*1 Bobo PEOPLE v BOBO Opinion op the Court Law—Right 1. Criminal Law—Constitutional to Remain Silent— Examination—Impeachment. Arrest—Witnesses—Direct right Exercise of the constitutional to remain silent at the time of against arrest used the accused at trial under the doctrine of impeachment by prior inconsistent preju- statement constituted allegations dicial error where he made no on direct examina- tion as to what was said or said not at the time arrest. Law—Right 2. Criminal to Remain Silent—Constitutional Law— Nonutterances—Statements—Witnesses. directly indirectly Conduct or which restricts the exercise right constitutional to remain silent in the face of accusation by Michigan Supreme Court; will not be condoned "nonut- terances” are not statements and the fact that a witness did may only not make be a statement shown to contradict his assertion he did. 3. Criminal Law—Silence—Evidence. speak during interrogation
A defendant’s refusal to is admissible only impeach to his own inconsistent statements at trial. Law—Right 4. Constitutional Law—Criminal to Remain Silent— Arrest. A defendant’s Fifth to Amendment remain silent con- stant; prior whether his silence was or at the time of arrest (US V). Const, makes little difference Am 5. Criminal Law—Silence—Evidence. silence, specific
An accused’s even the face of accusation crime, may against not be used him. Law—Interrogation—Right 6. Constitutional Law—Criminal Remain Silent—Arrest. guarantees person’s Fifth Amendment that a silence not [8] [1-7] 21 Am Jur Am Jur 2d, References 2d, Criminal Law Criminal Law for §§ Points in Headnotes §§ 357, 367, 349-355, 449. 360. 390 interrogation he is for whenever be used him (US technically police, or arrest whether V). Const, Am *2 7. Constitutional Law—Criminal Law—Silence—Evidence—Res
Gestae.
in
an
the face of accusation
The doctrine that silence
unidenti
part
gestae
might
of
res
be shown as
and
fied accuser
such
acquiescence
regarded
charge
in the truth of the
silence be
as
defining
rights
wholly
the law
our
at odds with
is
Todaro,
Amendment; People
Ned breaking larceny. Defendant with intent to commit appealed Appeals. De- Affirmed. to the Court of appeals. for new and remanded fendant Reversed trial. Kelley, Attorney General, A. Robert J<
Frank Derengoski, Cahalan, General, L. William Solicitor Bobo Opinion of the Court Prosecuting Attorney, Dominick Carnovale, R. Department, Appellate Chief, and Thomas P. Prosecuting Attorney, Smith, Assistant for the people. appeal. Lorence, M. for
Gerald defendant on defendant, 5, T. G. J. The Kavanagh, Ned Ladd Bobo, June was arrested on and convicted entering breaking of mit without with intent to com-
larceny 328, 111, of 1931 PA § violation 133, §1; 750.111; amended 1964 PA MCLA Ap- 26, MSA 28.306. On June 1972 the Court peals affirmed his conviction. posed by us as before defendant
as follows: *3 an right "Where accused exercises his constitutional arrest, to remain silent at the time of does the use of such silence him at trial under the doctrine of impeachment by prior inconsistent statement constitute prejudicial error he allegations where made no on direct examination toas what was said or not said at the time of arrest?”
We answer in the affirmative. by police
When arrested Detroit Bobo officers exercised his and to remain silent1 constitutional no made statement. testifying
At his trial when his behalf own just prior Bobo stated on direct examination that being to his two men near arrested the scene of the crime potential suspects,
presumably past ran general him from the area of the crime.2 by Bobo not did asked his counsel and 1 Const, V; 1963, 1, US Am Const art 17.§ 2 you anybody running did What see with down the ”Q. reference to you? street toward nothing running past "A. I didn’t see but two men me.” 390 Mich the Court or not he made
volunteer whether statement However, police prosecutor officers. to over timely permitted defense counsel was objection by to Bobo on court ask cross-examination if had, interrogation he at time of his told the past officer men who had run about two him.3 prosecutor The permitted court also to re- closing argument during jury mark his to the nothing police Bobo had to the said about two men running past him.4 prosecutor urges prosecu- that we allow the
tion to
a defendant
impeach
by questioning him
said
about what was said or not
to the
part
gestae
the time of arrest as
of the res
citing
100,
Noble,
101;
App
178 NW2d
118,
or as an inconsistent
"nonutter-
3 "Q.
you say anything
questioning police
Did
to him [the
officer]
running
about two other men
on the street?
"A.He didn’t ask me.
"Q.
you say anything
said did
him?
No,
"A.
I didn’t.
you
question,
object
"'DefenseCounsel:Before
answer that
I do
to it.
”Q.My
you
you
last
was did
tell the officer about these
running
your
alley;
two men
down the
is answer is no?
"A.I don’t recall.”
defendants,
yes,
yesterday
"Prosecutor: Oh
one of the
said some
men,
thing
mind
testified to
walking,
they
about two other men. Two other
were
you,
direction,
previously
from the other
from what had been
officers,
they
coming
three
of the
claim now were
from
phantoms,
they
the other direction and two
past
two
claim ran
men who
past
alley.
them five or six feet
them ran down the
Yet within
they
five or six feet Edison and Ned Bobo who claimed
saw these two
*4
nothing
police.
men said
to the
* * *
please,
point
"Defense Counsel:
If the Court
at this
I move for
ground
a mistrial on behalf of Ned Ladd
Prosecutor has violated that defendant’s
tion. The defendant Ned Ladd Bobo at the time of his
that
the
Bobo
the
privilege against
incrimina-
interrogation
Berryman
gun pointed
being questioned
Detective
with the
at him
robbery
duty
speak
about a
had no
to the detective
whatsoever
anything.
speak
about
against
And his failure to
to that cannot be held
him. And submit that I am
to a mistrial.
intitled [sic]
* * *
deny
"The Court: I will
the
.”
motion
People
359
v Bobo
op
the Court
citing People
App
anee”,
Calhoun,
v
33 Mich
141,
(1971).
743,
147; 189
746
NW2d
approved
The use of
"nonutterance”
as
a
in
analyzed
Calhoun
criticized
Justice
in his
in
McColor,
dissent
v
36 Mich
Levin
(1971).
App 455,
458-465;
NW2d 99-103
We
nothing
analysis
can add
to his
and criticism
except our endorsement and the observation that
regarded
Calhoun
conflicts with
must be
by People Graham,
overruled
452;
(1971).
NW2d 255
directly
We will not condone conduct which
or
indirectly
restricts
exercise of the constitu-
tional
to remain silent in the face of accusa-
tion.
not
"Nonutterances” are
statements. The fact
that witness
did
make
statement
be
only
shown
to contradict his assertion that he did.
supra,
following
Graham,
In
which was decided
York,
the decision in Harris v New
222;
US
permitted
643;
S Ct
In we stated: holding "In our today, stress that defendant’s we during speak interrogation refusal to only admissible impeach his own inconsistent statements at trial.” present In the case on direct examination de- gave testimony regarding fendant no whatsoever anyone statement made to else. or appeal parties properly On no drew distinc- tion from the circumstance the "non-state- questioning ment” was made to the rather officer *5 355 op the Coukt prosecutor’s arresting officer. coun- than is: involved questions of terstatement Appeals upholding erred in of the Court "Whether evidence of arrest of silence admission the trial court’s supplied.) (Emphasis impeachment?” for might well have considered Here the defendant arrest. himself to be that while off duty testified Berryman Officer shift, driving he was near the completing his after involved. He observed a here of the crime scene suspects which some fled. in from holdup progress he away a block circled he but Because running through an men and saw two around Ladd defendant Ned the men was of alley. One he had suspects to be the them Believing Bobo. gun he them at holdup fleeing the seen He as a officer. and identified himself point he was and while for identification them asked identification, came Officer Selick checking their up in a car came two other officers running up and men under ar- the two placed Selick and Officer rest. prompted what parties and concerned the
What using the of propriety grant of leave was our evidence either as silence fact of defendant’s impeachment. purpose or for the guilt the time or at prior his silence was Whether defendant’s makes little of arrest difference—the is con- silent to remain Fifth Amendment stant. committed Michigan we have been
In
Arizona, 384
long
Miranda
since
before
doctrine
694; 10 ALR3d
1602; 16 L Ed 2d
436; 86 S Ct
US
accusa-
(1966)
specific
that even
the face
crime that an accused’s silence
tion of a
People v Bobo
Opinion of the Court
v Bigge,
In
used
him.
be
417;
If specific silence in the of face accusation may used, not be it would be a strange doctrine indeed that permit would silence absent such an accusa- guilt. tion to be as of used evidence It unimportant is whether the accuser be a police officer or not. Manifestly person whenever a interrogation is for police, whether technically not, under arrest or the Fifth Amend- guarantees ment that his silence be used against him. Noble,
The prosecutor’s supra, as reliance on for authority admitting evidence of defendant’s part silence of gestae as the res misplaced. seems Noble held complainant’s that a report of an as- sault after 12 hours could part be considered as of crime, gestae the res of speak that but it did not to the all of a defendant’s silence. Todaro,
In 367;
253 Mich
235
185
NW
(1931)
rehearing
427;
and on
judicial Sanhedrin, we read: " elders, and all the priests and '59. the chief Now Jesus, put him council, sought witness false death; " though many none; false wit- yea, '60. But found At last came two came, they none. yet found nesses false witnesses. *7 " destroy said, I am able to fellow said This '61. And days. in three God, it to build temple of and " him, arose, unto and said high priest '62. And it these wit- nothing? is which What thou Answerest against thee? ness ” " peace.’ his '63. But Jesus held 26:59-63. —Matthew Pilate: he was before "When " governor: and stood before '11. And Jesus King him, of the Art thou the saying, asked governor him, sayest. Thou unto And Jesus said Jews? " priests chief accused of the he was '12. And when nothing. elders, he answered and " him, thou not Hearest unto said Pilate '13. Then against thee? things they witness many how " word; insomuch never a them '14. And he answered ” greatly.’ governor marveled that the 27:11-14 —Matthew trial. for new and remanded Reversed J., C. T. M. Kavanagh, Williams J. JJ., T. G. concurred with Kavanagh, Levin, People v Bobo Dissenting Opinion by T. E. Bkennan, J. (dissenting). T. E. J. must dissent. Brennan, majority with the difficulty decision is that it does not fit the facts of the case before us. emphasis, I have underlined quoted
Eor portions in the opinion following quotations: majority posed by "The before us as defendant is as follows: " 'Where an exercises right accused his constitutional arrest, to remain silent at the time does the use of such silence him at trial under the doctrine of impeachment prior inconsistent statement constitute prejudicial allegations he no error where made direct examination as what was said or not said the time ?’ arrest prosecutor urges prosecution
"The that we allow the impeach questioning defendant him about what or at the time of arrest was said not said to the gestae citing Noble, part People of the res v 100, 101; 118, App 178 NW2d or as an Calhoun, 'nonutterance’, citing inconsistent (1971). 141, 147; 743, App 189 NW2d "We directly will not condone conduct which or indi- rectly restricts exercise of the constitutional in the face of accusation. to remain silent 'Nonutter- anees’ are not statements. The fact that a witness did not make statement only be shown to contradict his assertion that he did.”
These excerpts from the majority opinion dem- onstrate that the majority are of the mistaken view that the defendant in this case was under arrest and accused of of burglary at the time the alleged fact, In the "nonutterance”. defendant was time, not under arrest that nor had been he of anything. accused 390 J. Brennan, Opinion by Dissenting T. E. excerpt from is an the following testimony upon direct examination: the defendant
of anybody see with reference to ”Q. you What did you? running street toward down the nothing running past two men "A. I but didn’t see me. the you alley reached in the
"Q. Did they—had past men ran you? these street when middle fact, past. matter of I As a was. ’A: I I was believe long past after these men ”Q. And was it ran how policemen? stopped by the you you that were moments, long, a matter of I believe. 'A. It too wasn’t policemen, you ”Q. stopped did you When were them show identification? Yes, I
"A. did. happened? ”Q.And then what Well, identifying got through myself, I he "A. after happened had and Edison what me and Milton told then— say, that he
”Q. What did he what were words used?. I told him man had robbed. had "A. He said a been go. going. And he let us I was where was
where happened, anything? if ”Q.Then what Well, Edison, first Milton we made our "A. me and police squad car came steps and then another stopped us. say anything you? ”Q.And those officers did put us "A. Those officers who under arrest.” were shows, by defendant’s testimony clearly This him words, who first officer own him place in did not evening arrest, did the defendant nor he accuse testimony comports This with burglary. bur- investigating He Berryman. officer few holdup progress He had observed a glary. the defendant. his with moments before encounter *9 People v Bobo Brennan, Dissenting by T. E. J. He investigating robbery. He told the de- that had fendant a man been robbed.
The cross-examination of the upon defendant question of whether or not he informed Berryman running”, of the "two men concludes as follows: ”Q. (By Stephens) Mr. You you did indicate did not tell the officer these two men running, about allegedly running down the street?
"A. What Idid do?
"Q. You did not the officer tell who you about running these men down street?
"A. I don’t remember. ”Q. you they Did tell the officer went down that alley?
'A. I don’t recall.
”Q. you point alley? Did down the ”A. I don’t recall.
"Q. you Did describe these men to the officers? ”A. I don’t recall. ”Q. you get go Did in the car and officer’s down the
alley with him? No,
’A. I didn’t. ”Q. step, Your testimony you you that took another officer, somebody up talked to the else came you; arrested is that correct? couple ”A. I steps. said took more than a I said he go.” let us it Again is clear the defendant was not under arrest time of with his conversation officer Berryman.
I cannot conceive that our intends really Court Arizona, to extend the 384 US rule Miranda 436; 1602; 694; 86 S Ct 16 L 10 ALR3d 974 Ed 2d all engage cases in conver- where citizens person- sations of kind with law enforcement nel.
If every policeman conversation and a between 390 Mich Dissenting Opinion by Brennan, T. E. J. begin citizen on the street must with a recitation warnings of the Miranda then we as well consign public safety the whole matter of to Divine *10 Providence.
Certainly longer any there could no meaning- be police-community ful relations, nor effective citizen assistance to officers of the law. and M. S. JJ., concurred Coleman,
Swainson with T. Brennan, E. J.