PEOPLE OF MI V KEITH RICHARD PHILLIPS
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Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C h i e f J u s ti c e
Maura D. Corrigan
J u s t ic e s
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED AUGUST 7, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 121545
KEITH RICHARD PHILLIPS,
Defendant-Appellant.
________________________________
PER CURIAM
A jury convicted defendant of first- and second-degree
criminal
sexual
750.520c(1)(b)(i).
conduct.
MCL
750.520b(1)(b)(i),
In the Court of Appeals, defendant argued
that the circuit court erred by denying his motion for new
trial
on
the
basis
that
the
court
had
denied
statutory right to a polygraph examination.
him
his
The Court of
Appeals held that defendant had forfeited his right to the
examination.
We affirm defendant’s conviction for reasons
other than those stated by the Court of Appeals.
I
On a September afternoon, a police officer on patrol in
a rural area of Calhoun County noticed a car parked near the
end of an isolated road.
When he stopped to investigate, he
saw defendant and the victim in the back seat of the vehicle,
both unclothed below the waist.
Defendant appeared to be
significantly older than the victim.
When they realized that
they were being observed, defendant rapidly removed his hand
from between the complainant’s legs.
After having given them
time to dress, the officer spoke with each person privately.
The fourteen-year-old victim told the officer that defendant
had digitally penetrated her.
In addition, the sixty-seven
year-old defendant admitted that he “shouldn’t have been
messing around with her.”
his Miranda1 rights.
The officer advised defendant of
After acknowledging that he understood
those rights, defendant told the officer that he had digitally
penetrated the victim.2
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d
694 (1966).
2
The second count of the information, charging criminal
sexual conduct in the second-degree, was based on the age of
the complainant and the fact that she lived in the same
household as defendant.
At the time of the offense,
defendant and his wife were in the process of adopting the
complainant. On appeal, defendant claimed that insufficient
evidence existed to show that he and the complainant were
members of the same household. The Court of Appeals rejected
this argument.
2
Before trial, defendant invoked MCL 776.21(5), which
provides:
A defendant who allegedly has committed a
crime under [MCL 750.520b to 750.520e and MCL
750.520g] shall be given a polygraph examination
orlie detector test if the defendant requests it.
The test was scheduled, but defendant apparently canceled it.
A second test was scheduled, but the polygraph examiner
refused to conduct the test without a medical release from
defendant’s doctor because of defendant’s heart condition.
Defendant did not raise the polygraph issue further before
trial.
After the jury had begun its deliberations, defendant
objected to the failure to provide the polygraph examination.
He demanded a polygraph test regardless of the outcome of the
trial.
After his conviction, defendant filed a motion for a
new trial and demanded a polygraph examination.
court denied the motion.
The circuit
Defendant appealed by right to the
Court of Appeals.
Noting that no Michigan case had addressed whether a
defendant can invoke, during trial, the right to a polygraph
examination, the Court of Appeals turned to its earlier
decision in People v Sterling, 154 Mich App 223; 397 NW2d 182
(1986).
There, the Court observed that a person who has
“allegedly” committed a criminal-sexual-conduct offense is
entitled to a polygraph examination under MCL 776.21(5).
3
At
the time the defendant in Sterling requested a polygraph
examination, he had already been convicted.
Thus, he was no
longer simply charged with an offense and was not entitled to
the examination.
In this case, the Court of Appeals recognized that,
unlike the defendant in Sterling, the instant defendant asked
for the examination before the jury rendered its verdict.
Nevertheless, the Court held that the defendant had forfeited
his right to a polygraph test.
The Court viewed the ability
to obtain a polygraph examination as a pretrial right that is
extinguished when jeopardy attaches.
The Court stated:
The purpose for affording individuals accused
of criminal sexual conduct a right to a polygraph
exam is to provide a means by which accused
individuals
can
demonstrate
their
innocence,
thereby obviating the necessity of a trial. We
believe that once the trial has commenced and
jeopardy has attached, that purpose has been
extinguished and a defendant no longer has a right
to a polygraph test pursuant to MCL 776.21(5). If
a defendant wishes to exercise his right to a
polygraph test, he must make his motion to the
court before trial. Otherwise, the person’s guilt
or innocence will be resolved at trial. [251 Mich
App 100, 107; 649 NW2d 407 (2002).]
The Court further stated that to permit a defendant to raise
this issue in the trial court for the first time after the
trial has begun is tantamount to creating an “appellate
parachute.”
Id. at 108.
II
This case requires us to consider the meaning of MCL
4
776.21(5). Statutory interpretation is a question of law that
we review de novo.
People v Jones, 467 Mich 301, 304; 651
NW2d 906 (2002); Lesner v Liquid Disposal, Inc, 466 Mich 95,
99; 643 NW2d 553 (2002).
When construing a statute, our
primary goal is “to ascertain and give effect to the intent of
the Legislature.” People v Pasha, 466 Mich 378, 382; 645 NW2d
275 (2002); People v Wager, 460 Mich 118, 123 n 7; 594 NW2d
487 (1999).
To do so, we begin by examining the language of
the statute.
Wickens v Oakwood Healthcare Sys, 465 Mich 53,
60; 631 NW2d 686 (2001).
If the statute’s language is clear
and unambiguous, we assume that the Legislature intended its
plain meaning and the statute is enforced as written.3
People
v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001).
Stated
differently, “a court may read nothing into an unambiguous
statute
that
is
not
within
the
manifest
intent
of
the
Legislature as derived from the words of the statute itself.”
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663
3
The Legislature may have had other reasons for drafting
this provision in the manner in which it did. If the results
of a polygraph examination indicate that a defendant might not
have committed the crime, a victim could reconsider her
identification testimony. For the same reason, a prosecutor
could reconsider the decision to prosecute or offer a plea
bargain. On the other hand, a defendant might use the results
to convince character witnesses to testify on his behalf.
Even if convicted, favorable polygraph results may help a
defendant reconcile with his family or friends. We are also
mindful that the results of a polygraph examination are
admissible in a motion for new trial. People v Barbara, 400
Mich 352, 411-414; 255 NW2d 171 (1977).
5
(2002).
“Only where the statutory language is ambiguous may
a court properly go beyond the words of the statute to
ascertain legislative intent.”
Sun Valley Foods Co v Ward,
460 Mich 230, 236; 596 NW2d 119 (1999).
III
While the Court of Appeals reached the correct result in
this case, it did so for the wrong reason.
MCL 776.21(5)
extends the right to demand a polygraph examination only to a
defendant
“who
allegedly
has
committed”
criminal-sexual-conduct violation.
an
enumerated
The status of being an
alleged perpetrator does not dissipate until the verdict.4
Because the statute does not otherwise provide for a time
limit within which to exercise the right, under the clear and
unambiguous language of MCL 776.21(5), the right is lost only
when the presumption of innocence has been displaced by a
finding
of
guilt,
i.e.,
when
an
accused
is
no
longer
“alleged” to have committed the offense.5
The Court of Appeals reasoning that defendant forfeited
his statutory right to a polygraph examination was erroneous.
4
“Upon conviction the presumption of innocence has
disappeared, and the presumption of guilt prevails.” DeLong
v Muskegon Co Bd of Supervisors, 111 Mich 568, 570; 69 NW 1115
(1897).
5
Had the Legislature intended that the right to a
polygraph examination be limited to a pretrial procedure, it
could have clearly so stated. People v Rogers, 140 Mich App
576, 580; 364 NW2d 748 (1985).
6
Forfeiture is the failure to timely assert a right.
People v
Carter, 462 Mich 206, 216; 612 NW2d 144 (2000); People v
Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999).
defendant
asserted
his
statutory
right
Because
during
jury
deliberations, while he was still alleged to have committed
the offense, he did not fail to timely assert the right.
Although the Court of Appeals reasoning is erroneous,
defendant
is
not
entitled
to
a
new
trial
or
to
the
administration of a polygraph examination. In cases involving
preserved,
nonconstitutional
error,
a
defendant
must
demonstrate, “‘after an examination of the entire cause,’”
that it “is more probable than not that the error was outcome
determinative.”
People v Lukity, 460 Mich 484, 495-496; 596
NW2d 607 (1999).
The reviewing court must examine the nature
of the error and assess its effect “‘in light of the weight
and
strength
of
the
untainted
evidence.’”
Id.
at
495
(citation omitted).
Given the strength of the prosecution’s case, it is not
more
probable
determinative.
than
not
that
the
error
was
outcome
The police officer saw defendant remove his
hand from between the victim’s legs, and the victim told the
officer
that
addition,
defendant
defendant
had
digitally
confessed
to
the
penetrated
crimes
her.
charged
In
and
provided a complete and detailed description of his conduct
7
and
his
relationship
to
the
victim.
Further,
even
if
defendant had taken and passed a polygraph test, the results
would not have been admissible at trial.
People v Ray, 431
Mich 260, 265; 430 NW2d 626 (1988); People v Barbara, 400 Mich
352, 364; 255 NW2d 171 (1977).
Moreover, this defendant did
not place his request before the court until after the close
of
proofs
and,
thus,
any
immaterial to his defense.
test
results
would
have
been
Therefore, defendant has not
demonstrated that the failure to administer the polygraph test
was outcome-determinative.
IV
Accordingly, we affirm the judgment of the Court of
Appeals for the reasons set forth in this opinion.
7.302(G)(1).
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
8
MCR
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No.
121545
KEITH RICHARD PHILLIPS,
Defendant-Appellant.
MARKMAN, J. (concurring).
I would deny leave to appeal because I agree with the
Court
of
Appeals
that
the
purpose
of
MCL
776.21(5)
is
essentially to “provide a means by which accused individuals
can
demonstrate
their
necessity of a trial.”
(2002).1
1
Here,
where
innocence,
thereby
251 Mich App 100, 107;
defendant
requested
obviating
the
649 NW2d 407
a
polygraph
However, because I can envision circumstances in which
a polygraph examination conducted after the beginning of trial
might affect the course of the trial, and because I believe
that this is also within the contemplation of MCL 776.21(5),
I disagree with the Court of Appeals that a request for a
polygraph examination must necessarily precede the trial.
examination
after
the
jury
had
already
begun
its
deliberations, such an examination could no longer have any
effect on the prosecutor in exercising his charging judgment,
any
effect
strategy,
on
any
defense
effect
counsel
on
the
in
fashioning
magistrate
in
a
defense
binding
over
defendant, any effect on the jury in assessing defendant’s
guilt, and any effect on the trial judge in administering the
trial or in assessing the sufficiency of the evidence.
Moreover, this is defendant’s third request in this case
for a polygraph examination.
granted
by
the
administered
in
court,
either
His two earlier requests were
but
an
instance
defendant not to proceed.
examination
because
of
was
never
decisions
by
I do not read MCL 776.21(5) as
precluding the trial court, in its conduct of the trial, from
taking cognizance of either the timing or the repetitiveness
of a defendant’s request for a polygraph examination.
Finally,
I
do
not
understand
how
the
majority
can
conclude that the trial court’s failure to grant defendant’s
motion
for
nonetheless
a
polygraph
harmless
examination,
error
because
although
defendant
error,
was
“has
not
demonstrated that the failure to administer the polygraph test
was outcome-determinative.”
Ante at 8.
How can a defendant
ever demonstrate that an error pertaining to inadmissible
2
polygraph evidence was outcome-determinative?2
By my proposed denial of leave to appeal, I would obtain
the same result as the majority, which in turn has obtained
the same result as the Court of Appeals.
Stephen J. Markman
2
The majority references the “strength of the
prosecution’s case” here in finding harmless error. Ante at
7.
Is this the standard for assessing errors under MCL
776.21(5)? Is there some class of cases in which, despite
conviction beyond a reasonable doubt and a judicial
determination of the sufficiency of evidence, a conviction
nonetheless is subject to reversal under MCL 776.21(5) on the
ground that the prosecution’s case is of insufficient
“strength?”
3
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
No. 121545
v
KEITH RICHARD PHILLIPS,
Defendant-Appellant.
___________________________________
KELLY, J. (concurring in result).
I concur in the result only.
I agree that the Court of Appeals erred in ruling that
defendant forfeited his right to a polygraph examination by
requesting an examination after the close of proofs.
MCL
776.21(5) extends to defendants accused of certain crimes the
right to obtain a polygraph examination.
That right is
extinguished if a defendant is found guilty before exercising
it.
It is not extinguished, as the Court of Appeals found, at
the moment jeopardy attaches.
I also agree with the majority that the error did not
adversely affect the outcome of defendant's trial.
Defendant
would not have been able to introduce the results of a
polygraph examination.
Moreover, he has not argued that the
denial of this statutory right prejudiced his defense.
However, I do not agree that the denial of his right was
necessarily harmless.
Defendant might have used a favorable
polygraph examination result at a postconviction stage.
For
example, he might have used it in a motion for new trial, to
urge a more lenient sentence or for a lower level placement by
the Department of Corrections.
Not only has defendant not asserted these claims, he has
not requested a polygraph examination in his application for
leave to appeal.
Accordingly, he has neglected to seek the
relief to which he might be entitled.
Therefore, I would
vacate the portion of the Court of Appeals opinion that
addresses
defendant's
claim
under
MCL
776.21,
but
deny
defendant's request for a directed verdict or a new trial.
Marilyn Kelly
Michael F. Cavanagh
2
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