People v. Bobo

• Decision Date: 21 November 1973
• Docket Number: No. 54293,54293
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ned Ladd BOBO, Defendant-Appellant. 390 Mich. 355, 212 N.W.2d 190
• Court: Michigan Supreme Court

Page 190

212 N.W.2d 190

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ned Ladd BOBO, Defendant-Appellant.

No. 54293.

390 Mich. 355, 212 N.W.2d 190

Supreme Court of Michigan.

Nov. 21, 1973.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Dept., Thomas P. Smith, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Gerald M. Lorence, Detroit, for the defendant-appellant.

Before the Entire Bench.

T. G. KAVANAGH, Justice.

The defendant, Ned Ladd Bobo, was arrested on June 5, 1968 and convicted of entering without breaking with intent to commit larceny in violation of 1931 P.A. 328, § 111, as amended by 1964 P.A. 133, § 1; M.C.L.A. § 750.111, M.S.A. § 28.306. On June 26, 1972 the court of appeals affirmed his conviction, 41 Mich.App. 362, 200 N.W.2d 335.

The question before us as posed by defendant is as follows:

'Where an accused exercises his constitutional right to remain silent at the time of arrest, does the use of such silence against him at trial under the doctrine of impeachment by prior inconsistent statement constitute prejudicial error where he made no allegations on direct examination as to what was said or not said at the time of arrest?'

We answer in the affirmative.

When arrested by Detroit police officers Bobo exercised his constitutional right to remain silent ¹ and made no statement.

At his trial when testifying on his own behalf Bobo stated on direct examination that just prior to his being arrested near the scene of the crime two men presumably potential suspects, ran past him from the general area of the crime. ²

Bobo was not asked by his counsel and did not volunteer whether or not he made any statement to the police officers. However, the prosecutor over timely objection by defense counsel was permitted by the court to ask Bobo on cross examination if he had, at the time of his interrogation told the officer about the two men who had run past him. ³

The court also permitted the prosecutor to remark during his closing argument to the jury that Bobo had said nothing to the police about two men running past him. ⁴

The prosecutor urges that we allow the prosecution to impeach a defendant by questioning him about what was said or not said to the police at the time of arrest as part of the res gestae citing People v. Noble, 23 Mich.App. 100, 101, 178 N.W.2d 118, 119 (1970), or as an inconsistent 'non-utterance', citing People v. Calhoun, 33 Mich.App. 141, 147, 189 N.W.2d 743, 746 (1971).

The use of a 'non-utterance' as approved in Calhoun was analyzed and criticized by Justice Levin in his dissent in People v. McColor, 36 Mich.App. 455, 458--465, 194 N.W.2d 99, 99--103 (1971). We can add nothing to his analysis and criticism except our endorsement and the observation that Calhoun conflicts with and must be regarded as overruled by People v. Graham, 386 Mich. 452, 192 N.W.2d 255 (1971).

We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. 'Non-utterances' are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.

In Graham, supra, which was decided following the decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), we permitted the prosecution to cross examine the defendant with respect to his silence at the time of arrest because the defendant testified on direct examination that he had repeatedly told the police at the time of arrest and while incarcerated that he wanted to explain the whole situation involved in his arrest.

In Graham, supra, 386 Mich. p. 458, 192 N.W.2d p. 258, we stated:

'In our holding today, we stress that the defendant's refusal to speak during interrogation is admissible only to impeach his own inconsistent statements at trial.'

In the present case on direct examination defendant gave no testimony whatsoever regarding any statement made to the police or anyone else.

On appeal the parties properly drew no distinction from the circumstance that the 'non-statement' was made to the questioning officer rather than the arresting officer. The prosecutor's counter statement of questions involved is:

'Whether the Court of Appeals erred in upholding the trial court's admission of evidence of Arrest silence for impeachment?' (Emphasis supplied).

Here the defendant might well have considered himself to be under arrest.

Officer Berryman testified that while off duty after completing his shift, he was driving near the scene of the crime here involved. He observed a hold-up in progress from which some suspects fled. Because he was but a block away he circled around and saw two men running through an alley. One of the men was defendant Ned Ladd Bobo. Believing them to be the suspects he had seen fleeing the hold-up he stopped them at gun point and identified himself as a police officer. He asked them for identification and while he was checking their identification, Officer Selick came running up and two other officers came up in a car and Officer Selick placed the two men under arrest.

What concerned the parties and what prompted our grant of leave was the propriety of using the fact of defendant's silence either as evidence of guilt or for the purpose of impeachment.

Whether his silence was prior to or at the time of arrest makes little difference--the defendant's 5th Amendment right to remain silent is constant.

In Michigan we have been committed to the doctrine since long before Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) that even in the face of specific accusation of a crime that an accused's silence may not be used against him. In People v. Bigge, 288 Mich. 417, 285 N.W. 5 (1939), this Court said:

'The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. 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.'

If silence in the face of specific accusation may not be used, it would be a strange doctrine indeed that would permit silence absent such an accusation to be used as evidence of guilt.

It is unimportant whether the accuser be a police officer or not. Manifestly whenever a person is stopped for interrogation by the police, whether technically under arrest or not, the 5th Amendment guarantees that his silence may not be used against him.

The prosecutor's reliance on Noble, supra, as authority for admitting evidence of defendant's silence as part of the res gestae seems misplaced. Noble held that a complainant's report of an assault after 12 hours could be considered as part of the res gestae of that crime, but it did not speak at all to the question of a defendant's silence.

In People v. Todaro, 253 Mich. 367, 235 N.W. 185 (1931), and on rehearing, 256 Mich. 427, 240 N.W. 90 (1932) a majority of the court held that silence in the face of accusation by an unidentified accuser might be shown as part of the res gestae and such silence be regarded as acquiescence in the truth of the charge. We are persuaded that the reasoning of the dissenters in that case is more persuasive and in light of our conviction that such a doctrine is wholly at odds with the law defining our rights under the 5th Amendment, overrule Todaro.

Borrowing from Justice Higbee in State v. Hogan, 252 S.W. 387 (Mo.Sup.1923), we quote his observation:

'This humane rule has higher sanction than mere judicial precedent. At the trial of Jesus before the Sanhedrin, we read:

"59. Now the chief priests and elders, and all the council, sought false witness against Jesus, to put him to death;

"60. But found none; yea, though many false witnesses came, yet found they none. At the last came two false witnesses.

"61. And said, This fellow said, I am able to destroy the temple of God, and to build it in three days.

"62. And the high priest arose, and said unto him, Answerest thou nothing? What is it which these witness against thee?

"63. But Jesus held his peace."

--Matthew 26:59--63.

When he was before Pilate:

"11. And Jesus stood before the governor: and the governor asked him, saying, Art thou the King of the Jews? And Jesus said unto him, Thou sayest.

"12. And when he was accused of the chief priests and elders, he answered nothing.

"13. Then said Pilate unto him, Hearest though not how many things they witness against thee?

"14. And he answered them never a word; insomuch that the governor marveled greatly."

--Matthew 27:11--14.'

Reversed and remanded for new trial.

T. M. KAVANAGH, C.J., and LEVIN and WILLIAMS, JJ., concur.

BRENNAN, Justice (dissenting).

I must dissent.

The difficulty with the majority decision is that it does not fit the facts of the case before us.

For emphasis, I have italicized quoted portions of the majority opinion in the following quotations:

'The question before us as posed by defendant is as follows:

"Where an accused exercises his constitutional right to remain silent At the time of arrest, does the use of such silence against him at trial under the doctrine of impeachment by prior inconsistent statement constitute prejudicial error where he made no allegations on direct examination as to what was said or not said At the time of arrest?'

'The prosecutor urges that we allow the prosecution to impeach a defendant by questioning him about what was said or not said to the police At the time of arrest as part of the Res gestae citing People v. Noble, 23 Mich.App. 100, 101, 178 N.W.2d 118, 119 (1970), or as an inconsistent 'nonutterance', citing People v. Calhoun, 33...