People v. Collier
| Decision Date | 16 September 1986 |
| Docket Number | No. 75603,75603 |
| Citation | 393 N.W.2d 346,426 Mich. 23 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Eric COLLIER, Defendant-Appellee. |
| Court | Michigan Supreme Court |
John D. O'Hair, Pros. Atty., Wayne County, Timothy A. Baughman, Deputy Chief, Civil and Appeals, Detroit, for plaintiff-appellant.
Matthew Posner, Detroit, for defendant-appellee.
The issue in this case is whether the Court of Appeals properly reversed defendant's conviction on the basis of improper prosecutorial cross-examination and argument concerning defendant's prearrest failure to inform the police of his version of the facts that he had been robbed.
Defendant was charged with assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, for stabbing Wade Dean on November 2, 1981. After a three-day jury trial, defendant was convicted of the lesser offense of assault with intent to commit great bodily harm less than murder on September 23, 1982. M.C.L. Sec. 750.84; M.S.A. Sec. 28.279. He was subsequently sentenced from six years eight months to ten years in prison.
There was conflicting testimony as to the events precipitating the stabbing. The only thing not in dispute is that there was an argument over some dogs. Victor Kemp testified that he had been taking care of two pit bull puppies owned by defendant for approximately one month prior to the stabbing. Kemp further testified that the day before the incident one of the puppies was stolen. When defendant discovered this, he went to Kemp's house and demanded payment for his loss. When Kemp refused to pay, he testified that defendant demanded that he be compensated by being given Kemp's own Doberman pinscher puppy. Dean, the stabbing victim, who was visiting Kemp, heard the two arguing in the driveway area of Kemp's residence and came outside to see what was happening. Both Dean and Kemp testified that after Dean came outside defendant began to make disparaging remarks about Dean. When Dean turned to walk away from the verbal altercation, he claimed that defendant set upon him and stabbed him four times, once in the stomach and three times in the back, with a short-bladed knife which defendant had taken from his pocket. Kemp testified that defendant then turned and threatened him with the knife, but that Kemp managed to elude him by running into the street. Both Kemp and Dean denied having weapons of any sort on their persons at any time during the altercation.
Defendant's version of the events was drastically different. He claimed that he had never given either of his pit bull puppies to Kemp. Rather, he claimed that he was walking one of his puppies down the street at approximately noon when Kemp asked to speak with him in the driveway area of Kemp's home. When defendant walked up to him, he claimed that Kemp pulled a gun and Dean appeared with a knife. Kemp demanded at gunpoint that defendant turn over the dog to him, and defendant complied. When Kemp took the dog inside, Dean continued to threaten defendant with the knife. Defendant testified that he then grappled with Dean and the knife fell to the ground, after which he picked it up. When Dean then picked up a two by four and swung it at him, defendant testified that he stabbed Dean with his own knife in self-defense and left.
On cross-examination of defendant, the prosecutor asked him if he had reported the incident to the police after he left the scene:
The prosecutor returned to this issue later in cross-examination of the defendant:
During the prosecutor's closing argument further reference was made to defendant's failure to contact the police:
Defendant lodged no objection to this argument or questioning.
After being convicted, defendant appealed as of right to the Court of Appeals raising five issues, that first of which asserted that the prosecutor violated the rule of People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973), by referring in both his questioning and closing argument to defendant's failure to contact the police after the incident occurred. In an unpublished per curiam opinion released December 6, 1984, the Court of Appeals agreed with defendant on the Bobo issue and reversed his conviction:
The Court further noted that our decision in Bobo had construed the result in that case under Const.1963, art. 1, Sec. 17, and that "we believe that even in light of United States Supreme Court precedent, the Michigan Supreme Court would continue to adhere to Bobo as a matter of state constitutional law."
We granted the prosecutor's application for leave to appeal on June 26, 1985. 422 Mich. 937.
In Bobo, we were presented the following question:
" '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?' " 390 Mich. 357, 212 N.W.2d 190 (emphasis added).
In Bobo, the defendant exercised his right to remain silent "[w]hen arrested by Detroit Police officers...." Id. At trial, defendant Bobo testified that just prior to being arrested near the scene of the crime two men, presumably potential suspects, ran past him from the general area of the crime. On cross-examination, the prosecutor, over timely objection from defense counsel, was permitted to ask the defendant if he had informed the police during interrogation about the two men. The prosecutor was also allowed to remark in closing argument that the defendant had said nothing to the police about the two men running past him despite objection by defense counsel.
We held that the questioning and argument were improper because they restricted "the exercise of the constitutional right to remain silent in the face of accusation." 390 Mich. 359, 212 N.W.2d 190 (emphasis added). We went on to state that it made "little difference" whether the defendant's silence was prior to or at the time of arrest because "the defendant's Fifth Amendment right to remain silent is constant." 390 Mich. 360, 212 N.W.2d 190.
We believe that the instant case is not controlled by Bobo because here the "silence" alluded to by the prosecutor occurred before any contact with the police. In Bobo, the defendant was detained by the police and may have been under arrest. Our statement that the right to remain silent is constant does not compel the conclusion that the questioning and argument on defendant's silence in this case were improper. That statement must be interpreted in light of the facts and in the context of Bobo. In Bobo, there was uncertainty as to whether defendant was in fact under arrest. 390 Mich. 364-365, 212 N.W.2d 190. (Dissenting opinion of Brennan, J.) When the majority asserted that it did not matter whether defendant was under arrest or not, it was merely saying that given the confrontation by the police, it was irrelevant to the analysis whether the arrest had been technically effectuated. Thus, the Bobo holding only applied to those situations where the state seeks to impeach a defendant with his silence maintained during contact with police officers. 1 Here, the prosecutor impeached defendant regarding his failure to report a robbery to the police. There was no questioning or mention of defendant's silence at or after his contact with the police. The questioning and closing argument in this case do not violate the rule of Bobo, and the Court...
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