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People v. Hale, Docket No. 21251 (Mich. Ct. App. Dec. 2, 1976)

Factual and Procedural Background

Leonard Hale was convicted on May 16, 1974, of conspiracy to burn a dwelling house and sentenced June 5, 1974, to 1-1/2 to 20 years' imprisonment. Co-defendants Verlin Thomas and Herman Handshoe were charged with Hale; charges against Thomas were dismissed at the preliminary examination for lack of evidence, and the information against Handshoe was later quashed for insufficient admissible evidence. Hale appealed; this Court remanded to the circuit court for an evidentiary hearing on a motion for a new trial based on recanting testimony by the prosecution's principal witness, Judi Minder.

At a bond motion before Judge Gordon Britten, the prosecutor informed the court that Minder had taken and “passed” a pretrial polygraph examination; defense counsel stated he was unaware of any such polygraph. Hale moved to disqualify Judge Britten from hearing the new-trial motion because of Judge Britten's knowledge of Minder's polygraph results. Judge Britten refused to hear the disqualification motion; Judge James G. Fleming heard and denied the motion on the ground that no factual showing of actual prejudice had been made. At the new-trial hearing before Judge Britten, Minder recanted her trial testimony; Judge Britten found her recantation not credible and denied the motion for a new trial. Hale appealed; this Court remanded for a new hearing on the motion for a new trial before a different trial judge and retained jurisdiction.

Legal Issues Presented

  1. Whether a trial judge's knowledge of a prosecution witness's pretrial polygraph results requires disqualification or remand when that witness's credibility is the central issue at a subsequent motion for a new trial.

Arguments of the Parties

People's Arguments

  • The prosecution informed the court at the bond motion that Judi Minder had taken and "passed" a pretrial polygraph examination (implicit assertion of the polygraph result to the court).

Defendant's Arguments

  • Defendant moved to disqualify Judge Britten from ruling on the motion for a new trial on the ground that Judge Britten's knowledge of Minder's polygraph examination results may have prejudiced his decision.
  • Defendant relied on Minder's recanting testimony as the basis for a new trial; credibility of Minder was the sole issue.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v Irwin, 47 Mich. App. 608, 609; 209 N.W.2d 718, 719 (1973) “Absent a showing of actual prejudice or bias from the record, a trial judge has the right to hear a case to its conclusion.” Used as background authority on when a trial judge may sit despite alleged prejudice; the Court considered whether the record showed actual prejudice from Judge Britten's knowledge of the polygraph.
People v Frechette, 380 Mich. 64; 155 N.W.2d 830 (1968) Polygraph examination results are inadmissible evidence. Cited to support the proposition that polygraph results are inadmissible and thus their presence in the judge's knowledge is problematic.
People v Becker, 300 Mich. 562; 2 N.W.2d 503 (1942) Polygraph examination results are inadmissible evidence. Cited alongside Frechette to establish the longstanding rule excluding polygraph evidence.
People v Levelston, 54 Mich. App. 477; 221 N.W.2d 235 (1974) Recent challenge to the rule excluding polygraph evidence. Noted as part of the record of challenges to the inadmissibility rule; Court observed challenges exist but maintained exclusion.
People v Barbara (Docket No. 15815, March 23, 1973 [unreported order]), lv granted, 391 Mich. 761 (1974) Another recent challenge to the polygraph exclusion rule. Identified as part of the recent challenges to the exclusionary rule; cited but not treated as overruling the exclusion.
People v Dockery, 65 Mich. App. 600; 237 N.W.2d 575 (1975) Use of polygraph results forbidden in an expanding set of proceedings beyond criminal trials. Relied upon to show courts have forbidden polygraph usage in competency hearings, presentence reports, motions for new trial, sentencing, and civil/administrative proceedings.
People v Liddell, 63 Mich. App. 491; 234 N.W.2d 669 (1975) Polygraph results exclusion extended to other proceedings. Cited with Dockery to demonstrate the broad exclusionary approach taken by Michigan courts.
People v Allen, 49 Mich. App. 148; 211 N.W.2d 533 (1973) Knowledge of a witness's polygraph results by the trial judge can necessitate remand for rehearing before a different judge. Primary precedent relied on; the Court described Allen's facts and outcome and stated Allen provided no realistic alternative but to remand when a judge knew of polygraph results.
People v Sinclair, 21 Mich. App. 255; 175 N.W.2d 893 (1970) Support for remand when trial judge is aware of polygraph test results. Quoted in Allen and relied upon here to justify remand where judge's knowledge of polygraph could have influenced proceedings.
People v Bovee, 60 Mich. App. 727, 728; 231 N.W.2d 529 (1975) Evidence that Judge Britten had previously indicated belief in the trustworthiness of polygraph examinations. Used to show a basis for concern about Judge Britten's potential bias because of his prior statements about polygraphs.
People v Towns, 69 Mich. App. 475; 245 N.W.2d 97 (1976) Judicial disclaimers of being influenced by polygraph information may be nullified by the precedents (specifically Allen). Applied to reject the sufficiency of any later disclaimer by Judge Britten that he was not influenced by the polygraph information.

Court's Reasoning and Analysis

The Court began by recognizing the general rule that a trial judge may preside absent a showing of actual prejudice (People v Irwin). The Court then observed the controlling principle that polygraph examination results are inadmissible and that Michigan courts have progressively expanded the prohibition on polygraph usage to contexts beyond criminal trials (People v Frechette, Becker, Dockery, Liddell, et al.).

The Court examined the circumstances here: Minder was the prosecution's principal witness, and at the new-trial hearing she recanted the incriminating trial testimony such that her credibility was the sole issue. At the earlier bond motion Judge Britten inquired about and was informed of Minder's pretrial polygraph “pass,” even though that information was unrelated to the bond proceeding. The Court further noted Judge Britten's prior expressed belief in the trustworthiness of polygraphs (People v Bovee), which provided context for possible bias.

Relying on People v Allen (which in turn relied on People v Sinclair), the Court reasoned that where a trial judge has knowledge of polygraph results and the central issue is the witness's credibility, a remand for a rehearing before a different judge is warranted because the judge's awareness may have influenced the disposition even if the judge later disclaims such influence (People v Towns). Given these considerations, the Court concluded it could not say Judge Britten's knowledge was not prejudicial.

Holding and Implications

REMANDED FOR A NEW HEARING ON THE MOTION FOR A NEW TRIAL BEFORE A DIFFERENT TRIAL JUDGE.

Consequences: The trial court must conduct a new hearing on Hale's motion for a new trial before a different trial judge. This Court retains jurisdiction over the matter. The opinion applies existing precedents concerning the inadmissibility of polygraph results and the necessity of remand where a judge's knowledge of such results may have prejudiced proceedings; it does not purport to announce a new rule beyond those applications.

PEOPLE v. HALE

M.F. CAVANAGH, J.

Defendant was convicted May 16, 1974, of conspiracy to burn a dwelling house, MCLA 750.72; MSA 28.267, and MCLA 750.157a; MSA 28.354(1), after a four-day jury trial. Defendant was sentenced on June 5, 1974, to a prison term of 1-1/2 to 20 years. Defendant appeals his conviction as of right under GCR 1963, 806.1.

Defendants Leonard Hale, Verlin Thomas, and Herman Handshoe were charged by information with the crime of conspiring to burn the defendant's mobile home. At the preliminary examination, charges against Verlin Thomas were dismissed for lack of evidence. Later, the trial court granted a motion to quash the information against Herman Handshoe for lack of sufficient admissible evidence to connect him with the conspiracy. Upon conviction, defendant took an appeal to this Court, which remanded the case to the circuit court for an evidentiary hearing on a motion for a new trial.

Pursuant to this Court's remand, the defendant brought a motion for a new trial before trial court Judge Gordon Britten on the basis of recanting testimony from Judi Minder, the prosecution's principal trial witness. Defense counsel first brought a motion for bond pending appeal before Judge Britten. At the bond motion, Judge Britten asked defense counsel whether counsel was aware that Mrs. Minder had taken a polygraph examination before the trial. Defense counsel answered negatively, but the prosecution offered that Mrs. Minder had, indeed, taken such a test and had "passed" it. The defendant then moved to disqualify Judge Britten from hearing the motion for a new trial on the ground of Judge Britten's prejudicial knowledge of Judi Minder's pre-trial polygraph examination.

Judge Britten refused to hear the disqualification motion, claiming that he had no jurisdiction. Judge James G. Fleming heard and denied the motion because "[n]o factual showing of actual prejudice had been made".

The motion for a new trial was subsequently brought before Judge Britten. Judi Minder gave extensive testimony that denied the substance of her trial testimony, stating that her motive had been to seek revenge upon the defendant because of his infidelity. Judge Britten denied the motion for a new trial, deeming her recanting affidavits and testimony to be contradictory and not credible.

Upon denial of the new trial motion, defendant brought his second appeal, claiming error on several grounds. Our disposition of the case allows us to respond to but one of the defendant's claims of error.

The Michigan courts have held that " * * * absent a showing of actual prejudice or bias from the record, a trial judge has the right to hear a case to its conclusion". People v Irwin, 47 Mich. App. 608, 609; 209 N.W.2d 718, 719 (1973). The defendant claims that although Judge Britten didn't refer to the polygraph examination of Judi Minder in his decision, the knowledge of the results may have so much prejudiced his decision that he should have been disqualified. We agree.

The courts of this state have consistently held that results of polygraph examinations or reference to them are inadmissible evidence. People v Frechette, 380 Mich. 64; 155 N.W.2d 830 (1968), People v Becker, 300 Mich. 562; 2 N.W.2d 503 (1942). There have been recent challenges to the rule, People v Levelston, 54 Mich. App. 477; 221 N.W.2d 235 (1974), People v Barbara, (Docket No. 15815, March 23, 1973 [unreported order]), lv granted, 391 Mich. 761 (1974), but this Court has been careful to exclude usage of polygraph evidence in an ever-widening circle of circumstances. In addition to criminal trials, use of polygraph results has been forbidden with respect to competency hearings, presentence reports, motions for a new trial, sentencing proceedings, and civil and administrative proceedings. People v Dockery, 65 Mich. App. 600; 237 N.W.2d 575 (1975), People v Liddell, 63 Mich. App. 491; 234 N.W.2d 669 (1975), People v Allen, 49 Mich. App. 148; 211 N.W.2d 533 (1973), People v Sinclair, 21 Mich. App. 255; 175 N.W.2d 893 (1970).

In People v Allen, 49 Mich. App. 148; 211 N.W.2d 533 (1973), at the sentencing hearing, the trial judge referred to the successful polygraph examination of the prosecution's principal witness and challenged the defendant to submit to a polygraph examination. The defendant refused. Before a subsequent motion for a new trial, the defendant moved to disqualify the trial judge because of his knowledge of the polygraph results. The trial judge denied both motions. This Court, in reliance on People v Sinclair, supra, stated:

"In defendant's case here it is not clear from the record below whether the trial court considered the polygraph test results in denying the motions for a new trial, but his awareness of them from the sentencing certainly suggests he might have. We must, therefore, remand this case for a rehearing of defendant's motion for a new trial before a different trial judge. We believe that Sinclair, supra, provides us with no other realistic alternative." 49 Mich. App. 151; 211 N.W.2d 535.

We cannot say that Judge Britten's knowledge of Judi Minder's polygraph results was not prejudicial. At the hearing on the motion for a new trial, Judi Minder, whose testimony formed the critical elements of the prosecution's case, recanted all of her trial testimony that incriminated the defendant. Her credibility was the sole issue. At the motion for bond, Judge Britten affirmatively sought the polygraph information, which was clearly unrelated to the issues on the bond motion. Moreover, Judge Britten has previously indicated his belief in the trustworthiness of polygraph examinations. See People v Bovee, 60 Mich. App. 727, 728; 231 N.W.2d 529 (1975). While the trial judge did not refer to Mrs. Minder's polygraph results at the subsequent hearing on the motion for a new trial or in his opinion denying that motion, People v Towns, 69 Mich. App. 475; 245 N.W.2d 97 (1976), indicates that even judicial disclaimers of being influenced by polygraph information are nullified by People v Allen:

"While there is nothing in the record to clearly indicate that the defendant's sentence was based on the trial judge's belief in Elmore's [the prosecution's principal witness] polygraph results, we cannot help but wonder what effect the judge's knowledge of the test results had on defendant's sentence." 49 Mich. App. 152; 211 N.W.2d 536, quoted in People v Towns, 69 Mich. App. 478; 245 N.W.2d 99.

Remanded for a new hearing on the motion for a new trial before a different trial judge. This Court retains jurisdiction.

BEASLEY, J., concurs in the result.

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PEOPLE v. HALE
(Dec 2, 1976)