People v. Boyd

• Decision Date: 01 July 2004
• Docket Number: Docket No. 118021, Calendar No. 9.
• Citation: 682 N.W.2d 459,470 Mich. 363
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric BOYD, Defendant-Appellant.
• Court: Michigan Supreme Court

682 N.W.2d 459

470 Mich. 363

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric BOYD, Defendant-Appellant.

Docket No. 118021, Calendar No. 9.

Supreme Court of Michigan.

Argued October 16, 2003.

Decided July 1, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Terrance K. Boyle, Deputy Chief, Appeals, Detroit, MI, for the people.

Caputo Brosnan P.C. (by Paul C. Louisell and Susan R. Chrzanowski), Warren, MI, for the defendant.

OPINION

CORRIGAN, C.J.

In this case, we consider whether a defendant must testify in order to preserve for appellate review a challenge to a trial court's ruling in limine allowing evidence that the defendant exercised his Miranda¹ right to remain silent. In Luce v. United States, 469 U.S. 38, 43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), the United States Supreme Court held that a defendant must testify to preserve for appeal a challenge to a ruling in limine involving impeachment with prior convictions. We adopted the Luce rule in People v. Finley, 431 Mich. 506, 431 N.W.2d 19 (1988) (opinions by RILEY, C.J., and by Brickley, J., concurring in part),² which also involved impeachment by prior convictions.

Because the same reasons for requiring a defendant to testify to preserve a challenge to pretrial evidentiary rulings in Luce and Finley apply in the circumstances of this case, we extend the rule from Luce and Finley to the errors alleged here. We hold that defendant was required to testify to preserve for review his challenge to the trial court's ruling in limine allowing the prosecutor to admit evidence of defendant's exercise of his Miranda right to remain silent. Because the statement at issue in this case would have been properly admissible in one context, defendant's failure to testify precludes us from being able to determine whether the trial court's ruling was erroneous and, if so, whether the error requires reversal. We thus affirm the judgment of the Court of Appeals holding that defendant was required to testify to preserve his challenge for appellate review.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

On June 14, 1997, the twelve-year-old victim attended a barbeque at a neighbor's apartment in the building where defendant lived. The victim testified that defendant grabbed her at the barbeque, took her to his apartment, and had sexual intercourse with her. She told her friend, an eleven-year-old girl, about the assault immediately thereafter, but did not tell her father about it until a week later. Her father then called the police and took her for a medical examination. The results of the examination were inconclusive regarding penetration because of the interval between the alleged penetration and the examination.

Police arrested defendant shortly after the victim's father reported the incident. Defendant furnished a statement to police after being advised of his Miranda rights. After defendant answered five or six questions, the police officer asked him, "When you last saw her [the victim], how many times did you have sex with her?" Defendant responded, "I am taking the fifth on that one." The officer immediately ended the interrogation.

The prosecutor charged defendant with first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(a) (sexual penetration of victim under thirteen years of age). Immediately before trial, defendant moved in limine to exclude that portion of his statement in which he asserted his Miranda right to remain silent. The prosecutor opposed the motion, arguing that the entire statement was admissible. The trial court ruled that defendant's entire statement was admissible.

Despite this ruling, the prosecutor never sought to admit defendant's statement into evidence and did not refer to the statement during opening or closing argument. Defendant elected not to testify, but the record does not reflect the reason for his decision. Defendant's brother testified that defendant had been with him at the apartment at the time of the alleged assault and that no assault occurred. The young female friend of the complainant testified that the victim told her about the assault immediately after it had occurred. The friend also testified that the victim was crying, her clothes were "messed up," and she was missing a pair of shorts.

The jury convicted defendant of seconddegree criminal sexual conduct, M.C.L. § 750.520c, and the trial court sentenced him to a ten- to fifteen-year term of imprisonment.

The Court of Appeals affirmed.³ Defendant argued, inter alia, that his decision not to testify at trial was based on the trial court's erroneous ruling in limine allowing the prosecutor to use the assertion of his Miranda right to remain silent against him. The Court of Appeals agreed that the trial court's ruling was erroneous, but, citing Finley, held that reversal was not required because defendant did not testify and the evidence was never admitted. The Court declined to assume that defendant chose not to testify "out of fear of impeachment." It also concluded that the evidence against defendant was overwhelming and that any error was harmless beyond a reasonable doubt.

We granted defendant's application for leave to appeal.⁴

II. STANDARD OF REVIEW

This case requires us to determine whether a defendant must testify in order to preserve for appellate review a challenge to a ruling in limine allowing admission of his exercise of his silence. We review de novo this question of law. People v. Mendoza, 468 Mich. 527, 531, 664 N.W.2d 685 (2003).

III. ANALYSIS

A. Luce and Finley

In circumstances analogous to the instant factual scenario, the United States Supreme Court held that a defendant must testify to preserve for appeal the issue of improper impeachment by prior convictions. Luce, supra at 43, 105 S.Ct. 460. In Luce, the petitioner sought to preclude the use of a prior conviction to impeach his testimony. The trial court ruled that the prior conviction was admissible under FRE 609(a). The petitioner did not testify and was convicted. Luce, supra at 39-40, 105 S.Ct. 460.

The Supreme Court upheld the convictions, citing numerous reasons for requiring the petitioner to testify to preserve his challenge to the pretrial evidentiary ruling. First, the Court reasoned that if the petitioner had testified and been impeached with the prior conviction, the trial court's decision admitting the evidence would have been reviewable on appeal. Id. at 41, 105 S.Ct. 460. The Court recognized the difficulty inherent in reviewing an evidentiary ruling outside a factual context, particularly because FRE 609(a)(1) required a reviewing court to weigh the probative value of a prior conviction against its prejudicial effect. To perform this balancing test, the Court opined, a reviewing court must know the precise nature of the defendant's testimony, which is unknown unless he testifies. Luce, supra at 41, 105 S.Ct. 460. The Court rejected the notion that an offer of proof would be sufficient because a defendant's trial testimony could differ from the proffer. Id. at n. 5.

Second, the Court recognized that any possible harm from a trial court's ruling in limine allowing impeachment with prior convictions is wholly speculative in the absence of the defendant's testimony. The Court opined that such a ruling is subject to change depending on how the case unfolds at trial and that a court, exercising sound judicial discretion, could modify a previous ruling in limine. The Court also stated that without a defendant's testimony, a reviewing court has no way of knowing whether the prosecutor would have sought to introduce the prior conviction for impeachment. For example, if the prosecutor's case is strong and other means of impeachment are available, the prosecutor may choose not to use an arguably inadmissible prior conviction. Id. at 41-42, 105 S.Ct. 460.

Third, the Court reasoned that appellate courts cannot assume that an adverse pretrial ruling motivated a defendant's decision not to testify. The Court rejected the notion that a defendant could commit to testifying if his motion is granted because such a commitment is relatively risk-free and difficult to enforce. Id. at 42, 105 S.Ct. 460.

In addition, the Court acknowledged the problem involving application of a harmless error analysis because "the appellate court could not logically term `harmless' an error that presumptively kept the defendant from testifying." Id. Thus, nearly every error would automatically require reversal. Finally, the Court opined that requiring defendants to testify enables reviewing courts to assess the effect of any erroneous impeachment in light of the entire record and tends to discourage gamesmanship whereby a defendant's motion operates solely to "plant error" requiring reversal on appeal. Id.

In Finley, a majority of this Court adopted the Luce rule. We observed that the purpose of the rule is to provide for meaningful appellate review of a ruling in limine allowing impeachment by prior convictions. Finley, supra at 512, 431 N.W.2d 19 (opinion of RILEY, C.J.). The lead opinion stated that "error does not occur until error occurs; that is, until the evidence is admitted." Id. It further stated that even if an offer of proof is made and evidence is erroneously deemed admissible, error requiring reversal does not arise until the evidence is actually introduced. The lead opinion then reiterated the reasons stated in Luce favoring the rule requiring a defendant's testimony to preserve the issue for appellate review. Id. at 512-513, 431 N.W.2d 19.

B. Extension of the Luce and Finley Rule

Many courts have extended the rule announced in Luce and adopted in Finley to contexts other than those involving impeachment by prior convictions.⁵ In United States v. Wilson, 307 F.3d 596, 598 (C.A.7, 2002), the defendant moved in limine to preclude the...