People v. Monet, Docket No. 77-966

• Decision Date: 06 June 1979
• Docket Number: Docket No. 77-966
• Citation: 90 Mich.App. 553,282 N.W.2d 391
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rafiq Mohammed MONET, Defendant-Appellant. 90 Mich.App. 553, 282 N.W.2d 391
• Court: Court of Appeal of Michigan — District of US

Page 391

282 N.W.2d 391

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rafiq Mohammed MONET, Defendant-Appellant.

Docket No. 77-966.

90 Mich.App. 553, 282 N.W.2d 391

Court of Appeals of Michigan.

June 6, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 555] Noel D. Culbert, Livonia, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., H. Gail McKnight, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and KELLY and RILEY, JJ.

RILEY, Judge.

Defendant appeals as of right his conviction of manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, following his third trial on charges of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549.

The defendant had originally been charged with the second-degree murder of one Mohammed Tahir Khan. The prosecution alleged that the homicide had taken place on February 15, 1976. The badly-decomposed body of the deceased was found on June 10, 1976, in the trunk of his car in a shopping center in the city of Southgate, Michigan. Identification was made through fingerprints and the apparent cause of death was strangulation. The defendant had three trials in this case, the first two ending in jury deadlock. The third jury ultimately convicted the defendant of manslaughter.

The events of record below which follow form [90 MICHAPP 556] the basis of the defendant's issues raised on appeal, and indeed, constitute the bulk of the prosecution's case against the accused. After the discovery of the deceased's body, the police investigators learned that the defendant's stepdaughter, Rahmat Monet, had become pregnant as a result of an affair with the deceased; moreover, the girl had had an abortion in February, 1976. This information, because it supplied a motive, convinced the police that defendant was a likely suspect in the homicide. He was advised of his constitutional rights on July 7, 1976, and told police that he understood his rights and would cooperate with them. He denied knowing that his stepdaughter was pregnant or that the deceased had anything to do with it.

On July 10, 1976, the defendant indicated he would cooperate with the police by taking a polygraph examination. He was taken to the Michigan State Police post in Detroit where he met briefly with Sgt. Chester Romatowski, a polygraph operator. The defendant and Romatowski were alone together for 11/2 hours during the polygraph examination. After this period, the defendant indicated that he wanted to make a statement. The statement given constituted a confession by the defendant that he had killed the deceased.

The defense strategy in each of the defendant's trials was to create a reasonable doubt in the minds of the jury by contesting the voluntariness of defendant's confession and by presenting alternative theories explaining the decedent's death. To this end, defendant presented allegations of coercion from three distinct sources, (threatening telephone calls, conversations with his cousin, and from Sgt. Romatowski), and presented testimony which, arguably, led to the inference that the [90 MICHAPP 557] deceased had been murdered as a result of a feud in the Pakistani community or because of involvement in drug trafficking. As a consequence of this strategy, a theme running through defendant's first two issues is the tension between the defendant's right to present a defense and the duty of the trial court to maintain an orderly progression of witnesses and evidence, thus giving the jury an organized presentation of the facts and issues.

Of defendant's four issues raised on appeal, we need address only two and reverse for yet another trial.

First, defendant asserts that the trial court erred in forbidding inquiry by defense counsel as to possible coercion of the defendant by Sgt. Romatowski during the time they were alone together. We agree with the defendant's contention that the exclusion of this testimony constituted reversible error.

As previously noted, defendant sought to discredit the confession given immediately after the 11/2 hour polygraph test by asserting a coercion defense. The trial court excluded inquiry into what transpired during that 11/2 hour period for the reason that the prosecution would be unable to inform the jury of the taking of the polygraph test and its results. Therefore, it would be unfair to permit the defendant to raise the police coercion issue where the prosecution was in no position to rebut defendant's allegations.

At trial, Sgt. Henry, who had investigated the homicide, testified on direct examination that defendant was not coerced at any time during the day on which the polygraph was administered. Before defense counsel had the opportunity to cross-examine, the prosecutor moved that the defense be prohibited from asking questions concerning[90 MICHAPP 558] the time that defendant spent with Sgt. Romatowski. This motion was granted by the trial court. When defendant later took the stand, the prosecution was allowed to question the accused as to the lack of coercion during the taking of the statement. Defense counsel objected, and pursuant to a lengthy argument, the court ultimately agreed that the prosecution had engaged in an unfair tactic. Sgt. Romatowski himself further testified on direct examination that no threats or coercion were used in obtaining defendant's statement.

The prosecution argues that the ban against evidence of polygraph tests and their results precluded defendant's coercion testimony. While it is true that Michigan law specifically forbids both the introduction of evidence that an 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 easily separable from evidence pertinent to defendant's coercion defense in the case at bar. All the jury need have known was that Sgt. Romatowski had interrogated the defendant. In fact, during each of the first two trials, defendant testified that he felt intimidated by Sgt. Romatowski; that the officer had raised his voice, shook his fist, and threatened him. At both proceedings, Sgt. Romatowski effectively asserted in rebuttal that he did nothing to intimidate the defendant, nor did anything to coerce the statement other than accuse defendant of lying. Thus, two previous juries had gone through the same evidence without notice of any impermissible reference to the polygraph examination. There is no valid reason why the same could not have been [90 MICHAPP 559] true here. Defendant should have been allowed to present evidence to the jury in support of his theory of the case, and the court's ruling prohibiting that evidence constituted error. As it effectively deprived defendant of much of his coercion defense, we cannot conclude that it was harmless beyond a reasonable doubt. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972); People v. Hall, 77 Mich.App. 456, 461, 258 N.W.2d 517 (1977), Lv. den. 402 Mich. 909 (1978), People v. Heard, 58 Mich.App. 312 316, 227 N.W.2d 331 (1975), Lv. den. 400 Mich. 812 (1977). We express dismay over the necessity of a fourth trial in this matter. Nevertheless, we are convinced that the magnitude of error presented here compels our disposition.

We briefly review one other allegation of error that may arise again at trial. Defendant claims that the trial court improperly excluded proffered evidence of the deceased's bank records. As noted, a substantial part of the defense was the propounding of alternative theories explaining the killing. Defendant argued that the deceased might have been killed as a result of a feud in the Pakistani community or as a result of his involvement in drug trafficking. As a means of substantiating the latter theory, defendant sought to introduce the deceased's bank records which indicated only that there had been an $11,000 deposit and withdrawal approximately six weeks prior to the murder.

Other evidence at trial served to refute defendant's claim; however his allegation was not without support. Igbal Monet testified that the deceased had previously, in his presence, sold packages wrapped in aluminum foil.

When defendant attempted to introduce the [90 MICHAPP 560] bank records, the prosecutor objected on the basis that the evidence was "prejudicial". However, no exception was made to the introduction of "normal banking transactions" of the deceased. When the prosecutor was permitted to detail the records which were admitted, he characterized those as being "normal" without having to explain the $11,000 transaction. This, like the exclusion of the...