People v. Rodgers

• Decision Date: 26 January 1976
• Docket Number: Docket No. 18987
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary RODGERS, Defendant-Appellant. 66 Mich.App. 658, 239 N.W.2d 701
• Court: Court of Appeal of Michigan — District of US

Page 701

239 N.W.2d 701

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary RODGERS, Defendant-Appellant.

Docket No. 18987.

66 Mich.App. 658, 239 N.W.2d 701

Court of Appeals of Michigan.

Jan. 26, 1976.

Released for Publication March 24, 1976.

[66 MICHAPP 659] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank, J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and BRONSON and MAHER, JJ.

BRONSON, Judge.

Defendant was convicted by a jury of assault with intent to commit murder, contrary to M.C.L.A. § 750.83; M.S.A. § 28.278, assault with intent to kidnap, contrary to M.C.L.A. § 750.87; M.S.A. § 28.282, and unarmed robbery, contrary to M.C.L.A. § 750.530; M.S.A. § 28.798. He then pled guilty to a supplemental information filed pursuant to M.C.L.A. § 769.10; M.S.A. § 28.1082, providing for a longer term of imprisonment for second offenders. On October 23, 1973, defendant was sentenced to prison terms of 15 to 50 years, 10 to 15 years, and 10 to 22 1/2 years, respectively.

During cross-examination of a key prosecution witness, Massenoir Norton, the defendant tried to show Norton's 'interest' in the prosecution of the case as affecting his credibility. It was established that a pending misdemeanor charge against Norton had been dismissed by the prosecutor. In an obvious attempt to bolster Norton's credibility, the prosecutor on redirect examination elicited the following testimony:

[66 MICHAPP 660] 'Q. Do you know why the charges against you were dismissed?

'A. Well, I went and took a polygraph test in Jackson.

'Q. There was an agreement with you, is that correct?

'A. Yes, sir; I volunteered.

'Q. What was that agreement? What was that agreement that you had?

'A. There wasn't any agreement. I just volunteered to go take it.

'Q. And after that, the charges were dismissed, is that right?

'A. Yes, sir.

'Q. Nobody talked to you at all about your testimony in this case or what it would be or anything of this sort?

'A. No, sir.'

Defendant, acting In propria persona and unaware that such testimony might be improper, questioned Norton on recross-examination as to the truth of his assertion that a polygraph test had been given.

The Supreme Court of this state has consistently held that neither the fact of the taking of a lie-detector test nor the results of such a test are admissible in evidence, People v. Frechette, 380 Mich. 64, 155 N.W.2d 830 (1968); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); People v. Becker, 300 Mich. 562, 2 N.W.2d 503 (1942). Conceding that general rule, the prosecutor argues that prior cases are distinguishable. They are characterized as unrelated to the use of polygraph results to show the motivation of the prosecutor in dismissing unrelated charges against a state witness, to counter a defense inference that the charges were dropped in return for present testimony. The prosecutor wishes us to fashion a rule which would exclude references to a polygraph test only when [66 MICHAPP 661] they bolster the present testimony of a witness. We decline to do so.

It is true that virtually all of the polygraph cases in Michigan have involved attempts to directly bolster the present testimony of a witness. Many are concerned with defendant's attempt to introduce proofs that he passed a lie-detector test when questioned as to his present story, People v. Becker, supra; People v. Ignofo, 315 Mich. 626, 641, 24 N.W.2d 514 (1946); People v. Davies, supra; People v. McLaughlin, 3 Mich.App. 391, 142 N.W.2d 484 (1966); People v. Mattison, 26 Mich.App. 453, 461, 182 N.W.2d 604 (1970); People v. Levelston, 54 Mich.App. 477, 221 N.W.2d 235 (1974). Others concern the attempts of the prosecutor to ask a prosecution witness if her or she took a polygraph test to verify his or her present testimony, People v. Brocato, 17 Mich.App. 277, 291--292, 169 N.W.2d 483 (1969); People v. Lawson, 48 Mich.App. 662, 211 N.W.2d 96 (1973). Finally, the courts frequently handle attempts to show that a prosecution witness changed his or her story after being given a lie-detector test which shows a prior inconsistent statement to be untruthful. Such attempts to bolster the current testimony of the witness have been held to be improper, People v. Paul F. Baker, 7 Mich.App. 471, 152 N.W.2d 43 (1967); People v. Bush, 54 Mich.App. 77, 220 N.W.2d 333 (1974). ¹

The cases cited by defendant from other jurisdictions also fall neatly within this pattern. In State v. Parsons, 83 N.J.Super. 430, 200 A.2d 340 (1964), and Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971), it was held that the prosecutor improperly elicited from a state witness the fact [66 MICHAPP 662] that prior inconsistent testimony was changed to the present story only after that witness took a polygraph test. In Mattox v. State, 240 Miss. 544, 128 So.2d 368 (1961), and Kaminski v. State, 63 So.2d 339 (Fla.1953), Cert. den., 348 U.S. 832, 75 S.Ct. 55, 99 L.Ed. 656 (1954), a prosecution witness was improperly asked if he took a lie-detector test with respect to the testimony given at trial. ²

Despite the distinguishing aspects of most of the polygraph cases, we do not feel that we should carve out an exception for this type of intentional reference to polygraph test results. ³ The most recent Michigan Supreme Court case on polygraph testimony states that 'the results of lie detector tests are inadmissible', People v. Frechette, supra, p. 68, 155 N.W.2d p. 832. This Court has previously stated that '(n)either the results of such tests nor any reference to them has even been proper in this State', People v. Brocato, supra, 17 Mich.App. p. 292, fn. 11, 169 N.W.2d p. 490. Similar language is found in most cases, and none indicate that the rule set forth is confined to the particular facts in that case.

Although the large majority of cases fit within the factual patterns set forth above, this Court has found reversible error in a case similar to the present one. A police informant, James Booker, testified as to a sale of heroin by the defendant in People v. Goodwin, 40 Mich.App. 709, 199 N.W.2d 552 (1972). Defendant, on cross-examination, attempted to attack Booker's credibility by showing that the prosecutor had dropped a pending charge against him, and that Booker had given [66 MICHAPP 663] false information in two other prosecutions. During cross-examination, Booker responded, without defense objection, that the prior charges had been dismissed because he voluntarily had taken a polygraph test, which showed that he was being truthful. In addition, a police officer on direct examination testified that Booker had taken a polygraph which showed that he was not lying after he recanted in the two previous prosecutions.

The Goodwin Court found...