People v. Bush
| Decision Date | 25 June 1974 |
| Docket Number | No. 1,Docket No. 16828,1 |
| Citation | 220 N.W.2d 333,54 Mich.App. 77 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. London BUSH, Jr., Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Robert E. Slameka, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief Appellate Div., Gerard A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.
Before BASHARA, P.J., and BRONSON and CARLAND,* JJ.
On the evening of November 30, 1971, the defendant and one Nora Ware entered a taxicab, the driver of which was allegedly shot and killed by the defendant following a brief altercation. The defendant was charged with first-degree murder and ultimately convicted of murder in the second degree, M.C.L.A. § 750.317; M.S.A. § 28.549. From such conviction, the defendant appeals as a matter of right.
Prior to the presentment of proofs, the court and defense counsel were advised that no charge would ever be brought against Miss Ware as the result of the events which occurred on November 30th. Some confusion attends as to whether this fact was made plain to the members of the jury.
It was likewise brought to the attention of the court that Miss Ware stood charged with another murder and had been declared to be incompetent to stand trial on that charge. A hearing was then held to determine whether or not she was a competent witness in the instant case. During this hearing, both counsel were permitted to participate and at its conclusion the court determined Miss Ware to be a competent witness. We believe that this was a proper exercise of the court's discretion.
In the course of the trial, Miss Ware's testimony became of the utmost significance. Except for such testimony the people's case was largely circumstantial. It was her testimony which placed the defendant at the scene of the crime. It was her testimony that placed a gun which might have shot the deceased in the possession of the defendant. From her testimony arises the ground upon which we reverse.
Although at the trial on direct examination the witness testified the defendant was in possession of a gun, it appeared from the transcript taken at the preliminary examination that she had on that occasion denied seeing the defendant with a gun. Thus, it became of supreme importance that her credibility be attacked and on cross-examination the following questions and answers were given:
'
'
'
Defense counsel immediately moved to strike on the ground that the answer was not responsive. The court, holding the answer to be responsive, overruled the motion and the answer was allowed to stand as not being prejudicial to the defendant. No clarifying statement was offered by the court nor was any curative instruction given to the jury. There is no showing that defense counsel knew that the witness had ever submitted to the test referred to or that he deliberately sought the answer received. He only asked 'You lied at some point?', and the only responsive answer was 'That's right'. The balance of the answer was totally unresponsive and should have been stricken.
Our Supreme Court has consistently held that neither the fact of the taking of a lie-detector test nor the results of such a test are admissible in evidence. The rationale for such holdings has been that it has never been established that reasonable certainty follows from such tests, People v. Frechette, 380 Mich. 64, 155 N.W.2d 830 (1968); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); People v. Becker, 300 Mich. 562, 2 N.W.2d 503 (1942).
Similarly, in every case where the credibility of a witness was being tested and where either by design or inadvertence either the witness or the police have sought to bolster the testimony being given by the disclosure of the fact of a polygraph test and its results, this Court has reversed, People v. Sinclair, 21 Mich.App. 255, 175 N.W.2d 893 (1970); People v. Goodwin, 40 Mich.App. 709, 199 N.W.2d 552 (1972); People v. Lawson, 48 Mich.App. 662, 211 N.W.2d 96 (1973). This has been true whether or not objection has been made to such testimony or whether cautionary instructions have been given. It is a longstanding rule that the results of polygraph tests are not admissible in evidence and their admission results in prejudicial error. In People v. Goodwin, Supra, the Court, 40 Mich.App. on page 714, 199 N.W.2d on page 555 spoke as follows:
'This rule includes polygraph tests given to both the defendant and any witnesses.'
The holdings of...
To continue reading
Request your trial
-
People v. Rodgers
...of the witness have been held to be improper, People v. Paul F. Baker, 7 Mich.App. 471, 152 N.W.2d 43 (1967); People v. Bush, 54 Mich.App. 77, 220 N.W.2d 333 (1974). 1 The cases cited by defendant from other jurisdictions also fall neatly within this pattern. In State v. Parsons, 83 N.J.Sup......
-
People v. Liddell
...results of the test, we cannot say that the consideration of the polygraph testimony constituted harmless error. See People v. Bush, 54 Mich.App. 77, 220 N.W.2d 333 (1974), and People v. Levelston, 54 Mich.App. 477, 221 N.W.2d 235 Polygraph evidence has been held to be erroneous in numerous......
-
People v. Monet, Docket No. 77-966
...accused was subject to a polygraph test and its results, People v. Frechette, 380 Mich. 64, 155 N.W.2d 830 (1968); People v. Bush, 54 Mich.App. 77, 80, 220 N.W.2d 333 (1974), Lv. den. 393 Mich. 755 (1974), see also People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977), such facts were eas......
-
People v. Whitfield, Docket No. 19646
...could be found whether or not an objection has been made or whether or not the cautionary instruction was given. People v. Bush, 54 Mich.App. 77, 80, 220 N.W.2d 333 (1974). Another factor to be considered is whether the reference to the lie-detector test was inadvertent, or whether it was p......