People v. Yatooma, Docket No. 77-2415

• Decision Date: 21 August 1978
• Docket Number: Docket No. 77-2415
• Citation: 85 Mich.App. 236,271 N.W.2d 184
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harry YATOOMA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 184

271 N.W.2d 184

85 Mich.App. 236

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harry YATOOMA, Defendant-Appellant.

Docket No. 77-2415.

Court of Appeals of Michigan.

Aug. 21, 1978.

Released for Publication Nov. 13, 1978.

Daniel R. Siefer, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., H. Gail McKnight, Asst. Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and CAVANAGH, and HENSICK, ^* JJ.

PER CURIAM.

Defendant Harry Yatooma, convicted at a jury trial of one count of conspiracy to burn real property, M.C.L. §§ 750.73, 750.157a; M.S.A. §§ 28.268, 28.354(1), and one count of burning real property, M.C.L. § 750.73; M.S.A. § 28.268, was sentenced to concurrent prison terms of three to ten years.

The primary evidence of defendant's involvement in a fire at the Al Hadaf Printing Shop in Detroit was the testimony of Michael Robinson and Hazim Saeegh. Robinson and Saeegh both testified under grants of immunity from the prosecution. Saeegh testified that he was approached by Johnny Yaldoo, who asked Saeegh to arrange with Robinson to burn the print shop as a favor to defendant. Saeegh later discussed the fire directly with defendant.

Robinson testified that Yaldoo and Saeegh instructed him to burn the print shop and gave him a key which he eventually used to enter the shop and set the fire. Some time after the fire defendant admitted to Robinson that he had arranged for the fire.

On cross-examination Robinson stated that part of the immunity deal he had made with the prosecutors was that he would not be charged relevant to his involvement in approximately 30 other fires. The questioning then turned to other aspects of the immunity agreement:

"Q (By Mr. Varga, continuing) (Defense Attorney ): Are you being prosecuted for any of those fires?

"A No, I'm not.

"Q Is that part of your deal with the Prosecutor's office?

"A That is one of the major clauses of immunity.

"Q What are some of the other clauses?

"A That I pass a lie-detector test."

Following this response the jury was removed and defendant moved for a mistrial. The court denied the motion, but offered to give a cautionary instruction for the jury to disregard the mention of a polygraph test. Defense counsel refused the instruction, arguing that no instruction could remove the prejudice of the remark from the jurors' minds.

There is no dispute that evidence of a polygraph examination is inadmissible under Michigan law. People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955). Clearly the prosecution could not have asked Robinson about the test, or introduced any evidence as to the test results.

In the present case, however, the statement concerning the polygraph was made in a seemingly unanticipated response to a question by defense counsel. Our research reveals several cases in which polygraph testimony was elicited on cross-examination of a witness.

In People v. Goodwin, 40 Mich.App. 709, 199 N.W.2d 552 (1972), the reference to a polygraph test occurred during the cross-examination of the prosecution's chief witness, a police informant who was testifying after a pending charge against him had been dropped. The witness, responding to counter defendant's suggestion that the charge had been dropped in exchange for the testimony, stated that the charge was dismissed after he had successfully passed a polygraph test. Testimony regarding this test was also brought forth during the direct and cross-examinations of a police witness.

The Goodwin Court, noting that defendant neither objected to the testimony nor sought a cautionary instruction, nevertheless found reversible error. In reaching this decision, the Court took into account several factors:

"In considering the possible prejudicial effect of the inadmissible evidence in the case at bar, it is significant to note that reference was made to polygraph tests on two separate occasions by different State witnesses. In both instances said reference was neither brief nor inadvertent, but, on the contrary, was a clear attempt to rehabilitate and restore informant Booker's credibility. In both situations the Results of the test were testified to in the jury's presence. The problem was further aggravated by the police officer testifying as to the reliability of such tests. Furthermore, it is pointed out that informant Booker's testimony was the crucial aspect of the prosecution's case and impeaching his credibility became defendant's major tactic of defense. In light of all the above, we reach the conclusion that the introduction of the inadmissible evidence may well have improperly influenced the jury's verdict in this case so as to constitute a miscarriage of justice. The accused thus becomes entitled to a new trial." (Footnote omitted.) 40 Mich.App. at 715-716, 199 N.W.2d at 555.

A similar approach, involving analysis of a number of factors, was taken by this Court in People v. Whitfield, 58 Mich.App. 585, 228 N.W.2d 475 (1975). The Whitfield Court considered (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 the witness's credibility and (5) whether the results of the test were admitted rather than merely the fact that a...