Docket No. 19646.
Decided February 12, 1975.
Appeal from Kalamazoo, Lucien F. Sweet, J. Submitted Division 3 January 15, 1975, at Grand Rapids. (Docket No. 19646.) Decided February 12, 1975.
Luther Whitfield was convicted of rape. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Stephen M. Wheeler, Chief of Appellate Division, for the people.
Charles J. Daudert, for defendant.
On January 25, 1974, a jury convicted defendant of forcible rape. MCLA 750.520; MSA 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 forced 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 that 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. 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 that 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. 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.
Whether the testimony used to bolster one's credibility is crucial is an important factor. People v Leroy Goodwin, supra, 40 Mich. App. 709, 716. Whether the witness's credibility played a vital role in the case below is one determinant to be considered. People v Bush, 54 Mich. App. 77, 81; 220 N.W.2d 333 (1974).
Finally, the Court must determine whether or not this testimony was emphasized and stressed during the trial, or whether it was merely an isolated incident not pursued beyond its initial introduction. This is somewhat related to the question of whether the reference to the polygraph was inadvertent. Where this testimony is not pursued or emphasized, error will not be found. See People v Paffhousen, supra, People v Maguire, 38 Mich. App. 576, 581; 196 N.W.2d 880 (1972), lv den, 387 Mich. 781 (1972), People v Goodwin, supra, where the testimony was emphasized, and People v Lawson, supra, which involved repeated references and emphasis upon the evidence of the polygraph examination.
We have examined the instant case in light of the factors discussed above, and have concluded that reversible error was not committed when the complaining witness made an inadvertent reference to the fact that she had taken a lie-detector test. That statement was made in reference as to when some pictures were taken of her, and was thus relevant only as to time or the sequence of events following the rape. See People v Baker, supra, 7 Mich. App. 471, 475. This reference was not pursued by either the prosecutor or defense counsel, and though the complainant's credibility was of course crucial, this testimony was not introduced to and did not seem to play any part in bolstering or enhancing the witness's credibility. The admission of this isolated, unemphasized reference to the taking of a lie-detector test does not constitute reversible error.
Likewise, reversible error was not committed when the trial court exercised its discretion to preclude defense counsel from questioning the complainant as to her prior sexual activities with third parties. Generally, the scope of cross-examination is within the sound discretion of the trial court, and our court will not disturb that discretion unless we are convinced it has been abused. People v Madden, 55 Mich. App. 363, 366; 222 N.W.2d 245, 246 (1974).
People v McLean, 71 Mich. 309, 311-312; 38 N.W. 917 (1888), held that the trial court properly precluded defense counsel from offering evidence that complainant had engaged in prior sexual relations with a third person. While evidence of the complainant's reputation for chastity and evidence as to specific acts with defendant may be shown, evidence of other sexual activities with third persons is inadmissible. 71 Mich. 309, 310-311. The trial court was correct in precluding defense counsel's inquiry into the complainant's acts with third parties, and we find no abuse of discretion. We further note that public policy, as reflected in the recently enacted 1974 PA 266, MCLA 750.520(j); MSA 28.788(10)(1), precludes the admission of "evidence of specific instances of the victim's sexual conduct", as well as opinion and reputation evidence of the victim's sexual conduct unless it specifically related to the victim's previous sexual activities with the defendant or if it was somehow related to "the source or origin of semen, pregnancy or disease".
We have not applied this act to defendant's case, but note it as supportive of the trial judge's exercise of discretion which, in concert with the court's grasp of precedent, led to the proper result.