People v. Reagan
| Decision Date | 25 November 1975 |
| Docket Number | No. 4,4 |
| Citation | 395 Mich. 306,235 N.W.2d 581 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. E. J. REAGAN, Defendant-Appellant. 395 Mich. 306, 235 N.W.2d 581 |
| Court | Michigan Supreme Court |
Donald A. Kuebler, Chief, Appellate Div., Joel B. Saxe, Senior Asst. Pros. Atty., Robert F. Leonard, Genesee County Pros. Atty., Flint, for plaintiff-appellee.
Leitson, Dean, Dean, Segar & Hart, P.C., Flint by Robert L. Segar, Flint, of counsel, for defendant and appellant.
The principal issue on this appeal concerns the binding effect of an agreement, entered into by defendant and the Genesee County Prosecutor's office, to dismiss the prosecution if defendant passed a polygraph examination. Defendant passed the polygraph examination. Pursuant to the agreement, the prosecutor sought an order of Nolle prosequi. Such an order was approved by the trial court. The prosecutor's office then reneged on the acknowledged 'agreement' and reinstituted prosecution, having obtained information indicating that the polygraph examination of defendant may have been unreliable. Defendant was subsequently convicted of child torture and assault with intent to do great bodily harm less than murder. We conclude that the prosecutor's office, in entering into the agreement with defendant, gave a pledge of public faith which became binding when the Nolle prosequi order was approved by the trial judge. Defendant is discharged.
Defendant was initially arrested and charged with assault to do great bodily harm less than murder and torturing a child. 1 After a duly conducted preliminary examination he was bound over to the Genesee County Circuit Court for trial. On May 17, 1971, he was arraigned on the charges and stood mute. A plea of not guilty was accordingly entered on his behalf.
In July of 1971 defendant, through the initiative of his counsel, submitted to and passed a privately conducted polygraph examination. Subsequently negotiations were entered into with the Genesee County Prosecutor's office and an agreement was reached whereby if defendant passed a polygraph examination given by the Michigan State Police, his prosecution would be dismissed. On September 10, 1971, a polygraph examination of defendant was given by Sergeant Ralph E. Cabot of the Michigan State Police. Defendant passed this polygraph examination. 2
Pursuant to his agreement with defendant the prosecutor's office prepared an order of Nolle prosequi for presentation to the circuit court. This form order indicated on its face that the prosecution had no objection to entry of an order of Nolle prosequi and further stated:
No proceedings of record were had with respect to the matter of dismissal. The form order submitted was signed by the trial judge on September 15, 1971.
Subsequent to the foregoing events, the prosecutor's office entertained serious misgivings about the polygraph test results, given the 'compelling circumstantial evidence' of defendant's criminal involvement. 3 As a result of these doubts an assistant prosecuting attorney contacted the psychiatrist heading the Center for Forensic Psychiatry and was informed that, with respect to crimes such as defendant allegedly committed, a schizophrenic nature will sometimes distort polygraphic test results. The prosecutor's office was further informed that serum tests would overcome the personality character of a schizophrenic and 'get to the truth'. Armed with this knowledge the prosecution approached defendant and indicated that the agreement would be honored only if defendant submitted to serum testing. Defendant refused. The prosecution then filed a new complaint on the same charges as had previously been made. Defendant was bound over at a second preliminary examination. Defendant countered by moving to quash the information on the basis of the earlier 'agreement'. 4 The trial court rejected defendant's contention, acknowledging the agreement, but failing to see that defendant had been in any way 'prejudiced' by withdrawal of the agreement. 5 Defendant was ultimately tried by jury and convicted as charged. 6
Defendant's conviction was affirmed by the Court of Appeals in a brief, unpublished per curiam opinion.
M.C.L.A. § 767.29; M.S.A. § 28.969 states:
'It shall not hereafter be lawful for any prosecuting attorney to enter into a Nolle prosequi upon any indictment, 7 or in any other way to discontinue or abandon the same, without stating ont he record the reasons therefor and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes.'
The nature of the trial court role, in approving or disapproving an order of Nolle prosequi, is set forth in Genesee Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 121, 215 N.W.2d 145, 147 (1974).
'(I)n proposing to Nolle prosequi, discontinue or abandon a prosecution, the circuit judge reviews the action of the magistrate and prosecuting attorney on the record--the record made before the magistrate at the preliminary examination, and the prosecutor's statement of reasons and 'the evidence filed in the case'. Such review is a judicial review. searching the record to determine whether the magistrate's or prosecutor's decision is in accord with the law, facts and reason of the matter.
'A circuit judge * * * may reverse or revise (the magistrate's or prosecuting attorney's) decision only if it appears on the record that they have abused the power confided in them.'
In the present case the reasons presented by the prosecutor in support of the Nolle prosequi were that defendant had passed two polygraph tests and that his innocence was compatible with the testimony of two doctors. No record review as contemplated by Genesee Prosecutor was apparently had in this case. There is no indication that the judge took note of the 'evidence filed in the case' for purposes of reviewing prosecutorial discretion. The judge was never made aware of the agreement of the prosecutor with defendant. While entry of the order of Nolle prosequi cannot be said to approve an agreement never presented to the court, entry of the order represented necessary fruition of the agreement and approval of its stated basis as a matter of law and fact. Genesee Prosecutor, supra.
We take judicial notice of the fact that polygraph use by prosecutors' offices, principally prior to the issuance of a complaint, is not uncommon, 8 and indeed is a useful investigatory device, though its use is not approved at trial. 9 Prosecutorial use of polygraph test results at any stage of the proceedings necessarily has the effect of supplanting the trial process. This is particularly so, where, as here, the prosecution is dismissed after a preliminary examination determination that there was probable cause to believe the crime charged was committed. We cannot commend the wisdom of the action taken by the prosecution and trial judge in this case. Ordinarily, dispositional use of polygraph test results should not occur after judicial proceedings have been instituted.
The role of the 'bargaining' relationship between the people (and their bargaining agent, the prosecutor) and a defendant charged with crime is now generally recognized. As the United States Supreme Court in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), commented:
The binding nature of a plea bargain was recognized in Santobello. The binding nature of 'plea bargains' has in like fashion been recognized by the courts of this state. See, E.g., People v. Eck, 39 Mich.App. 176, 197 N.W.2d 289 (1972); and People v. Hildabridle, 45 Mich.App. 93, 206 N.W.2d 216 (1973).
Most courts which have considered the bargaining relationship have done so in the context of a plea-bargain situation. We agree with the people that this case prosents atypical circumstances. No plea was the subject of bargain here. Defendant had much to gain and relatively little to lose by subjecting himself to the polygraph. The people contend that the bargain offered defendant was a 'gift-type' bargain which lacked the consideration necessary to make it binding. 10 While there is precedential reference to the concept of 'consideration' for a bargain in the context of the administration of criminal justice, 11 we feel that here the analogy to contract law is inappropriate. The standards of commerce do not govern, and should not govern, the administration of criminal justice.
Cases from other jurisdictions offer assistance in determining whether defendant is entitled to fulfillment of the promise of the bargain. The most significant cases in point are State v. Davis, 188 So.2d 24 (Fla.App., 1966), and Butler v. State, 228 So.2d 421, 36 A.L.R.3d 1274 (Fla.App., 1969). In State v. Davis, defendant was indicated for first-degree murder and entered a plea of not guilty. Shortly before trial, defendant and the prosecution entered into a bargain whereby defendant agreed to take a polygraph test administered by an appointed examiner. If the polygraph showed defendant was telling the truth, the case against him would be dismissed. On the other hand, if the test showed he was not telling the truth, he would enter a plea of guilty to the lesser charge...
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