People v. Rocha, Docket No. 47419

• Decision Date: 06 October 1981
• Docket Number: Docket No. 47419
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard ROCHA, Defendant-Appellant. 110 Mich.App. 1, 312 N.W.2d 657
• Court: Court of Appeal of Michigan — District of US

Page 657

312 N.W.2d 657

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard ROCHA, Defendant-Appellant.

Docket No. 47419.

110 Mich.App. 1, 312 N.W.2d 657

Court of Appeals of Michigan.

Oct. 6, 1981.

Rehearing Denied Nov. 25, 1981.

Released for Publication Nov. 18, 1981.

[110 MICHAPP 5] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen. William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Larry L. Roberts, Asst. Pros. Atty., for the people.

Richard B. Ginsberg, Asst. State Appellate Defender, for defendant on appeal.

Before V. J. BRENNAN, P. J., and KAUFMAN and BORRADAILE ^*, JJ.

KAUFMAN, Judge.

Defendant Richard Rocha and codefendant Sergio Sanchez were charged in a three-count information with conspiracy to commit pandering, M.C.L. § 750.157a; M.S.A. § 28.354(1), and the pandering of June Overmyer, and the pandering of Deborah Miller, M.C.L. § 750.455; M.S.A. § 28.710. Defendant was convicted by a jury on May 10, 1979, of the pandering of June Overmyer and of conspiracy. Codefendant Sanchez was found guilty only of conspiracy. Defendant was subsequently sentenced to two concurrent prison terms of 13 to 20 years, and now appeals as of right.

Deborah Miller testified that she admitted Rocha and Sanchez into her Redford Township home in the early morning hours of January 20, 1979. June Overmyer was present in the house at the time but was sleeping. According to Ms. Miller, Rocha told her that he needed hostesses, waitresses and people for an escort service he was starting. He indicated that the pay would be $1, [110 MICHAPP 6] 500 a week, a new car and house, and $50,000 in a bank account every six months. Miller was allegedly told that she would go with clients for the day and "do whatever they wanted". As Rocha and Sanchez were leaving Sanchez told Ms. Miller, "It's a good offer. I don't know how you could refuse it."

Miller stated that Rocha called twice that day and reiterated the offer. Early the following morning, Rocha and Sanchez again visited Ms. Miller. June Overmyer was present and awake. Rocha showed Miller and Overmyer a number of photo albums containing pictures of women with and without clothes. Rocha made comments about the women, describing one as his "newest girl" and a "good prostitute". Rocha indicated that he would like to photograph Miller and Overmyer and repeated his offer of the previous morning. Although Sanchez left following the meeting, Rocha stayed at Ms. Miller's house until the following morning, when he left with Ms. Overmyer. Overmyer testified that she spent the next day alternately with Rocha and Sanchez and at their insistence had sex with them so that they could see what she knew about the "business". After Sanchez dropped Ms. Overmyer off at Ms. Miller's residence, the two women called the police. Subsequently, a warrant was issued for Rocha's arrest.

On January 26, 1979, Rocha was arrested in Detroit by Sergeant Robert Benedix of the Michigan State Police and Sergeant James Fleming of the Redford Township Police Department. Rocha was driving a black Cadillac with a brown leather interior that fit the description of the car that complainant Overmyer had said she was driven around in. Although Rocha's sister was present, the officers decided to impound the car so that it [110 MICHAPP 7] could be checked for fingerprint evidence. Sergeant Benedix noticed a conga drum in the back seat and asked Rocha if there were other valuables in the car. When he was told that there was a second drum in the trunk, Benedix took the keys from the ignition and opened the trunk to check. He noticed a grocery bag in the trunk that contained books or photographic albums and a brief case. Benedix's observations later served as the basis for a warrant to search the automobile. When the trunk was searched officers recovered the photo albums that Rocha and Sanchez had shown the complainants.

Defendant raises numerous issues on appeal, one of which we find requires reversal of his convictions. When June Overmyer talked with the police she apparently erroneously described Rocha as being 6'5 tall. At trial, she denied making the statement, so counsel for codefendant Sanchez questioned Redford Township Police Sergeant Oliver Gallagher about the matter. Gallagher read from his report, which indicated that Ms. Overmyer had indeed so described Rocha's height. The prosecutor objected on the basis that the report was not in evidence. Counsel for Sanchez then offered the report and it was admitted and read into the record without objection. The report included the following language:

"Officer explained to her the procedures on a criminal sexual conduct case and asked if she would be willing to take a polygraph test, that she did not have to do so. She said she would be willing to take the test if it were necessary."

Questioning by both defense counsel elicited references to Gallagher's discussion with Overmyer concerning a possible polygraph exam. The subject [110 MICHAPP 8] was again brought up in the prosecutor's rebuttal argument:

"I'll specifically read that paragraph, Ladies and Gentlemen. 'Officer explained to her the procedure on the criminal sexual conduct case and asked if she would be willing to take a polygraph test that she did not have to do so. She said she would be willing to take the test if it were necessary.'

"A frame? Again, I ask you Ladies and Gentlemen, who do you believe here?"

It has long been the rule in this jurisdiction that the results of lie-detector tests are not admissible at trial. People v Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977); People v. Davis, 343 Mich. 348, 370, 72 N.W.2d 269 (1955); People v. Becker, 300 Mich. 562, 566, 2 N.W.2d 503 (1942). Moreover, reversible error may occur even when the actual results of a polygraph examination are not admitted. People v. Frechette, 380 Mich. 64, 155 N.W.2d 830 (1968). In Frechette, a prosecution witness testified extensively regarding the fact that the defendant had taken a polygraph test. He indicated that he had an opinion as to whether the defendant had responded truthfully during the examination, but he was prevented from stating that opinion. The Supreme Court reversed the defendant's conviction since the jury could have inferred from the testimony that the polygraph examiner believed the defendant to have been lying.

Nonetheless, reference to polygraph examinations need not always constitute reversible error. A reference may be a matter of defense strategy, the result of a nonresponse answer, or otherwise brief, inadvertent and isolated. See e. g., People v. [110 MICHAPP 9] Krist, 93 Mich.App. 425, 287 N.W.2d 251 (1979); People v. Ranes, 63 Mich.App. 498, 234 N.W.2d 673 (1975); People v. Ernest Green, 74 Mich.App. 351, 253 N.W.2d 763 (1977). Thus, in prior cases, this Court has analyzed a number of factors to determine whether reversal is mandated. People v. Yatooma, 85 Mich.App. 236, 240, 271 N.W.2d 184 (1978); People v. Whitfield, 58 Mich.App. 585, 228 N.W.2d 475 (1975). This Court should consider: (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.

In the instant case, application of these factors leads us to the conclusion that defendant must be granted a new trial. It is true that the references were not to test results or even to the fact that a test was given, but to complainant Overmyer's willingness to take a test. Moreover, the initial references were not only inadvertent and unobjected to but occurred first during defense examination of a police witness. Still, the references were unnecessarily repeated. The police report in question was read into the record and then brought up again in the prosecutor's rebuttal argument. The prosecutor's purpose in bringing up the polygraph reference was plainly to bolster Ms. Overmyer's testimony with her willingness to take a polygraph examination. Further, the jurors might easily have inferred that the police took up Ms. Overmyer on her offer and that she was given and passed a polygraph test. Moreover, since credibility was a critical issue at trial, we can hardly discount the possible impact of these references [110 MICHAPP 10] upon the jurors' deliberations. We therefore reverse defendant's conviction.

Because of the possibility of retrial, we consider those other issues raised by defendant which may arise again.

As part of the prosecution's case, the photographic albums shown by Rocha and Sanchez to the complainants were admitted into evidence. Defendant argues that the evidence should have been suppressed as the product of an illegal warrantless search and because the prejudice from admission of the evidence substantially outweighed its probative value. At the culmination of a pretrial suppression hearing, the trial court concluded that the albums were admissible. This Court will not reverse a trial court's ruling at a suppression hearing unless clearly erroneous. People v. Goss, 89 Mich.App. 598, 601, 280 N.W.2d 608 (1979); People v. Terrell, 77 Mich.App. 676, 679, 259 N.W.2d 187 (1977).

Generally, warrantless searches are unreasonable per se and in violation of the Fourth Amendment to the United States Constitution, as well as Const.1963, art. 1, § 11. The state bears the burden of showing that a particular warrantless search is within an exception to the rule. People v. Reed, 393 Mich. 342, 362, 224 N.W.2d 867 (1975). Here, although a search warrant was ultimately obtained, it may not be used to justify the initial search of the car trunk. People v. Gallagher, 55 Mich.App. 613, 617, 223 N.W.2d 92 (1974). Nonetheless, we cannot conclude that the trial court's findings were clearly erroneous...