People v. Whitfield, Docket No. 19646

• Decision Date: 12 February 1975
• Docket Number: Docket No. 19646,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Luther WHITFIELD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 475

228 N.W.2d 475

58 Mich.App. 585

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Luther WHITFIELD, Defendant-Appellant.

Docket No. 19646.

Court of Appeals of Michigan, Division No. 3.

Feb. 12, 1975.

Released for Publication May 7, 1975.

Charles J. Daudert, Daudert & Barron, Kalamazoo, for defendant-appellant.

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

Before ALLEN, P.J., and KAUFMAN and O'HARA, ^* JJ.

ALLEN, Judge.

On January 25, 1974, a jury convicted defendant of forcible rape. M.C.L.A. § 750.520; M.S.A. § 28.788. Defendant received a sentence of two to five years in prison, and appeals as of right.

This case presents two issues for review, first, whether the unobjected to and inadvertent statement of the complainant that she took a lie-detector test resulted in a miscarriage of justice, and second, whether the trial court erred in precluding defense counsel from cross-examining the complainant as to whether she had engaged in any prior sexual activity with third persons.

The complainant testified that subsequent to the conclusion of a party at the home which the complaining witness shared with another woman, two of the guests, C. W. Watson and Percy Coleman, returned to the house and suggested that complainant and her roommate accompany them to obtain some beer and a hamburger for the roommate. The roommate declined to accompany them, and the two men and complainant left the house. However, instead of going in the direction of a restaurant which was apparently a few blocks from the house, they drove in the opposite direction. The car became stalled, and the three people then proceeded to a nearby home owned by an acquaintance of the two men.

Coleman and complainant then left the home, and as they walked across a yard, Coleman grabbed her and pushed her up against a house. Subsequently defendant appeared, placed his hand over her mouth and said 'Be cool, nothing will happen to you.' Watson then told defendant and Coleman to leave the complainant alone, and accompanied her up one side of the street. Defendant and Coleman crossed the street and walked on the other side. When they reached the corner, Watson grabbed complainant's hair and forced her across the street to join the other two. The men then foced her into an upstairs apartment and took her to a bedroom. Coleman and Watson undressed, and Coleman helped complainant to do the same. In response to her vociferous objections and attempt to escape, defendant obtained a coathanger, unraveled it, and advised complainant that he would 'show her how' to keep quiet. At this time, Coleman was unsuccessful in an attempt to achieve penetration due to complainant's struggling, and defendant then struck her with the hanger. Watson was also unsuccessful in his attempt at intercourse.

The victim was then allowed to go to the bathroom, and attempted to escape. Defendant grabbed her, said 'I thought you would try something like this', and forced her back into the bedroom, where Coleman successfully had intercourse with her, and Watson simultaneously engaged her in an act of oral sex. Watson then accompanied complainant home, and she called the police after he left.

At trial, some photographs showing bruises and scratches on the victim's body were admitted into evidence. In the course of questioning the victim, the prosecutor asked 'Were any pictures ever taken of you?' The witness replied, 'Monday, after I took a lie detector test'. Defense counsel failed to voice an objection to this remark, and has asserted in his brief and supporting affidavit that he failed to hear this statement. Counsel states that had he heard it he would have immediately requested a mistrial.

It is clear that even without counsel's assertion of what he would have done had he heard the statement at issue, our Court has the power, and perhaps duty, to consider the possible prejudicial impact of this evidence. See People v. Leroy Goodwin, 40 Mich.App. 709, 715, 199 N.W.2d 552 (1972). Numerous factors have been considered by the court in determining whether or not sufficient prejudice resulted from the reference to a lie-detector test so as to constitute reversible error. The presence or absence of an objection by trial counsel is a relevant consideration, People v. Tyrer, 19 Mich.App. 48, 50--51, 172 N.W.2d 53 (1969), app. dismissed, 385 Mich. 484, 189 N.W.2d 226 (1971), as is the fact that defense counsel failed to request a cautionary instruction. People v. Baker, 7 Mich.App. 471, 476, 152 N.W.2d 43 (1967), lv. den., 380 Mich. 766 (1968), cert. den., 393 U.S. 953, 89 S.Ct. 382, 21 L.Ed.2d 365 (1968). See also People v. Davis, 53 Mich.App. 94, 96--97, 218 N.W.2d 787 (1974). However, our Court has noted tht reversible error could be found whether or not an objection has been made or whether or not the cautionary instruction was given. People v. Bush, 54 Mich.App. 77, 80, 220 N.W.2d 333 (1974).

Another factor to be considered is whether the reference to the lie-detector test was inadvertent, or whether it was purposefully interjected to bolster or rehabilitate a witness's credibility. A brief and inadvertent reference to a polygraph examination did not constitute reversible error in People v. Tyrer, Supra, 19 Mich.App. 48, 51, 172 N.W.2d 53. Although the complainant's statement showed that she had taken a polygraph examination, the results of that examination were not admitted into evidence, and her statement was volunteered by herself rather than elicited by the prosecutor. The prosecutor never used the words 'polygraph' or 'lie detector'. People v. Paffhousen, 20 Mich.App. 346, 351, 174 N.W.2d 69 (1969), lv. den., 383 Mich. 825 (1970). Reversible error will be found when there is repeated reference to the polygraph test, and where the testimony was used to bolster and rehabilitate the witness's credibility. People v. Leroy Goodwin, 40 Mich. App. 709, 715, 199 N.W.2d 552 (1972). Goodwin distinguished Tyrer, supra, where the admission of an inadvertent and brief reference to a polygraph. Examination was not found to be a miscarriage of justice. On the other hand, reversible error was found where 15 pages of trial testimony was concerned with the operation of the polygraph machine, the test and results obtained therefrom, and whether the expert witness had an opinion as to whether or not defendant was truthful. See People v. Frechette, 380 Mich. 64, 69--72, 155 N.W.2d 830 (1968). An informant, the same witness involved in Goodwin, was also involved in People v. Lawson, 48 Mich.App. 662, 663--665, 211 N.W.2d 96 (1973). The Court held that repeated references to the polygraph examination and the results of that examination, used to bolster and verify that witness's credibility, constituted reversible error. The trial court also failed to give a requested cautionary instruction. In the course of finding error, and noting that the witness was 'beyond the category of an occasional or unsophisticated party', the Court noted 'occasionally an unsophisticated witness may, inadvertently, make reference to improper information in the hearing of the jury'. 48 Mich.App. 662, 665, 211 N.W.2d 96, 98. See also People v. Bush, Supra, where reversible error was found when the fact of taking the test and its results were introduced to bolster the credibility of a witness. , 54 Mich.App. 77, 81, 220 N.W.2d 333.

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