PEOPLE OF MI V DONALD EDWARD NASHAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 26, 2000
Wayne Circuit Court
LC No. 97-001932
February 16, 2001
DONALD EDWARD NASH,
Before: Gribbs, P.J., and Hoekstra and Markey, JJ.
Defendant appeals as of right from his jury trial convictions of first-degree murder, MCL
750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL
750.227b; MSA 28.424(2). Defendant was sentenced to life imprisonment for the first-degree
murder conviction and two years' imprisonment for the felony-firearm conviction, the sentences
to run consecutively. We reverse.
Defendant raises numerous issues on appeal, one of which we find requires us to reverse
his convictions, that issue being that defendant was denied due process and a fair trial when the
prosecution's key witness made reference to having taken a polygraph examination.
The victim in this case was shot to death inside a dry-cleaning establishment where she
worked. The murder went unsolved for ten years. Relatives of the victim managed to get the
case reopened, and the ensuing investigation led to the arrest of defendant.
At trial, the only prosecution witness to directly implicate defendant in the homicide was
Cinnamon Miller (hereafter "witness"). The witness' mother and the victim were lesbian lovers
and, during the witness' childhood, she lived with her mother and the victim for many years.
There was a long history of discord between the witness and the victim. This discord resulted in
an unsettling home life for the witness. The witness had many behavioral problems and spent
years of her childhood in a psychiatric institution.
Ultimately, the witness testified that her hatred for the victim caused her to plan to kill the
victim and that she solicited defendant to assist her in perpetrating the murder. The witness
claimed in her testimony that she obtained a gun to be used in the murder and she described the
events that resulted in defendant entering the dry cleaners and killing the victim.
During the trial, the prosecutor and defense counsel extensively examined and crossexamined the witness. On cross-examination, defense counsel soundly attacked the witness'
credibility with several conflicting statements that the witness had given to the police during the
investigation and with her admitted history of lying. During redirect examination, the prosecutor
attempted to rehabilitate the witness by repeatedly inquiring into what led the witness to finally
tell the truth about the murder and why the jury should believe her testimony. This repeated
questioning concluded with the following exchange.
Q. Okay. So, then, why should we believe you?
A. That's up to you. I took a lie detector test.
Defense counsel objected to this testimony and the trial court sustained the objection, struck the
response from the record, and instructed the jury to disregard the answer. Defense counsel did
not move for a mistrial on the basis of the witness' reference to taking a polygraph test. The trial
concluded with the jury finding defendant guilty as charged of first-degree murder and
possessing a firearm during the commission of a felony.
First, we address the appropriate standard of review. Although defendant submits that a
request for a mistrial is reviewed under an abuse of discretion standard and that the alleged error
should be reviewed under this standard, the record reveals that defendant failed to request a
mistrial with regard to the polygraph testimony.
Had defendant requested a mistrial, the
proffered standard of review would be accurate. People v Ortiz-Kehoe, 237 Mich App 508, 513;
603 NW2d 802 (1999) ("the proper standard of review for a trial court's decision to grant or deny
a mistrial is abuse of discretion"). However, because defendant objected to the reference to a
polygraph test, but did not move for a mistrial, it appears that defendant was satisfied with the
court's handling of the matter. The court sustained the objection, struck the response from the
record, and instructed the jury to disregard the answer. On this record, defendant did not receive
an adverse ruling from the trial court from which to appeal.
Nonetheless, this does not foreclose the possibility of appellate review. We believe that
the alleged error should be reviewed by the even more restrictive standard of forfeited
nonconstitutional error. We find that the failure to request a mistrial is tantamount to counsel's
failing to preserve an objection. Under such a circumstance, a defendant is entitled to the limited
review afforded under the forfeited nonconstitutional error standard. As such, defendant must
show a plain error that affected his substantial rights, and this Court must exercise its discretion
when deciding whether reversal is necessary. People v Carines, 460 Mich 750, 763, 774; 597
NW2d 130 (1999). In Carines, supra at 763, our Supreme Court explained:
To avoid forfeiture under the plain error rule, three requirements must be
met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3)
and the plain error affected substantial rights. [United States v Olano, 507 US
725,] 731-734[; 113 S Ct 1770; 123 L Ed 2d 508 (1993)]. The third requirement
generally requires a showing of prejudice, i.e., that the error affected the outcome
of the lower court proceedings. Id., p 734. "It is the defendant rather than the
Government who bears the burden of persuasion with respect to prejudice." Id.
Finally, once a defendant satisfies these three requirements, an appellate court
must exercise its discretion in deciding whether to reverse. Reversal is warranted
only when the plain, forfeited error resulted in the conviction of an actually
innocent defendant or when an error "'seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings' independent of the defendant's
innocence." Id., pp 736-737.
We review defendant's forfeited claim of nonconstitutional error under this standard.
Normally, reference to a polygraph test is not admissible before a jury.
Pureifoy, 128 Mich App 531, 535; 340 NW2d 320 (1983). Indeed, it is a bright-line rule that
reference to taking or passing a polygraph test is error. People v Kosters, 175 Mich App 748,
754; 438 NW2d 651 (1989); Pureifoy, supra.
Thus, plain error occurred when the key
prosecution witness mentioned having taken a polygraph test.
Although reference to a polygraph test is inadmissible, Pureifoy, supra, it does not always
constitute error requiring reversal, People v Rocha, 110 Mich App 1, 8; 312 NW2d 657 (1981).
For example, "[a] reference may be a matter of defense strategy, the result of a nonresponse [sic]
answer, or otherwise brief, inadvertent and isolated." Id. Previously, to determine if reversal is
required, this Court has analyzed a number of factors, including
(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." [People v Kiczenski, 118 Mich App 341, 346-347; 324
NW2d 614 (1982), quoting Rocha, supra at 9.]
A panel of this Court considered these factors in People v Whitfield, 58 Mich App 585; 228
NW2d 475 (1975), a case that addressed polygraph testimony as unpreserved error, and not in the
context of a motion for a mistrial, but before our Supreme Court stated the standard of review for
forfeited nonconstitutional error. Defendant utilized these factors to persuade this Court of the
prejudice caused to him as a result of the reference to the polygraph examination. In reviewing
defendant's claim of forfeited nonconstitutional error, we find these factors useful in determining
whether defendant was prejudiced by the reference to the polygraph test. Considering these
factors, we conclude that the mention of the polygraph test in the present case prejudiced
First, defense counsel objected to the inappropriate reference to a polygraph test and the
trial court sustained the objection, struck the inadmissible testimony, and instructed the jury to
disregard the answer. This factor weighs in favor of defendant. See Ortiz-Kehoe, supra at 514515 (when determining whether the trial court abused its discretion in denying the defendant's
motion for a mistrial, the defendant's objection and receipt of a cautionary instruction weighs in
favor of granting a mistrial).
Second, the reference to the polygraph test was not inadvertent. The prosecutor was
trying to rehabilitate the credibility of the witness after cross-examination by asking questions to
elicit the witness' reaffirmation for telling the truth. Rather than being unresponsive to the
question posed, the prosecutor's question invited the given answer. This factor also weighs in
favor of defendant.
Third, although it may first appear that the reference to the polygraph test was made only
once, a review of another of defendant's issues on appeal indicates otherwise. Defendant claims
that the improper reference to the polygraph test was played back to the jury during deliberations.
A review of the transcripts supports defendant's claim and indicates that all of the trial
proceedings, in and out of the presence of the jury, during the key prosecution witness' testimony
was played back to the jury. However, the prosecution has provided this Court with an affidavit
from the court reporter that states that the transcripts do not accurately reflect what was played
back to the jury. We note that this Court normally does not consider evidence that was not
presented at the lower court. People v Canter, 197 Mich App 550, 557; 496 NW2d 336 (1992).
However, pursuant to the authority conferred on us by MCR 7.216(A)(4), we consider the
affidavit provided by the court reporter who actually played back the testimony to clarify the
In the affidavit, the court reporter swears that the trial court instructed her, off the record,
to omit the hearing that was conducted outside the presence of the jury with regard to the
statements made by the key prosecution witness on the stand concerning defendant's prior
incarceration, which is another alleged error defendant argues on appeal. The reporter states that
she complied with the court's instructions. There is no other information regarding the playback
of the testimony; however, the affidavit indicates that "[t]hat was the only portion omitted from
the jury's hearing." On the basis of this record, we can draw only one conclusion: when the
court reporter replayed the witness' testimony before the jury, the reference to the polygraph was
not stricken. Although not pursued after its initial introduction, see Whitfield, supra, mention of
the polygraph was repeated and the jury was again reminded that the witness took a polygraph
test and, impliedly, passed. Thus, the third factor weighs in favor of defendant because the
reference to the polygraph was repeated.
Fourth, the witness' reference to the polygraph test was an attempt to add credibility to her
protestation of being truthful. The credibility of the prosecution's key witness was crucial in this
case, and that witness had a history of lying, admitting that during multiple interviews during the
murder investigation that she had lied to the police. "Evidence of polygraph examinations may
not be used to show a witness' credibility." People v Mechigian, 168 Mich App 609, 613; 425
NW2d 199 (1988).
Fifth, although the witness' response to the prosecutor's question only referenced taking
the polygraph test and not the results of the test, it can hardly be said that the result was not
implied. Had the witness not passed the lie detector test, she would not have responded,
effectively, that she should be believed on the basis of the results of the lie detector test.
"Convictions have been reversed where the fact of taking a polygraph examination or its results
were introduced to bolster a witness's credibility." People v Jansson, 116 Mich App 674, 695;
323 NW2d 508 (1982), citing People v Scotts, 80 Mich App 1; 263 NW2d 272 (1977).
Thus, each of these factors weighs in favor of defendant. On the basis of this analysis, we
believe that a sufficient possibility existed that the jury may have resolved the credibility issue by
reference to the polygraph testimony. People v Yatooma, 85 Mich App 236, 241; 271 NW2d 184
(1978). Where the reference to the polygraph test was brought out by the prosecutor, not as a
matter of defense strategy, and where the key prosecution witness, who was involved in the crime
and was the crucial witness against defendant, gave a responsive answer to the prosecutor's
question that was posed with the intent of bolstering the witness' credibility and was later
repeated before the jury during deliberations, we believe that prejudice to defendant occurred.
Recognizing our discretion, we are constrained to find that the key prosecution witness'
reference to having taken a polygraph test was error that seriously affected the fairness of the trial
and that requires reversal of defendant's convictions. Defendant is entitled to a new trial.
Because we find that reversal is required, we do not discuss the other issues raised by
Reversed. We do not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
Gribbs, P.J. I concur in the result only.
/s/ Roman S. Gribbs