STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
July 20, 2004
Wayne Circuit Court
LC No. 01-013443-01
LYNN CHESTER STRAYHORN,
Before: Griffin, P.J., and Cavanagh and Fort Hood, JJ.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317, armed robbery, MCL 750.529, assault with intent to rob while armed, MCL 750.89,
felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the
commission of a felony, MCL 750.227b. We affirm.
Defendant’s convictions arise from allegations that on September 28, 2001, he and an
accomplice robbed and fatally shot the victim. Defendant gave a statement to the police
admitting his involvement in the crimes but he testified at trial and denied any wrongdoing.
On appeal, defendant first argues that the trial court abused its discretion by denying his
motion for a mistrial after a police officer indicated during cross examination that a witness
made certain statements during a polygraph. We disagree. This Court reviews a trial court’s
ruling on a motion for a mistrial for an abuse of discretion. People v Griffin, 235 Mich App 27,
36; 597 NW2d 176 (1999). “A mistrial should be granted only for an irregularity that is
prejudicial to the rights of the defendant and impairs his ability to get a fair trial.” Id. (citation
Defendant did not timely object to the challenged testimony. Rather, following the
completion of the officer’s testimony, defense counsel objected to the witness twice using the
term polygraph, and providing “unresponsive” answers. Defense counsel requested a curative
instruction. On the following day, defense counsel moved for a mistrial, which the trial court
denied after noting that the references to a polygraph were solicited by defense counsel, stated
neutrally in response to questions regarding to whom the witness made certain statements, and
did not rise to a level warranting a mistrial.
Generally, reference to a polygraph examination at a defendant’s criminal trial is not
permitted. People v Nash, 244 Mich App 93, 97; 625 NW2d 87 (2000); People v Rocha, 110
Mich App 1, 8; 312 NW2d 657 (1981). But the introduction of such evidence does not always
warrant reversal. Nash, supra at 98. This Court has identified a number of factors that should be
considered in determining whether reversal is required:
(1) whether defendant objected and/or sought a cautionary instruction; (2)
whether the reference was inadvertent; (3) whether there were repeated
references; (4) whether the reference was an attempt to bolster a witness’s
credibility; and (5) whether the results of the test were admitted rather than
merely the fact that a test had been conducted. [Id. (citations omitted).]
Reviewing the facts in light of these factors, there was no error requiring reversal.
Although defendant did not timely object, the trial court gave a cautionary instruction, directing
the jury to “disregard any testimony that you heard that had anything to do with a polygraph.”
Juries are presumed to follow their instructions. People v Graves, 458 Mich 476, 486; 581
NW2d 229 (1998). Further, the reference to the polygraph appeared to be an attempt to identify
to whom the witness made certain statements and was not responsive to defense counsel’s
questions, which required affirmative or negative responses. Generally, “an unresponsive,
volunteered answer to a proper question is not grounds for the granting of a mistrial.” People v
Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995). Additionally, as noted by the trial
court, the witness’ references to the polygraph examiner/operator were neutral, i.e., they were not
made in the context of attempting to bolster the witnesses’ credibility, or to undermine
defendant’s credibility. Also, the testimony was not elicited during the prosecutor’s examination
of the officer, but during defense counsel’s cross-examination. Moreover, no polygraph
examination results were admitted. In sum, defendant has not shown prejudice warranting a
mistrial and, thus, the trial court did not abuse its discretion by denying defendant’s motion.
Next, we reject defendant’s claim that the prosecutor contravened a trial court ruling
when he questioned a police officer about defendant’s request for counsel after the court
precluded such questioning. Defense counsel first elicited the testimony now complained of
during cross-examination. In fact, the record indicates that the prosecutor prudently conducted
his direct examination of the officer, and was careful not to frame his questions in a way that
would elicit the objectionable testimony. Once defense counsel elicited the testimony, the
prosecutor’s subsequent questioning on the matter was not improper. A party may not claim
error when it contributes to the alleged error by plan or negligence. Griffin, supra at 46.
Moreover, because the alleged error was directly attributable to the affirmative conduct of
defense counsel, defendant has waived this claim. See, e.g., People v Riley, 465 Mich 442, 448449; 636 NW2d 514 (2001) and People v Carter, 462 Mich 206, 214-215; 612 NW2d 144
(2000). Accordingly, reversal is not warranted on this basis.
Next, defendant argues that the trial court abused its discretion by determining that the
prosecution exercised due diligence in attempting to locate Linton Richey and Derrick Strayhorn,
and that the admission of their preliminary examination testimony at trial under MRE 804(b)(1)
violated his rights guaranteed by the Confrontation Clause of the federal and state constitutions.1
We disagree. This Court reviews a trial court’s evidentiary rulings for an abuse of discretion.
People v Sabin (After Remand), 463 Mich 43, 60; 614 NW2d 888 (2000).
MRE 804(b)(1) governs the admission of former testimony if a witness is unavailable for
trial. MRE 804(a)(5) defines “unavailable” to include a situation where the witness “is absent
from the hearing and the proponent of a statement has been unable to procure the declarant’s
attendance . . . by process or other reasonable means, and in a criminal case, due diligence is
shown.” Due diligence is the attempt to do everything that is reasonable, not everything that is
possible, to obtain the presence of a witness. People v Cummings, 171 Mich App 577, 585; 430
NW2d 790 (1988). The focus is on whether diligent, good-faith efforts were made to procure the
testimony and not on whether more stringent efforts would have produced it. People v Bean, 457
Mich 677, 684; 580 NW2d 390 (1998). This Court reviews a trial court’s determination that due
diligence was established for an abuse of discretion, id., and the findings of fact that underlie that
decision for clear error, People v Lawton, 196 Mich App 341, 348; 492 NW2d 810 (1992).
Here, the trial court did not abuse its discretion in determining that the prosecution
exercised due diligence in its attempts to produce the witnesses at trial. After an unsuccessful
attempt to personally serve the witnesses at their respective homes weeks before trial, a police
officer went to their high school and talked to teachers and the principal. The officer learned that
neither witness had attended school for nearly a year. The detective contacted possible places of
employment and called multiple cell phone numbers received from various individuals. The
detective also contacted various area agencies, including the Department of Corrections, local
morgues, jails, local utility companies, the postal service, Herman Kiefer, and the Family
Independence Agency. The Michigan Street Enforcement Team was also involved in searching
for the individuals. The prosecution is “not required to exhaust all avenues for locating
[witnesses], but ha[s] a duty only to exercise a reasonable, good-faith effort in locating [them].”
People v Briseno, 211 Mich App 11, 16; 535 NW2d 559 (1995). Defendant identifies no other
steps the prosecution could have taken in an effort to locate the witnesses.
Further, the preliminary examination provided defendant with an opportunity for crossexamination under a similar motive. MRE 804(b)(1). Both witnesses’ prior testimony was
chiefly offered to prove defendant’s identity as one of the perpetrators of the crimes. During
cross-examination, defense counsel attacked the witnesses’ credibility, and elicited that Richey
was granted limited immunity with respect to his possession of stolen property. He also elicited
Strayhorn’s claim that the police coerced him into implicating defendant, and that he was
intoxicated on the night of the incident. Defendant does not claim that the district court curtailed
defense counsel’s efforts to cross-examine the witnesses at the preliminary examination, and he
offers no examples of additional questions that he was not able to pursue because of either
witnesses’ absence at trial. In sum, the trial court did not abuse its discretion by concluding that
the witnesses’ preliminary examination testimony was admissible at trial.
US Const, Am VI; Const 1963, art 1, § 20.
Next, defendant contends that, because there was evidence that Richey and Strayhorn
were his accomplices and the case was “closely drawn,” the trial court erred by failing to sua
sponte give cautionary instructions regarding accomplice testimony. Defendant failed to request
the instructions below, therefore, this unpreserved claim is reviewed for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
Defendant maintains that the failure to give a cautionary accomplice instruction was plain
error under People v McCoy, 392 Mich 231; 220 NW2d 456 (1974). In McCoy, our Supreme
Court held that it has been “deemed reversible error . . . to fail upon request to give a cautionary
instruction concerning accomplice testimony and, if the issue is closely drawn, it may be
reversible error to fail to give such a cautionary instruction even in the absence of a request to
charge.” Id. at 237, 240. A case is considered “closely drawn” if a determination of the
defendant’s guilt essentially comes down to a credibility contest between the defendant and his
accomplice. People v Perry, 218 Mich App 520, 529; 554 NW2d 362 (1996).
Initially, contrary to what defendant argues, this case was not “closely drawn.” Apart
from the testimony of Richey and Strayhorn, the prosecutor presented defendant’s own
confession of his participation in the crimes. Additionally, the evidence did not show that
Strayhorn and Richey, the alleged accomplices, actually participated in the crimes. More
significantly, the cautionary accomplice instructions were logically inconsistent with the defense
that defendant neither committed the charged crimes, nor was involved in any way. Indeed,
defendant cannot have accomplices to crimes that he purportedly did not commit. Accordingly,
because CJI2d 5.5 and CJI2d 5.6 were inapplicable, defendant has failed to demonstrate plain
error. Therefore, reversal is not warranted on this basis. Further, defendant’s claim that his
counsel was ineffective for failing to request these instructions is without merit.
Defendant also argues that he is entitled to a new trial because defense counsel failed to
move to suppress his confession. We disagree. Because defendant failed to raise this issue in
the trial court in connection with a motion for a new trial or an evidentiary hearing, this Court’s
review is limited to mistakes apparent on the record. People v Ginther, 390 Mich 436, 443; 212
NW2d 922 (1973); People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620
NW2d 19 (2000).
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v
Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). To establish ineffective assistance of
counsel, a defendant must show that counsel’s performance was below an objective standard of
reasonableness under prevailing norms and that the representation so prejudiced the defendant
that there is a reasonable probability that, but for counsel’s error, the result of the proceedings
would have been different. Id.
Here, there was no basis for defense counsel to move to suppress defendant’s confession
where the record does not support defendant’s claim that he was denied counsel, or that his
confession was otherwise involuntary and coerced. See People v Cipriano, 431 Mich 315, 334;
429 NW2d 781 (1988); People v Howard, 226 Mich App 528, 538; 575 NW2d 16 (1997).
Defendant, as well as the officers who took his statement, testified at trial regarding the
statements. During the initial questioning, defendant requested counsel. It is undisputed that,
when defendant requested counsel, the interview ceased and was not resumed until defendant
requested to speak with an officer. Besides his general claims, defendant has not offered any
corroborating evidence that he was induced into making a statement by the denial of counsel.
Also, it is undisputed that defendant was advised of his Miranda rights before he was questioned,
indicated that he understood those rights, and signed a written waiver of his rights.
Furthermore, viewing the totality of the circumstances, defendant’s statements were
voluntarily given. Although defendant was arrested several hours before giving his statement,
there is no indication that he was coerced into confessing to a crime he did not commit because
of improper delay, or anything that occurred during that time. In fact, defendant admitted that,
after his father pleaded with him to cooperate, he decided to speak to the police. Also, there is
no indication that defendant was abused, ill, intoxicated, or deprived of sleep, food, or drink.
Although defendant claimed that at one point an officer grabbed him by the neck and pushed him
back into a chair, he testified that there was no “hitting or anything like that.” Defendant
claimed that an officer “snatched” the telephone while he was attempting to talk to his father, but
he also testified that he had several telephone conversations with his father. Finally, there is no
indication that defendant had any learning disabilities, psychological problems, or was otherwise
unaware and not acting of his own free will. Indeed, the record indicates that defendant
completed one year of college, and had previous experience with the police and the criminal
process. In sum, given these facts, defendant has failed to demonstrate that there is a reasonable
probability that, but for counsel’s inaction, the result of the proceeding would have been
different. See Effinger, supra. He is not entitled to a new trial on this basis.
/s/ Richard Allen Griffin
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood