People v. Mechigian , 168 Mich. App. 609 ( 1988 )

168 Mich. App. 609 (1988) 425 N.W.2d 199

PEOPLE
v.
MECHIGIAN

Docket No. 95077.

Michigan Court of Appeals.

Decided May 17, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.

David F. DuMouchel, P.C. (by David F. DuMouchel and Cynthia J.H. Oberg), and Thomas G. Kavanagh, for defendant.

Before: DANHOF, C.J., and WEAVER and J.M. BATZER,^[*] JJ.

PER CURIAM.

Defendant is charged in Wayne County with one count of conspiracy, MCL 750.157a; MSA 28.354(1), and two counts of energy fraud, MCL 750.282; MSA 28.493. This appeal concerns two pretrial motions brought by defendant before a Wayne Circuit judge: (1) whether defendant should be allowed to introduce evidence at trial that the prosecution's primary witness, William Jones, failed three polygraph tests; and (2) whether defendant should be allowed to cross-examine another endorsed witness, Roger Peck, concerning allegations of tax evasion and misappropriation of insurance funds. This Court initially denied defendant leave to appeal. Our Supreme Court then remanded the matter to us for consideration as on leave granted. People v Mechigian, 426 Mich. 854 (1986).

We will first address the admission of the polygraph results. In the spring of 1982, defendant, an automobile dealer, referred William Jones to several other automobile dealers in the greater Detroit area with the suggestion that Jones could help them lower their utility bills. Several months later, the utility companies serving the area claimed that Jones illegally tampered with the meters. Defendant claims that he did not know that Jones intended to commit illegal acts. Jones is expected to be the key prosecution witness, particularly as to scienter. Thus it is expected that the case may well turn on the jury's evaluation of Jones' credibility.

When Jones was caught, he apparently initially struck a deal with the Oakland County Prosecutor's Office. He would tell the truth and submit to a polygraph. In return, he would be allowed to plead to a four-year energy fraud violation rather than the ten-year false pretenses charge. This bargain was never effectuated because Jones "failed" three polygraph examinations. He then pled guilty to obtaining money under false pretenses over $100. Later Jones apparently "passed" a fourth polygraph examination. Upon the motion of the Attorney General and over the objection of the Oakland County Prosecutor, he was allowed to withdraw his plea and plead guilty to one count of energy fraud. In exchange, Jones agreed to cooperate with the investigation. Defendant argues that testimony concerning the four polygraph tests is crucial to the jury's understanding of the facts and circumstances surrounding Jones' initial guilty plea to one charge and his subsequent plea withdrawal and guilty plea to a lesser charge.

In People v Becker, 300 Mich. 562, 565-566; 2 NW2d 503 (1942), our Supreme Court ruled that results of polygraph tests were not admissible in criminal trials as the technique had not received the degree of standardization or acceptance among scientists which would warrant admission. The Court reaffirmed the prohibition against the evidentiary use of polygraph tests in People v Barbara, 400 Mich. 352, 359; 255 NW2d 171 (1977), reh den 400 Mich. 1029 (1977). See also People v Triplett, 163 Mich. App. 339; 413 NW2d 791 (1987). In People v Williams, 123 Mich. App. 752, 757; 333 NW2d 577 (1983), this Court ruled that the inability of a defendant to admit results of polygraph tests to impeach the credibility of a prosecution witness did not deny the defendant the right to confront the witness.

The primary reason for the prohibition against the use of polygraph results is their questionable accuracy, or more precisely, the questionable accuracy of the examiner's opinions of veracity or deception based thereon. Barbara, supra. Defendant, however, says he is not arguing that the failed examinations prove that Jones is lying about defendant's role in the energy fraud. Rather, he says he is seeking admission of the results to explain why Jones was not given the reduced charge initially and the circumstances under which he was ultimately allowed to plead guilty to the reduced charge.

We agree that allowing Jones to testify without an explanation of the circumstances surrounding his plea bargain would deny defendant the opportunity to fairly place in issue Jones' veracity as a witness in this case. People v Dietrich, 87 Mich App 116; 274 NW2d 472 (1978), rev'd in part on other grounds 412 Mich. 904 (1982). We are not convinced that an explanation of the circumstances in this instance necessarily involves the admission of testimony concerning polygraph testing. We are of the view that questions can be framed to place the relevant circumstances of the reduced plea before the jury without recourse to polygraph testimony. Evidence of polygraph examinations may not be used to show a witness' credibility. People v Yatooma, 85 Mich. App. 236; 271 NW2d 184 (1978), lv den 406 Mich. 865 (1979). What is pertinent to Jones' credibility in his plea agreement is, of course, any consideration he received or circumstance that might furnish a motive or incentive to lie. Further, any prior inconsistent statements concerning the events at issue that he may have made in the course of carrying out his plea bargain are relevant. His failure on three polygraph examinations adds nothing to the issue of whether he had motivation to lie.

We decline to decide the second issue raised by defendant concerning the scope of Roger Peck's cross-examination. Defendant is also facing energy fraud and conspiracy charges in Oakland County stemming from his relationship with William Jones. Roger Peck is a former owner of a Chevrolet dealership in Oakland County and is an endorsed witness in both this case and the Oakland County case. He is expected to testify that defendant suggested to him that Jones could alter Peck's utility meters.

In addition to his motion requesting that he be allowed to cross-examine Peck concerning alleged improper business activities, defendant also moved to exclude any similar acts evidence in his Wayne County trial. The Wayne Circuit Court judge who heard defendant's motions ruled that the testimony concerning the diversion of natural gas in Oakland County was inadmissible until the issue was presented and ruled on by the judge who would preside over defendant's trial.

As a result of the circuit court judge's ruling on this third motion, it is highly speculative whether Peck will testify in Wayne Circuit Court. We ordinarily do not render advisory opinions. People v Gonzales, 349 Mich. 572; 84 NW2d 753 (1957); Rozankovich v Kalamazoo Spring Corp (On Rehearing), 44 Mich. App. 426, 428; 205 NW2d 311 (1973). We do not believe that this issue warrants such an opinion. We are of the opinion that the permissible scope of the cross-examination of Peck is a matter best left in the first instance to the judge who presides over defendant's Wayne County trial once this judge has heard Peck's testimony. We assume that the trial court will bear in mind where applicable the rule reiterated in People v Holliday, 144 Mich. App. 560, 566-567; 376 NW2d 154 (1985):

A limitation on cross-examination which prevents a defendant from placing before the jury facts upon which an inference of bias, prejudice or lack of credibility of a witness may be drawn amounts to an abuse of discretion and can constitute a denial of the right of confrontation. If cross-examination of a prosecution witness has been unreasonably limited, a conviction based upon the testimony of such witness should not be sustained.

It is only after Peck has testified that the relevancy of defendant's proposed questions can be properly balanced against their prejudicial effect.

Affirmed in part; remanded to Wayne Circuit Court for further proceedings. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.