People v. Triplett

• Decision Date: 28 October 1987
• Docket Number: No. 90943,90943
• Citation: 413 N.W.2d 791,163 Mich.App. 339
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eddie Lamor TRIPLETT, Defendant-Appellant. 163 Mich.App. 339, 413 N.W.2d 791
• Court: Court of Appeal of Michigan — District of US

Page 791

413 N.W.2d 791

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eddie Lamor TRIPLETT, Defendant-Appellant.

No. 90943.

163 Mich.App. 339, 413 N.W.2d 791

Court of Appeals of Michigan.

Submitted June 18, 1987.

Decided Sept. 22, 1987.

Released for Publication Oct. 28, 1987.

[163 MICHAPP 341] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad Sindt, Pros. Atty., and Samuel I. Durham, Jr., Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender (by P.E. Bennett), Lansing, for defendant on appeal.

Before SAWYER, P.J., and MacKENZIE and CAPRATHE ^*, JJ.

PER CURIAM.

Defendant was convicted of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c(1)(b); M.S.A. Sec. 28.788(3)(1)(b), following a jury trial and was sentenced on December 17, 1985, to five to fifteen years imprisonment. Defendant appeals his conviction and sentence as of right. We affirm.

Following the preliminary examination, defendant was charged with first-degree criminal sexual conduct under the theory that he had engaged in sexual penetration with the victim, who was at least thirteen but less than sixteen years of age, specifically thirteen years, and that defendant was a member of the same household as the victim. M.C.L. Sec. 750.520b(1)(b)(i); M.S.A. Sec. 28.788(2)(1)(b)(i). Defendant was the live-in boyfriend of the victim's mother.

Defendant first claims that the testimony of two police officers indicated to the jury that defendant had failed a polygraph examination, that the testimony[163 MICHAPP 342] should not have been admitted, and that error requiring reversal occurred as a result of its admission.

Michigan State Police Officer John J. Palmatier testified that on July 16, 1985, he conducted a "special interview" with defendant in the presence of Battle Creek Police Detective Robert Baker for the purpose of establishing whether defendant had had sexual intercourse with the thirteen-year-old victim. Initially, defendant said that he could not have raped the victim since on the night in question he had been attending a party at a hotel and was not at the family residence. After talking with defendant for approximately two and one-half hours, Officer Palmatier told defendant that he believed defendant was lying. After this statement to defendant, defendant never denied having sexual relations with the victim, but denied that things had occurred the way she claimed. He also stated that, if he told the truth, he would go to jail since the victim was only thirteen years old. Defendant then refused to say anything more until he had first told the truth to the girl's mother. During cross-examination, Officer Palmatier repeatedly stated his belief that defendant had lied during the interview.

Detective Baker also testified on the substance of the interview. On direct examination by the prosecutor, the following took place:

"Q. I see. Did you indicate he wanted to talk to his girlfriend--Did he still indicate that?

"A. Yes, he did. He said that he wanted to make sure that he was the first one to tell her. He wanted to be the one to tell her first that he had failed his--

"THE COURT: Just let it go at that." (Emphasis added.)

[163 MICHAPP 343] At the conclusion of the witness testimony, defense counsel moved for a mistrial on the ground that, although Baker had been cut off in midsentence, it was clear to the jury that defendant had failed a polygraph examination. The trial court denied the motion.

It is well established that evidence that a polygraph examination was conducted and the results of such examination is inadmissible at trial. People v. Barbara, 400 Mich. 352, 357, 255 N.W.2d 171 (1977), reh. den. 400 Mich. 1029 (1977). The reason for exclusion is the lack of trustworthiness of the accuracy of a polygraph examination. People v. Williams, 123 Mich.App. 752, 757, 333 N.W.2d 577 (1983), lv. den. 418 Mich. 947 (1984). The first question, therefore, is whether the officers' testimony constituted a clear indication to the jury that defendant had failed the polygraph examination.

In People v. Wallach, 110 Mich.App. 37, 62-63, 312 N.W.2d 387 (1981), vacated on other grounds 422 Mich. 875 (1985), a panel of this Court held that a comment about a "pre-test interview" was not a "self-evident reference to a polygraph examination." The Wallach Court also noted that nothing in the record suggested that the witness had deliberately attempted to inform the jury of the fact that defendant had taken a polygraph examination.

Similarly, in the instant case, there was no specific or clear reference to the fact that defendant had failed a polygraph examination, nor was Palmatier's description of the event as a "specialized interview" a "self-evident reference to a polygraph examination." In addition, nothing in the record suggests that either of the police witnesses deliberately attempted to inform the jury that defendant had failed his polygraph examination. We find the testimony of the two police officers [163 MICHAPP 344] was not an improper and inadmissible reference to a polygraph examination.

Defendant's next claim is that there was no evidence which supported a conviction on the lesser offense of second-degree criminal sexual conduct and therefore no instruction should have been given on that offense.

The trial court instructed the jury on the lesser offense of second-degree criminal sexual conduct at the request of the prosecution. Defense counsel objected, arguing that there was no evidence produced at trial to establish that defendant criminally touched the victim and the jury would have to return a verdict of either guilty or not guilty of first-degree criminal sexual conduct. Since second-degree criminal sexual conduct is a felony, the rules set forth in People v. Stephens, 416 Mich. 252, 330 N.W.2d 675 (1982), are inapplicable.

As stated by our Supreme Court, an objection by a defendant to the giving of an instruction on a lesser included offense is not controlling. People v. Chamblis, 395 Mich. 408, 415, 236 N.W.2d 473 (1975), reh. den. 396 Mich. 976 (1976), overruled in part on other grounds in People v. Stephens, 416 Mich. 252, 330 N.W.2d 675 (1982). It is the duty of the trial court to instruct the jury as to the law applicable to the case. M.C.L. Sec. 768.29; M.S.A. Sec. 28.1052.

The duty of the trial court to instruct on lesser included offenses is determined by the evidence. Chamblis, supra, 395 Mich. p. 419, 236 N.W.2d 473. When the evidence adduced at trial would warrant conviction on the lesser charge, the trial court may properly instruct the jury on that lesser offense. Chamblis, supra, p. 423, 236 N.W.2d 473; People v. Ora Jones, 395 Mich. 379, 390, 236 N.W.2d 461 (1975), reh. den. 396 Mich. 976 (1976); City of Troy v. McMaster, 154 Mich.App. 564, 574, 398 N.W.2d 469 (1986). In addition, the trial court may not instruct on lesser included offenses over [163 MICHAPP 345] defendant's objection unless the language of the charging document gave defendant fair notice that he may face a charge on the lesser offense. Chamblis, supra, 395 Mich. p. 418, 236 N.W.2d 473. Lastly, it is error for a trial judge to refuse a request for an instruction on a necessarily included lesser offense. People v. Shelton, 138 Mich.App. 510, 515, 360 N.W.2d 234 (1984).

The parties in this case agree that second-degree criminal sexual conduct is a lesser included offense of first-degree criminal sexual conduct. There is a conflict in this Court on whether second-degree CSC is a necessarily included lesser offense of first-degree CSC. People v. Thompson, 76 Mich.App. 705, 708, 257 N.W.2d 268 (1977), lv. den. 402 Mich. 829 (1977), held that second-degree CSC was a necessarily included lesser offense since, in order to have sexual penetration, there must have been sexual contact. See also People v. Green, 86 Mich.App. 142, 150, 272 N.W.2d 216 (1978); People v. Secreto, 81 Mich.App. 1, 3, 264 N.W.2d 99 (1978), lv. den. 406 Mich. 1019 (1979). However, in People v. Garrow, 99 Mich.App. 834, 839, 298 N.W.2d 627 (1980), this Court held that second-degree criminal sexual conduct was only a factually included lesser offense of first-degree CSC since an element of second-degree CSC, namely that the touching be for the purpose of sexual gratification, was not included within the offense of first-degree criminal sexual conduct. Regardless of whether second-degree criminal sexual conduct is a necessarily included or factually included lesser offense, the evidence adduced at this trial warranted that such an instruction be given.

Both police officers testified that defendant changed his story during the course of the special interview and stated that, if he told the truth, he would go to jail anyway since the victim was only thirteen years old. This testimony was sufficient to [163 MICHAPP 346] warrant the reasonable inference that sexual activity of some kind occurred between defendant and the victim.

In addition, the victim's testimony that defendant sexually penetrated her vagina with his penis also provided support for defendant's conviction of second-degree criminal sexual conduct. As noted in the conflict of authority described above, some panels of this Court have held that second-degree criminal sexual conduct is a necessarily included lesser offense of first-degree criminal sexual conduct since sexual penetration could not occur without sexual contact. Accordingly, the victim's testimony that sexual penetration occurred provides evidentiary support for the conclusion that sexual contact also occurred. Therefore, the evidence in the instant case was sufficient to warrant the jury instruction on second-degree criminal sexual conduct.

The final question is whether the failure of the sentencing judge to articulate his reasons for the sentence requires that defendant be resentenced or, in the alternative, whether the case should be remanded for such an articulation. The sentence imposed...