People v. Nash

• Decision Date: 27 February 2001
• Docket Number: Docket No. 208799.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Edward NASH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

625 N.W.2d 87

244 Mich. App. 93

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Edward NASH, Defendant-Appellant.

Docket No. 208799.

Court of Appeals of Michigan.

Submitted April 11, 2000, at Detroit.

Decided December 26, 2000, at 9:15 a.m.

Released for publication February 27, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Ana I. Quiroz, Assistant Prosecuting Attorney, for the people.

Robert M. Morgan, Detroit, for the defendant.

Before GRIBBS, P.J., and HOEKSTRA and MARKEY, JJ.

PER CURIAM.

Defendant appeals as of right from his jury trial convictions of first-degree murder, M.C.L. § 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2). Defendant was sentenced to life imprisonment for the first-degree murder conviction and two years' imprisonment for the felony-firearm conviction, the sentences to run consecutively. We reverse.

Defendant raises numerous issues on appeal, one of which we find requires us to reverse his convictions, that issue being that defendant was denied due process and a fair trial when the prosecution's key witness made reference to having taken a polygraph examination.

I

The victim in this case was shot to death inside a dry-cleaning establishment where she worked. The murder went unsolved for ten years. Relatives of the victim managed to get the case reopened, and the ensuing investigation led to the arrest of defendant.

At trial, the only prosecution witness to directly implicate defendant in the homicide was Cinnamon Miller (hereafter "witness"). The witness' mother and the victim were lesbian lovers and, during the witness' childhood, she lived with her mother and the victim for many years. There was a long history of discord between the witness and the victim. This discord resulted in an unsettling home life for the witness. The witness had many behavioral problems and spent years of her childhood in a psychiatric institution.

Ultimately, the witness testified that her hatred for the victim caused her to plan to kill the victim and that she solicited defendant to assist her in perpetrating the murder. The witness claimed in her testimony that she obtained a gun to be used in the murder and she described the events that resulted in defendant entering the dry cleaners and killing the victim.

During the trial, the prosecutor and defense counsel extensively examined and cross-examined the witness. On cross-examination, defense counsel soundly attacked the witness' credibility with several conflicting statements that the witness had given to the police during the investigation and with her admitted history of lying. During redirect examination, the prosecutor attempted to rehabilitate the witness by repeatedly inquiring into what led the witness to finally tell the truth about the murder and why the jury should believe her testimony. This repeated questioning concluded with the following exchange.

Q. Okay. So, then, why should we believe you?

A. That's up to you. I took a lie detector test.

Defense counsel objected to this testimony and the trial court sustained the objection, struck the response from the record, and instructed the jury to disregard the answer. Defense counsel did not move for a mistrial on the basis of the witness' reference to taking a polygraph test. The trial concluded with the jury finding defendant guilty as charged of first-degree murder and possessing a firearm during the commission of a felony.

II

First, we address the appropriate standard of review. Although defendant submits that a request for a mistrial is reviewed under an abuse of discretion standard and that the alleged error should be reviewed under this standard, the record reveals that defendant failed to request a mistrial with regard to the polygraph testimony. Had defendant requested a mistrial, the proffered standard of review would be accurate. People v. Ortiz-Kehoe, 237 Mich.App. 508, 513, 603 N.W.2d 802 (1999) ("the proper standard of review for a trial court's decision to grant or deny a mistrial is abuse of discretion"). However, because defendant objected to the reference to a polygraph test, but did not move for a mistrial, it appears that defendant was satisfied with the court's handling of the matter. The court sustained the objection, struck the response from the record, and instructed the jury to disregard the answer. On this record, defendant did not receive an adverse ruling from the trial court from which to appeal.

Nonetheless, this does not foreclose the possibility of appellate review. We believe that the alleged error should be reviewed by the even more restrictive standard of forfeited nonconstitutional error. We find that the failure to request a mistrial is tantamount to counsel's failing to preserve an objection. Under such a circumstance, a defendant is entitled to the limited review afforded under the forfeited nonconstitutional error standard. As such, defendant must show a plain error that affected his substantial rights, and this Court must exercise its discretion when deciding whether reversal is necessary. People v. Carines, 460 Mich. 750, 763, 774, 597 N.W.2d 130 (1999). In Carines, supra at 763, 597 N.W.2d 130, our Supreme Court explained:

To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. [United States v. Olano, 507 U.S. 725,] 731-734, [113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ]. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. Id., p. 734 . "It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." Id. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error "`seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence." Id., pp. 736-737 .

We review defendant's forfeited claim of nonconstitutional error under this standard.

III

Normally, reference to a polygraph test is not admissible before a jury. People v. Pureifoy, 128 Mich.App. 531, 535, 340 N.W.2d 320 (1983). Indeed, it is a bright-line rule that reference to taking or passing a polygraph test is error. People v. Rosters, 175 Mich.App. 748, 754, 438 N.W.2d 651 (1989); Pureifoy, supra.

Thus, plain error occurred when the key prosecution witness mentioned having taken a polygraph test.

Although reference to a polygraph test is inadmissible, Pureifoy, supra, it does not always constitute error requiring reversal, People v. Rocha, 110 Mich.App. 1, 8, 312 N.W.2d 657 (1981). For example, "[a] reference may be a matter of defense strategy, the result of a nonresponse [sic] answer, or otherwise brief, inadvertent and isolated." Id. Previously, to determine if reversal is required, this Court has analyzed a number of factors, including

"(1) whether defendant objected and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster a witness's credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted." [People v. Kiczenski, 118 Mich.App. 341, 346-347, 324 N.W.2d 614 (1982), quoting Rocha, supra at 9, 312 N.W.2d 657.]

A panel of this Court considered these factors in People v. Whitfield, 58 Mich.App. 585, 228 N.W.2d 475 (1975), a case that addressed polygraph testimony as unpreserved error, and not in the context of a motion for a mistrial, but before our Supreme Court stated the standard of review for forfeited nonconstitutional error. Defendant utilized these factors to persuade this Court of the prejudice caused to him as a result of the reference to the polygraph examination. In reviewing defendant's claim of forfeited nonconstitutional error, we find these factors useful in determining whether defendant was prejudiced by the reference to the polygraph test. Considering these factors, we conclude that the mention of the polygraph test in the present case prejudiced defendant.

First, defense counsel objected to the inappropriate reference to a polygraph test and the...