People v. Ray

• Decision Date: 09 March 1987
• Docket Number: Docket No. 82573
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Edward RAY, Defendant-Appellant. 156 Mich.App. 31, 401 N.W.2d 296
• Court: Court of Appeal of Michigan — District of US

Page 296

401 N.W.2d 296

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Edward RAY, Defendant-Appellant.

Docket No. 82573.

156 Mich.App. 31, 401 N.W.2d 296

Court of Appeals of Michigan.

Submitted June 10, 1986.

Decided Nov. 4, 1986.

Released for Publication March 9, 1987.

[156 MICHAPP 33] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Mark Sandford, Asst. Pros. Atty., for the People.

Terrance P. Sheehan, Flint, for defendant on appeal.

Before BEASLEY, P.J., and WALSH and HOOD, JJ.

BEASLEY, Presiding Judge.

Defendant, Daniel Edward Ray, was convicted of arson of a dwelling, in violation of M.C.L. Sec. 750.72; M.S.A. Sec. 28.267. He was sentenced to [156 MICHAPP 34] serve not less than 160 months nor more than 240 months in prison. Defendant appeals as of right.

On appeal, defendant raises three issues. First, defendant claims that it was error requiring reversal to deny his motion to suppress incriminating statements made by him to the polygraph examiner and to admit these statements into evidence at trial over objections by his attorney.

The charge against defendant arose out of a fire which started in an apartment formerly occupied by two of defendant's friends. The evidence presented at trial revealed that the fire had been intentionally set. The evidence also revealed that on the day preceding the fire, defendant had assisted his two friends in moving out of the apartment. The landlord of the apartment had evicted defendant's friends for nonpayment of rent.

A neighbor of defendant's friends testified that just before the fire started he observed a man flicking a butane lighter on the patio of the apartment where the fire started. The neighbor also testified that he had seen the man earlier in the day helping someone move out of the apartment. The neighbor went on to testify that he had reported his observations to the police and, in a photographic lineup conducted on the day following the fire, he had identified defendant as the man who had been flicking the lighter. As a vital part of his case, the prosecutor also offered the testimony of a state police sergeant that defendant had allegedly confessed to setting the fire, which testimony was admitted over the objection of defendant.

Defendant testified at trial. He admitted that he had been in the general area of the apartment building when the fire started, but he denied any involvement in starting the fire. Through his own testimony, defendant went on to assert an alibi [156 MICHAPP 35] defense. He claimed that he and one of his friends who had just moved out of the apartment had been driving near the apartment building when they saw the fire. Defendant testified that after he and his friend saw the fire they went to the scene to watch. Defendant also denied that he had confessed.

As previously indicated, the first issue raised by defendant on appeal is that it was error to deny his motion to suppress the testimony of a police officer concerning allegedly incriminatory statements made by defendant. Defendant allegedly made the incriminatory statements following a polygraph examination conducted by Michigan State Police Sgt. Robin Bratton. Bratton testified both at the preliminary examination and at trial.

The record reveals that defendant had agreed to submit to the polygraph examination. Prior to the examination, defendant and his counsel, who accompanied defendant to the examination site, apparently were informed that the polygraph examination could not be conducted while defendant's counsel was in the room. While this may be better practice when a polygraph examination is conducted by a professional whose sole purpose is to form an opinion whether a person is telling the truth, when, as here, part of the purpose seemed to be to obtain an admission or statement from the person tested to use against him in his trial, it is difficult to see any good and valid reason for prohibiting counsel from being present, particularly after the polygraph instrument is detached. ¹

While his counsel was still present, the examiner, Sgt. Bratton, handed defendant a written "Polygraph Waiver" form which consisted of four sections: (1) a "Rights" section which is largely [156 MICHAPP 36] taken from the Polygraph Protection Act; ² (2) a standard "Miranda warning"; ³ (3) a "Waiver" of his Miranda rights; and (4) an "Acknowledgment" which is essentially ambiguous. Bratton, who played the dual role of polygraph examiner and police detective, read the rights and warnings included in the form to defendant, while his counsel was present, and obtained an oral waiver from him. Defendant then signed the "Acknowledgment" included on the written waiver form, which provided:

"1. I am willing to take a polygraph examination consisting of a testing phase and questioning, before and after.

"2. I understand that I have the right to remain silent and that anything that I say during the testing phase and questioning, before or after, can be used against me in a court of law. I further understand that I may exercise my right to remain silent and stop answering questions at any time.

"3. I understand that the polygraph test and the questioning, before and after, cannot be conducted with a lawyer actually present in the examination room, and I am willing to waive his/her presence. However, I fully understand that I have the right to talk with and have the assistance of a lawyer at any time during the polygraph test or questioning and that I may stop the test or questioning at any time and exercise that right.

"4. No promises or threats have been made to me and no pressure of any kind has been used against me.

"5. This statement has been read to me and I understand each of my rights and I am willing to waive these rights and take the polygraph examination at this time."

[156 MICHAPP 37] In this case, the prosecutor called Sgt. Bratton as a witness at the preliminary examination. Before she testified, defense counsel objected as follows:

"MR. WHEATON: [Defense Counsel ] Your Honor, if I might at this time, before the Sergeant comes in, I'm going to object to any testimony from this witness.

"THE COURT: Which witness?

"MR. WHEATON: The one Robin Bratton, is it? And I'm kind of--this is kind of a delicate situation. There was a specific purpose for which she became involved with Mr. Ray which did not require her to do anything more than what was required for this specific purpose. She had no reason to talk with Mr. Ray before--or afterwards, and that is what the testimony is going to involve. Something that happened after, and I'm objecting to the testimony, and I'm doing it very carefully because I don't want to get into the area that I--we think may cause some problems but it did happen afterwards. She was aware that Mr. Ray had an attorney. She was aware I--because I had been out there before. She did not contact me and ask if I could talk to--she could talk to my witness, and I don't believe that she had any business in doing so, and the statements that are made I think are inadmissible, and I'm going to--

"THE COURT: I'm going--you've completely lost me. What's the witness name?

"MR. WHEATON: Sergeant Bratton.

"The COURT: Okay, we're dealing with a state police officer?

"MR. WHEATON: That's correct. She was in con-

"THE COURT: I take it that some time after this, she talked to Mr. Ray; is that what you're saying?

"MR. WHEATON: That's correct, and that's what she's going to testify to as what, I guess question and response. I'm objecting to it because, number one, she had no business talking to him at this time, and I just don't think it's admissible. There [156 MICHAPP 38] was--there's no reason for her to have been talking to Mr. Ray at this point. I don't know whether it was question and answer or statements made or whatever. I do not think the evidence is admissible, and I don't know how to be any more specific without getting into an area that I don't think we should get into but I--I will say that she should not have been talking to him. She had no reason to be. She was done with what she was doing, and there was no reason to be--having any further conversation with Mr. Ray. I'm objecting to any--all of her testimony. Anything that she might testify to.

"THE COURT: I think it's a little premature, isn't it? I'm going to--

"MR. WHEATON: Well, as--

"THE COURT: I'm going to overrule the objection at this time."

Sgt. Bratton then testified that she informed defendant of his Miranda rights and that he waived them. No mention was made on the record of the preliminary examination of either the polygraph examination or the polygraph waiver that defendant signed. When defense counsel asked the officer: "What was the reason for Mr. Ray being out there to talk to you?", the assistant prosecutor successfully objected, presumably because the fact of the polygraph examination was inadmissible. After an in-chambers conference, defense counsel withdrew his question and the officer was permitted to testify as to defendant's alleged admissions. No further objection was made. At the preliminary examination, the only cross-examination of the polygraph examiner-police officer related to what defendant meant when he said "Right" in response to the officer's accusations following the polygraph examination. No Walker hearing ⁴ was held to [156 MICHAPP 39] determine the voluntariness of defendant's alleged statements.

After defendant was bound over to the circuit court for trial, defendant filed written motions to suppress defendant's so-called statement to Sgt. Bratton and to quash the information. These motions were heard by acting Circuit Judge Harry P. Newblatt on the transcript of the preliminary examination. No further evidence was offered. No Walker hearing was held. Although the prosecutor offered in evidence the polygraph waiver document, the acting circuit judge...