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People v. Harrington10/2/2003
get his attorney's opinion as to whether or not he should take the exam.
After defendant had been arraigned, Trooper Gutierrez again visited defendant at the jail. Trooper Gutierrez testified that the sole purpose of visiting defendant was to determine whether defendant wanted to take the polygraph exam and:
I asked him if he had talked with his attorney about the polygraph 'cause I had it set up for the following day.
He said no, he hadn't, and I asked him why not and he said that the attorney had kept him waiting for 2 ½ hours in the hallway during a previous contact and never had a chance to communicate with him. I asked if he knew his attorney's name and he did . . . I said do you want me to contact him, I can get him for you right now before we go any further and he said no. He said I don't want him here. I said I can get him here, and he said no, I don't want him here. I said are you sure, and he said yes.
Defendant however, testified that he did not desire to speak with Trooper Gutierrez, but spoke with him because somebody from the jail told him that he had a visitor without informing him who it was. Trooper Gutierrez informed him that a polygraph exam had been scheduled for the next day and when defendant asked to speak to his attorney first, the trooper said that it would take a long time to reschedule the polygraph, and defendant would have to stay in jail while waiting to take the exam. Defendant did testify that he desired a polygraph to prove his innocence and that before administration of the polygraph examination, Trooper Gutierrez warned defendant that his attorney may recommend that he not take the exam. Further defendant testified:
Q . Did you feel you had a choice in the matter?
A . I felt I had a choice, whether I wanted to take it [polygraph exam] or not, yes, but I wanted to take it to prove my innocence because I believed that I was innocent. I know I didn't do this.
The following day, Trooper Gutierrez arrived at the jail with two Michigan State police troopers, Ryan Maki and Mike Jaffery. According to defendant, when Trooper Gutierrez arrived he informed him that they were going to take the polygraph and if defendant passed the exam the charges against him would be dropped. Trooper Gutierrez, along with Troopers Maki and Jaffrey, transported defendant to a polygraph examination in Grand Rapids. During the trip, there was no discussion of the charges against defendant and defendant was not questioned in any manner. When they arrived, Michigan State Police Trooper Specialist Ben Escalante again gave defendant his Miranda rights. In addition, defendant was provided with a written explanation of his rights, which defendant read and signed. Trooper Escalante then administered the polygraph examination. Defendant was subsequently notified that he failed the exam.
According to Trooper Gutierrez, after the polygraph exam, "a disheveled defendant" said that things did not go well and asked if they could talk about the investigation. In response, Trooper Gutierrez told him to "relax a little while, catch his breath, think about what happened and if he wanted to talk we'd talk back at the jail." Before returning to the jail, they made a stop at the state police post at Wayland. At the post, Trooper Maki was alone in the car with defendant while Trooper Gutierrez and Trooper Jaffery went inside. According to Trooper Maki, while the other troopers were gone, defendant made an unsolicited statement about how he was upset by the polygraph results and wanted to talk. Trooper Maki did not respond. When Trooper Gutierrez returned with the lead investigator on the case, Trooper Hoffman, they proceeded to
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