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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 Opinion Robert P. Young, Jr. 

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 defendant 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 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-sevenyear-old defendant admitted that he “shouldn’t have been
 

messing around with her.” The officer advised defendant of
 

his Miranda1 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 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. The circuit
 

court denied the motion. 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). At
 

3
 
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” an enumerated
 

criminal-sexual-conduct violation. 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). 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. 


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 than not that the error was outcomedeterminative. The police officer saw defendant remove his
 

hand from between the victim’s legs, and the victim told the
 

officer that defendant had digitally penetrated her. In
 

addition, defendant confessed to the crimes charged 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 test results would have 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.
 

8
 
 

 

 

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 innocence, thereby obviating the
 

necessity of a trial.” 251 Mich App 100, 107; 649 NW2d 407
 

(2002).1 Here, where defendant requested a polygraph
 

1
 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 on defense counsel in fashioning 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 earlier requests were
 

granted by the court, but an examination was never
 

administered in either instance because of decisions by
 

defendant not to proceed. 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 a polygraph examination, 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 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
 
___________________________________ 

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 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