*1
Mich 202
460
202
v HACKETT
PEOPLE
11,
(Calendar
17).
Argued
No.
Decided
March
Docket No. 111717.
Rehearing
ing,
regarding
trial
stated that the
court’s admission of
improper.
prosecution improperly
the defendant’s silence was
up
to the defendant’s silence
lock
in viola-
made reference
rights to
tion of his Fifth and Fourteenth Amendment
silence.
*2
prosecutor’s
addition, the
use of the defendant’s silence violated
Finally,
Bigge.
the
have
the rule of
trial court should
403,
highly preju-
excluded the evidence under MRE
because it was
utterly
probative
lacking
dicial and
in
value.
impeached
The defendant was cross-examined and
for his failure
accuser,
profess
his
and for
to confront
his failure to
his innocence
logical
to his accuser.
It
to assume that
the defendant’s
postarrest, post-Miranda silence was due to a desire not to talk to
government.
police
place
agencies
It is
not unknown for
jail
hope
may
informants in
cells in the
that an accused
make
incriminating
Moreover,
statements.
it is not unheard of for
place
agencies
listening
secret electronic
devices or other moni-
toring equipment
cells,
part
to detect violence. The lack of a
preclude
agent
finding
visible state
does not
a
of a constitutional
violation.
Bigge held that a defendant’s silence in the face of an accusation
guilt.
case,
prosecutor
cannot be used as evidence of
In this
improperly
jury
twice
told the
that the defendant was silent in the
requiring
of an
face
accusation. This was error
reversal under
jwy
Bigge.
coconspirator
The
told the
that a
was an
argued
accuser and
that the defendant would have confronted him
facts,
had he been an innocent man. Under these
it was error
requiring
argue,
closing,
reversal to
on cross-examination and in
during
the defendant’s failure to confront his accuser
postarrest, post-Miranda
guilt.
situation evidences his
properly
probative
Under MRE
evidence is
excluded if its
substantially outweighed by
danger
prejudice.
value is
of unfair
It
if
is also excluded
it would result in confusion of the issues or a
misleading
jury.
of the
The evidence of the defendant’s silence was
highly prejudicial
probative.
and not
remarks
being
ambiguous
should have been stricken as
too
to be useful and
highly prejudicial to the defendant.
post-
Because the reference to the defendant’s silence
his
arraignment
up
constitution,
lock
in 1999 violates the federal
proper
governed
standard of review is
federal law. The standard
applied
unpreserved
preserved
to be
for
nonstructural consti-
beyond
tutional error is the same: harmless
a reasonable doubt.
proof.
particular setting
The state bears the burden of
In the
prosecution
has failed to meet its burden. The evidence
For the follow, reasons that we with the Appeals Court of that there was no constitutional error in the use of defendant’s silence. We further hold that the reference to defendant’s silence did not implicate Bigge, the rule of because the silence did not occur in the Rather, face of an accusation. object testimony regard Defense counsel did not to the admission of ing defendant’s silence. 333.7401(2)(a)(iii); 14.15(7401)(2)(a)(iü). MCL MSA People to defendant’s
prosecutor’s reference failure to con- evidence, front is conduct admissible Logue testimony impeach defendant’s that he was an inno- bystander question. cent on the evening We reverse the decision of the Court defendant’s conviction. and reinstate
i
FACTS early morning August 13, 1991, hours of undercover State Police Detective Richard Gilbert purchased cocaine from Patrick later Logue. Logue testified that William P. Hackett, was his supplier. nearby Defendant was August when the sale occurred. Defendant claims that he was framed.
Defendant Logue high were school friends who friendship July 1991, renewed their in 1991. In house-sat for apparently defendant. Items were miss- from the defendant’s ing afterwards, and, home when by defendant, Logue confronted admitted cer- taking tain taken, items. returned the items except, contends a defendant, Godiva chocolate box that ulti-
mately reappeared on August 13, 1991, containing cocaine sold to Detective Gilbert.
Logue also met Detective Gilbert in 1991. Detective
Gilbert was participating in an undercover
investiga-
tion of Logue’s employer,
Image,
company
Erotic
provided
strippers
parties.
Logue worked for
Erotic
as a
Image
stripper,
strip-
an escort for female
*4
and
pers,
representative.
as
sales
Logue took the
job at Erotic
Image
be near women and
He
drugs.
marijuana
daily
smoked
on a
basis.
Logue that defendant cocaine for testified Logue sales transacted with Detective Gil- each of the although Logue bert, the cocaine first sold to Detec- actually Logue’s tive Gilbert was intended for boss. Following Logue drug first sale, made several through including Gilbert, sales to Detective and August initially Logue sale, sale on 13. For that had agreed exchange $1,500 four ounces of cocaine and pounds marijuana parking Logue for five of in a lot. testified that defendant modified the deal at the last exchange minute to be an of five ounces of cocaine pounds marijuana sug- for five and that defendant gested changing the location of the transaction to a hotel room.
Logue evening testified that late in the on August he house, went to defendant’s where keys. defendant asked for his The theo- placed Logue’s rized that defendant cocaine Logue trunk at that time. then went to Kevin Hall’s again home where he met with defendant. then Knight’s Sterling Heights drove to a Inn in where he Following was to meet Detective Gilbert. close riding behind was in a car driven Boyle. Mark A officer testified that the car in riding which defendant was mimicked the lane changes Logue’s appeared car and that defendant Boyle’s checking periodically. to be behind car Boyle’s officer testified that he followed car at dis- varying thirty yards. tances from to one-hundred Logue pulled Boyle picked up When into the motel, nearby through parked coffee at a drive at a res- taurant near the motel. Police testified that defendant car, waited outside the looked under the hood with Boyle, appeared nervous. He walked toward the *5 Opinion of the Court remaining and times, stopping a before couple
motel Boyle’s car was Boyle’s car. Defendant testified Boyle look under helping he was trouble and having hood. from the trunk and bag took a motel, Logue At the met with Detective Gil- can. He placed garbage it a and then retrieved the marijuana, bert, tested cellophane bag, in a plastic The cocaine was cocaine. and inside a brown box, Godiva chocolate inside the was later discovered on the fingerprint bag. Logue’s on the foil inte- fingerprint and defendant’s bag brown Boyle, box. and defendant Logue, rior of the Godiva Boyle’s produced car arrested. A search of were gun. Boyle arraigned were on
Logue, 15, on 14, posted August 1991. The three bond August preliminary At the examina- 1991, and were released. claimed that the case 1991, tion in October defendant the lack him should be dismissed because of against May 1992, the district 29, of a basis for his arrest. On charges against all defendant judge agreed, dismissing Boyle. however, was bound over on one Logue, to 225 of cocaine. The delivering grams count of circuit court affirmed the district court’s dismissal defendant, and the Court of charges against leave to prosecutor’s application denied the appeal. May pleaded guilty to the 1993, Logue for dismissal 13, 1991, drug sale, exchange
August
1993,
pleaded
he
September
guilty
of other cases. In
Gilbert. After
July
drug
to a
sale
Detective
sentencing, Logue
and before his
pleading guilty
Consequently,
testify
defendant.
against
agreed
and a
was filed
defendant
complaint
another
During cross-examination of defend- *6 ant, the following occurred: exchange
Q. So, sir, point you there came a in time when must you you implicated have being this, found out were in is right? that Yes, A. sir. Q. you just raving And I’ll bet were stark mad to find out
you, man, nothing this, the innocent had to do with being implicated this; right? is that quite yes. upset, A. I was concerned and Q. Well, hope I man, would so. You’re an innocent been very accused of a serious offense?
A. That’s correct.
Q. opportunity you got And the first to tell Patrick to set you straight, that, you? the record did didn’t question. A. I don’t understand the Q. you got The first Logue chance that to tell Mr. to clear up any your you that, notion of involvement in this case did you? didn’t any A. I Logue haven’t had contact with Patrick since we up were arraignment. locked after the Q. And, Sir, your the first words out of mouth to Mr. Logue were, tell anything this; them didn’t have to do with right? isn’t saying
A. I don’t Logue. recall ever that Mr. to Q. you it; That’s because never said isn’t that true? probably A. That’s true. I anything don’t even recall like that. Hackett testimony. object Nor did not to this
Defense counsel argu- object during closing when, counsel did defense back to this testi- harkened ments, mony as follows: keep persons strong enough wouldn’t be bars to [There] just person
falsely trying get from at the accused police, you him, that accusation. Tell tell tell made you nothing this, I had to do with know those why happen? why happen? You know it didn’t it didn’t not, they at the time were arrested it could have Because testimony giving been foreseen Mr. would be happen And another reason it didn’t is because Mr. Hackett. falsely accusing Mr. it is not true. Mr. is not Hackett. truthfully accusing Mr. Hackett. Mr Hackett is involved. He’s Mr. Mr. involved the cocaine and Hackett Hackett [sic] why person guilty, Mr. Hackett did not act like a and that’s falsely accused because he was not. jury acquitted charge of the lesser defendant July by Logue to a sale of cocaine to Detec-
related
delivering
Gilbert,
tive
but convicted defendant of
early
grams
between 50 and 225
morning
of cocaine
August
1991. Defendant was
hours of
mandatory
presumptive
sentenced below the
ten-
twenty-year sentence for a term of four to twelve
*7
years.
a new trial was ulti-
Defendant’s motion for
mately
appeal
right,
denied. On defendant’s
the
prosecutor
granted
Court of
reversed. We
the
appeal
and denied defendant’s cross-
leave
application.
(1998).
n
prosecutor’s
use of defend-
We address whether
preliminary matter, the
silence was error. As a
ant’s
parties
agreed on when the silence refer-
have never
A The first referred to defendant’s silence during cross-examination of defendant. As prosecutor’s progressed, cross-examination it focused specifically period on the after the 1991 arrest and after defendant’s 1991 arraignment, Logue when defendant were incarcerated together. This is clear from the excerpt of following the cross-examination: Q. opportunity you got And the to tell Patrick to set first you straight, you?
the record did that didn’t question. A. I don’t understand the Q. you got chance that to tell Mr. to clear first up any your you notion of that, involvement in this case did you? didn’t any A. I haven’t had contact with Patrick since we up arraignment. were locked after Q. And, Sir, your the first words out of mouth to Mr. Logue were, tell them I anything didn’t have to do with this; right? [Emphasis isn’t that added.] While prosecutor may not have initiated this line of questioning in reference to the time defendant and Logue were incarcerated together, he continued to pursue that moment in time after the defendant stated that he had not seen Logue since Indeed, then. appellate defense counsel acknowledged twice during oral argument that cross-examination *8 Opinion Court of the Logue when time in 1991 referenced the
of defendant together. were incarcerated defendant to defendant’s reference second prosecutor’s The time to the similarly directed appears silence The Logue. with incarceration defendant’s there that argued closing falsely keep persons enough strong to wouldn’t be bars person just made that trying get that to at accused from you police, those him, tell tell accusation. Tell why know it didn’t nothing this .... You to do with had they arrested it could happen? time were Because at the giving testi- Logue would be Mr. not have been foreseen mony against Mr. Hackett. of the referenced timing that acknowledge
We is somewhat closing prosecutor’s in the silence presume that seems The statement ambiguous. in 1991 was his accuser Logue knew that defendant it is clear although they together, were arrested when not have fore- defendant could the record that from him that testify would Logue seen find that the we Despite ambiguity, this initial time. cross-examination, ulti- closing, like prosecutor’s they were “when the time mately focuses on could have that defendant only time arrested.” were he and was when confronted in 1991. together arrested and incarcerated B argue continues Defendant implicates constitutional silence to his reference 460 Mich issues.3 His constitutional claims assume that *9 silence at issue 1993, occurred in rather than 1991. argues speaking Logue First, defendant that would have violated a condition of and, his bond therefore, process. that use of his silence violated due However, in 1991, defendant’s bond did not include the condi- Logue. tion that he not contact Second, defendant argues Logue agent police, anwas and, Logue’s therefore, that comment on his silence in presence process violated both due and his Fifth privilege compelled Amendment self- may arguable incrimination. While it be agent police was an of the 1993, in there is no indica- agent tion that was an of the in 1991 when he was incarcerated with defendant. Because predicates of defendant’s constitutional claims period, were not fulfilled the relevant we need not address these claims here.
m concluding correctly After that the defendant’s con- rights stitutional were not violated Appeals reference to defendant’s silence, the Court of People held that the violated the rule of v Bigge, supra. Bigge adoptive concerns or tacit admis- sions and
precludes admissibility
say
of a
any-
defendant’s failure to
thing in the
adoptive
face of an accusation as an
or tacit
admission under MRE 801(d)(2)(B) unless the defendant
above,
Appeals rejected
As noted
the Court of
defendant’s constitu
claims,
tional
cross-application.
and this Court denied leave on his
How
ever, defendant
is nonetheless free to raise these claims here as an “alter
ground
native
Wayne Co,
for affirmance.” See Middlebrooks v
446 Mich
151, 166, 41;
(1994).
n
“manifested his
or belief
its truth
[Peo
ple McReavy,
197, 213;
(1990).][4]
v
In this
the evidence at
adopted
the accusation. There-
defendant either
or believed
admitted,
fore,
should not have been
and the
the evidence
permitted
prosecution
to base its
should not have been
per
[Unpublished opinion
argument on that
evidence.
February
curiam,
(Docket
195698).]
No.
issued
Appeals application
with the Court of
disagree
We
rule in this case.
Bigge
clarify
the role of Peo
opportunity
We take this
admissibility
of evi
ple Bigge
ascertaining
*10
Although Bigge
a defendant’s silence.
regarding
dence
of Evi
preceded
Michigan
the enactment of the
Rules
con
dence,
Bigge,
801(d)(2)(B),
the rule of
like MRE
rule denies admis
Bigge
cerns tacit admissions. “The
the inference of
sibility
tacit
because
[of
admissions]
solely
defendant’s failure to
relevancy rests
on the
precludes the admission
deny.” McReavy
Bigge
at 213.
in the face of accusation as
of a defendant’s silence
This Court has clari
guilt.
substantive evidence of his
prearrest silence is admissible
fied that a defendant’s
impeachment purposes. People
(After
for
v Cetlinski
quote Wigmore:
McReavy
went on
naturally
“Silence,
person would
when the assertion of another
untrue, may
equivalent
if
be
to an assent
call for a dissent
it were
by adoption,
This, however,
party,
fixes the
with
to the assertion.
assertion,
question
person’s
and thus it ceases to be a
the other
genuine
express
evidence,
admission in
conduct
and involves a
292, pp
(Chadboum rev),
Wigmore,
§
Evidence
229-230.]”
words. [2
[Id]
460 Mich Remand),
(1990).
742, 757;
435 Mich
forward, probative impeachment pur- is relevant and poses when the court determines it would have been person “natural” for the to have come forward with the exculpatory information under the circumstances. at [Id. 760.] prearrest
The issue of silence is one of relevance. Id. at 757.
Bigge prosecution involved a for embezzlement. Bigge The silence referenced Bigge occurred when the defendant failed to respond during a business conference to his brother- going comment, in-law’s “What’sthe use of over this again. Bigge] guilty matter [defendant Charles is as heh.” Id. at 419.
Bigge held: yet
The time has not come when an accused must cock every damaging his ear to hear allegation against and, him if by him, not denied have the statement and his silence accepted guilt. as evidence of thing There can be no such as guilt by confession of silence in or out of court. The unan- allegation swered guilt another of the of a defendant guilt part no confession of on the of a defendant. [Id. 420.] Bigge The Court in concluded that the admission of the brother-in-law’s statement and the defendant’s response silence in to it as evidence of defendant Bigge’s guilt Bigge’s application was error.5 is limited *11 to tacit admissions, in the form of a defendant’s fail deny ure to an accusation. Tacit admissions under the 5 Bigge pro went on to conclude that the error was of constitutional portion. Bigge Court reasoned: 215 substantive evidence may rale not be used as
Bigge failure to A criminal defendant’s guilt. of a defendant’s evidence of probative is not respond to an accusation 6 the truth of the accusation. to the reso- inapplicable Bigge conclude that
We by the silence referenced of this case. The lution of an accusation. not occur in the face prosecutor did defendant’s silence simply no statement There is rule of Thus, the tacitly adopting. as can be construed of the by the admission is not violated Bigge evidence. argument
Further,
we
with the
agree
they
while
failure to confront
that defendant’s
evi-
in 1991 is conduct
together
were incarcerated
testimony that he
impeaches defendant’s
dence that
party and was an
merely
to a
following Logue
was
right
process
deprive
due
of
which
an accused of the
of
[E]rrors
composed thereby
an accused.
law
to the detriment of
cannot be
[Id.
421.]
process
issue,
Bigge
specify
precise type
error at
did not
of due
speculate regarding
In this
defendant’s con-
we need not
its concern.
properly
as
stitutional claims were
resolved
the Court
addressed above.
6
decided,
aside,
McBeavy
MRE
an
we note that after
As
1991,
801(d)(2)(B)
longer
801(d)(2)(B)
MRE
is no
was amended. After
355;
People Bobo,
subject
390 Mich
NW2d
to the rule announced
v
applied
broadly, stating
(1973).
Bigge
“If
in the
silence
Bobo had
strange
may
used,
specific
be
it would be a
doc
face of
accusation
not
permit
an
to be
silence absent such
accusation
trine indeed that would
guilt.”
criminal
had held that a
evidence of
Bobo at 361. Bobo
used as
him,
whether in the face
never be used
defendant’s silence could
39;
People Collier,
Mich
393 NW2d
not.
of accusation or
only
Bobo, holding
to the extent
(1986),
remained viable
that Bobo
limited
precluded “impeachment
the time
on silence at
for and comment
that it
in the face of accusation.”
arrest
*12
IV Finally, while there is some merit to defendant’s suggestion prosecutor’s closing argument strayed impeach- from use of defendant’s silence as guilt,7 ment to substantive evidence of his the silence referenced, as above, discussed was neither constitu- tionally protected nor in violation of the rule of Bigge. any prosecutor’s closing
If error arose from the ref- any erence, we would find it harmless under stan- prosecutor convincingly dard. The demonstrated ample jury direct evidence to convince the of defend- guilt. Logue’s ant’s The direct evidence includes: testi- mony, fingerprint defendant’s on the interior of the incriminating Godiva box, chocolate conduct as police, proximity observed surveillance and his drug August transaction on 13, 1991. prosecutor argued closing that “Mr. Hackett involved [sic] guilty, why cocaine and Mr. Hackett and that’s Mr. Hackett did not act person falsely like a reading accused because he was not.” One of this statement, closing even within argument, the context of the entire see below, suggested, intentionally not, is that it or that defendant was drug involved in the Logue. deal because he did not confront v Hackett proba- of limited referenced was also
The silence
value,
strategic
demonstrated
the defense’s
tive
as
closing,
re-direct examination and
decision
normal and
that it would not have been
demonstrate
Logue.
to confront
On re-direct
natural for defendant
attorney que-
defense
examination of
*13
up
arrested on the eve-
ried,
you
getting
“After
ended
say any-
you
did
want to
ning August
of
12, 13, 1991,
at all from Patrick
thing
anything
or hear
I
responded,
particularly.
“Not
period?” The defendant
school in
you know,
at,
starting
I’m
law
was,
looking
practically destroyed my
a
and this
has
guy
week
again
the defense
closing argument,
life.” During
failure to confront
explain
to
defendant’s
sought
parallel format
to that offered
again in a
Logue,
prosecution.
argued:
The defense
falsely
prosecutor]
gee, if
was
said
[defendant]
[The
enough
getting
strong
at
accused there wouldn’t be bars
Well,
missing
Logue, saying
it.
he is
Pat
tell them didn’t do
Frankly, you put your-
point completely
respect.
in that
you’re
your way
party;
shoes;
on
to a
self in [defendant’s]
school,
presently,
you’re
hard
to start
law
worked
about
order,
planning, got everything
and all of
sudden
been
[a]
you
yourself
it turns out Pat
find
arrested because
drug
What is to talk to him about?
was involved in a
deal.
you
anything
do
thing in the world
want
to
He’s the last
you’re person
respect
period.
only that,
with
with,
if
Not
you
situation,
order, you
up
end
in this horrible
for law and
something—
yourself, you
go
having
and do
defend
don’t
to
individually, you
you
him
go
have contact with
don’t
law; you
respect
respect
process
have
for
have
for
juries.
frightening,
judgment
is all
for the
This
trust
very weird,
scared,
going
I’m
to trust and
I’m
and it’s
but
Because the presented ample direct evidence the references defendant’s silence were minimal, and because the defense used the same silence in a way, rehabilitative we any conclude that error any was harmless under standard.
We denied order entered 3, 1998, November cross-application defendant’s appeal, and, leave therefore, our review has been limited to the admis- testimony sion of regarding defendant’s silence. We reverse the decision of the Court of and rein- state the defendant’s conviction.
Taylor, Corrigan, Young, JJ., concurred with Weaver, C.J.
Kelly, J. (dissenting). I would hold that the trial court’s testimony admission of regarding defendant’s improper. silence was
I disagree majority with the for three First, reasons. I would prosecution find that the improperly made reference to defendant’s silence during up lock in vio- lation of defendant’s Fifth and Fourteenth Amend- ment to right silence under the federal constitution. US Const, V, Ams XIV. Moreover, I also agree with 219 People Opinion by Dissenting Kelly, the of this that, under facts
the Court of vio- of defendant’s silence the use 417; 285 Bigge, v Mich the rule of lated have court should Finally, the trial (1939). NW 5 of Evi- Michigan Rule evidence under excluded this prejudicial highly this evidence was dence as the trial probative Because utterly value. lacking affirm I would harmless, was not court’s error Appeals. of the Court of decision
i correctly have majority notes, parties As the referenced agreed on when the silence never majority to have occurred. The prosecutor was to a reference defendant’s admits implicitly period of incarceration would during the 1993 silence right defendant’s constitutional have violated However, prosecution’s even if the remain silent. fairly refer defendant’s can be said to argument on incarceration, prosecutor’s comment right to still violated defendant’s constitutional silence remain silent. period agent during the 1991
Logue was not
state
majority
main-
that,
incarceration. Because of
of
was free to use defendant’s
prosecution
tains
impeach-
presence
in the
of
as
silence while
him. I
disagree.
ment evidence
impeachment purposes
a defendant’s
The use for
receiving
arrest and after
the time of
silence
Clause
warnings violates the Due Process
Miranda1
Doyle Ohio,
US
the Fourteenth Amendment.
1602;
(1966).
Arizona,
436;
2d 694
86 S
16 L Ed
384 US
Ct
Miranda v
*15
460 Mich 202
Dissenting
Opinion
Kelly,
(1976);
610;
2240;
96 S Ct
49 L Ed 2d
v
Fletcher
Weir,
603;
1309;
S
US
102 Ct
Doyle companion and its case, Ohio v Wood. The Doyle defendants in both and in this case were in cus- tody, being interrogated but were not at the time the prosecutor argues they professed should have Doyle questioning their innocence. In was as follows:
“Q. [By prosecutor.] . . . You are innocent? [By Doyle.]
“A. I am innocent. Yes Sir. “Q. why you police department That’s told the and Ken- they neth Beamer when arrived . . . your
“(Continuing.) . . . about innocence? [*] [*] [*] “A. my ... I tell didn’t them about innocence. No. “Q. you nothing You said all about how had been set up?
[*] [*] [*] ‘Q. Did Mr. Wood? recall,
A. Not that Sir. *16 Dissenting Opinion Kelly, J. testimony your “Q. fact, cor- matter if I recall As a of your innocence, you protesting you as rectly, said instead response question Mr. today, you to in said do you talking Beamer, are about.’ don’t know what —‘I said, If I all about?’ I what I this “A. believe —‘What’s only remember, thing I said. that’s the know, you questioning, what it was about. I was “A. buy, trying to I I knew that I was what didn’t know. That’s going I wrong, on. I didn’t know what was which was but me, trying was frame or that Bill Bonnell to didn’t know what-have-you.
[*] [*] [*] “Q. you protest your right, innocence All didn’t —But [Doyle, supra, 426 US n that time?” 5.] where the with Ohio v Wood was consolidated Doyle failure to impeached, not for his was also defendant Miranda, but questions implicating answer profess to his innocence: failure “Q. prosecutor.] [By Mr. Beamer arrive on did scene? [By Yes,
“A. he did. Wood.] “Q. happened you what told him all about And assume you?
[*] [*] [*] No. “A.
“Q.
you
Wood,
had
do with this
is all
Mr.
if that
scene
innocent,
on the
you
Mr. Beamer arrived
are
when
[Doyle, supra,
why
you
The Court’s broad
supra.
somewhat
Weir,
limited
Fletcher v
How-
post-Miranda
ever,
Fletcher,
under
silence continued
impeach
to be inadmissable to
a defendant’s credibil-
ity. Id.,
Further
for this
found
Wainwright
supra.
v Greenfield,
argued
insanity.
defendant
a defense of
His
*17
postarrest, post-Miranda warnings silence was then
sanity.
used
the
as evidence of
The
Supreme
process.
Court
held
this violated due
implicit
The source of the violation was the
assurance
warnings
in
contained
the Miranda
“that silence will
carry
penalty.”
(citation omitted).
Id.,
no
unfair to
an arrested
that his
will
silence
not be used
him and
prom-
to
thereafter
breach that
by using
impeach
ise
[Id.,
to
testimony.
silence
trial
his
In this it would be as unfair to punish electing defendant for to remain silent under the circumstances.
In each of these, the defendant’s “silence” was in physical presence officers or other rec- ognizable agents. majority state maintains that prerequisite finding that condition is a to a constitu- disagree. tional violation. The United States Supreme explicit Court has articulated no such Dissenting Opinion by Kelly, requirement ignores
requirement. Moreover, a such simple today’s custodial environment. realities preclude agent a does not The lack of a visible state finding violation. of a constitutional point. In case illustrates this
A recent federal charged was with Duncan,2 the accused Franklin primarily charge on his was based murder. The memory killing. repressed daughter’s alleged At of the prosecution presented testimony from the trial, the jail daughter after had her father in that she visited attempted to con- to convince him his arrest and had responded to her had not fess. She testified he jail pointed sign to a in the accusations, but instead might visiting all room that indicated conversations objec- The trial denied defense be monitored. court testimony, prosecutor argued that tion to guilt to a tacit confession of this silence amounted weight gold.” its at 1445. “worth Id. corpus court found review,
On habeas district silence have vio- the admission of the accused’s citing rights, Amendment lated the defendant’s Fifth stating: Doyle, supra, knowing silent, to remain that he was Petitioner chose custody government listening his calls. and that the question, declining daughter’s Franklin to answer *18 explicitly pointed sign saying government to the that pointing sign to the indicates monitored conversations. His government to was his that the desire not talk to motivating remaining If this an invo- in silent. is not factor silent, right of to remain it is difficult for cation Surely petitioner imagine need not Court to what would be. your state, answering question, Eileen, “I because am not my right against invoking self-incrim- am fifth amendment [2] [884] F Supp [1435] (ND Cal, 1995). 460 Mich by
Dissenting Opinion Kelly, J. against ination” in order not to his silence have used him. [Id. 1447.] by result
This was affirmed the Ninth Circuit of Court Appeals. (CA Duncan, 9, Franklin 70 F3d 1995).
Similarly, quite logical in the instant it is to post-Miranda postarrest, assume that defendant’s govern- silence was to a due desire not to talk to the place agencies ment.3 It is not unknown for jail hope informants in cells in an that accused may incriminating make Moreover, statements. is it police agencies place not unheard of for secret listening monitoring equip- electronic devices or other part in cells, ment in to detect violence. today’s logical environment, custodial it a right
defendant, advised of his to remain silent and consequences speaking, of will silent, remain even Using when no are officers visible. this silence just “fundamentally a defendant is as unfair” as it was Doyle Wainwright, supra. prosecution’s Thus, I would hold that the refer- up ences to defendant’s silence lock were violation of Fifth his and Fourteenth Amendment rights to silence under the federal constitution. arraignment, required, At Michigan the trial court is under the Rules Procedure, 6.104(E)(2), rep Criminal MCR to inform not by counsel, right Thus, presumed resented to remain silent. it is by warnings defendant Hackett had received his Miranda the time he was up arraignment in lock after in 1991. The absence on the record of a valid right waiver defendant of his to silence leads me to conclude that his right was violated reference to it. *19 225 People by Dissenting Opinion Kelly, J.
n
analyzes
under the rule
majority also
this case
The
impli-
is
Bigge
not
People Bigge,
of
v
holds
we
Bigge,
case.4 I disagree.
in the instant
cated
face
an accu-
silence in the
of
held that a defendant’s
of
him as evidence
cannot be used against
sation
as confession of
thing
can be no such
guilt. “There
if
Defendant,
out
. . .
by
in or
of court.
guilt
silence
morally
statement,
legally
or
heard
was not
he
the
his
to do
upon to make denial or suffer
failure
called
Id.
420. The
to
evidence of his
guilt.”
so
stand as
process
was a due
vio-
Court
found
this
Bigge
majority rejects
application
the
of this
lation. The
that, since
was no
case, stating
there
face-to-face
silence,
there
no rea-
accusation at the time
the
is
rely
Bigge.
disagree.
son to
on
know
opinion,
the
defendant did not
According to
their
incar-
would be his accuser
1991
arguably
However,
pros-
ceration. This is
correct.
the
4
majority attempts
People
(After Remand),
The
to use
v Cetlinski
435
742, 757;
(1990),
support
proposition.
NW2d 534
Mich
460
its
silence,
per
prearrest
with
I do not find it to be
Because Cetlinski deals
Moreover, I
suasive in the
of the instant
would also find that
context
case.
predecessor,
Collier,
23;
NW2d
Cetlinski and
426 Mich
393
its
(1986),
relies,
distinguishable
upon
are
from this
which Cetlinski
case. Cetlinski involved a defendant who had made statements to
example,
police and
details.
omitted the
left out certain
For
defendant
discussing
previously
a
a
fact that he had
had
conversation with waitress
Also,
prosecutor
burning
building.
in Cetlinski
not ask the
down a
did
jury
guilt
to infer
Dissenting Opinion improperly jury ecutor told the twice that defendant (ante, pp was silent in the face of an accusation 210- 211). requiring I would hold this be error reversal *20 supra. Bigge, majority under As the indicated, has parties agree not even the can which “silence” was by prosecution. the referenced It is certain that the jury separate was not aware of the two interests of Logue, complicated proce- Mr. nor was it aware of the history rely prose- dural of this case. It had to on the development. cution for much the factual Logue actually Whether was an accuser in this case should not be determinative. The told the jury argued that was an accuser and that would defendant have confronted him had defendant requiring been an innocent man. It was error reversal argue, under these facts to on cross-examination and closing, that defendant’s failure to confront his postarrest, post-Miranda accuser situation guilt. evidences his
m Even Iwere to find that defendant’s constitutional rights by prosecution’s question- not were violated ing, Appeals ruling. I still would affirm the Court of properly Under MRE 403, evidence if excluded its probative substantially by outweighed value is danger prejudice. unfair It is also excluded if it would ing result confusion of issues or a mislead- jury.
of the The evidence of defendant’s “silence” highly prejudicial probative. was not Referring Doyle, supra to the notion in that “every post-arrest insolubly ambiguous,” silence is would hold that the remarks should have ambiguous been stricken as too to be useful. It is Hackett Dissenting by Opinion Kelly, which the statements themselves from unclear (cid:127) by actually being referenced “silence” apparent during prosecutor. oral fact became That by space argument devoted is further shown opinion. majority Moreover, there in the to the issue guilt having nothing to do with are reasons why explain might not confront a defendant would directly a courtroom. A defendant outside his accuser might might accuser. A defendant be be afraid of the contacting prevented accuser, the court from get into more trouble con- or think that he would might fronting not trust his control him. A defendant he confront his his own emotions should over probably, might Lastly, a defendant and most accuser. correctly would be of no that a confrontation reason unlikely highly to him. It seems benefit story con- had defendant would have recanted *21 lying. Nothing in him and accused him of fronted prove defendant’s would tend to defendant’s silence credibility. guilt or prosecu- given of the hand, the other the nature
On prej- highly closing arguments, this evidence was tor’s prosecutor argued that to defendant. The udicial failure to confront was substantive defendant’s person guilt because an innocent evidence of his way. nothing stand in his There would would have let stopped strong enough” to have have been “no bars rushing recant. out to demand that him from tipped argument scale in the could well have prosecution’s given case. favor, that this was a close policy supports finding that
Public
also
improperly
finding
A
in the
acted
here.
they
signals
favor
other defendants
having the same
their accusers or risk
must confront
iv
I would not find the error harmless.
Because con
clude that the reference to defendant’s silence
post-arraignment
up
lock
in 1999violates the fed
proper
eral constitution, the
standard of review is
governed
Chapman
federal law.
v California, 386
(1967);
US 18;
824;
87 S Ct
Application
type”
of this standard to “trial
constitu-
recently
tional errors reaffirmed in Brecht v
Abrahamson,
619, 630;
507 US
1710;
113 S Ct
123 L
(1993).
Ed 2d 353
Brecht contrasted the standard of
applied
requests
harmless error review to be
between
corpus
appeals.
for habeas
relief and direct
It noted
“
that there are ‘some constitutional errors which in
setting
particular
unimportant
of a
case are so
insignificant
they may,
consistent with the
”
Federal Constitution, be deemed harmless.’
Id. at
at 406.
son, supra Graves,
Structural
458 Mich
constitutional
476, 482;
burden of that the supra par- at 630. In the Brecht, a reasonable doubt. prosecution setting has failed ticular of this its burden. to meet majority’s
Contrary holding, the to the evidence anything against overwhelming. defendant was but depended great degree him to a on The case credibility Logue, of both defendant and as evi- charges against denced the earlier dismissal of every falsely defendant. had reason to accuse hoped given the benefits he to obtain con- cerning prosecution. his own criminal was
Moreover, the other evidence circumstantial to great degree. fingerprints Defendant’s were found baggie itself, not on the cocaine but on a foil box that guest defendant claimed stole while a police testimony concerning defendant’s home. The night question defendant’s activities on the testimony. He consistent with defendant’s maintained Boyle Logue had invited defendant and Mr. to a party, but told them he must first conduct unre- had at a Defendant’s behavior, lated business motel. as police officer, observed was not inconsistent with innocence. presented by prosecution nothing short, indi-
cates that this constitutional error was “harmless” or beyond “insignificant” a reasonable doubt. I would affirm the Court of decision and remand for opinion. with this a new trial consistent JJ., Brickley with Cavanagh, Kelly, concurred