People v. Graham

• Decision Date: 21 December 1971
• Docket Number: O,No. 12,12
• Citation: 192 N.W.2d 255,386 Mich. 452
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene GRAHAM, Defendant-Appellant. ctober Term.
• Court: Michigan Supreme Court

Page 255

192 N.W.2d 255

386 Mich. 452

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene GRAHAM, Defendant-Appellant.

No. 12, October Term.

Supreme Court of Michigan.

Dec. 21, 1971.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Thomas P. Smith, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Martin I. Reisig, Asst. Defender, Detroit, for defendant-appellant.

Before the Entire Bench.

WILLIAMS, Justice.

This case presents two principal issues: (1) Whether the defendant's silence during interrogation can be used for the purpose of impeachment; 2) Whether the defendant's silence during interrogation was inconsistent with his testimony at trial.

Defendant Graham was convicted of robbery armed in Detroit Recorder's Court by a jury on June 1, 1967, and sentenced from 15 to 30 years in prison. The trial court denied the defendant's motion for a new trial, and the Court of Appeals affirmed his conviction, 29 Mich.App. 528, 185 N.W.2d 627. This Court granted the defendant's delayed application for leave to appeal on April 21, 1971.

The defendant was convicted of robbing a doughnut stop in Detroit at approximately 6:50 A.M. on February 12, 1966. Mrs. Bohlen, owner of the stop and complaining witness, testified that the defendant entered her shop at that time and, after ordering some doughnuts, pulled an opened knife on her. She testified further that the defendant then grabbed her wrist, and after demanding that she empty the cash register, put the loose change and the bills in his pocket. At this point in time, two policemen entered the shop and apprehended the defendant. One of the policemen testified that they stopped at the shop because they observed that the defendant 'had the proprietress by the neck.'

The defendant testified that after leaving a dice game at which he had won an uncertain amount of money, he entered the shop to purchase some daughnuts and for the purpose of exchanging some of his loose change for dollar bills. He stated that as he took money from his pocket to pay Mrs. Bohlen, his closed knife also came out. The defendant alleged that Mrs. Bohlen then became hysterical and that he attempted to calm her by holding her arm. When this failed, he alleged that he picked up his own money off of the counter and was leaving when the police arrived.

The defendant alleges that at the doughnut shop, in the police car, and upon his arrival at the cell block, he attempted to tell the police officers his side of the story. He testified that he was threatened and struck by the officers, and told to keep quiet both in the shop and in the police car. Officer McMahon testified at the trial that defendant did not try to talk with him on the way to the station. ¹ At the cell block, the defendant alleges that he told his entire story to Walter Williams, the turnkey. ² Mr. Williams testified that he remembered seeing the defendant with a swollen eye, but remembered little else about him.

Subsequent to the defendant's testimony at trial, the People recalled Detective Hector Baeyens as a witness. Detective Baeyens testified that at 1:00 P.M. on February 12, 1966, approximately six hours after the defendant's arrest, he advised the defendant of his constitutional rights and asked the defendant '. . . if he wanted to tell me his side of the story.' ³ Baeyens stated that the defendant replied he had 'nothing to say.'

At this point in the trial, defense counsel's motion for a mistrial was denied.

The defendant contends that no evidence is ever admissible to show that he chose to exercise his fifth Amendment right to remain silent during interrogation. The United States Supreme Court has clearly stated that such evidence is admissible for the purpose of impeaching the testimony of the defendant at trial.

In Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) the United States Supreme Court reversed a defendant's conviction because the trial court had permitted cross-examination of the defendant concerning his exercise of his Fifth Amendment right against self-incrimination before a Grand Jury. The Court based its decision, however, on the fact that the defendant's plea of the Fifth Amendment before the Grand Jury was Not inconsistent with his later testimony at trial. That such cross-examination would be permissible if it showed prior inconsistent statements was made clear by the Court:

'It is, of course, an elementary rule of evidence that prior statements may be used to impeach the credibility of a criminal defendant or an ordinary witness. But this can be done only if the judge is satisfied that the prior statements are in fact inconsistent. 3 Wigmore, Evidence, § 1040. And so the threshold question here is simply whether, in the circumstances of this case, the trial court erred in holding that Halperin's plea of the Fifth Amendment privilege before the grand jury involved such inconsistency with any of his trial testimony as to permit its use against him for impeachment purposes.' (Footnote omitted.) 353 U.S. 391, 418--419, 77 S.Ct. 963, 981.

The United States Supreme Court recently reaffirmed its position that otherwise inadmissible evidence may be used to impeach the testimony of a defendant. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) the Court affirmed the conviction of the defendant and stated that an otherwise inadmissible statement of the defendant could be utilized for impeachment purposes. The Court specifically addressed itself to the question of whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) forbade the use of such statements for impeachment:

'Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.

'The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements.' 401 U.S. 222, 224, 226, 91 S.Ct. 643, 645, 646.

We now must turn to the question of whether defendant Graham's testimony at trial was inconsistent with the statement he made to Detective Baeyens. The question of inconsistency is first of all a question within the discretion of the trial judge. Grunewald v. United States, Supra, 353 U.S. 423, 77 S.Ct. 963. At trial, the defendant testified that he continually attempted to give...