People v. Clary

• Decision Date: 25 June 2013
• Docket Number: Calendar No. 8.,Docket No. 144696.
• Parties: PEOPLE v. CLARY.
• Court: Michigan Supreme Court

494 Mich. 260

833 N.W.2d 308

PEOPLE

v.CLARY.

Docket No. 144696.

Calendar No. 8.

Supreme Court of Michigan.

Argued Jan. 9, 2013.

Decided June 25, 2013.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and David A. McCreedy, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Michael L. Mittlestat and Jessica L. Zimbelman) for defendant.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Bruce H. Edwards, Assistant Attorney General, for the Department of the Attorney General.

MARKMAN, J.

Defendant's first trial was declared a mistrial because of a hung jury. Following defendant's second jury trial, he was convicted of assault with intent to murder and possession of a firearm during the commission of a felony. On appeal, the Court of Appeals reversed defendant's convictions, concluding inter alia that defendant had been improperly impeached with his silence when the prosecutor made repeated references to his failure to testify at his first trial. We granted leave requesting that the parties address: (1) whether the prosecutor's impeachment of defendant's testimony using defendant's failure to testify at his earlier trial violated defendant's Fifth Amendment right against self-incrimination and (2) whether prior consistent statements by the complainant were admissible under MRE 801(d)(1)(B). People v. Clary, 491 Mich. 933, 814 N.W.2d 292 (2012).

Because we believe that the prosecutor's impeachment of defendant's testimony with his failure to testify at his earlier trial was not improper, we reverse the judgment of the Court of Appeals to that extent. The Court of Appeals also addressed whether the prosecutor's references to defendant's post-arrest, post-Miranda silence were improper and held that reversal was not required because the record was unclear regarding whether the post-arrest silence also constituted post-Miranda silence. However, our review of the transcript of defendant's arraignment indicates that defendant was informed of his Miranda rights at his arraignment, and thus we hold that the prosecutor's references to defendant's post-arrest, post-Miranda silence at trial plainly violated Doyle v. Ohio, 426 U.S. 610, 618–619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Accordingly, we do not disturb the ultimate disposition reached by the Court of Appeals, i.e., the reversal of defendant's convictions. We otherwise vacate this Court's June 6, 2012 order granting leave to appeal and deny the prosecutor's application for leave to appeal because we are not persuaded that this Court should review the remaining question presented. Finally, we remand this case to the trial court for further proceedings consistent with this opinion. If defendant chooses to testify at a third trial, the prosecutor may again refer to defendant's failure to testify at his first trial without violating defendant's constitutional rights.

I. FACTS AND HISTORY

At defendant's first trial, the complainant testified that defendant shot him. Defendant did not testify. The trial was eventually declared a mistrial because of a hung jury. At defendant's second trial, the complainant again testified that defendant shot him, but this time defendant testified that he did not shoot the complainant. The prosecutor impeached defendant's testimony by asking him why he had not provided that testimony at the first trial.¹ The prosecutor also commented on defendant's silence at his first trial during closing arguments.² Following defendant's second jury trial, defendant was convicted of assault with intent to murder, MCL 750.83, and possession of a firearm during the commission of a felony, MCL 750.227b. The Court of Appeals reversed defendant's convictions, concluding, among other things, that defendant was improperly impeached with his silence when the prosecutor made several references to defendant's failure to testify at his first trial. People v. Clary, unpublished opinion per curiam of the Court of Appeals, issued February 16, 2012 (Docket No. 301906), 2012 WL 516072. We granted the prosecutor's application for leave to appeal. Clary, 491 Mich. 933, 814 N.W.2d 292.

II. STANDARD OF REVIEW

Whether defendant was improperly impeached with his silence is a question of law that we review de novo. People v. Borgne, 483 Mich. 178, 184, 768 N.W.2d 290 (2009).

III. ANALYSIS

A. BACKGROUND

The Fifth Amendment of the United States Constitution provides that “[n]o person shall ... be compelled in any criminal case to be a witness against himself....” U.S. Const., Am. V. See also Const. 1963, art. 1, § 17. The Fifth Amendment has been made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 3, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in order to protect the privilege against compelled self-incrimination during custodial police interrogations, the suspect “must be warned that he has a right to remain silent [and] that any statement he does make may be used as evidence against him....” The United States Supreme Court has held that “the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence [at trial] or instructions by the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). That is, the Fifth Amendment prohibits using a defendant's failure to take the stand as substantive evidence of guilt. Id. The Court has also held that “ ‘[w]hen a person under arrest is informed, as Miranda requires, that he may remain silent, [and] that anything he says may be used against him,’ ” “it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence [at the time of his arrest] to be used to impeach an explanation subsequently offered at trial.” Doyle, 426 U.S. at 618–619, 96 S.Ct. 2240 (citation omitted); see also Borgne, 483 Mich. at 186–188, 768 N.W.2d 290;People v. Shafier, 483 Mich. 205, 212–214, 768 N.W.2d 305 (2009).³

However, the United States Supreme Court has also held that “the use of prearrest silence to impeach a defendant's credibility violates [n]either the Fifth [n]or the Fourteenth Amendment to the Constitution.” Jenkins v. Anderson, 447 U.S. 231, 232, 238, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); see also People v. Cetlinski (After Remand), 435 Mich. 742, 757, 460 N.W.2d 534 (1990) (“[N]either the Fifth Amendment nor the Michigan Constitution preclude[s] the use of prearrest silence for impeachment purposes.”). Moreover, it has also held that “[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.” Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). Finally, it has held that “the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence” at his first trial. Jenkins, 447 U.S. at 235, 100 S.Ct. 2124, citing Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926).

B. RAFFEL AND STEWART

In Raffel, 271 U.S. at 496, 499, 46 S.Ct. 566, the United States Supreme Court held that it was not “error to require the defendant, Raffel, offering himselfas a witness upon the second trial, to disclose that he had not testified as a witness in his own behalf upon the first trial.”

The immunity from giving testimony is one which the defendant may waive by offering himself as a witness. When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue. He may be examined for the purpose of impeaching his credibility. His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge, may be the basis of adverse inference, and the jury may be so instructed.[[[⁴ His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.

If, therefore, the questions asked of the defendant were logically relevant, and competent within the scope of the rules of cross-examination, they were proper questions.... [Id. at 496–497, 46 S.Ct. 566 (citations omitted).]

The Court then held that asking the defendant about his silence at his first trial was logically relevant and competent within the scope of the general rules of cross-examination:

[W]e do not think the questions asked of him were irrelevant or incompetent. For if the cross-examination had revealed that the real reason for the defendant's failure to contradict the government's testimony on the first trial was a lack of faith in the truth or probability of his own story, his answers would have a bearing on his credibility and on the truth of his own testimony in chief.⁵

It is elementary that a witness who upon direct examination denies making statements relevant to the issue, may be cross-examined with respect to conduct on his part inconsistent with this denial. The value of such testimony, as is always the case with cross-examination, must depend upon the nature of the answers elicited; and their weight is for the jury. But we cannot say that such questions are improper cross-examination, although the trial judge might appropriately instruct the jury that the failure of the defendant to take the stand in his own behalf is not in itself to be taken as an admission of the truth of the...