People v. Cetlinski

• Decision Date: 11 September 1990
• Docket Number: Docket No. 81176
• Citation: 460 N.W.2d 534,435 Mich. 742
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Edward Jerome CETLINSKI, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 534

460 N.W.2d 534

435 Mich. 742

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Edward Jerome CETLINSKI, Defendant-Appellee.

Docket No. 81176.

Supreme Court of Michigan.

Argued March 9, 1988.

Decided Sept. 11, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nathan T. Fairchild, Pros. Atty., Lenawee County by Jonathan L. Poer, Asst. Pros. Atty., Adrian, for plaintiff-appellant.

John R. Minock, Ann Arbor, for defendant-appellee.

OPINION

BOYLE, Justice.

The issue raised in this case is whether People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973), precludes cross-examination regarding a prior statement, including omissions, to a police officer. ¹

In People v. Cetlinski ² the Court of Appeals held on initial appeal that the Fifth Amendment precluded asking the defendant during cross-examination why he had not told investigating officers, in the course of prearrest voluntary conversations with them regarding the fire, that he had had a conversation with his waitress and that the waitress had suggested the idea of burning Cetlinski's business. The court reversed the defendant's conviction. After our decision in People v. Collier, 426 Mich. 23, 393 N.W.2d 346 (1986), we remanded the case to the Court of Appeals for reconsideration in light of that decision. ³ On remand, the Court of Appeals adhered to its previous position, again concluding that Bobo required reversal and opining that Collier was inapplicable. ⁴

Despite the fact that over the years the issue whether Bobo correctly construes the requirement of the Fifth Amendment and if not, whether the Michigan Constitution requires a higher standard has spawned a degree of conflict and confusion in the Court of Appeals, ⁵ and despite the fact that the precise issue before us has produced a conflict in the Court of Appeals with regard to whether People v. Collier or Bobo applies to prior inconsistent statements, ⁶ Justice Levin asserts it is not necessary in this case to reach the Fifth Amendment issue or to address the due process requirements of the Fourteenth Amendment.

In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), ⁷ the United States Supreme Court held that the use of prearrest silence for impeachment purposes did not violate the Fifth Amendment. Moreover, regardless of whether this case involved a situation in which the defendant's silence was used to impeach or one where the defendant made statements to the police, omitting some material facts, the critical events took place prearrest and pre-Miranda ⁸ and thus there could be no due process claim that the state unfairly used defendant's silence or omission against him at trial in violation of the implicit assurance in Miranda that silence will not be penalized. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). ⁹

We hold that the use for impeachment purposes of a defendant's prior statement, including omissions, given during contact with the police, prior to arrest or accusation, does not violate the defendant's constitutional rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution. Indeed, long before Jenkins v. Anderson, the United States Supreme Court had held the Fifth Amendment was not violated by impeachment of a testifying defendant with voluntarily given prior inconsistent statements. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The use of a defendant's prearrest, pre-Miranda "statements" for impeachment purposes is one of relevancy, an evidentiary matter. ¹⁰ The threshold inquiry is whether this evidence makes "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. See Collier, supra, 426 Mich. p. 36, 393 N.W.2d 346.

This analysis is consistent with the United States Supreme Court's ruling in Jenkins. There the Court emphasized that

"[i]mpeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.... Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence, Sec. 1042, p 1056 (Chadbourn rev 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence [or statements, including omissions] is so inconsistent with present statements that impeachment by reference to such silence [or statements] is probative [of defendant's credibility]." Id., pp. 238-239, 100 S.Ct. p. 2129.

The statement of a party opponent is defined as an oral or written assertion or nonverbal conduct, MRE 801(d)(2). For impeachment purposes, the failure to assert a material fact when formerly narrating on the matter now dealt with amounts to an assertion, or statement, of the nonexistence of the fact. ¹¹ Thus, as an evidentiary matter, omissions from an affirmative voluntary response to questions about the same subject matter testified to at trial do not constitute "silence." ¹² Rather, they are "prior inconsistent statements," and can be used to impeach testimony at trial in which the witness admitted the fact's existence. As the Jenkins Court noted, the "[u]se of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts." Id., p. 238, 100 S.Ct. p. 2129. ¹³

As stated above, when an individual has not opted to remain silent, but has made affirmative responses to questions about the same subject matter testified to at trial, omissions from the statements do not constitute silence. The omission is nonverbal conduct that is to be considered an assertion of the nonexistence of the fact testified to at trial if a rational juror could draw an inference of inconsistency. To be sure, the witness may explain the omission by a desire not to implicate himself or because of a lapse of memory. Such explanations, however, do not remove the relevance of the inconsistency.

On this record, however, the majority is persuaded that evidentiary error, if any, was not prejudicial to the defendant. Accordingly, we reverse the decision of the Court of Appeals and reinstate the defendant's conviction.

I

On December 11, 1983, a fire destroyed a bar that the defendant owned and managed adjacent to the motel in which he and a woman companion lived. After almost six months of investigation, the defendant was charged with burning real property and burning insured property.

At trial the expert fire investigator's testimony revealed that the fire had been set intentionally by spreading kerosene throughout the bar. In addition, having found the bar locked at the time of the fire, the investigator concluded the fire was set by someone with a key to the bar. Only five people had keys to the bar, the defendant, his live-in girl friend and business partner, the bartender on duty that night, a friend who had borrowed defendant's car, and a waitress.

The waitress testified for the prosecution that about three months prior to the actual fire, the defendant and she had discussed burning down the bar, the details of how he wanted the fire to be set, and how defendant wanted the scene to appear to investigators. She also testified that defendant asked her if she knew anyone that would burn the bar and that he could pay $500 for the fire to be set after he received the insurance money. She stated that she told the defendant she would talk to her brother and that when she approached her brother about this he told her to stay out of it and to tell the defendant that it cost $5,000, more than defendant, wished to pay. When she relayed the message to defendant, she said he told her to forget it. ¹⁴

When defendant Cetlinski took the stand, in exculpation on direct examination, he stated while looking at the jury that he had discussed burning the bar with the waitress "as a joke." Further, he stated that it was she who first brought up the idea, that it was her idea to check on what the cost would be, and that after about a week she told defendant her brother said he knew someone who would burn the bar if the defendant wanted it done. ¹⁵ Although stating he only had joked with the waitress about burning the bar, the defendant testified that he later discussed the conversation with his girl friend and business partner, and that he agreed with her that it would be wrong. He then stated that he told his girl friend that "[W]e're going to go talk to [her] and tell her we don't want it burned. I told her [the waitress] two or three days in a row I don't want it burned.... I says, that's it."

This testimony served not only to rebut the waitress' testimony, but to suggest that she committed the arson and that defendant himself had nothing to do with the burning of the bar. Other proofs showed that she was one of four people who had keys to the bar and that she was present at the time of the fire.

The defendant also described being awakened by the police at his motel room next to the bar on the night of the fire, and stated he answered what the Court of Appeals characterized as "general investigation questions" at that time, as well as at various times during the course of the investigation. ¹⁶ It is undisputed that defendant gave generally exculpatory statements to the police during this period of time.

During cross-examination, the defendant testified that after the waitress suggested she knew someone who could burn the bar and that it could be made to look like a robbery, he had had a second conversation with her about a week after the first one, and it was at that time that she talked about price. Then, after his testimony established the fact that after the fire the bar looked exactly as the waitress had testified that she and the defendant had discussed it...