People v. Gallon

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: People v. Gallon, 328 N.W.2d 615, 121 Mich.App. 183 (Mich. App. 1983)
• Decision Date: 24 January 1983
• Docket Number: Docket Nos. 57826,57830
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward GALLON, Jr., Defendants-Appellants. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas McGEE, Jr., Defendants-Appellants. 121 Mich.App. 183, 328 N.W.2d 615

Page 615

328 N.W.2d 615

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward GALLON, Jr., Defendants-Appellants.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas McGEE, Jr., Defendants-Appellants.

Docket Nos. 57826, 57830.

121 Mich.App. 183, 328 N.W.2d 615

Court of Appeals of Michigan.

Submitted June 8, 1982.

Decided Nov. 4, 1982.

Released for Publication Jan. 24, 1983.

[121 MICHAPP 185] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate, Asst. Pros. Atty., and A. George Best II, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Peter Jon VanHoek, Detroit, for defendants-appellants on appeal.

Before J.H. GILLIS, P.J., and WAHLS, and BELL ^*, JJ.

PER CURIAM.

Defendants were convicted by a jury of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. They appeal as of right.

On August 16, 1980, two men robbed a Pic-Way shoe store in Southgate. During the robbery, one of the robbers showed a store employee a can of "mace". The man also claimed to have a knife. Shortly after the robbery, the defendants were [121 MICHAPP 186] apprehended by the police. The automobile which defendant McGee had been driving matched the description of the getaway vehicle. Defendant Gallon was found lying on the floor of the back seat of the automobile, apparently changing his clothes. The stolen merchandise and money were found in the automobile, along with clothes matching those worn by the robbers. A can of mace and a knife were found inside a jacket taken from the automobile. A lineup was held at the police station three days after the robbery. However, the three store employees who had witnessed the robbery failed to pick the defendants out of the lineup.

The defendants' first trial ended in a hung jury. The second trial resulted in the defendants' convictions.

During the prosecution's case in chief in the second trial, the following exchange occurred between the prosecutor and a police detective assigned to the case:

"Q. Did you have occasion to see Mr. McGee at any time after you were assigned to the case?

"A. Yes, sir.

"Q. And where did you see Mr. McGee or speak to Mr. McGee?

"A. In the Southgate Police Department in the Interview room of the Southgate Detective Bureau.

"Q. And can you tell us what happened at that time?

"A. Yes, sir, I brought the subject in and advised him of his Constitutional Rights. That would be sometime around 11:30, 11:35 a.m. of that morning.

"Q. And then what happened?

"A. After advising the subject of his rights and he read the form and initiated the form that he understood, each line and he signed the document. I then asked him if he would object to answering any questions in regards to the complaint that we had where he was arrested. I asked him specifically what he was [121 MICHAPP 187] doing in this area. He said that he knew some people from this area. I said, 'Where had you been'. He said he had been around the Southgate Shopping Center, he was looking to buy some shoes for a lady friend. Then I asked him specifically if he had been in the Pic-Way Shoe Store. He said, 'I don't want to talk anymore'. That was the end of our conversation."

Defense counsel objected to the testimony and moved for a mistrial. The trial judge denied the motion and instructed the jury to disregard the detective's last answer. Defendants contend that the prosecution committed error by deliberately eliciting the testimony concerning defendant McGee's refusal to answer the detective's questions.

Michigan courts have repeatedly held that silence of an accused in the face of police questioning may not be used against the accused at trial, subject to the exception that evidence of a refusal to speak during police questioning is admissible to contradict assertions that a statement was made. People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973); People v. Hoshowski, 108 Mich.App. 321, 310 N.W.2d 228 (1981); People v. Wade, 93 Mich.App. 735, 287 N.W.2d 368 (1979), lv. den. 408 Mich. 941 (1980); People v. Norris, 74 Mich.App. 361, 253 N.W.2d 767 (1977), lv. den. 401 Mich. 832 (1977). To otherwise allow the prosecutor to use an accused's silence against him at trial would place an impermissible penalty on the exercise of the accused's right against self-incrimination. Norris, supra, p. 365, 253 N.W.2d 767; People v. Swan, 56 Mich.App. 22, 31, 223 N.W.2d 346 (1974), lv. den. 395 Mich. 810 (1975).

In the case at bar, the testimony regarding defendant McGee's assertion of his right to remain silent was elicited before defendant McGee testified. Accordingly, the reference to McGee's assertion of his right to remain silent cannot be justified[121 MICHAPP 188] as impeachment. People v. Jordan, 105 Mich.App. 345, 348, 306 N.W.2d 506 (1981); People v. Parks, 57 Mich.App. 738, 746, 226 N.W.2d 710 (1975).

The prosecutor argues that no error as found in Bodo, occurred in the present case because defendant McGee did not remain silent, but chose to answer the detective's initial questions. We find this argument to be without merit. Although defendant McGee was willing to answer the detective's initial questions, he asserted his right to remain silent when the detective asked him if he was at the scene of the crime. This fact was conveyed to the jury through the detective's testimony. Since the jurors may have drawn an inculpatory inference from defendant McGee's refusal to answer further questions, the detective's testimony was improper. People v. Hoshowski, supra, 108 Mich.App. p. 324, 310 N.W.2d 228; People v. Jordan, supra, 105 Mich.App. p. 348, 306 N.W.2d 506. It does not matter that defendant McGee answered the detective's initial questions. Defendant McGee's exercise of his right to remain silent should not have been conveyed to the jury. People v. Hoshowski, supra.

The prosecutor also claims that the error was harmless. In determining whether error was harmless, we employ a dual inquiry. First, was the error so offensive to the maintenance of a sound judicial system as to require reversal and second, if not, was the error harmless beyond a reasonable doubt? People v. Swan, supra, 56 Mich.App. pp. 31-32, 223 N.W.2d 346. The purpose of the first criterion is to deter prosecutorial and police misconduct. People v. Wright (On Remand), 99 Mich.App. 801, 810-811, 298 N.W.2d 857 (1980). An error may be intolerably offensive to the maintenance of a sound judicial system if it was deliberately injected into the proceedings by the prosecutor, if it deprives the defendant of a fundamental element of the adversary process, or [121 MICHAPP 189] if it is of a particularly inflammatory or persuasive kind. People v. Swan, supra, 56 Mich.App. p. 32, 223 N.W.2d 346. The purpose of the second criterion of the harmless error test is to safeguard the decisional process. Thus, if it is reasonably possible that in a trial free of the error complained of even one juror would have voted to acquit, the error was not harmless. People v. Wright, supra, 99 Mich.App. pp. 810-811, 298 N.W.2d 857; People v. Swan, supra, 56 Mich.App. 33, 223 N.W.2d 346.

In Swan this Court issued the following warning:

"We will find it difficult in the future to believe that prosecutors and police are ignorant of the well-established principle of law which forbids comment upon an accused's silence or that clear violations of the principle arise from inadvertence. Deliberate violations of this rule may lead us to reverse convictions even where evidence might be overwhelming. The prosecutor who comments, or elicits comment, on a defendant's silence thus risks the loss of a perfectly good case for no reason." 56 Mich.App. 35, 223 N.W.2d 353.

In the instant case, the error could be deemed harmless if the testimony regarding defendant McGee's refusal to answer further questions was unsolicited or an unresponsive answer. People v. Sain, 407 Mich. 412, 415, 285 N.W.2d 772 (1979); People v. Hoshowski, supra, 108 Mich.App. p. 324, 310 N.W.2d 228. However, it is clear from the record that the detective's testimony was solicited and responsive. We find that the prosecutor's conduct in injecting the error was either deliberate or flagrantly negligent and, therefore, the error cannot be found harmless under the first prong of the test. People v. Hoshowski, supra; People v. Norris, supra, 74 Mich.App. pp. 366-367, 253 N.W.2d 767. Moreover, we cannot say that...