*1 Triplett 339 PEOPLE TRIPLETT 1987, 18, Rapids.
Docket No. 90943. June at Submitted Grand Decided 22, September appeal applied 1987. Leave for. charged first-degree Eddie L. was with criminal sexual trial, Following jury conduct in Oakland Court. Circuit defen- second-degree dant was convicted of criminal sexual conduct years imprisonment, Stanley and sentenced to five to fifteen E. Everett, appealed. J. Defendant Appeals The held: Court improper 1. There no and inadmissible reference to a
polygraph description examination trial. The of defendant’s polygraph "specialized examination as a interview” was not a self-evident reference to a examination there specific was no or clear reference to the fact that defendant had failed a examination. instructing 2. trial The court did not err in on second-degree criminal sexual conduct. The evidence was suffi- cient to warrant the instruction. resentencing 3. is Defendant’s contention that he entitled to or to a remand articulation of the court’s reasons for the imposition particular rejected. of this sentence Defendant does not claim that the sentence the conscience nor shocks does any give why imposition might reasons of the sentence imposed
be an abuse discretion. sentence falls within the sentencing guidelines pre- limits set and therefore is excessively sumptively unfairly disparate. severe or Under facts, necessary. these remand is not Affirmed. Caprathe, J., W. J. would reverse and remand the case for a ground clearly new trial that the trial court erred in References 2d, seq. Am Jur 580 et Criminal Law §§ 2d, Am Jur Evidence 296§ 2d, seq. Jur Am Trial 876 et §§ state modern Lesser-related offense instructions: status. ALR4th upon Admissibility stipulation of lie test detector taken result will in evidence. 53 ALR3d 1005. be admissible 163 *2 "specialized allowing testimony interview” with defen- as to the interviewing police officers’ belief that defen- to the dant and lying intercourse he he did not have sexual dant was when said Caprathe Judge hold that this testi- would with the victim. polygraph mony to a exami- to a self-evident reference amounts opinion majority’s on the other He with the nation. concurs issues. Polygraph — — Examinations. Law Evidence
1. Criminal "specialized police testimony a that he conducted A officer’s defendant, he that the defen- a believed interview” with interview, during "wanted that the defendant and lied dant girlfriend] his ...” that he had failed be to tell the one [his specific fact that or clear reference not amount to a does examination; a failed improper to a inadmissible reference not an and examination. — Jury— Offen- Lesser Included
2. Law Instructions Criminal ses. giving objection by of an instruction on a to the a defendant An duty controlling; of the it is the is not lesser included offense applicable jury to the law instruct the as trial court to case. Jury — — Included Offen- Instructions Lesser
3. Law Criminal —ses Evidence. on lesser included offenses duty trial to instruct of the court evidence; the evidence adduced when is determined charge, the trial on the lesser warrant conviction trial would may offense. properly on that lesser instruct court — Jury— Lesser Included Offen- Law Instructions 4. Criminal ses. over the may included offenses instruct on lesser A trial court not language charging docu- objection unless defendant’s charge may face a gave the defendant fair notice ment offense. on the lesser Necessarily Jury — — Included Law Instructions 5. Criminal Lesser Offenses. request an instruction trial court to refuse It is error for a necessarily included lesser offense. on a Presumptions. Resentencing — — Sentencing — Law Criminal imposition for the to articulate reasons trial court’s failure A resentencing or to a not the defendant sentence does entitle Opinion of the Court remand for articulation of reasons where the defendant does claim that the sentence shocks conscience or that the imposition discretion; of the sentence was an abuse of under circumstances, presumptively such the sentence is not exces- sively unfairly disparate severe or it if falls within the sentenc- ing norm for the defendant’s class of offender. J.
Frank General, Kelley, Attorney Louis J. Caruso, Sindt, General, Conrad Solicitor Prosecut- Durham, Jr., Samuel I. ing Attorney, Assis- *3 tant Prosecuting Attorney, people. for the Bennett), P. E. Appellate
State Defender for (by appeal. defendant on Sawyer, P.J., W.
Before: and Mackenzie and J.
Caprathe,* JJ.
Per Curiam. Defendant convicted of second- was conduct, degree MCL criminal sexual 28.788(3)(l)(b), 750.520c(l)(b); a following jury MSA 17, 1985, was on trial and sentenced December fifteen years imprisonment. ap- five to Defendant his peals right. conviction and sentence as of We affirm. examination,
Following defen- preliminary the charged first-degree dant was with criminal sexual theory engaged conduct under the that he had victim, penetration sexual with the who was at age, least thirteen but less than of years sixteen that was specifically years, thirteen and defendant a same as victim. member household 28.788(2)(l)(b)(i). 750.520b(l)(b)(i); Defen- MCL MSA boyfriend dant was the live-in the victim’s mother. of two
Defendant first claims that police officers indicated that defendant examination, testi- had failed a that * judge, by assignment. sitting Appeals the Court of Circuit op Opinion the Court
mony admitted, not have been should requiring its as a result of reversal occurred error admission.
Michigan Palmatier Police John J. State on Officer July 16, 1985, he conducted testified that presence "special in the interview” with defendant Baker for Robert Battle Creek Police Detective purpose establishing had whether defendant thirteen-year-old with the had sexual intercourse Initially, that he could said victim. defendant night ques- raped on the since have victim attending party hotel and at a had tion he been talking family with After at the residence. was not approximately one-half two and defendant hours, told defendant Palmatier Officer lying. this statement After believed having defendant, sex- defendant never denied victim, but denied with the ual relations things way also claimed. He had she occurred *4 go jail truth, that, to he would if he told stated years De- thirteen old. the victim was since say anything more until then refused fendant girl’s mother. the truth he first told had During cross-examination, re- Officer Palmatier peatedly lied had belief that defendant stated his during the interview. the substance
Detective Baker also testified prose- by examination the interview. On direct place: following cutor, took to talk to you Did wanted Q. I see. indicate he still that? girlfriend— his Did indicate Yes, to make said that he wanted A. he did. He He to tell her. the first one sure that he was ñrst he had to tell her that wanted to be one his— failed go [Emphasis that. let it Court: Just
added.] People v Opinion of the Court testimony, At of the conclusion witness’ defense counsel moved a for mistrial on the ground although that, Baker had been cut off in jury midsentence, it clear that defen- polygraph dant had failed a examination. The trial court denied the motion. poly-
It is well established that evidence that a
graph examination was conducted and the results
of such examination is inadmissible at trial. Peo-
ple Barbara,
352,
v
400 Mich
(1983),
ques-
lv den
constituted clear indication to the polygraph defendant had failed the examination. Wallach, 37, 62-63; (1981), grounds NW2d vacated on other panel
fact defendant had taken a exami- nation.
Similarly, case, in the instant there was no specific or clear reference to the defen- fact that *5 polygraph examination, dant had failed a nor was description "special- Palmatier’s ized of the event as a poly- a interview” "self-evident reference to a graph nothing addition, examination.” In in tbe suggests police record that either of the witnesses deliberately attempted jury to inform the had defendant failed his examination. police find the
We of the twm officers App 163 Mich 339
344
Opinion of the Court
improper
reference
and inadmissible
was not an
examination.
no
is that
there was
next claim
Defendant’s
supported
on the
a conviction
which
evidence
lesser
second-degree
sexual con-
criminal
offense of
instruction should have
no
and therefore
duct
given on that offense.
been
jury
the
on the lesser
instructed
The trial court
second-degree
at
criminal sexual conduct
offense
request
prosecution.
counsel
the
Defense
pro-
arguing
objected,
was no evidence
there
crimi-
that defendant
at trial
to establish
duced
jury
nally
would have
and the
touched the victim
guilty
guilty
or not
of either
a verdict
to return
first-degree
second-
conduct. Since
criminal sexual
felony,
degree
is a
sexual conduct
criminal
People Stephens,
252;
416 Mich
in
v
rules set forth
(1982),
inapplicable.
675
are
330 NW2d
objection by
Supreme
Court, an
our
stated
As
giving
of an instruction on
a
lesser included
Chamblis,
(1975),
People
controlling.
v
is not
offense
408, 415; 236
473
NW2d
395 Mich
(1976),
Mich 976
overruled
den 396
reh
Stephens,
People
grounds
part
416
on other
(1982).
duty of
It
252;
675
is
Mich
330 NW2d
jury
law
as
instruct
the trial court to
applicable
768.29; MSA 28.1052.
the case. MCL
duty
instruct
lesser
court to
on
of the trial
by the evidence.
offenses
determined
included
p
supra,
Chamblis,
the evidence ad-
419. When
conviction on
warrant
court
trial would
duced
properly
charge,
may
instruct
trial
lesser
supra, p
Chamblis,
lesser offense.
379, 390;
Jones,
236
v Ora
(1976);
Mich 976
den 396
reh
NW2d
Troy
City
McMaster, addition, the trial court
398 NW2d
may
included offenses over
on lesser
not instruct
*6
People
345
v
Opinion op the Court
objection
language
defendant’s
charging
unless the
gave
document
defendant fair notice that
charge
may
he
blis,
face a
lesser offense. Cham
supra, p
Lastly,
it is error for a trial
judge
request
refuse
for an instruction on a
necessarily
People
included lesser offense.
v Shel
(1984).
App
ton,
138 Mich
360
234
NW2d
parties
agree
second-degree
in this
case
criminal sexual conduct is a lesser included offense
first-degree
criminal sexual conduct. There
ais
second-degree
conflict
is a
this Court on whether
esc
necessarily
included lesser
offense
first-de-
gree
People
Thompson,
App 705,
v
esc.
76 Mich
(1977),
708; 257
268
NW2d
lv den
of whether criminal sex- necessarily factually ual conduct is a included or offense, included lesser the evidence adduced this given. an trial warranted that such instruction be police
Both officers testified that defendant changed story during special his the course of the that, truth, interview and stated if told he go jail anyway would since the victim was years thirteen old. This was sufficient *7 163 339
346 Opinion the Court sexual the reasonable inference that ac- warrant tivity defendant of some kind occurred between the victim. and addition, victim’s defen-
In vagina penis sexually penetrated with his her dant support provided for defendant’s conviction also second-degree conduct. As noted in criminal sexual authority above, some conflict of described the panels second-degree of this Court have held necessarily is a included criminal sexual conduct first-degree criminal sexual con- offense lesser penetration not occur with- sexual could duct since Accordingly, the victim’s testi- out sexual contact. penetration provides mony that occurred sexual support evidentiary that sexual conclusion Therefore, in the evidence occurred. contact also to warrant case was sufficient the instant second-degree criminal sexual con- on instruction duct. question
The final is whether failure sentencing judge his reasons for the to articulate requires be resentenced that defendant sentence or, alternative, the case should be in the whether an articulation. The sentence remanded for such imposed range within the recommended Supreme guidelines. of the recent the Court view People People holding v v in Broden Murray, 343; NW2d 789 we People freshly Coles, 417 Mich reexamine must 339 NW2d required the trial court articulate Coles imposing sentencing reasons for record the the sentence stating given. p Id., After obligation articulation, Coles next court’s trial appellate required the trial court review sentencing but discretion court’s exercise of "may appellate court afford relief stated the appellate finds that the if the court Opinion of the Court imposing court, sentence, trial abused its discretion to the extent it shocks the con- *8 appellate p supra, Coles, science of the court.” any The trial court did not articulate reasons for However, the sentence in this case. defendant does not claim the sentence shocks the conscience. De- complains only fendant of the failure to articulate. People Murray, supra, v Broden
the cases involved failure to articulate reasons for
imposing
Murray,
and,
the sentences
at least
the defendant claimed the term of the sentence
disp[ro]portionate
"grossly
gravity
was
to the
shocking
judicial
the offense” and
con-
People Murray,
App
science,
Supreme
The trial court did here not articulate reasons sentence, for the which within the limits suggested guidelines, by any or make reference guidelines. Defense counsel said on the record that he and the defendant had "read the presentence investigation report and take no ex- ceptions have thereto.” We a Coles error which is by Murray, supra. not cured Broden and question requiring is whether the error is error duty appellate reversal—what is of the court?
If reasons, we remand for articulation of the trial judge by acknowledging can cure the defect cognizant guidelines. he was This would 163 by Caprathe, W. J. J. Partial Concurrence Murray requirements but of Broden and
fulfill the futility. surely an exercise in would be resentencing; however, under desires Defendant supra, give Coles, if this relief we an abuse of discretion we find the sentence is conscience, a claim not even which our shocks made this defendant. imposition of this sentence not find the
We do does not an of discretion. The sentence abuse Therefore, mindful our conscience. shock Murray, Supreme Court in Broden and while the supra, specifically within the stated that sentences *9 shocking judicial guidelines con- be could p science, Id., 354, 18, in of this defendant’s n view shocking argue this why is or failure to that sentence imposition any give this the reasons might discretion, we hold sentence be an abuse presump- these facts the sentence is that under disparate unfairly tively excessively severe or sentencing norm for it within because falls pp Id., 354-355. class of offender. that Affirmed. part (concurring in dis- J. J.
W.
Caprathe,
opin-
senting
part).
majority’s
in
I concur with the
respect
issues, but
with
ion on the last two
dissent
would, therefore,
I
reverse the
to the first issue.
for a
and remand the case
defendant’s conviction
People Wallach,
37,
new
62-63;
In
trial.
we held that a wit-
In testi- case specialized fied that he conducted a interview with by Partial Caprathe, Concurrence W. J. J. establishing purpose the defendant for the whether the defendant sexual had intercourse with the victim. Not was there this
regarding "specialized interview,” but there was testimony that, hours, also after two and one-half the officer had told the defendant believed lying. addition, defendant was on cross-exami- repeatedly nation Officer Palmatier be- stated his during lief that had lied interview. subsequently witness, Baker,
Another Detective description testified and reiterated Palmatier’s short, however, the interview. He was cut trial court when he testified defendant had said that would like "he to be one to tell her girlfriend] [his first that .” I he had failed his . . .
believe when these circumstances are consid- they collectively, ered amount to a "self-evident reference to a examination.” logical, reasonable,
The most re- and common sponse by jurors filling in the blanks of the "polygraph.” unfinished sentence would For be those who weren’t familiar with ma- *10 testimony chines, the could lead conclusion that nique. the officer used a lie "human detector” tech- inappropriate. course,
This, of be would also Izzo, 90 Mich NW2d (1979). People Smith, 98, NW2d 814 any implication event, the lie detector bol-
stered Officer Palmatier’s de- negatively fendant testimony lied and affected defendant’s certainly Therefore, at the trial. it prejudicial harmless. firmly
Therefore, I am convinced that the trial clearly allowing testimony. court erred this I would reverse and a new remand for trial.