People v. Paul F. Baker

7 Mich. App. 471 (1967) 152 N.W.2d 43

PEOPLE
v.
PAUL F. BAKER.

Docket No. 2,223.

Michigan Court of Appeals.

Decided August 1, 1967. Leave to appeal denied April 16, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney, for the people.

Gregory J. Forsthoefel, for defendant.

Leave to appeal denied April 16, 1968. See 380 Mich. 766.

T.G. KAVANAGH, J.

Appellant, an adult male, and John Dale Martin, a 15-year-old boy, were friends and "shirttail" relatives. As such, they spent some time together. Appellant gave John several small articles, including a watch and a transistor radio. He also financed the purchase of a Honda motorcycle for John.

John had on occasion stayed overnight at the apartment of appellant and on one of these occasions, on or about August 28, 1965, allegedly appellant and John Dale Martin, at appellant's encouragement and threats, committed an act of gross indecency^[1] with each other. Appellant denied that such act took place.

In September, 1965, John Dale Martin was stopped for operating a Honda without a license and although the record does not disclose the connection, he was questioned with reference to the above activities. After three such interrogations, at different times, John admitted the alleged act of gross indecency.

Appellant was brought to trial on the charge of gross indecency, found guilty by a jury, and sentenced to 3 to 5 years in prison. He raises four questions on appeal:

1. Did the trial court err in admitting the testimony of a witness who was present during the testimony of other witnesses, after the court had ordered that all witnesses be excluded when testimony was offered into evidence?

2. Did comments by the prosecutor during his closing argument infringe appellant's right not to testify in his own behalf?

3. Did reference to a polygraph test in the testimony and in the final argument of the prosecutor prejudice appellant's right to a fair trial and impartial trial?

4. When the jury, during its deliberations, asked that the testimony of John Dale Martin be read back to them, did the court err in reading from its notes instead of waiting for a transcript of the testimony to be prepared?

Defendant acknowledges that the alleged errors were not objected to at trial, but he asserts that this does not preclude their being raised here for the first time. It is a settled rule that if appellant fails to raise a proper objection to alleged errors at trial, he is not entitled to raise them on appeal for the first time. See People v. Borowski (1951), 330 Mich. 120; People v. Martin (1965), 1 Mich. App. 265. Although our Court Rules have abolished the necessity of a formal exception to rulings and orders of the court, it is still necessary to make objections at trial to preserve questions for appeal. GCR 1963, 507.5. See 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 395.

However, this Court, in observing this general rule, will exercise its "prerogative of searching for error which reflects clear injustice." People v. Hicks (1966), 2 Mich. App. 461, 463. "The inherent power of this Court to prevent fundamental injustice is not limited by what appellant is entitled to as a matter of right." People v. Dorrikas (1958), 354 Mich. 303, 316.

We think that appellant's third question, relating to references to a polygraph test, merits examination although no objection was made at trial. On cross-examination John Dale Martin testified in response to questions by appellant's counsel that on the occasions when he was interrogated by the police he had denied having an indecent association with appellant. Counsel then asked him, "When did you admit this?" He answered, "Went up and took a polygraph test." Counsel asked that this answer be stricken as unresponsive. The court ruled that it was "a response" and let the answer stand.

We believe the answer was not responsive and should have been stricken because it did not relate necessarily to the time of the admission. However we do not regard this as reversible error in view of the fact that subsequent cross-examination established the fact that the answer did relate to time.

In his closing argument the prosecutor commented upon appellant's emphasis on John's denials to the police:

"Mr. Jameson [appellant's counsel] doesn't like to bring out the fact that his story was changed by John Martin as he told you, when arrangements were made for the polygraph. This is when his story changed. This is important."

It is well settled in this State that the results of a polygraph test are not admissible into evidence. See People v. Becker (1942), 300 Mich. 562. Neither are the conclusions of the person administering the test admissible. See People v. Welke (1955), 342 Mich. 164. However, so far as we can determine, the question whether the fact that a polygraph test has been made is admissible has not been passed upon. We hold that because the results of a polygraph test are incompetent evidence, the fact that such a test was made is immaterial, and reference thereto should be excluded upon proper objection. However, the objection here was that the answer was unresponsive and no objection was made to the materiality of the fact.

If evidence of the fact of a polygraph test be admitted or improper argument about it be made even though no objection to either be interposed, the court should instruct the jury as to the unreliability of such tests. Nevertheless, appellant did not request that such instructions be given and therefore cannot now complain of the court's failure to give proper instructions. Nuccio v. Severini (1965), 374 Mich. 189; Hunt v. Deming (1965), 375 Mich. 581. Under the circumstances, the references to a polygraph test in the record of this case do not constitute reversible error.

At the beginning of the trial the court granted appellant's motion to exclude from the courtroom all witnesses who would be testifying. The court admitted the testimony of Joseph Martin although he had been in the courtroom during the testimony of appellant's only witness. Admission of this testimony was a matter within the discretion of the court. People v. Piper (1897), 112 Mich. 644; People v. Marthinson (1926), 235 Mich. 393. We do not find an abuse of this discretion in the case.

The defendant in a criminal case is not required to testify in his own behalf, and his neglect to testify shall not create any presumption against him. The court shall not permit any reference to or comment upon such neglect. CLS 1961, § 600.2159 (Stat Ann 1962 Rev § 27A.2159). In his final argument the prosecutor said:

"Now, only two people know what happened on this particular night. One of them testified. * * *

"His testimony has not been refuted."

Appellant claims that this argument infringes his rights under the statute. The court clearly and fully covered this point in its instructions to the jury, and any potential prejudice was cured thereby. See People v. Parker (1943), 307 Mich. 372.

We do not think that under the circumstances it was error for the court to read from its notes when the jury asked that John Dale Martin's testimony be read to them. The record shows that counsel for both sides joined the judge in chambers to discuss this matter. When they returned the judge announced that both attorneys had agreed that the judge might give a summary of the testimony from his notes.

Moreover, as to these last three questions, appellant had ample opportunity to raise objections before the trial court and his failure to do so precludes him from seeking reversal of the judgment of that court.

Judgment affirmed.

J.H. GILLIS and McGREGOR, JJ., concurred.

NOTES

[1] CLS 1961, § 750.338 (Stat Ann 1954 Rev, § 28.570).