People v. Davis
218 N.W.2d 787
Mich. Ct. App.
1974
Check Treatment

*1 Aрp 94 v DAVIS PEOPLE Opinion of the Court Jury. Testimony—Polygraphs—Instructions to 1. Criminal Law — examination, polygraph made a defendant as a Reference to a posed prosecutor, question by the non-responsive to a answer immediately where the court not error did constitute reversible disregard any jury mention of the the to thereafter instructed specifically polygraph instructions instructed in its final and disregard any to and references made the term all the to "polygraph” "polygraph administration”. оr Jury Polygraphs. 2. Criminal Law —Instructions to — unreliability of include a reference the A trial court’s failure to to the a tests its was not reversible error to a examination refеrence request an made such instruction. where no Agent Heroin—Procuring Drugs 3. —Defense— and Narcotics — Law. Criminal charged delivery of heroin cannot use A defendant only procuring he and therefore could defense that guilty he be a seller of narcotics where testified found as money police give any him and that officer did аny drugs give and that did officer consummated; may one not assert transaction was not when the offense is defense denied. Jury Miscarriage Appeal 4. — of Jus- Error —Instructions tice. allegedly pre- Appellate of instructions is review erroneous [3] [6] [5] [4] [1, Physiological 21 Am Jur 2, 25 Am Jur 5 Am Jur 47 Am Jur 1308. 7] 29 Am Jur 2d, 2d, 2d, Drugs, 2d, References Appeal Criminal Law Jury psychological 2d, Evidence 831. §§ аnd Error Narcotics, for Points 141. §§ § truth and §§ in Headnotes Poisons, 817. deception § 38. tests, 23 ALR2d showing miscarriage justice of eluded absent a where defense expressed instructions; his sаtisfaction with the counsel there miscarriage where, showing justice upon was no exami- *2 Appeals nation of the instructions as a whole the Court of has prejudiced by determined that the defendant was not instructions. Jury 5. Juries — Panels —Voter Lists —Discrimination. registration jury panels

The use for of voter lists the selection of not, face, deny jury сomposed does on its a defendant a of a community, valid cross ‍‌​​‌‌​‌​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‍section of the and no error is found presented any where a defendant has not evidence of discrimi- nation. Sentencing—Statutes.

6. Criminal Law — complain mandatory A defendant cannot about a 20-year former provision sentence of a statute wherе he has received the sentencing provisions (MCLA benefit of a new statute 335.112; [a]). 335.341[1] by O’Hara, Concurrence J. Testimony—Polygraph—Instructions Jury. 7. Criminal Law — A criminal defendant is entitled tо a blanket instruction that references to tests because unreliability. of their Appeal Kent, from George Boucher, V. J. Sub- mitted 8, 1974, Division February at Grand (Docket 16577.) Rapids. Nо. Decided May Marvin Davis was convicted of delivery her- oin. appeals. Affirmed.

Frank Kelley, J. General, Attorney Robert A. Derengoski, Solicitor Miller, K James General* Prоsecuting Attorney, Johnston, Donald III, A. Chief Appellate Attorney, and David A. Dodge, Assistant Prosecuting Attorney, for the people.

Roach, Twohey, Brady, & Benson for defendant. App J., and P. and R. B. Befоre: Burns, Allen JJ. O’Hara,* delivery of was convicted J. Defendant

Allen, 335.152; 18.1122, MSA heroin, to MCLA contrary 335.341(l)(a); MSA currently MCLA 18.1070(41)(l)(a). ‍‌​​‌‌​‌​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‍a sentence of 3-1/2 to He received has raised issues on prison, years appeal. argument no defendant’s

We find merit in. at trial when refer- error committed reversible taking a polygraph ence was made to the trial when court denied examination motion a mistrial. The subsequent fendant’s made reference to the examination was nonresponsive ques- as answer to a by defendant *3 сourt, The prosecutor. tion trial posed given, answer was immediately after mention of disregard any instructed to specifi- its final to "any instructed the and all cally 'pоlygraph’ 'poly- references made to the term grounds administration’ ”. No for mistrial graph find no error. present, were and we reversible 48, 51; People Tyrer, v 19 172 NW2d 53 App Mich dismissed, (1971); appeal (1969), 385 Mich 484 351; v Paffhousen 20 Mich 346, 174 People App denied, appeal leave to (1969), 69 383 NW2d Mich (1970). the jury 825 Defense counsel contends that instruction was insufficient since it should have poly- included refеrence to the unreliability in- tests. A instruction graph proper disregard, to clude admonition a reference to unreliability, test of its but because instruction, request for suсh an the trial absent not error. court’s failure to so instruct reversible * Justice, Appeals by Supreme sitting Former on the Court of assignment pursuant 1963, 6, to Const art 23 as amended § 97 Baker, 471, v 476; People App 7 Mich denied, appeal (1967), leave 43 766 den, (1968), 953; cert 382; US 89 S 393 Ct 21 L Ed (1968). 2d 365 argues that he a procuring

Defendant not guilty and therefore could be found aas sеller Boone, People v of narcotics. While 31 Mich App (1971), 195; 569 ‍‌​​‌‌​‌​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‍rejected NW2d this de- 187 Turner, fense, v 38 App 487; Mich 196 (1972), grounds, reversed on other 799 NW2d 7; Mich 210 NW2d 336 recognized the agent” validity "procuring of the defense. One may entrapment assert the defense of when the People Hogan, offense is denied. App Mich (1973). 242, 246; See, also, People v 210 NW2d 376 Bеrsine, App NW2d (1973), and cases cited therein. Defendant testified police that did not give officer him any money and that defendant did not give the officer any drugs. Defendant testified that after a short discus- sion as to a possible transaction, narcotics said Therefore, transaction consummated. procuring agent defense was nоt available fendant. argues the trial court’s instruc-

tions the jury confusing, were the elements defined, the offense were properly and that the trial court implied that еrroneously could be guilty aiding abetting the offense *4 despite at issue the fact that recog- the court had However, nized the procuring defense. expressed fense counsel his satisfaction with the instructions. jury Absent a of showing a miscar- of riage justice, appellate allegedly review of erro- neous precluded. instructiоns is GCR 1963 People George Jones, ‍‌​​‌‌​‌​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‍v 516.2. App 48 Mich (1973). 104-105; 210 Examining NW2d 145 the App 94 Mich 53 98 whole, rather than ex- as a that defendant has determined Court this cerpts, court’s the instructions. prejudiced was 79, 85; 210 Peace, App NW2d v 48 Mich People (1973). 116 Hernandez, v People App 15 Mich upon

Relying (1968), argues defendant 851 141; 170 NW2d of the the date offense delay between 120-day the his abil- unduly prejudiced defendant’s arrest defense. The record adequate prepare an ity nor purposeful, delay the discloses People v John- thеreby. prejudiced defendant (1972). son, 41-44; 199 NW2d 561 App 41 Mich 600.1306(l)(a); that MCLA argues 27A.1306(l)(a), of provides for use which MSA of jury selection registration voter lists illogical any and does serve useful рanels, this presented has not purpose. Defendant discrimination, any use evidence not, face, deny on its registration voter lists does " * ** composed a valid сross defendant Stockard, People v 48 community”. of the section (1973). 680, 685; App Mich 211 NW2d Lor- People v argument, Contrary entzen, 167; did 335.152; not render MCLA MSA 18.1122 unconsti- Bersine, App tutional. (1973). Relying upon NW2d MCLA 18.1070(61X1), 335.361(1); sentencing MSA imposed years court a sentence to 20 of 3-1/2 prison upon Having defendant. received the bene- 18.107Q(41)(l)(a), 335.341(l)(a); fits of MCLA MSA complain 20- cannot about former year mandatory provision sentence of MCLA 335.152; MSA 18.1122.

Affirmed. Burns, J.,

R. B. P. concurred. *5 O’Hara, by J. Concurrence result). (concurring in O’Hara, I J. concur in the Judge Allen result reached the instant case. must, however, my register vigorous I disagree- ment with the statement proper "[a] include instruction admonition to dis- [an] test regard reference because of its unreliability”. (Emphаsis supplied.) testimony

Undoubtedly, such or the results of a test are inadmissible under the well- Michigan established rule. But I do not construe this mean that the involved instrument is with- application out justice useful the criminal field. writing My reason for separately that at the prearrest preindictment or level both police and prosecutors sometimеs utilize the device in deter- mining whether to initiate criminal pro- ceedings. In suspects other instances ask to take the test in support ‍‌​​‌‌​‌​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‍of their claims of I innocence. feel this instruction is almost a complete judicial repudiation of the instrument for any purpose. I am not prepared to go that far. See Davis, Michigan wherein Supreme recognized the "proven value” of the polygraph respect to the fields of criminal investigation and interrogation. That decision was made almost 20 years ago. During the intervening years both the use of and the reliability of the so-called lie detector gained have measurable stature.

For the reasons I stated would hold a criminal defendant has no entitlement to blanket instruc- tion that the jury should disregard references polygraph tests because of their unreliability.