PEOPLE OF MI V DANIEL JAY JENSEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 25, 2009
Plaintiff-Appellee,
v
No. 283510
Montcalm Circuit Court
LC No. 07-009100-FH
DANIEL JAY JENSEN,
Defendant-Appellant.
Before: Zahra, P.J., and Whitbeck and M. J. Kelly, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of third-degree criminal sexual
conduct involving penetration, MCL 750.520d(1)(b). Defendant was sentenced to 30 months to
15 years’ imprisonment. We affirm.
Defendant argues that the trial court erred in denying his motion for a mistrial and
subsequent motion for a new trial because the prosecutor mentioned the word polygraph and
inherently prejudiced the defense. Defendant contends that the cautionary jury instruction
provided by the trial court to disregard the prosecutor’s statement was insufficient to insure that
defendant received a fair trial. We disagree.
“[This Court reviews] a trial court’s decision to grant or deny a mistrial [for an] abuse of
discretion.” People v Ortiz-Kehoe, 237 Mich App 508, 513-514; 603 NW2d 802 (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.” People v Alter, 255 Mich App 194, 205; 659 NW2d
667 (2003); Ortiz-Kehoe, supra at 513-514. An abuse of discretion occurs when a trial court
chooses a minimum sentence that is outside the range of reasonable and principled outcomes.
People v Smith, 482 Mich 292, 327; 754 NW2d 284 (2008), citing People v Babcock, 469 Mich
247, 274; 666 NW2d 231 (2003).
This Court may consider the following factors in determining whether the trial court
erred in denying a defendant’s motion for a mistrial when a witness has mentioned a polygraph
examination in the presence of the jury: (1) whether the 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 the witness’s credibility;
and (5) whether the results of the test were admitted rather than merely the fact that a test had
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been conducted. People v Nash, 244 Mich App 93, 98; 625 NW2d 87 (2000); Ortiz-Kehoe,
supra at 514.
At trial the prosecutor elicited evidence that Lieutenant Edwards was a polygraph
examiner, and defense counsel immediately objected. Outside of the jury’s presence, defense
counsel made a verbal motion for a mistrial because mention of Lieutenant Edwards’s capacity
as a polygraph examiner was inadmissible and should have never been mentioned in front of the
jury. Defense counsel further stated:
The witness himself has been very clear and deliberate not to mention the word
polygraph, that he [is] a forensic scientist and does examinations, however the
prosecutor in his questions asked specifically how long have you been conducting
polygraphs. Again, this is clear[ly] prejudicial. []The prosecutor certainly - - -[]
is [not] some[one who is] new out of law school. This is a prosecutor with clearly
[25 to 30] years [of] experience. This is something that again was deliberately
mentioned in front of this jury to taint this jury.
Again, the polygraph is not admissible. It certainly is prejudicial to mention it
and certainly it [has] been found to be grounds for a mistrial at other cases where
it [has] been mentioned before the jury in terms of a potential polygraph
examination having been conducted . . ..
[B]ased upon the prosecutor’s question in reference to a polygraph, I think it
clearly is a basis for a mistrial and we [would] ask the [c]ourt to grant
[defendant’s motion].
The prosecutor responded that his reference did not result in prejudice to
defendant because no polygraph examination was ever conducted, and therefore, there were no
polygraph results. The prosecutor stated, “We see no prejudice to the defendant by . . . having
testimony introduced regarding Lieutenant Edwards’s capacity. Polygraph is not at issue
because there was no polygraph.” Ultimately, the trial court denied defendant’s motion for a
mistrial, concluding that a curative instruction would be sufficient in this case. The trial court
informed the prosecutor to avoid future mention of the word polygraph. There were no
additional references to the word polygraph and obviously no test was admitted into evidence.
We conclude that the mention of the word “polygraph” did not bolster or undermine the
credibility of any witness. Defendant argues that identifying Lieutenant Edwards as a polygraph
operator bolstered his credibility significantly, however, Lieutenant Edwards’s testimony did not
in any way undermine defendant’s credibility. In fact, Lieutenant Edwards conveyed to the jury
statements made by defendant that he believed were true. Further, the trial court issued the
following cautionary instruction.
Members of the jury, before we pick back up the direct examination, there was
mention of a polygraph. I am instructing you at this point, that has no relevancy
to this case and should not be considered by you. The only possible relevancy is
that it goes to show as to why [Lieutenant] Edwards was meeting with [defendant]
but there was no polygraph given, there was none refused. It just - - - it [is] a
non-issue. And the reason why I even mention this . . . is because of the word
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polygraph, you [are] going to use that in some way against one party or another
and I [am] specially telling you no. It [is] like one of those things we talked about
in jury selection that you cannot use [] in deciding the case. This is a prime
example. Its only possible relevancy is to show why [Lieutenant] Edwards was
meeting with [defendant] but again there was no polygraph, there was none
refused. It [is] just simply a non-issue and you should not hold that against either
party and obviously you should not hold that against [defendant] in any way
because there was [no polygraph examination administered] or because . . . you
must think there must be something and we [are] not telling you about it, all those
type of things. It is simply a non-issue. It [is] one of the reason[s] why in most
cases, we do [not] even use the word polygraph just because we are always
concerned that you [are] going to attach some kind of significance to that because
of what you see in the newspaper, TV or whatever.
The word came out so I am telling you it is a non-issue. I [am] even going a [step
further] to tell you that there was not any polygraph here. There was none given,
there was none refused, it only tells you why [] [Lieutenant] Edwards met with
[defendant]. So it has maybe, maybe a little relevancy that way. We probably
could have told you something else instead but just going around that because it
did come out that [is] why the two were meeting. But other [than] that again,
please, it has no relevancy, should not be considered and absolutely not held
against [defendant] by any means. You [cannot] say because there was [no
polygraph examination administered], he must have done something wrong or
that there was one and we [are] just not being truthful with you, I [am] telling as
the Judge there was not a polygraph and it was not because anybody refused one
or because they could [not] work out he details, whatever, there simply was not a
polygraph and it should not be held against either party. Very, very specifically
not against [defendant]. I do [not] want that to be a factor in any way in your
decision making process.
In sum we cannot conclude that the trial court erred in denying defendant’s motion for
new trial. Merely mentioning that Lieutenant Edwards had experience in conducting polygraph
examinations does not suggest that defendant lacks credibility. Given the above cautionary
instruction, defendant cannot establish sufficient harm stemming from this incident to constitute
error requiring reversal.
Moreover, it is not “more probable than not that a different outcome would have resulted
without the error.” People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). Although the
complainant’s testimony was diametrically opposed to defendant’s account of events, the jury
was free to decide which witness or witnesses it chose to believe. Pursuant to MCL 750.520h,
“[t]he testimony of a victim need not be corroborated in prosecutions [involving criminal sexual
conduct] under [MCL 750.520b to 520g].” People v Lemmon, 456 Mich 625, 632; 576 NW2d
129 (1998). As the trier of fact, the jury must assess witness credibility. Lemmon, supra at 646.
In light of the extensive cautionary instruction read to the jury immediately following the
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prosecutor’s mention of the word polygraph, where no polygraph examination was administered,
the trial court did not abuse its discretion in denying defendant’s motion for a mistrial and
subsequent motion for a new trial.
Affirmed.
/s/ Brian K. Zahra
/s/ William C. Whitbeck
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