People v. Tyrer
| Citation | 19 Mich.App. 48,172 N.W.2d 53 |
| Decision Date | 27 August 1969 |
| Docket Number | No. 2,Docket No. 5303,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Valerie TYRER, Defendant-Appellant |
| Court | Court of Appeal of Michigan (US) |
Clarence L. Smith, Smith & Magnusson, Pontiac, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Thomas G. Plunkett, Jr., Pros. Atty., Oakland County, Pontiac, for plaintiff-appellee.
Before LESINSKI, C.J., and DANHOF and QUINN, JJ.
Defendant Valerie Tyrer was convicted by jury of manslaughter (C.L.1948, § 750.321 (Stat.Ann.1954 Rev. § 28.553)), and appeals.
On appeal, defendant contends that she was denied a fair trial due to admission into evidence of a police officer's testimony regarding a polygraph examination. In the presence of the jury the police officer testified as follows:
'Question: What did she tell you then?
'Answer: I asked Mrs. Tyrer if she could recall any of the events of the evening any clearer at that time, and she said, 'No, not really'. I asked her if she recalled the stabbing, and she said she hadn't. I also asked her if she would submit to a polygraph examination, and she said only on the advise of an attorney.
'Question: Let's have no further mention of that, officer.'
Subsequent to this conversation, the jury was excused and the following conversation occurred between the prosecutor, defendant's counsel and the court:
'Mr. Paige: If the Court please, I just want to make clear, I think it was just a misunderstanding and mistake on the part of Detective St. Souver and myself that the word 'polygraph' was stated.
'Mr. Smith: I am not making a technical objection, I cautioned counsel to caution his witness. I didn't want a mistrial in this case.
The Michigan Supreme Court in People v. Frechette (1968), 380 Mich. 64, 155 N.W.2d 830, indicated that the results of a lie-detector test are inadmissible in evidence in a criminal prosecution. See, also, People v. Becker (1942), 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171 and People v. Davis (1955), 343 Mich. 348, 72 N.W.2d 269. Similarly, the Frechette Court suggested, in citing State v. Britt (1959), 235 S.C. 395, 111 S.E.2d 669, that admission of testimony regarding refusal to take a polygraph test constitutes reversible error even though the jury is provided cautionary instructions.
Despite the inadmissibility of testimony regarding the results of or the refusal to submit to a polygraph, this Court has followed the rule that it will not reverse a case on appeal where no objection has been raised in the trial court, except where necessary to avoid a miscarriage of justice. See People v. Baker (1967), 7 Mich.App. 471, 152 N.W.2d 43. See, also, C.L.1948, § 769.26 (Stat.Ann.1954 Rev. § 28.1096). 1
In the instant case the police officer responded to a nonprejudicial question of the prosecution by reference to a polygraph. There was no testimony to the effect that defendant refused to take the test. The only testimony we have is that she said she would take it on the advice of counsel. The jury was excused immediately following the reference and defendant's counsel stated that he would not make an objection and did not want a mistrial. Defendant, through her counsel, clearly was aware of possible error but chose to expressly waive any objection and proceed before the same jury. Under such circumstances and considering that the reference to a polygraph was brief and inadvertent, we do not find the reference to have such a prejudicial effect, if any, as to constitute a miscarriage of justice. 2
This Court has considered the Supreme Court's citation in the Frechette Case, supra, indicating approval of State v. Driver (1962), 38 N.J. 255, 183 A.2d 655. In Driver, the New Jersey Supreme Court reversed the defendant's conviction on the basis of a reference to refusal to take a polygraph, despite defendant's failure to object at the time of trial. However, the Driver Case is unlike the instant case because in Driver the prosecutor with 'prejudicial overzealousness' beginning with his opening statement and continuously throughout the trial made statements and introduced testimony regarding defendant's refusal to take a polygraph test. Therefore, the admission of evidence of refusal to submit to a polygraph was clearly prejudicial in Driver, while in the instant case no such prejudicial effect is demonstrated. 3
Defendant also contends that the trial court erred in denying her motion to quash the charge of second degree murder (C.L.1948, § 750.317 (...
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People v. Wallach
...to a polygraph examination, not resulting in prejudice to defendant, is not grounds for reversal. Inter alia: People v. Tyrer, 19 Mich.App. 48, 51, 172 N.W.2d 53 (1969), dismissed 385 Mich. 484, 189 N.W.2d 226 (1971); People v. Wright, 58 Mich.App. 735, 749-750, 228 N.W.2d 807 (1975); Peopl......
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People v. Johnson
...the Court of Appeals has suggested, where testimony is admitted regarding refusal to take a polygraph test. People v. Tyrer, 19 Mich.App. 48, 50, 172 N.W.2d 53 (1969). Particularly helpful is People v. Paffhousen, 20 Mich.App. 346, 350, 174 N.W.2d 69, 70 (1969), where the complaining witnes......
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People v. Kosters
...380 Mich. 64, 68, 155 N.W.2d 830 (1968). However, a brief, inadvertent reference to a polygraph is harmless. People v. Tyrer, 19 Mich.App. 48, 51, 172 N.W.2d 53 (1969), app. dis., 385 Mich. 484, 189 N.W.2d 226 (1971). The mere mention of a polygraph by a witness is not grounds for mistrial.......
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People v. Rocha, Docket No. 47419
...defense counsel for Rocha did not object to the prosecutor's argument nor request a cautionary instruction. People v. Tyrer, 19 Mich.App. 48, 50-51, 172 N.W.2d 53 (1969), app. dis. 385 Mich. 484, 189 N.W.2d 226 (1971); People v. Paul F. Baker, 7 Mich.App. 471, 476, 152 N.W.2d 43 (1967), lv.......