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________________________________ Michigan Supreme Court Lansing, Michigan 48909

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman
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 defe ndan t of first- and second-degree criminal sexual conduct. MCL 750.520b(1)(b)(i), 750.520c(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 him his statutory right to a polygraph examination. The Court of Appeals held that defendant had forfeited his r igh t 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, bothunclothed below the waist. Defendant appeared to be significantly older than the victim. Whenthey 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 defendanthad digitally penetrated her. In addition, the sixty-sevenyear-old d efendant admitted that he “shouldn’t have been messi ng aro und with her.” The officer advised defendant of his Miranda 1 rights. 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 o f t he offense, defendant and his wife were in the process of adopting the complainant. Onappeal, 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. 2Before trial, defendant invoked MCL 776.21(5), which provides: A

defendant who allegedly has committed a crime under [MCL 750.520 b to 7 50.520e 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 rele ase 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. The circuit court denied the motion. Defendant appealed by right to the Court of Appeals. Noting tha t no Michigan case had addressed whether a defendant can invoke, during trial, the right to a polygraph examination, the Court of Appeals t urne d to its earlier decisioninPeople 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). At 3the 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. Inthis case, the Court of Appeals recognized that, unlike the defendant in Sterling , the instant defendant asked for the examination before the jury rendered its v erdi ct. 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 c rimi nal sexual conduct a right to a polygraph exam is to provide a mean s bywhich accused individuals can demonstrate their innocence, thereby obviating the ne ce ssity of a trial. We believe that once the tr ial 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 ex erci se his right to a polygraphtest, 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 “app ella te parachute.” Id . at 108. II This case requires us to consider the meaning of MCL 4776.21(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 plainmeaning and the statute is enforced as written. 3 People

v

Stone , 463 Mich 558 , 562; 62 1 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 rec onsider her identification testimony. For the same reason, a prosecutor could re consider 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 beha lf . Ev enif convicted, favorable polygraph results may hel p 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 ascertainlegislative intent.” SunValle y 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” an enumerated criminal-sexual-conduct violation. The status of being an alleged perpetrator does not dissipate unt il 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 whenthe presumption of innocence has been displaced by a finding of gui lt, 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 examinationwas erroneous.

4 “Upon conviction the presumptio n 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). 6Forfeiture 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). Because defendant asserted his statutory right during jury deliberations, while he was still alleged to have committed the offense, he did not fail to timely assert the right. Althoughthe Court of Appeals reasoning is erroneous, defendant is not entitled to a new trial or to the administrationof 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 th e err or and assess its effect “‘in light of the weight and strength of the untainted e videnc e.’” Id . at 495 (citation omitted). Given the strength of the prosecution’s case, it is not

more probable than not that the error was outcomedeterminative. The police off icer saw defendant remove his hand from between the victim’s legs, and the victim told the of ficer that defendant had digitally penetrated her. In addition, defend ant confessed to the crimes charged and provided a complete and detailed description of his c ondu ct
7and his relationship to the victim. Further, e ven i f defendant had taken and passed a polygraph test, the results would not have been admissible at t rial. People v Ray , 431 Mich260, 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 test results wou ld hav e been immaterial to his defense. 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. MCR 7.302(G)(1). Maura D. Corrigan Elizabeth A. Weaver Clifford W. Taylor Robert P. Young, Jr.

8S 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 7 76.21( 5) is essentially to “provide a means by which accused individuals

candemonstrate their innocence, thereby obviating the necessity of a trial.” 251 Mich App 100, 107; 649 NW2d 407 (20 02). 1 Here, where defendant requested a polygraph

1 However, because I can envisioncircumstances 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 withthe Court of Appeals that a request for a polygraph examination must necessarily precede the trial.examin ationafter the jury had already begun its deliberations, such an examination could n o lo nger have any effect on the prosecutor inexercising his charging judgment, any effect on defense counsel in fashionin g a defense strategy, any effect on the magistrate in 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. His two e arlier requests were granted by the court, but an examination was never administered in either i nstanc e because of decisions by defendant not to proceed. I do not read MCL 77 6.21 (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 motionfor a polygraph ex aminat ion, although error, was nonetheless harmless error because defendant “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 inadm issib le

2polygraph 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 convictionbeyond a reasonable doubt and a judicial determinationof 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___________________________________ v 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 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 exam ination by requesting an examination after the close of proofs. MCL 776.21(5) extends to defendants accused of certaincrimes the rig ht 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 thedenial 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 add resses 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

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