test was made is immaterial, and reference thereto should be excluded upon proper objection. However, the objection here was that the answer was unresponsive and no objection was made to the materiality of the fact.

If evidence of the fact of a polygraph test be admitted or improper argument about it be made even though no objection to either be interposed, the court should instruct the jury as to the unreliability of such tests. ...

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  • People v. Johnson
    • United States
    • Michigan Supreme Court
    • April 21, 1976
    ...term polygraph constitutes more than such a 'mere irregularity' has been considered by our Court of Appeals. In People v. Baker, 7 Mich.App. 471, 476, 152 N.W.2d 43 (1967), Judge, now Chief Justice, Kavanagh, found that references to a polygraph test within the context of a particular case ......
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