People v. Dennis

• Decision Date: 03 July 2001
• Docket Number: Docket No. 116852, Calendar No. 8.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Eric Sherrod DENNIS, Defendant-Appellee.
• Court: Michigan Supreme Court

628 N.W.2d 502

464 Mich. 567

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

Docket No. 116852, Calendar No. 8.

Supreme Court of Michigan.

Argued March 7, 2001.

Decided July 3, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate

Attorney, Grand Rapids, MI, for the people.

State Appellate Defender (by Peter Jon Van Hoek) Detroit, MI, for the defendant-appellee.

Opinion

TAYLOR, J.

Defendant was convicted by a jury of (1) possession with intent to deliver more than 50, but less than 225, grams of cocaine, M.C.L. § 333.7401(2)(a)(iii); (2) possession of marijuana, M.C.L. § 333.7403(2)(d); (3) carrying a concealed weapon in a vehicle, M.C.L. § 750.227; (4) malicious destruction of police property, M.C.L. § 750.377b; (5) possession of a firearm during the commission of a felony, M.C.L. § 750.227b; and (6) felon in possession of a firearm, M.C.L. § 750.224f. The Court of Appeals reversed defendant's convictions because of testimony from a police detective that referenced defendant's refusal to submit to police questioning. While the testimony was inappropriate, we conclude that it did not amount to a violation of defendant's constitutional right to due process and that the trial court did not abuse its discretion by denying defendant's motion for a mistrial. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendant's convictions.

I

On the afternoon of August 23, 1997, defendant was a passenger in a van that was stopped by the police. A police officer observed that defendant was sitting with an object that turned out to be a safe between his legs. Eventually, the police called for a drug sniffing dog to be brought to the scene. At that point, defendant became "extremely enraged" and was placed in the back of a police car. After being placed in the police car, defendant kicked out its rear window, completely shattering the window. Eventually, the dog was brought inside the van, and it alerted to the safe. Later, the police opened the safe and found several packets of cocaine, a small amount of marijuana, a loaded "Tech Nine" handgun, and over $2,000 in cash.¹ This led to the present charges and convictions against defendant.

At issue now is the following testimony from defendant's trial that transpired during the direct examination of police detective Kent Cooper by the prosecutor after eliciting testimony that defendant had been arrested:

Q. What type of investigation follow-up did you do with regard to this?

A. I went out and attempted to interview [defendant], and at that time it was refused. He wished to speak to an attorney prior to me asking him any questions.

We note that the trial record does not include any express mention that defendant had been advised of his Miranda² rights to remain silent and to have an attorney present during custodial interrogation. However, the prosecution has effectively stipulated that defendant was in police custody following his arrest at the time of the attempted questioning and had been advised of his Miranda rights before rejecting Detective Cooper's attempt to interview him.³ Accordingly, our decision presumes that defendant's refusal to submit to police questioning constituted "postMiranda" silence.

Defense counsel requested a mistrial on the basis of Detective Cooper's testimony about defendant refusing to be questioned before speaking with an attorney. The trial court denied this request, stating that it was convinced the prosecutor did not intend to elicit testimony on this point and that it did not think "the jury picked it up or caught it in any way."

In its final instructions to the jury, the trial court provided the following curative instruction with regard to Detective Cooper's testimony referencing defendant's refusal to submit to a police interview:

Also, at one time Detective Cooper made mention of the fact that when we [sic] went out to the jail to talk to [defendant], [defendant] did not want to talk to him and [defendant] said that he wanted a lawyer.

This is an absolute right that every citizen of this country has. In fact, if Officer Cooper had talked to [defendant], he would have had to tell [defendant] before he even started talking that [defendant] had a right to refuse to talk, and [defendant] had a right to have a lawyer present when he was talking to the officer.

So the fact that [defendant] said he wanted a lawyer and didn't want to talk to the officer cannot be used by you in any way and is not any indication of anything. It's a constitutional right that every citizen of this country has.

II

Defendant argued before the Court of Appeals that the trial court improperly denied his motion for a mistrial. The Court of Appeals agreed with that conclusion. It treated the improper testimony from Detective Cooper as constituting a preserved claim of constitutional error that requires reversal unless it was harmless beyond a reasonable doubt. The Court stated that it could not conclude the error was harmless beyond a reasonable doubt and, accordingly, held that the trial court abused its discretion by denying defendant's motion for a mistrial. Unpublished opinion per curiam, issued April 14, 2000 (Docket No. 215244).

In its appeal to this Court, the prosecution argues that there was no constitutional violation because the prosecution did not attempt to use defendant's post-Miranda silence against him and that the trial court did not abuse its discretion by denying defendant's motion for a mistrial. As we will explain below, we agree.

III

We review a trial court's decision to deny a motion for a mistrial for an abuse of discretion. See, e.g., People v. Grove, 455 Mich. 439, 475-476, 566 N.W.2d 547 (1997).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court articulated the rule that the police must advise a suspect before custodial interrogation that the suspect has the right to remain silent, that anything the suspect says may be used against him, and that the suspect has a right to the presence of retained or, if indigent, appointed counsel during questioning.⁴ To be clear, the present case does not involve any allegation of a violation of Miranda itself because there is no claim that defendant was interrogated by the police without being afforded the warnings required by Miranda. Neither does this case involve any other type of claim under the Self Incrimination Clause of the Fifth Amendment, inasmuch as there is no claim that any involuntary statement by defendant was used against him.

Rather, properly understood, the present case involves a question regarding whether the testimony at issue from Detective Cooper violates defendant's constitutional right to due process under the Fourteenth Amendment. In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that the use of a criminal defendant's silence "at the time of arrest and after receiving Miranda warnings" for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

The Doyle Court explained that silence in the face of Miranda warnings cannot be used as evidence⁵ to cast doubt on the defendant's credibility for two basic reasons. First, silence in the face of Miranda warnings may reflect nothing more than an exercise of Miranda rights (as opposed to being any implicit acknowledgment of guilt):

Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. [Doyle, supra at 617, 96 S.Ct. 2240.]

Second, the Miranda warnings carry an implicit assurance that silence in reliance on those warnings will not be penalized:

Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. [Doyle, supra at 618, 96 S.Ct. 2240.]

Accordingly, the Doyle Court quoted with approval the statement in Justice White's concurrence in United States v. Hale, 422 U.S. 171, 183-184, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), that "it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to [the defendant's] silence at the time of arrest ..." after the defendant has received Miranda warnings. Doyle, supra at 620, 96 S.Ct. 2240. The Doyle Court reversed the convictions of the defendants on the basis of the prosecution's conduct in using their post-Miranda silence against them.

The circumstances of the present case differ greatly from those of Doyle. In Doyle, the prosecution unabashedly used the silence of each of the two defendants in the face of Miranda warnings against them at their respective trials. The prosecution repeatedly asked each defendant questions to emphasize that he did not provide an exculpatory version of events to the police after being arrested. In contrast, the present case involves a single question and answer in which Detective Cooper revealed in response to an open-ended question that defendant had refused to be interviewed by the detective before speaking with an attorney.

We recognize that Detective Cooper's answer may not reasonably be viewed as nonresponsive to the prosecutor's open-ended question asking about the "type of investigation follow-up" pursued by the detective. Detective Cooper's reply about his attempt to interview defendant described something that he did in attempting to...