People v. Phillips

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
_____________________________________________________________________________________________
                                                                C h i e f J u s ti c e                    J u s t ic e s
                                                                Maura D. Corrigan                         Michael F. Cavanagh



Opinion
                                                                                                          Elizabeth A. Weaver
                                                                                                          Marilyn Kelly
                                                                                                          Clifford W. Taylor
                                                                                                          Robert P. Young, Jr.
                                                                                                          Stephen J. Markman
____________________________________________________________________________________________________________________________

                                                                                               FILED AUGUST 7, 2003





                PEOPLE OF THE STATE OF MICHIGAN,


                        Plaintiff-Appellee,


                v                                                                                         No. 121545


                KEITH RICHARD PHILLIPS,


                     Defendant-Appellant.

                ________________________________

                PER CURIAM


                        A jury convicted defendant of first- and second-degree


                criminal          sexual         conduct.                                MCL     750.520b(1)(b)(i),


                750.520c(1)(b)(i).              In the Court of Appeals, defendant argued


                that the circuit court erred by denying his motion for new


                trial      on    the     basis      that     the            court              had   denied         him    his


                statutory right to a polygraph examination.                                            The Court of


                Appeals held that defendant had forfeited his right to the


                examination.           We affirm defendant’s conviction for reasons


                other than those stated by the Court of Appeals.

                                I


     On a September afternoon, a police officer on patrol in


a rural area of Calhoun County noticed a car parked near the


end of an isolated road.    When he stopped to investigate, he


saw defendant and the victim in the back seat of the vehicle,


both unclothed below the waist.          Defendant appeared to be


significantly older than the victim.       When they realized that


they were being observed, defendant rapidly removed his hand


from between the complainant’s legs.       After having given them


time to dress, the officer spoke with each person privately.


The fourteen-year-old victim told the officer that defendant


had digitally penetrated her.        In addition, the sixty-seven­

year-old defendant admitted that he “shouldn’t have been


messing around with her.”    The officer advised defendant of


his Miranda1 rights.   After acknowledging that he understood


those rights, defendant told the officer that he had digitally


penetrated the victim.2




     1
      Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d

694 (1966). 

     2
       The second count of the information, charging criminal

sexual conduct in the second-degree, was based on the age of

the complainant and the fact that she lived in the same

household as defendant.      At the time of the offense,

defendant and his wife were in the process of adopting the

complainant. On appeal, defendant claimed that insufficient

evidence existed to show that he and the complainant were

members of the same household. The Court of Appeals rejected

this argument.


                                2

     Before trial, defendant invoked MCL 776.21(5), which


provides:


          A defendant who allegedly has committed a

     crime under [MCL 750.520b to 750.520e and MCL

     750.520g] shall be given a polygraph examination

     orlie detector test if the defendant requests it.


The test was scheduled, but defendant apparently canceled it.


A second test was scheduled, but the polygraph examiner


refused to conduct the test without a medical release from


defendant’s doctor because of defendant’s heart condition.


Defendant did not raise the polygraph issue further before


trial.


     After the jury had begun its deliberations, defendant


objected to the failure to provide the polygraph examination.


He demanded a polygraph test regardless of the outcome of the


trial.    After his conviction, defendant filed a motion for a


new trial and demanded a polygraph examination.   The circuit


court denied the motion.   Defendant appealed by right to the


Court of Appeals.


     Noting that no Michigan case had addressed whether a


defendant can invoke, during trial, the right to a polygraph


examination, the Court of Appeals turned to its earlier


decision in People v Sterling, 154 Mich App 223; 397 NW2d 182


(1986).    There, the Court observed that a person who has


“allegedly” committed a criminal-sexual-conduct offense is


entitled to a polygraph examination under MCL 776.21(5).    At


                               3

the time the defendant in Sterling requested a polygraph


examination, he had already been convicted.    Thus, he was no


longer simply charged with an offense and was not entitled to


the examination.


     In this case, the Court of Appeals recognized that,


unlike the defendant in Sterling, the instant defendant asked


for the examination before the jury rendered its verdict.


Nevertheless, the Court held that the defendant had forfeited


his right to a polygraph test.     The Court viewed the ability


to obtain a polygraph examination as a pretrial right that is


extinguished when jeopardy attaches.    The Court stated:


          The purpose for affording individuals accused

     of criminal sexual conduct a right to a polygraph

     exam is to provide a means by which accused

     individuals   can  demonstrate   their  innocence,

     thereby obviating the necessity of a trial. We

     believe that once the trial has commenced and

     jeopardy has attached, that purpose has been

     extinguished and a defendant no longer has a right

     to a polygraph test pursuant to MCL 776.21(5). If

     a defendant wishes to exercise his right to a

     polygraph test, he must make his motion to the

     court before trial. Otherwise, the person’s guilt

     or innocence will be resolved at trial. [251 Mich

     App 100, 107; 649 NW2d 407 (2002).]


The Court further stated that to permit a defendant to raise


this issue in the trial court for the first time after the


trial has begun is tantamount to creating an “appellate


parachute.”   Id. at 108.


                             II


     This case requires us to consider the meaning of MCL


                              4

776.21(5). Statutory interpretation is a question of law that


we review de novo.       People v Jones, 467 Mich 301, 304; 651


NW2d 906 (2002); Lesner v Liquid Disposal, Inc, 466 Mich 95,


99; 643 NW2d 553 (2002).          When construing a statute, our


primary goal is “to ascertain and give effect to the intent of


the Legislature.” People v Pasha, 466 Mich 378, 382; 645 NW2d


275 (2002); People v Wager, 460 Mich 118, 123 n 7; 594 NW2d


487 (1999).      To do so, we begin by examining the language of


the statute.      Wickens v Oakwood Healthcare Sys, 465 Mich 53,


60; 631 NW2d 686 (2001).       If the statute’s language is clear


and unambiguous, we assume that the Legislature intended its


plain meaning and the statute is enforced as written.3               People


v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001).                     Stated


differently, “a court may read nothing into an unambiguous


statute   that    is   not   within        the   manifest   intent   of   the


Legislature as derived from the words of the statute itself.”


Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663



     3
       The Legislature may have had other reasons for drafting

this provision in the manner in which it did. If the results

of a polygraph examination indicate that a defendant might not

have committed the crime, a victim could reconsider her

identification testimony. For the same reason, a prosecutor

could reconsider the decision to prosecute or offer a plea

bargain. On the other hand, a defendant might use the results

to convince character witnesses to testify on his behalf.

Even if convicted, favorable polygraph results may help a

defendant reconcile with his family or friends. We are also

mindful that the results of a polygraph examination are

admissible in a motion for new trial. People v Barbara, 400

Mich 352, 411-414; 255 NW2d 171 (1977).


                                      5

(2002).   “Only where the statutory language is ambiguous may


a court properly go beyond the words of the statute to


ascertain legislative intent.”           Sun Valley Foods Co v Ward,


460 Mich 230, 236; 596 NW2d 119 (1999).


                                  III


     While the Court of Appeals reached the correct result in


this case, it did so for the wrong reason.               MCL 776.21(5)


extends the right to demand a polygraph examination only to a


defendant      “who   allegedly   has     committed”     an   enumerated


criminal-sexual-conduct violation.             The status of being an


alleged perpetrator does not dissipate until the verdict.4


Because the statute does not otherwise provide for a time


limit within which to exercise the right, under the clear and


unambiguous language of MCL 776.21(5), the right is lost only


when the presumption of innocence has been displaced by a


finding   of    guilt,   i.e.,    when    an   accused   is   no   longer


“alleged” to have committed the offense.5


     The Court of Appeals reasoning that defendant forfeited


his statutory right to a polygraph examination was erroneous.



     4

       “Upon conviction the presumption of innocence has

disappeared, and the presumption of guilt prevails.” DeLong

v Muskegon Co Bd of Supervisors, 111 Mich 568, 570; 69 NW 1115

(1897).

     5

       Had the Legislature intended that the right to a

polygraph examination be limited to a pretrial procedure, it

could have clearly so stated. People v Rogers, 140 Mich App

576, 580; 364 NW2d 748 (1985).


                                   6

Forfeiture is the failure to timely assert a right.                          People v


Carter, 462 Mich 206, 216; 612 NW2d 144 (2000); People v


Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999).                         Because


defendant    asserted          his    statutory          right        during       jury


deliberations, while he was still alleged to have committed


the offense, he did not fail to timely assert the right. 


       Although the Court of Appeals reasoning is erroneous,


defendant    is    not    entitled      to    a     new       trial    or    to     the


administration of a polygraph examination. In cases involving


preserved,    nonconstitutional              error,       a     defendant          must


demonstrate, “‘after an examination of the entire cause,’”


that it “is more probable than not that the error was outcome


determinative.”         People v Lukity, 460 Mich 484, 495-496; 596


NW2d 607 (1999).        The reviewing court must examine the nature


of the error and assess its effect “‘in light of the weight


and    strength    of    the    untainted     evidence.’”              Id.    at    495


(citation omitted).


       Given the strength of the prosecution’s case, it is not


more    probable    than        not   that        the    error     was       outcome­

determinative.      The police officer saw defendant remove his


hand from between the victim’s legs, and the victim told the


officer    that    defendant      had   digitally         penetrated         her.    In


addition,    defendant         confessed     to    the    crimes      charged       and


provided a complete and detailed description of his conduct



                                        7

and    his   relationship     to    the    victim.     Further,   even   if


defendant had taken and passed a polygraph test, the results


would not have been admissible at trial.               People v Ray, 431


Mich 260, 265; 430 NW2d 626 (1988); People v Barbara, 400 Mich


352, 364; 255 NW2d 171 (1977).             Moreover, this defendant did


not place his request before the court until after the close


of    proofs   and,   thus,   any    test    results   would   have   been


immaterial to his defense.                Therefore, defendant has not


demonstrated that the failure to administer the polygraph test


was outcome-determinative.


                                     IV


       Accordingly, we affirm the judgment of the Court of


Appeals for the reasons set forth in this opinion.                       MCR


7.302(G)(1).


                                      Maura D. Corrigan

                                      Elizabeth A. Weaver

                                      Clifford W. Taylor

                                      Robert P. Young, Jr.





                                      8

                  S T A T E        O F    M I C H I G A N


                                  SUPREME COURT





PEOPLE OF THE STATE OF MICHIGAN,


        Plaintiff-Appellee,


v                                                                   No.   121545


KEITH RICHARD PHILLIPS,


        Defendant-Appellant.




MARKMAN, J. (concurring).


      I would deny leave to appeal because I agree with the


Court      of   Appeals    that    the   purpose    of   MCL    776.21(5)    is


essentially to “provide a means by which accused individuals


can     demonstrate       their    innocence,      thereby     obviating    the


necessity of a trial.”            251 Mich App 100, 107;        649 NW2d 407


(2002).1         Here,    where     defendant      requested    a    polygraph



      1

       However, because I can envision circumstances in which

a polygraph examination conducted after the beginning of trial

might affect the course of the trial, and because I believe

that this is also within the contemplation of MCL 776.21(5),

I disagree with the Court of Appeals that a request for a

polygraph examination must necessarily precede the trial. 

examination           after     the     jury     had        already      begun     its


deliberations, such an examination could no longer have any


effect on the prosecutor in exercising his charging judgment,


any   effect     on        defense    counsel       in    fashioning     a     defense


strategy,       any    effect    on    the     magistrate         in   binding    over


defendant, any effect on the jury in assessing defendant’s


guilt, and any effect on the trial judge in administering the


trial or in assessing the sufficiency of the evidence.


      Moreover, this is defendant’s third request in this case


for a polygraph examination.                 His two earlier requests were


granted     by       the     court,    but     an        examination     was     never


administered         in    either     instance      because       of   decisions    by


defendant not to proceed.                I do not read MCL 776.21(5) as


precluding the trial court, in its conduct of the trial, from


taking cognizance of either the timing or the repetitiveness


of a defendant’s request for a polygraph examination.


      Finally,        I    do   not   understand          how    the   majority    can


conclude that the trial court’s failure to grant defendant’s


motion    for    a     polygraph      examination,          although     error,    was


nonetheless       harmless        error      because        defendant     “has     not


demonstrated that the failure to administer the polygraph test


was outcome-determinative.”               Ante at 8.            How can a defendant


ever demonstrate that an error pertaining to inadmissible





                                          2

polygraph evidence was outcome-determinative?2


     By my proposed denial of leave to appeal, I would obtain


the same result as the majority, which in turn has obtained


the same result as the Court of Appeals. 


                              Stephen J. Markman





     2

          The majority references the “strength of the

prosecution’s case” here in finding harmless error. Ante at

7.   Is this the standard for assessing errors under MCL

776.21(5)? Is there some class of cases in which, despite

conviction beyond a reasonable doubt and a judicial

determination of the sufficiency of evidence, a conviction

nonetheless is subject to reversal under MCL 776.21(5) on the

ground that the prosecution’s case is of insufficient

“strength?” 


                              3

                S T A T E    O F   M I C H I G A N


                            SUPREME COURT





PEOPLE OF THE STATE OF MICHIGAN,


      Plaintiff-Appellee,


v                                                     No. 121545


KEITH RICHARD PHILLIPS,


     Defendant-Appellant.

___________________________________

KELLY, J. (concurring in result).


      I concur in the result only.


      I agree that the Court of Appeals erred in ruling that


defendant forfeited his right to a polygraph examination by


requesting an examination after the close of proofs.         MCL


776.21(5) extends to defendants accused of certain crimes the


right to obtain a polygraph examination.          That right is


extinguished if a defendant is found guilty before exercising


it.   It is not extinguished, as the Court of Appeals found, at


the moment jeopardy attaches.


      I also agree with the majority that the error did not


adversely affect the outcome of defendant's trial.     Defendant


would not have been able to introduce the results of a


polygraph examination.      Moreover, he has not argued that the

denial of this statutory right prejudiced his defense. 


     However, I do not agree that the denial of his right was


necessarily harmless.     Defendant might have used a favorable


polygraph examination result at a postconviction stage.          For


example, he might have used it in a motion for new trial, to


urge a more lenient sentence or for a lower level placement by


the Department of Corrections. 


     Not only has defendant not asserted these claims, he has


not requested a polygraph examination in his application for


leave to appeal.   Accordingly, he has neglected to seek the


relief to which he might be entitled.            Therefore, I would


vacate the portion of the Court of Appeals opinion that


addresses   defendant's   claim    under   MCL   776.21,   but   deny


defendant's request for a directed verdict or a new trial.


                                  Marilyn Kelly

                                  Michael F. Cavanagh





                                  2