People Of The State Of Mich. v. Redd

• Decision Date: 11 June 2010
• Docket Number: Docket No. 138161.,COA No. 283934.
• Citation: People v. Redd, 486 Mich. 966, 783 N.W.2d 93 (Mich. 2010)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee,v.Anthony Marion REDD, Defendant-Appellant.
• Court: Michigan Supreme Court

486 Mich. 966

783 N.W.2d 93

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Anthony Marion REDD, Defendant-Appellant.

Docket No. 138161.

COA No. 283934.

Supreme Court of Michigan.

June 11, 2010.

Order

On order of the Court leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we VACATE our order of May 29, 2009. The application for leave to appeal the December 4, 2008 judgment of the Court of Appeals is DENIED, because we are no longer persuaded that the question presented should be reviewed by this Court.

MARKMAN, J. (concurring).

I concur in the Court's order denying leave to appeal. I write separately only to offer some context and perspective concerning the meaning and continued significance of People v. Bigge, 288 Mich. 417, 285 N.W. 5 (1939). Specifically, it is necessary to emphasize that: (1) Bigge 's rule is evidentiary in nature as it concerns the admissibility of tacit admissions under MRE 801(d)(2)(B); and (2) every so-called Bigge error does not require automatic reversal. Accordingly, contrary to Chief Justice KELLY's assertion, a Bigge error can be waived by a criminal defendant.

In Bigge, the prosecutor in his opening statement made reference to the defendant's silence in the face of an incriminatory accusation made in his presence. This Court ruled that the defendant's failure to deny the accusation could not be used as substantive evidence of guilt, explaining:

There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt. [ Bigge, 288 Mich. at 420, 285 N.W. 5.]

Bigge, grounding its determination in the “right of due process,” found that this error required reversal, stating that it was “so prejudicial as to constitute irreparable error.” Id. at 421, 285 N.W. 5.

Since Bigge, this Court has had several occasions on which to reexamine this rule. In People v. McReavy, 436 Mich. 197, 213, 462 N.W.2d 1 (1990), we clarified that Bigge 's exclusionary rule is evidentiary in nature, and equated it with MRE 801(d)(2)(B), which states: “A statement is not hearsay if ... the statement is offered against a party and is ... a statement of which the party has manifested an adoption or belief in its truth.” McReavy further explained that Bigge precludes admissibility of a defendant's failure to say anything in the face of an accusation as an adoptive or tacit admission under MRE 801(d)(2)(B) unless the defendant ‘manifested his adoption or belief in its truth....’ Id. We reiterated this understanding in People v. Hackett, 460 Mich. 202, 213, 596 N.W.2d 107 (1999), in which we noted that “[a]lthough Bigge preceded the enactment of the Michigan Rules of Evidence, the rule of Bigge, like MRE 801(d)(2)(B), concerns tacit admissions.”

I take this opportunity to again clarify that Bigge 's rule is evidentiary and that “use of a party opponent's statements and conduct are to be evaluated pursuant to MRE 801.” McReavy, 436 Mich. at 222, 462 N.W.2d 1. For although Bigge concluded that the error before it was of constitutional proportion, significant developments in Michigan's legal landscape in subsequent years have undermined that conclusion. These developments include the enactment of the Rules of Evidence ¹ and significant changes to Fifth and Fourteenth Amendment jurisprudence occasioned by decisions of the United States Supreme Court.

Not least among the decisions that have altered our understanding of the constitutional implications of a defendant's silence is Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Despite the fact that Bigge predated Miranda by 27 years, this Court in People v. Bobo, 390 Mich. 355, 359-361, 212 N.W.2d 190 (1973), associated Bigge 's rule with the Fifth Amendment privilege against compelled self-incrimination protected in Miranda to support its holding that a criminal defendant's silence could never be used against him under any circumstances during a trial, regardless of whether the evidence was used substantively or for impeachment, or whether the silence was prior to or at the time of arrest. However, the United States Supreme Court declined to extend such broad protections. Instead, that Court held that the Due Process Clause of the Fourteenth Amendment is violated when a defendant's silence at the time of arrest and after receiving Miranda warnings, is used for impeachment purposes Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and that the Fifth and Fourteenth Amendments are not violated when a defendant's pre-arrest, pre- Miranda silence is used for impeachment. Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The Supreme Court left the admissibility of such evidence to be determined by evidentiary laws of the states. Id. This Court has subsequently construed Michigan's constitutional protections as “coextensive with the Fifth Amendment of the United States Constitution and the due process analysis of Doyle v. Ohio.” People v. Cetlinski, 435 Mich. 742, 759, 460 N.W.2d 534 (1990).

Thus, both the United States Supreme Court and this Court have made clear that there are no constitutional bars to using a defendant's pre-arrest, pre- Miranda silence-the precise type of silence at issue in Bigge-for impeachment. While neither of these Courts has addressed the substantive use of defendant's silence in such circumstances, our Court of Appeals, as well as several federal circuits, have likewise found no constitutional barriers to the admission of such evidence for this purpose. See People v. Schollaert, 194 Mich.App. 158, 166-167, 486 N.W.2d 312 (1992); People v. Solmonson, 261 Mich.App. 657, 665, 683 N.W.2d 761 (2004); United States v. Love, 767 F.2d 1052, 1063 (C.A.4, 1985); United States v. Oplinger, 150 F.3d 1061, 1066 (C.A.9, 1998), overruled on other grounds in United States v. Contreras, 593 F.3d 1135 (C.A.9, 2010). In Solmonson, our Court of Appeals explained:

[W]here a defendant has received no Miranda warnings, no constitutional difficulties arise from using the defendant's silence before or after his arrest as substantive evidence unless there is reason to conclude that his silence was attributable to the invocation of the defendant's Fifth Amendment privilege. [ Solmonson, 261 Mich.App. at 665, 683 N.W.2d 761.]

In my view Solmonson sets forth a correct statement of the law regarding the constitutional implications of the substantive use of a defendant's silence in a pre-arrest, non-custodial interview. Because of the absence of governmental coercion or compulsion to speak in this non-custodial, pre- Miranda setting, the Fifth Amendment is simply inapplicable. As Justice STEVENS explained in his concurrence in Jenkins:

When a citizen is under no official compulsion whatever, either to speak or to remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment. For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent. A different view ignores the clear words of the Fifth Amendment. [ Jenkins, 447 U.S. at 243-244, 100 S.Ct. 2124.]

In view of these developments, Bigge 's constitutional foundations as to the admissibility of tacit admissions in a pre-arrest, non-custodial context have been severely eroded. Rather, the admissibility of such testimony is to be evaluated under MRE 801(d)(2)(B). See McReavy, 436 Mich. at 222, 462 N.W.2d 1; Hackett, 460 Mich. at 213, 596 N.W.2d 107. “[A]n evidentiary approach to the use of a defendant's pre-arrest, pre- Miranda statements, including omissions, will adequately protect the policy interest in foreclosing the factfinder from unfair inferences of guilt.” Cetlinski, 435 Mich. at 759, 460 N.W.2d 534.

This understanding of a Bigge error leads to my second point of clarification. Although Bigge found that the error before it was “so prejudicial as to constitute irreparable error,” when Bigge is properly understood as concerning a violation of MRE 801(d)(2)(B), it is clear that not every Bigge violation amounts to an “irreparable error” if this is interpreted as requiring automatic reversal. The reversal of a conviction entails substantial social costs and, thus, rules of automatic reversal are disfavored. People v. Mosko, 441 Mich. 496, 502, 495 N.W.2d 534 (1992); People v. France, 436 Mich. 138, 161, 461 N.W.2d 621 (1990). This Court has explained that such “structural errors” are “intrinsically harmful” and “necessarily render[ ] unfair and unreliable the determining of guilt or innocence.” People v. Duncan, 462 Mich. 47, 51, 610 N.W.2d 551 (2000) (holding that the complete failure to instruct the jury regarding any of the elements necessary to determine if the prosecutor has proven the charge beyond a reasonable doubt constituted structural error requiring automatic reversal).

Against this backdrop Bigge 's “irreparable error” language is extraordinary. Indeed, in the history of Michigan's criminal jurisprudence, Bigge is the singular authority for an “irreparable error,” and its language has only been invoked three times in the 70 years since Bigge was decided, and just once in a majority opinion of this Court. People v. Gibbs, 483 Mich. 925, 763 N.W.2d 280 (2009) (KELLY, C.J., dissenting); People v. Robinson, 386 Mich. 551, 564, 194 N.W.2d 709 (1972); People v. Christensen, 64 Mich.App. 23, 36, 235 N.W.2d 50 (1975) (KAUFMAN, J, dissenting). To give this language broad effect, and to preclude a finding of waiver or harmless error for every violation of Bigge, would conflict with ...