PEOPLE v SUTTON (AFTER REMAND)
Docket No. 80844
Supreme Court of Michigan
September 28, 1990
Rehearing denied 437 Mich 1208.
436 Mich 575
Argued March 9, 1988 (Calendar No. 10).
In an opinion by Justice BOYLE, joined by Chief Justice RILEY and Justice GRIFFIN, and an opinion by Justice BRICKLEY, the Supreme Court held:
The decision of the Court of Appeals is reversed, and the defendant‘s conviction is reinstated. In failing to object to the prosecutor‘s cross-examination of the defendant regarding a period after Miranda warnings had been given, defense counsel waived any claim of error regarding the question, permitting admission of the defendant‘s responses to it and to further questions resulting from that question.
Justice BOYLE, joined by Chief Justice RILEY and Justice GRIFFIN, would further hold that impeachment of a defendant‘s exculpatory testimony with pre- or postarrest, pre-Miranda silence is permissible under the Michigan Constitution. Likewise, a defendant‘s right to remain silent is protected by the Fourteenth Amendment preclusion of the use of a defendant‘s silence following Miranda warnings to impeach exculpatory testimony given at trial. In this case, however, the defendant did not offer only exculpatory testimony, but affirmatively stated and pursued the theory that he had made a postarrest statement to the police that was consistent with his testimony during trial. Neither the Fifth Amendment nor Bobo provides
The defendant has no standing to claim error on appeal in the impermissible use of silence when his position at trial was that he had not remained silent, but in fact had given a postarrest, postcustody statement that the shooting was an accident. Defense counsel waived any claim of such error, not only in failing to object to the prosecutor‘s cross-examination of the defendant, but also by thereafter affirmatively seeking to create the impression that the defendant‘s trial testimony that he had told the police that the shooting was an accident was truthful. Defendant thus converted a potentially objectionable situation into a claim of postarrest, postwarning conduct consistent with innocence. Impeachment with inconsistent conduct, the refusal to give a statement, was proper.
Defendant cannot assert that the Fifth or Fourteenth Amendment confers a right to create the impression, free from contradiction, that he cooperated with the police and made a statement after arrest. Bobo and Doyle v Ohio, 426 US 610 (1976), both grant a defendant the right to bar impeachment of the defendant‘s trial testimony where the government‘s impeachment theory is that maintaining silence is inconsistent with innocence. But both cases also expressly recognize that the bar to impeachment by silence of exculpatory trial testimony does not extend to impeachment with a refusal to speak during interrogation which is inconsistent with the defendant‘s own statements at trial claiming that postarrest statements were made while in custody.
Justice BRICKLEY, concurred in the result and analysis to the extent that the defendant‘s failure to object to the prosecutor‘s question on cross-examination waived any claim of error, but stated that the question itself was error as an attempt to use the defendant‘s postarrest, post-Miranda silence for impeachment.
Reversed; conviction reinstated.
Justice LEVIN, joined by Justices CAVANAGH and ARCHER, dissenting, stated that a defendant has a constitutional right not to be impeached with evidence of silence following the warnings prescribed by Miranda v Arizona, 384 US 436 (1966). Prosecutors who intend to introduce evidence of a defendant‘s pretrial silence should clearly limit questioning to the period before the Miranda warnings were given.
Analysis in this case should begin with and focus on the
Under People v Collier, 426 Mich 23 (1986), the defendant‘s failure to inform the police that the shooting was an accident was inadmissible as not having probative value to impeach his direct testimony that the shooting was an accident. The defendant‘s exculpatory version of the events was incriminatory. Informing the police of his exculpatory version would have meant confessing to the commission of a crime. Under the circumstances, it would not have been natural for the defendant to have come forward. As a result, his failure to do so did not have probative value to impeach his testimony that the shooting was an accident, and such evidence was inadmissible for that purpose. When the prosecutor asked the defendant whether he had informed the police that the shooting was an accident, his manifest intention was to impeach the defendant‘s testimony that the shooting was an accident by showing that the defendant previously had not asserted this exculpatory version of the shooting. However, the defendant‘s silence, as defined by the prosecutor‘s initial inquiry, was not admissible for that purpose either under the United States Constitution or Michigan‘s evidence law. The defendant thus was asked a question to which either response would have led to the introduction of inadmissible evidence.
The defendant might have prevented the introduction of testimony concerning his silence if his lawyer had objected to the prosecutor‘s initial question on cross-examination. Thus it
The reference was not an isolated occurrence, but also was made during closing argument, denying the defendant the right to a fair trial. The defendant‘s testimony on direct examination did not create the impression that when he was arrested he had been denied an opportunity to tell the police that the shooting was an accident. There is no basis for the suggestion that the testimony created an inference that legitimately could be rebutted by testimony about his post-Miranda silence, or the suggestion that the prosecutor‘s initial inquiry on cross-examination might have been permissible to test the credibility of the defendant‘s testimony on direct examination implying that he would have made an explanation consistent with his trial testimony but for the conduct of the police.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O‘Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Criminal Division, Research, Training and Appeals, and Don W. Atkins, Principal Attorney, Appeals, for the people.
State Appellate Defender (by Susan J. Smith) for the defendant.
AFTER REMAND
BOYLE, J. The defendant has no standing to claim error on appeal in the impermissible use of silence when his position at trial was that he had not remained silent, but in fact had given a postarrest, postcustody statement that the shooting was an accident.
Defense counsel waived any claim of such error. Not only did he fail to object to the prosecutor‘s cross-examination of the defendant, counsel thereafter affirmatively sought to create the impression that the defendant‘s trial testimony, that he had told the police that the shooting was an accident, was truthful. Therefore, impeachment with inconsistent conduct, the refusal to give a statement, was proper.
There is no conflict on this record between People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), and federal decisions construing the Fifth and Fourteenth Amendments. Where a defendant claims that he gave an exculpatory statement to the police after arrest and warnings, neither Bobo nor any federal constitutional authority would preclude impeachment with prior inconsistent conduct, including silence. Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). The Court of Appeals thus erred in holding that Bobo required reversal. On this point it has never been questioned that Bobo is coextensive with federal law. People v Graham, 386 Mich 452; 192 NW2d 255 (1971). We would therefore reverse the decision of the Court of Appeals and reinstate the defendant‘s conviction.
To the extent that the Court of Appeals relied on Bobo to conclude that the Fifth Amendment prevented impeachment with all reference to postarrest silence, the court erred. As a matter of constitutional law, the federal and Michigan Constitutions do not preclude the use of a defendant‘s
To the extent the prosecutor‘s initial question might have been aimed intentionally at the defendant‘s postarrest, post-Miranda silence the question would have been objectionable under the rule of Doyle or Greer v Miller, 483 US 756; 107 S Ct 3102; 97 L Ed 2d 618 (1987).2 To the extent the prosecutor‘s inquiry called for an irrelevant answer, it would have been objectionable under People v Collier, 426 Mich 23; 393 NW2d 346 (1986). However, these issues cannot be addressed on this record.
The defendant‘s failure to object prevented development of a record that would allow us to decide whether the prosecutor‘s question was (1) a legitimate inquiry testing the credibility of defen-
We would resolve this case on the basis that the defendant failed to object and thereafter claimed that he had made a post-Miranda statement to the police consistent with his trial testimony. It was the defendant‘s position at trial that he did not remain silent. Moreover, the defendant affirmatively sought to establish that he did in fact make a pretrial statement and used that testimony to bolster his accident defense. Defendant thus converted a potentially objectionable situation into a claim of postarrest, postwarning conduct consistent with innocence. Evidence of Sutton‘s postarrest, postcustody behavior was permissibly used not to impeach defendant‘s exculpatory story, but rather to directly contradict the claim that defendant had told his story after arrest. People v Bobo, supra; Doyle v Ohio, supra, pp 619-620, n 11. “The shield provided by Miranda cannot be perverted
I
On February 14, 1982, the defendant, accompanied by the lawyer who ultimately became trial counsel, voluntarily came to the Taylor police station after learning that the police wanted to question him regarding the shooting death of Milton Taylor which took place the previous evening during a dance the defendant had attended with his brother. Upon arrival at the station, the police arrested the defendant and charged him with first-degree murder.
At the defendant‘s trial,4 the prosecution presented proofs that prior to the shooting incident, which took place sometime after midnight, the defendant‘s brother and the victim began to fight. As people tried to break up the fight, a shot was fired, hitting the victim. A witness testified that he saw the defendant pull out a gun and shoot the victim.5 The prosecutor also called Sergeant Thomas Bonner. He testified that, as part of the investigation, he had learned that the deceased uttered the words, “Sutton shot me, Thomas Sutton shot me.” The officer further testified that he learned that David Sutton, the defendant‘s brother, had no brother named Thomas and that he and the defendant were the only Suttons.6
The defendant took the stand and on direct examination by his counsel said that his brother had given him the gun to hold during the dance, and that around 2:00 A.M., while he was helping collect money from people at the doorway, somebody said a fight had started. The defendant stated that he rushed over when he saw that it was his brother fighting and that he pulled out the gun, and said ” ‘Why don‘t somebody stop the fight?’ ” At that point while he was trying to move closer to where his brother was fighting, the defendant stated that someone hit him and knocked the gun out of his hand. As he fell against one of the tables and tried to catch his balance he heard a weapon discharge. Defendant testified that he last saw the gun in the possession of a person named Hansbury. He stated that he left the dance approximately one-half hour later, and that he never knew that anyone had been shot until the next day. The defendant testified that his only interest had been to protect his brother, and asserted that when he heard that someone had been shot he
Q. You are telling me as soon as you got up from the table, Mr. Hansbury had the gun?
A. When I seen [sic] him, he had it.
Q. And what was Mr. Hansbury doing with the gun?
A. He was walking down the hallway with it.
Q. Did he give it to you?
A. No, sir.
Q. Did you ask him for it?
A. No, sir.
Q. How many people at that point, Mr. Sutton, did you tell that [it] was an accident, [that] the gun was knocked from your hand?
A. I told Mr. Brandywine.9
The prosecutor also asked:
Q. How many times did you inquire when you composed yourself from hitting that table, how many times did you inquire if anyone got shot because the gun went off?
A. I asked Mr. Brandywine.
The following colloquy then occurred:
Q. Now, when, Mr. Sutton, did you first learn that someone had been shot at the Fandango Hall?
A. The day after the cabaret.
* * *
Q. When did you tell the police it was an accident?
* * *
A. I can‘t remember exactly when.
Q. You did tell the police?
A. Yes.
Q. Do you have any idea when you told the police?
A. No. I can‘t remember.
Q. Do you have any idea what police you told?
A. Sergeant Bonner.
Q. Sergeant Bonner?
A. Yes.
Q. What year was that, sir?
A. ‘82.
Q. ‘82. Was that the same month of the shooting at the hall?
A. I think so, yes.
Q. Well, how did that occur? Did you call the police and tell them what happened?
A. I was in police custody.
At this point, although no objection was made, the prosecutor asked no more questions regarding this subject.
Thereafter the defendant rested. The prosecutor recalled Sergeant Bonner and asked one question, that is, “at any time in 1982, did this defendant, ever, Mr. Sutton, ever, tell you that the shooting at the Fandango Hall was an accident?” No objection was interposed, and Sergeant Bonner re-
Q. [Mr. Henry]: Sergeant Bonner, first of all, when I brought Mr. Sutton out there to you, you took him off to mug him and do whatever else had to be done out of my presence?
A. Yes, sir.
* * *
Q. So then what—when he said he told you it was an accident and you said he didn‘t tell you, then, it is you and him, he is lying. You can‘t be lying?
A. I am not lying.
Q. I know that you are just like Caesar‘s wife, honest and impeccable to the very last. You wouldn‘t say anything wrong?
A. I am telling you the truth. I don‘t know what you want.
Q. I know. I know.
* * *
Q. But you are [sure] of what he said? Did he ever tell you that he deliberately shot anybody?
A. No. He didn‘t say that, either.
* * *
[Q.] Well, if you were so anxious to protect his rights, why couldn‘t I have gone back with him while you were there fingerprinting him and going through these very items with him? What reasons do you have to keep me from going back with him?
Once again the prosecution recalled Sergeant Bonner for a single question. When asked if the defendant had made any statement, Bonner re-
In his closing argument, the prosecutor without objection referred to the fact that the police officer indicated that the defendant had not made a statement to the police that the shooting was an accident.10 In closing, defense counsel stated,
He said that he told them it was an accident. To say that he didn‘t make a formal statement when I am the one that said we don‘t want any formal statements made, period, and that‘s my judgment, not his.
But when they take him back to talk to him, to fingerprint him, what-not, he said that he told them it was an accident.
But who in the world—How do you think they are ever going to believe him. They still are charging him with first-degree murder. They have shown him nothing but this hard side of the mountain. That‘s all they want to do.
Defendant Sutton was convicted by a jury of
By asking defendant when he told the police that the shooting was an accident, the prosecutor infringed on defendant‘s constitutional right to remain silent.
The panel concluded that the prosecutor‘s argument deprived the defendant of a fair trial, citing People v Sain, 407 Mich 412; 285 NW2d 772 (1979).14
II
The sequence of events in the instant case is critical to our conclusion that error, if any, was
After the defense rested, the prosecutor recalled Sergeant Bonner and asked one carefully worded question—whether Sutton ever told Bonner that the shooting was an accident, and Sergeant Bonner replied that he had not. All this was done without objection by defense counsel.
At this point, defense counsel cross-examined Sergeant Bonner and asked a series of questions suggesting that Sutton had made such a statement out of his attorney‘s presence and inferring that Sergeant Bonner was lying. Once again, on surrebuttal, the prosecution asked a single question—whether the defendant had made any statement to Sergeant Bonner. Sergeant Bonner responded that after giving Sutton Miranda warnings, Sutton said he wished to make no statement.
Presumably, both counsel were surprised by Sutton‘s answer, since there is no record evidence that Sutton said anything to the police. When, contrary to what the lawyers presumably anticipated, Sutton claimed that he had made such a statement to the police, the prosecutor was faced with the following conundrum, i.e., how to counter that statement without making reference to the defendant‘s exercise of his Fifth Amendment privilege against compelled self-incrimination. The
Defense counsel then had a tactical decision to make: (1) either to object to further questions and drop the subject or (2) to permit the questions to proceed and attempt to buttress his client‘s testimony by suggesting through his own examination of the police officer that the statement was in fact made. Defense counsel chose the latter course by suggesting through his cross-examination of Bonner that Bonner was lying and then resting without recalling his client. The prosecutor‘s single question of Sergeant Bonner on redirect examination was directly responsive to defense counsel‘s tactical decision.
The same able and experienced retained counsel who represented defendant when he surrendered to the police and who advised defendant not to make a statement, did not object to the question regarding whether defendant had told the police as well as Mr. Brandywine his exculpatory version
Defendant cannot assert that the Fifth or Fourteenth Amendment confers a right to create the impression, free from contradiction, that he coöperated with the police and made a statement after arrest. Bobo and Doyle both grant a defendant the right to bar impeachment of the defendant‘s trial testimony where the government‘s impeachment theory is that maintaining silence is inconsistent with innocence. But both cases also expressly recognize that the bar to impeachment by silence of exculpatory trial testimony does not extend to impeachment with a refusal to speak during interrogation which is inconsistent with defendant‘s own statements at trial claiming that he made postarrest statements while in custody. As the court observed in an analogous situation in United States v Fairchild, 505 F2d 1378, 1383 (CA 5, 1975), on this record, there is no doubt that “the bar was lowered and [the defendant] discarded the shield which the law had created to protect him.”
The fact that a defendant‘s silence might ini-
Constitutional rights, like others, may be waived; and a criminal defendant may, by his conduct, make otherwise constitutionally inadmissible evidence admissible for certain purposes. Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). Here the evidence of Fairchild‘s Miranda silence was admissible for the purpose of rebutting the impression which he attempted to create: that he cooperated fully with the law enforcement authorities. Thus, it was not error for the trial court to admit Detective Hobbs’ testimony concerning Fairchild‘s silence at the police station following his Miranda warnings. [Fairchild, supra, p 1383.]
United States Supreme Court cases decided subsequent to our holding in Bobo establish that when a defendant takes the stand and testifies the privilege against self-incrimination is waived and the defendant may be impeached with both prearrest silence and postarrest pre-Miranda silence without violating the Fifth Amendment. Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980); Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982) (per curiam).
Where silence follows Miranda warnings, Fourteenth Amendment due process bars the use of such evidence to impeach a defendant‘s exculpatory explanation at trial provided that the defendant does not claim “to have told the police the same version upon arrest.” Doyle v Ohio, supra, pp 619-620, n 11. Thus Doyle establishes that the discrepancy between a defendant‘s exculpatory story at trial and his postarrest, postwarning silence is not available to the state to impeach the credibility of the defendant‘s exculpatory testi-
The Doyle Court, however, carefully distinguished the situation before it from a case in which a defendant claims to have told the police the same version upon arrest.17 Citing United States v Fairchild, supra, p 1383, the Supreme Court observed:
It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant‘s testimony as to his behavior following arrest. [Doyle, supra, p 619, n 11.]18
The Supreme Court has consistently held, in the context of testimony substantively inadmissible
To the extent that the Court of Appeals may have concluded that Bobo precluded impeachment with silence inconsistent with a defendant‘s trial testimony that he had made a statement while in custody, the decision was inconsistent with Doyle, Graham, and Bobo itself.
III
Had an objection been interposed, the burden would have been on the prosecutor to establish that there was a permissible line of relevant inquiry either for use during cross-examination or as a foundation for proper impeachment.19 Thus, had
objection been made, the prosecutor might have failed to establish that the question was permissible cross-examination or have succeeded in establishing that the question was directed to permissible impeachment. However, no objection was interposed following the prosecutor‘s initial question, and the defendant responded that he had told police that the shooting was an accident.20 Nor was any objection made to seven subsequent questions regarding the same subject. Had defendant objected and the objection been overruled, our task would have been to decide whether there was a permissible basis for cross-examination or a lawful basis for impeachment. If there was neither, we would have had to decide whether the error was of an evidentiary or a constitutional nature and, if constitutional, whether the trial was so tainted that reversal was required.21 People v Manning, 434 Mich 1; 450 NW2d 534 (1990).Well, if you were so anxious to protect his rights, why couldn‘t I [defense counsel] have gone back with him while you were there fingerprinting him . . . ? What reasons do you have to keep me from going back with him?
The first mention of “silence” was offered to directly contradict this examination.23 Defendant‘s position at trial, pursued throughout testimony
It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In
that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant‘s testimony as to his behavior following arrest. Cf. United States v Fairchild, 505 F2d 1378, 1383 (CA 5, 1975). [Doyle v Ohio, supra, p 619, n 11.]
The constitution protects the rights of all. It does not license a defendant to present testimony directly contradictory of other proven facts to the factfinder, free from the risk that he will not be impeached. “It goes almost without saying” that at the bottom of this is the claim of a constitutional right to immunity from contradiction, a claim that has not been endorsed by this Court or any other.
CONCLUSION
Construing People v Bobo as coextensive with federal precedent, we hold that impeachment of exculpatory testimony with pre- or postarrest, pre-Miranda silence is permissible under the Michigan Constitution. Likewise, a defendant‘s right to remain silent is protected by the
However, defendant Sutton did not offer only an exculpatory story, but affirmatively stated and pursued the theory that he had made a postarrest, post-Miranda warning statement to the police consistent with his trial testimony. Nothing in the
In these circumstances, the prosecution was not precluded from rebutting defendant‘s claims of postcustody statements consistent with his accident defense with evidence of the defendant‘s post-warning silence. Defendant chose to make affirma-
Accordingly, we reinstate the defendant‘s conviction.
RILEY, C.J., and GRIFFIN, J., concurred with BOYLE, J.
BRICKLEY, J. (concurring). The record before us has been sufficiently developed for the Court to rule on whether the prosecutor‘s question on cross-examination was in fact error. On this issue I agree with Justice LEVIN that the question itself constituted error because it was an attempt by the prosecutor to use defendant‘s postarrest, post-Miranda silence for impeachment.
However, I concur in the result reached by Justice BOYLE because defendant waived any claim of error. I join in her analysis to the extent that defendant‘s failure to object to the prosecutor‘s question on cross-examination pointing to a post-Miranda period waived any claim of error as to the question posed. I therefore also agree with Justice BOYLE‘s analysis regarding admissibility of defendant‘s responses and further questioning resulting therefrom.
LEVIN, J. (dissenting). Sutton was convicted of second-degree murder1 and possession of a firearm during the commission of a felony.2 The Court of Appeals reversed Sutton‘s convictions primarily on the ground that the impeachment use of his failure to come forward and inform the police that he had shot someone, but that it was an accident, and
This case was consolidated on appeal with People v Cetlinski, 435 Mich 742; 460 NW2d 534 (1990), and People v McReavy, 436 Mich 197; 462 NW2d 1 (1990). In Cetlinski, the Court held that it was bedtime for Bobo which henceforth is to be construed coextensively with the minimal requirements of the
This case concerns the correct judicial response
- Sutton would respond that he had not so informed the police; such a response would convey to the jury that Sutton did not, after he had received the Miranda warnings,8 tell the police that the shooting was an accident, which would have been violative of the United States Supreme Court‘s decision in Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976); such a response might also convey to the jury that Sutton did not, before he was arrested and given the Miranda warnings,9 tell the police that the shooting was an accident, which would have been violative of the interpretation of Bobo that prevailed when Sutton was tried; or
- Sutton‘s lawyer would object to the question, and the objection would be sustained, with the result that the jury would assume that Sutton did not tell the police that the shooting was an accident; this would have the same effect as a practical matter as if Sutton‘s lawyer had not objected and Sutton had testified that he did not so inform the police; or
Sutton would respond that he did inform the police that the shooting was an accident, and the prosecutor would call the police officer who would testify that Sutton did not so inform the police. That is what occurred in this case.
Thus, by asking the question, the prosecutor assured that—regardless of what Sutton or his lawyer did or did not say—the jury would learn that the prosecutor claimed that Sutton had not informed the police that the shooting was an accident. This case does not involve Cetlinski, McReavy, or Bobo. It involves Ignofo.10 We agree with the Court of Appeals that Sutton did not receive a fair trial, and affirm.
I
Sutton‘s convictions stem from a shooting at a party during the early morning hours of February 13, 1982. During the people‘s case in chief, the prosecutor presented evidence that immediately before the shooting there was a fight between the decedent and Sutton‘s brother and that as other persons were attempting to break up the fight a shot was fired, hitting the decedent. One witness testified that he saw Sutton pull a gun and shoot the decedent.
Sutton claimed the shooting was accidental. On direct examination, he testified that he had taken the gun in hand in an attempt to break up the fight between his brother and the decedent. He said that someone knocked him into a table causing him to drop the gun and that the gun discharged when it hit the floor. He said that on the night of the incident he did not know that anyone
On cross-examination, the prosecutor sought to impeach Sutton‘s testimony by asking him when he first told the police the shooting was an accident. Sutton responded that while “in police custody” in February, 1982, he informed Sergeant Bonner, the arresting officer, that the shooting was an accident.11 Sutton‘s lawyer did not object.
After the defense rested, the prosecutor recalled Bonner who testified that Sutton did not at any time in 1982 tell him the shooting was an accident.12 Sutton‘s lawyer did not object. On cross-examination, Sutton‘s lawyer implied that Bonner was lying and that the police had kept the lawyer from Sutton when Sutton was being processed at the police station. Once again, the prosecutor
In closing argument, the prosecutor, without objection, referred to both Sutton‘s failure to relate his exculpatory version to the police when he was arrested and Sutton‘s exercise of the right to remain silent.14
The Court of Appeals reversed Sutton‘s convictions on the grounds that the prosecutor violated Bobo by asking Sutton when he told the police the shooting was an accident, and that Sutton had been denied a fair trial in light of the prosecutor‘s cross-examination, Bonner‘s testimony that when advised of his Miranda rights Sutton told him he did not wish to make a statement, and the prosecutor‘s reference in closing argument to Bonner‘s rebuttal testimony.
II
Analysis should begin with and focus on the prosecutor‘s initial inquiry—during cross-examination of Sutton—whether Sutton had informed the police that the shooting was an accident.15 It is
A
When the prosecutor asked Sutton whether he had informed the police that the shooting was an accident, he was attempting to accomplish one of two purposes: 1) to elicit a prior statement that was inconsistent with Sutton‘s testimony on direct examination, or 2) to elicit Sutton‘s “silence” (i.e., his failure to tell the police that the shooting was an accident). It is manifest from the record in this case that the prosecutor was attempting to bring out Sutton‘s “silence.”
Sutton responded to the prosecutor‘s inquiry on cross-examination that he had made a statement. Instead of searching for inconsistencies between Sutton‘s “statement” and his testimony on direct examination, the prosecutor “asked no more questions regarding this subject”17 after Sutton testified that while “in police custody” in February, 1982, he told Bonner that the shooting was an accident. If the prosecutor‘s intention had been to impeach Sutton‘s direct testimony with a prior inconsistent
B
The prosecutor sought to bring out that Sutton had not stated that the shooting was an accident. The question remains whether it was permissible to do so.
The prosecution‘s evidence indicated that Sutton remained completely silent after he was arrested and given the Miranda warnings. The Due Process Clause as elucidated in Doyle, supra, barred the impeachment of Sutton‘s direct testimony with his postarrest, post-Miranda failure to inform the police that the shooting was an accident.19
Parenthetically, impeachment of Sutton‘s direct testimony with his prearrest or postarrest, pre-Miranda “silence” would not have been constitutionally impermissible. Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980); Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982). The impeachment use of such evidence would, however, have been impermissible under the interpretation of Bobo that prevailed when Sutton was tried.
The record in the instant case indicates that the prosecutor failed to confine his initial inquiry on cross-examination to the constitutionally permissible pre-Miranda time frame. The prosecutor narrowed his inquiry no further than the month of February, 1982, which included both a pre-Miranda period (February 13-14)20 and a post-Miranda period (February 14-28).21 Where prosecutorial questioning has been found to refer to both pre- and post-Miranda silence, courts have found Doyle error.22
In State v Lofquest, 227 Neb 567, 570; 418 NW2d 595 (1988), the Supreme Court of Nebraska held that prosecutorial questioning and comment which “could be construed as referring to [Lofquest‘s] silence from the first police contact through the moment before Lofquest told his story at trial” violated the Due Process Clause where the record established that Lofquest had received the Miranda warnings at some point before his trial.23 The court reasoned:
In a case such as this where a pre-Miranda and post-Miranda timeframe may exist, difficulties arise when general references are made to a defendant‘s silence, which a reasonable juror could construe as including the post-Miranda silence period. We cannot allow prosecutors to sidestep the Doyle protections by skirting the edge of the law with vague and imprecise references to a defendant‘s silence. [Id.]
We share those concerns. The
Pursuant to the evidentiary framework adopted in People v Collier, 426 Mich 23; 393 NW2d 346 (1986),26 Sutton‘s failure to inform the police that the shooting was an accident was inadmissible on the additional basis that such evidence did not have probative value to impeach Sutton‘s direct testimony that the shooting was an accident.
This is a case in which the defendant‘s “exculpatory” version of the events was incriminatory. Sutton‘s testimony indicated that at the time of the shooting he was carrying a concealed weapon without a permit. Informing the police of his “exculpatory” version would thus have meant confessing to the commission of a firearms violation27 and to whatever offense might attach to an accidental killing.28 Under the circumstances, it would not have been natural for Sutton to have come forward.29 As a result, his failure to do so did not
3
When the prosecutor asked Sutton whether he had informed the police in February, 1982, that the shooting was an accident, his manifest intention was to impeach Sutton‘s testimony that the shooting was an accident by showing that Sutton had not previously asserted this exculpatory version of the shooting.30 However, Sutton‘s “silence,” as defined by the prosecutor‘s inquiry, was not at the time admissible for that purpose under either the
Sutton was thus asked a question to which either response would have led to the introduction of inadmissible evidence. He could have responded that he had not informed the police that the shooting was an accident, or—as occurred—Bonner could so testify to rebut Sutton‘s response that he had related the exculpatory version to the police.
C
Sutton might have prevented the introduction of testimony concerning his silence if his lawyer had objected to the prosecutor‘s initial question on cross-examination. It could thus be said that Sutton “waived” his right not to be impeached with post-Miranda silence when his lawyer failed to object to the prosecutor‘s question.
Under the circumstances of this case, we decline
If Sutton‘s lawyer had objected and the objection had been sustained, the jury probably would have speculated whether Sutton had informed the police that the shooting was an accident. If the jury had so speculated, it likely would have assumed that Sutton had not informed the police that the shooting was an accident.
There were in essence only two answers to the prosecutor‘s question. Either Sutton told the police that the shooting was an accident, or he did not. The jury likely would have assumed that if Sutton had told the police that the shooting was an accident, he would have so testified on direct examination33 or he would have sought to so testify on cross-examination.
If Sutton‘s lawyer had objected and the objection had been sustained, it is thus likely the jury would have disregarded one of the two possible answers to the prosecutor‘s question. The other answer—that Sutton had not informed the police that the shooting was an accident—is, of course, something the prosecutor could not permissibly have proved during cross-examination of Sutton.34 In the in-
Analogous is People v Ignofo, 315 Mich 626; 24 NW2d 514 (1946). There, the prosecutor cross-examined Ignofo about a conversation with his ex-wife in which they allegedly discussed Ignofo‘s involvement in a murder. Ignofo‘s lawyer did not object. Because of the statutory privilege pertaining to confidential marital communications,35 Ignofo‘s ex-wife could not have testified about any statements she had made. In answering the prosecutor‘s questions, Ignofo did not disclose any privileged marital communications, but instead denied that his former wife had made any statements regarding his involvement in the murder.36
Relying on People v Salisbury, 218 Mich 529; 188 NW 340 (1922),37 the Court found prejudicial error in the cross-examination and said that “[t]he
As in Ignofo, the prosecutor in the instant case could not have introduced the challenged evidence in the case in chief.39 In both Ignofo and the instant case, the prosecutor sought on cross-examination of the defendant to put before the jury otherwise inadmissible evidence. We see no reason to distinguish between creating an impression through questioning (Ignofo), and creating an impression by causing an objection or questioning to establish a predicate for the subsequent introduction of rebuttal testimony (Sutton).
D
On cross-examination and recross-examination of Bonner, Sutton‘s lawyer implied that Bonner was lying, and in closing argument the lawyer again stated that Sutton had informed the police that the shooting was an accident. It could thus be said that Sutton waived his right not to be impeached with post-Miranda silence on the theory that Sutton‘s lawyer placed in issue his postarrest conduct when he adopted the position that Sutton had informed Bonner that the shooting was an accident.
Under the circumstances of this case, the position taken by Sutton‘s lawyer cannot fairly be deemed a waiver of Sutton‘s right not to be impeached with post-Miranda silence. The assertions of Sutton‘s lawyer that Bonner was lying came after Bonner asserted that Sutton was lying. A defense lawyer is not expected to allow testimony that directly contradicts the testimony of his client
It may seem that our ruling allows a defendant to have his cake and eat it too. In the instant case, however, it was the prosecutor, and not the defendant, who baked the cake.40
III
The reference to Sutton‘s silence was not an isolated occurrence. Not only did Bonner testify regarding Sutton‘s failure to disclose the exculpatory version, he also testified regarding Sutton‘s post-Miranda exercise of the right to remain silent. The prosecutor referred to this testimony in closing argument.
The prosecutor asked an impermissible question during his cross-examination of Sutton. The result was a side show, a minitrial concerning a subject that should not have been broached and should not have been permitted to go further.
We agree with the Court of Appeals that Sutton did not receive a fair trial. Sutton‘s trial was a close credibility contest in which Sutton denied shooting the decedent, and one witness alone, among many present at the incident, testified that he saw Sutton shoot the decedent.
IV
The lead opinion places emphasis on several
In United States v Mavrick, 601 F2d 921 (CA 7, 1979), the defendant testified on direct examination that when he was arrested he was not given an opportunity to offer his exculpatory version of events to the police. In light of the impression created by Mavrick‘s testimony, the court concluded that it was permissible for the prosecutor to ask Mavrick whether he had been given an opportunity to explain his conduct to the FBI agents who took him into custody shortly after he was arrested.43 In the instant case, Sutton‘s testimony on
In United States v Fairchild, 505 F2d 1378 (CA 5, 1975), the prosecutor elicited testimony from a police officer that after receiving the Miranda warnings, the defendant had refused to make a statement. However, unlike Sutton, the defendant‘s lawyer in Fairchild created the impression through cross-examination of a different government witness that his client had coöperated fully with the authorities.45 The United States Court of Appeals for the Fifth Circuit held that the prosecutor‘s inquiry was permissible to rebut the impression that Fairchild had coöperated with the authorities. In the instant case, Sutton‘s lawyer did not create a similar impression through his
In United States v Conlin, 551 F2d 534, 537 (CA 2, 1977), the defendant‘s lawyer “propounded the theory that Conlin had spoken throughout the incident and had maintained from the outset that he had [an innocent explanation for his apparently unlawful conduct].” This theory was advanced during cross-examination of a government witness and through Conlin‘s own testimony. In the instant case, neither Sutton on direct examination nor his lawyer on cross-examination of Bonner during the prosecution‘s case in chief advanced the theory that Sutton had continuously asserted his innocence, at the time of the shooting or thereafter.
There is no basis on which it can be said that Sutton‘s testimony on direct examination created an inference—“arguable” or otherwise—that legitimately could be rebutted by testimony about his post-Miranda silence. There is no basis in fact for the lead opinion‘s suggestion that the prosecutor‘s initial inquiry on cross-examination might have been permissible to test “the credibility of defendant‘s testimony on direct examination implying that he would have made an explanation consis-
It is difficult to imagine a more routine description of an arrest than Sutton‘s testimony that the police grabbed him and informed him that he was being charged with first-degree murder. A defendant who testifies that he was arrested and informed of the charge does not thereby waive his constitutional right elucidated in Doyle not to be impeached with post-Miranda silence.48
CAVANAGH and ARCHER, JJ., concurred with LEVIN, J.
Notes
The Court added that “[t]he use of a defendant‘s prearrest, pre-Miranda ‘statements’ for impeachment purposes is one of relevancy, an evidentiary matter.” Id., p 747.
The Court added that “[w]hen constitutional obligations are fulfilled, use of a party opponent‘s statements and conduct are to be evaluated pursuant to MRE 801.” Id., p 222.
He also told us back in 1982, when the defendant was originally arrested, that the defendant never indicated to him that the shooting was an accident, but, in fact, indicated to him that he had nothing to say, no statement.
People v Ignofo, 315 Mich 626; 24 NW2d 514 (1946). See ns 35-39 and the accompanying text.Q. When did you tell the police it was an accident?
A. When did I tell the police it was an accident?
Q. Yes.
A. I can‘t remember exactly when.
Q. You did tell the police?
A. Yes.
Q. Do you have any idea when you told the police?
A. No. I can‘t remember.
Q. Do you have any idea what police you told?
A. Sergeant Bonner.
Q. Sergeant Bonner?
A. Yes.
Q. What year was that, sir?
A. ‘82.
Q. ‘82. Was that the same month of the shooting at the hall?
A. I think so, yes.
Q. Well, how did that occur? Did you call the police and tell them what happened?
A. I was in police custody.
Q. Sergeant Bonner, one question. At any time in 1982, did this defendant, ever, Mr. Sutton, ever, tell you that the shooting at the Fandango Hall was an accident?
A. No. He did not.
On initial appeal, the Court of Appeals reversed the defendant‘s convictions, finding an error under People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), on the basis of the trial court‘s failure to instruct, sua sponte, regarding the defendant‘s accidental shooting theory. People v Sutton, unpublished opinion per curiam of the Court of Appeals, decided April 24, 1986 (Docket No. 81069). This Court reversed the Court of Appeals judgment, reinstated the defendant‘s convictions, and remanded the case to the Court of Appeals for consideration of the remaining issues. 428 Mich 858 (1987).
Q. In fact, the defendant—did the defendant make any statement to you when his attorney was there?
A. I advised him of his Constitutional rights, on a certificate of notification form. He advised me that after conferring with his attorney, he wished to make no statement.
The fact that the prosecutor did not go further is perhaps explained by the fact that he knew Sutton had not made a statement. Thus, rather than bring out what Sutton had purportedly said through Sutton‘s own words on cross-examination, he wisely left to defense counsel the choice whether to drop the subject or to pursue an inquiry regarding what Sutton actually said. Defense counsel chose to pursue the content of the purported statement through suggestive questioning of Bonner. It is not who was questioned, but the fact that the theory was pursued that evidences the tactical decision of defense counsel. (Post, pp 606-607.)
The lead opinion, in contrast, places primary emphasis on what occurred after the prosecutor asked Sutton whether he had informed the police that the shooting was an accident.If we agreed with the lead opinion concerning whether Sutton had “opened the door” for the prosecutor‘s inquiry on cross-examination, we might find ourselves in substantial agreement with the lead opinion‘s analysis and result.
The Court recognized an exception to the general rule against impeachment with post-Miranda silence where such evidence is used to contradict testimony about a defendant‘s postarrest behavior. Id., p 619, n 11. This exception is not applicable in respect to the prosecutor‘s cross-examination because Sutton had not yet testified that he informed the police that the shooting was an accident. See part IV.
We are not referring to the applicability of the Doyle exception to Bonner‘s rebuttal testimony. Cf. ante, pp 594-595, n 19.
The lead opinion asserts that ”Lofquest and Franzen are distinguishable” because “[u]nlike the instant case, in Lofquest and Franzen the defendant did not testify at trial that he gave a statement to the police that was consistent with his exculpatory story given at trial.” Ante, p 596, n 22 (emphasis in original).
Lofquest and Franzen are cited only for the proposition that prosecutorial questioning that refers to both pre- and post-Miranda silence is impermissible. The validity of that proposition is not affected by the manner in which the defendant subsequently testifies.
We agree with Chief Justice RILEY‘s position in People v Dyson, 106 Mich App 90; 307 NW2d 739 (1981). The facts in Dyson are similar to those in Sutton. In Dyson, the defendant took the stand and presented an alibi defense. He was then asked on cross-examination whether he told his alibi to the complainant when she identified him, and he responded that he had. Moreover, he testified that he also told the police when they first stopped him. On redirect examination, the defendant maintained that he attempted to tell the officers but they told him to “shut-up.” On recross-examination, the defendant testified that he offered his story to the police but they were not interested in hearing it.
In rebuttal to the defendant‘s testimony, the prosecution recalled the two arresting officers. In response to narrow specific questions, both testified contrary to the defendant‘s testimony that he had not told them at the time of arrest of his alibi. The Dyson Court concluded, “[o]n these facts, we find that the officers’ testimony was proper rebuttal testimony. Having concluded that the testimony of the police officers was admissible to impeach defendant‘s own inconsistent statements at trial, we also conclude that it was properly brought in as rebuttal testimony.” Id., pp 95-96.
Like the defendant in Dyson, Sutton attempted to bolster his accident defense by testifying that he previously told his exculpatory story to the police officers “while in custody.” Thus, the Dyson Court‘s conclusion applies here as well. “The rebuttal testimony of the officers was that he had not told them. It was a simple contradiction of defendant‘s testimony that directly tended to disprove the exact testimony given by the witness. As so limited, it was proper rebuttal testimony, serving to impeach defendant on a material and relevant matter.” Id., p 97. But see contra People v Pelkey, 129 Mich App 325; 342 NW2d 312 (1983).
The lead opinion says that “the prosecutor‘s questions and state-In United States v Fairchild, supra, p 1383, the court concluded that defense counsel‘s elicitation from a police agent during cross-examination that his client had no criminal record and had voluntarily provided handwriting samples, followed by the question, “‘During the period of time that this investigation has been going on, to your knowledge has Mr. Fairchild cooperated fully with the FBI and U.S. Attorney‘s office in responding with anything that you all wanted?‘” permitted impeachment with postarrest silence.
See also United States v Mavrick, 601 F2d 921, 932 (CA 7, 1979), in which the defense counsel elicited the following testimony from the defendant in his direct examination:
The lead opinion says that “[a]n objection might have resulted in a direction from the trial court that the prosecutor‘s question was to be limited to the prearrest pre-Miranda warning period.” Ante, p 591, n 16. With or without an exhortation from the trial court, a prosecutor is obliged—and certainly able—to limit his questioning to the constitutionally permissible time frame.“Q. Did you attempt at the time of your arrest to explain your conduct to those officers who were taking you into custody?
“A. Yes, we did.
“Q. Did they give you an opportunity at that time to speak?
“A. No, they told us to shut up, and they don‘t want to hear it.”
There is thus no need to adopt a rule for the construction of prosecutorial questioning or comment that does not clearly refer to both pre- and post-Miranda silence. Cf. ante, p 594, n 19 (“Some courts hold that where postarrest post-Miranda silence is arguably in question, the burden is on the prosecutor to establish that there is a permissible line of inquiry“).
The jury in Sutton‘s trial was instructed on this offense.
In McKinney, 550 NE2d 608, the Appellate Court of Illinois concluded that “[t]o adopt a rule that it is likely that everyone who acts accidentally or negligently will immediately acknowledge that action or negligence fails to meet the test of reason.”
The effect of permitting such a course to be pursued cannot but be apparent to any person familiar with the trials of criminal cases. Propounding the question, even if answered in the negative, cannot but leave an impression on the minds of at least some of the jury that the wife, if permitted, would testify that the statement was made to her. The statute prohibits such disclosures on the part of the wife and in our opinion must be held to equally prohibit questioning the husband concerning them. [Id., p 536 (quoted in Ignofo, pp 639-640).]
Unlike Mavrick, in the instant case, the prosecutor‘s examination on surrebuttal was manifestly designed to elicit testimony that Sutton had remained silent when he was arrested. See n 13. Thus, even if Sutton had “opened the door” to the same extent as Mavrick, the opinion of the United States Court of Appeals for the Seventh Circuit would not necessarily support the lead opinion‘s position.
Also, in Mavrick, “[t]he prosecution did not pursue the matter any further and it did not argue it to the jury during closing argument.” Id., p 932. In contrast, the prosecutor in the instant case twice elicited testimony from Bonner regarding Sutton‘s silence and then mentioned Sutton‘s silence in closing argument.
“Q. Did you attempt at the time of your arrest to explain your conduct to those officers who were taking you into custody?
“A. Yes, we did.
“Q. Did they give you an opportunity at that time to speak?
“A. No, they told us to shut up, and they don‘t want to hear it.” [Id., p 932.]
The trial transcript—before the prosecutor‘s initial inquiry on cross-examination of Sutton—contains nothing remotely similar to the defendant‘s testimony in Mavrick. Summit v Blackburn, 795 F2d 1237 (CA 5, 1986), is distinguishable for the same reason.
In the instant case, Sutton did not testify on direct examination that he had spoken with the police. There is no basis for finding an “arguable inference” of coöperation which could then be rebutted with Sutton‘s postarrest silence.
It also should be noted that Dixon did not hold that the rebuttal testimony was not a Doyle violation. Rather, the court assumed a Doyle violation and held that under the circumstances any error was harmless. Id., pp 628-630.