PEOPLE OF MI V DANIEL MULLINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 183812
Jackson Circuit Court
LC No. 94-69847-FH
DANIEL MULLINS,
Defendant-Appellant.
Before: Taylor, P.J., and Hood and Gribbs, JJ.
TAYLOR, P.J. (concurring in part and dissenting in part).
I concur with the majority opinion except as it relates to the polygraph issue. Defendant was
denied his statutory right to a polygraph examination and therefore he is entitled to a remand to take
such a test. We simply have no authority to preclude him from the test.
MCL 776.21(5); MSA 28.1274(2)(5) provides that a defendant who has allegedly committed
first-degree criminal sexual conduct shall be given a polygraph examination or lie detector test if the
defendant requests it. Defendant requested a polygraph examination on October 31, 1994, three
weeks before trial was scheduled to commence. At a hearing, it was asserted that the earliest available
date at which a polygraph examiner would be available was January 5, 1995. The court refused to
adjourn trial or to order the examiner to make time to give defendant an exam before trial commenced.
In People v Rogers, 140 Mich App 576, 579; 364 NW2d 748 (1985), this Court held that a
defendant has an absolute right to receive a polygraph test once a request is made, but also noted that
the statute was silent about the time when the exam must be administered. In People v Sterling, 154
Mich App 223, 234; 397 NW2d 182 (1986), this Court stated that the test must be granted where the
defendant has allegedly committed criminal sexual conduct. While defendant herein may have been
somewhat dilatory in requesting the exam, the trial court clearly erred in refusing to take whatever
actions were necessary, i.e., ordering the examiner to take defendant out of order or granting an
adjournment to make sure that defendant received his legislatively-granted right to a polygraph test
before trial.
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The majority opinion states that defendant is not entitled to a remand to take the exam because:
(1) the statute does not require it; (2) defendant is no longer “alleged” to have committed the crime, i.e.,
he has been convicted; (3) the results of the exam would have been inadmissible at trial even if he had
passed the exam; and (4) it would not have been an abuse of prosecutorial discretion to charge
defendant even if he had passed the exam. This reasoning is unpersuasive.
First, the statutory language requires that it be given. The language of the statute, as well as the
cited case law, is clear that a defendant shall be given an exam if it is requested. Defendant made the
necessary request and, therefore, he was and is entitled to an exam. Second, the fact that defendant is
no longer an “alleged” criminal is not grounds to deny an exam. It is, in fact, irrelevant. The legislature,
for its own reasons that we may find debatable, has said that defendants of this type have this right.
Moreover, it is also the case that when the request was made (three weeks prior to trial) he was indeed
only an “alleged” criminal. Under the majority’s reasoning, a trial court could deny a defendant his
statutorily-granted right to an exam without consequence if the defendant is eventually convicted. This
cannot be the law if the statute is to mean what the legislature clearly wanted it to mean.
The majority is correct that the results would not have been admissible at trial. That is true, but
so what. This reasoning is, at heart, an attack on the reasonability of the statute. We are not called
upon for such evaluations unless the legislature violates the Constitution. There is no such allegation
here. In any event, other uses for the results of the exam existed before trial. MCL 776.21(3); MSA
28.1274(2)(3) provides that a law enforcement officer shall inform the victim when a person accused of
first-degree criminal sexual conduct has voluntarily submitted to a polygraph examination or lie detector
test and the test indicates the person may not have committed the crime. If defendant had passed the
exam, the police would have been required to share this fact with the victim (presumably so she could
reconsider her allegations). The trial court denied defendant the chance to take the exam and, if he
passed, to have the results shared with the victim. Moreover, if defendant had passed the exam before
trial, he may have been able to use the results to convince character witnesses to testify on his behalf
who would otherwise have been reluctant to testify.1 I agree that it would not have been an abuse of
prosecutorial discretion to charge defendant even if he had passed the exam; however, if defendant had
passed the exam the victim may have reconsidered her allegations and the prosecutor may have
declined to prosecute or may have offered a plea bargain. We do not know if these things would have
happened because the trial court denied defendant his right to a polygraph exam. Finally, the results of
a polygraph exam are admissible in a motion for a new trial. People v Barbara, 400 Mich 352, 359;
255 NW2d 171 (1977). In fact, the trial court denied a motion for a new trial, on other grounds, on
February 2, 1995.
For the foregoing reasons, I would remand to allow defendant to take a polygraph exam and to
move for a new trial, or other available relief, if the test indicates that he may not have committed the
crime.
/s/ Clifford W. Taylor
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1
I note that the jury initially told the court it was deadlocked and eventually acquitted defendant of three
of the four charges in this case.
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