People v. Lawson

• Decision Date: 27 August 1973
• Docket Number: No. 3,Docket No. 11183,3
• Citation: 48 Mich.App. 662,211 N.W.2d 96
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles LAWSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 96

211 N.W.2d 96

48 Mich.App. 662

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles LAWSON, Defendant-Appellant.

Docket No. 11183.

Court of Appeals of Michigan, Division No. 3.

Aug. 27, 1973.

Released for Publication Oct. 18, 1973.

Alphonse Lewis, Jr., Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and MILES,* JJ.

MILES, Judge.

The defendant, Charles Lawson, was convicted by a jury on a charge of the sale of heroin (M.C.L.A. § 335.152; M.S.A. § 18.1122) on October 14, 1970.

He appealed to this Court and it was remanded for a consideration of post conviction motions. His motion for a new trial was denied by the trial court on January 31, 1973, but he was resentenced to a term of from 7 1/2 to 20 years, a reduction from his original 20- to 30-year sentence. Of importance to the case was the testimony of police informant, James Booker, whose job it was to make 'controlled buys' of drugs. Booker's identity has been known to this Court as being involved in a similar capacity in another case. (People v. Leroy Goodwin, 40 Mich.App. 709, 199 N.W.2d 552 (1972).) Booker testified that he obtained the packages from the defendant. He admits to having used heroin frequently while acting as an informant. He was under a probationary sentence on a marijuana conviction during the trial of the instant case. His veracity had been vigorously attacked at preliminary examination.

Defendant alleges several prejudicial errors, the first being the claim that the trial court erred in not granting a mistrial after disclosure in open court that Booker had improved his credibility by having successfully passed a polygraph test.

The fact that Booker had taken a polygraph exam was made known several times at the trial. The first reference to any polygraph examination was in answer to a question asked by defense counsel. The answer was unresponsive to the question but the defense did not move that it be stricken. Later, the witness interjected that he had taken another polygraph test as it related to an alleged breaking and entering. Again, the defense did not move to strike it. Still later, the witness mentioned the polygraph exam to explain why the breaking and entering charges had been dropped. This episode occurred in response to a question from the defense which implied that Booker was receiving special favors from the police.

Ultimately, defendant's counsel asked the following question:

'Q. Now witness, after you told the police department that you were lying about these other cases, you know the reason that they didn't drop this case against Lawson, don't you?

'A. After I told them about I was lying, I was given a polygraph.'

Again, there was no motion to strike the reference to the polygraph. Instead, defense counsel cross-examined Booker extensively to ascertain whether the suggestion had been made by the police or prosecuting attorney to get the reference to the polygraph into evidence. As to each it was vociferously denied by the witness.

Eventually, on redirect examination, the prosecution asked the question:

'Q. You indicated that you took a polygraph examination?

'MR. LEWIS (defense counsel): If the court please, I object to that also. Counsel knows very well that a polygraph examination is not admissible in any court.

'THE COURT: Objection overruled. You asked the questions that brought it out.

'MR. LEWIS: I didn't--I didn't say anything about or know anything about a polygraph test.

'THE COURT: That is right, but you asked the questions which brought it out. You may go ahead.

'MR. LEWIS: You know why it was brought out, too, because they probably told him to mention it.

'THE COURT: You are instructed never to do that again in this court, Mr. Lewis. I think the jury should be instructed to disregard the remark by counsel.

'MR. LEWIS: If the court please, can the jury be instructed at this time as to the fact that the law does not admit any polygraph test in evidence.

'THE COURT: That's true, but neverless, you have no business making a remark like that in front of the court or the jury.'

A review of the record indicates that the court never did instruct the jury in accordance with the request...