People v. Rocha

V. J. Brennan, P.J.

(dissenting). I would affirm this conviction as I respectfully disagree with my colleagues’ application of polygraph test law to the facts of this case so as to conclude there was reversible error.

First and foremost, the initial references to the *20complainant’s willingness to take a polygraph examination were directly attributable to the defense attorneys. A review of the record reveals that both defense attorneys elicited references to the polygraph examination in their direct examination. It was also defense counsel for codefendant Sanchez that chose, after the prosecutor objected to reference to the report, to have the entire report read into the record as an exhibit. This report, including the now challenged polygraph reference, was read into the record without objection to its admission being raised by defendant Rocha’s counsel. Thereafter, defendant Rocha’s counsel also examined the officer in such a way as to elicit reference to the polygraph examination. On this record, I can only assume that all of the foregoing was deliberate trial strategy by the defense. Choices made by defense counsel under the rubric of "trial strategy” do not deprive a defendant of a fundamentally fair trial necessitating reversal. People v Krist, 93 Mich App 425, 438; 287 NW2d 251 (1979), lv den 407 Mich 963 (1980). Counsel is never to be encouraged to sit back, harbor or create error to be used as an appellate parachute in the event of jury failure. People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969). In the instant case, defense counsel permitted the reference to come into the record without raising any objection and then elicited through examination further reference to it. Defendant should not be permitted to take advantage of this on appeal.

Second, the challenged testimony was limited to the complainant’s "willingness” to take a polygraph examination. There was no testimony either as to whether the complainant took a test or as to the results of any test. People v Krist, supra, 438, People v Whitfield, 58 Mich App 585; 228 NW2d *21475 (1975), People v Ranes, 63 Mich App 498; 234 NW2d 673 (1975).

Finally, while not approving of the prosecutor’s rebuttal argument, I do not think that, in light of defense counsel’s own references to the polygraph and lack of objection to the introduction of the exhibit, this statement rose to the level of being "part of a pattern of contumacious conduct on the part of the prosecutor” so as to "misuse the judicial system to prevent defendant from receiving a fair trial”. People v Alvin Johnson, 396 Mich 424, 436; 240 NW2d 729 (1976). Moreover, 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 NW2d 53 (1969), app dis 385 Mich 484; 189 NW2d 226 (1971), People v Paul F Baker, 7 Mich App 471, 476; 152 NW2d 43 (1967), lv den 380 Mich 766 (1968). Therefore, I am persuaded that, in light of all the foregoing, no manifest injustice is demonstrated so as to warrant a new trial. I would affirm defendant’s conviction.