People v. Hackett
| Decision Date | 29 June 1999 |
| Docket Number | Docket No. 111717, Calendar No. 17. |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William Patrick HACKETT, Defendant-Appellee. |
| Court | Michigan Supreme Court |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Robert J. Berlin, Chief Appellate Attorney, and Laura Z. Sullivan, Assistant Prosecuting Attorney, Mount Clemens, for the people.
State Appellate Defender (by Peter Jon Van Hoek), Detroit, for defendant-appellee.
The evidentiary question posed by this case is whether the trial court's admission of testimony regarding defendant's silence was proper.1 Defendant was convicted of delivery of 50 grams or more but less than 225 grams of cocaine.2 The Court of Appeals reversed defendant's conviction, concluding that, although the admission of the testimony was not constitutional error, it was error under People v. Bigge, 288 Mich. 417, 285 N.W. 5 (1939). The Court of Appeals further concluded that failure to address what it found to be error under Bigge would result in manifest injustice. The Court of Appeals reversed defendant's conviction and remanded for a new trial.
For the reasons that follow, we agree with the Court of Appeals that there was no constitutional error in the use of defendant's silence. We further hold that the reference to defendant's silence did not implicate the rule of Bigge, because the silence did not occur in the face of an accusation. Rather, the prosecutor's reference to defendant's failure to confront Logue is conduct evidence, admissible to impeach defendant's testimony that he was an innocent bystander on the evening in question.
We reverse the decision of the Court of Appeals and reinstate defendant's conviction.
In the early morning hours of August 13, 1991, undercover State Police Detective Richard Gilbert purchased cocaine from Patrick Logue. Logue later testified that defendant, William P. Hackett, was his supplier. Defendant was nearby when the August 13 sale occurred. Defendant claims that he was framed.
Defendant and Logue were high school friends who renewed their friendship in 1991. In July 1991, Logue house-sat for defendant. Items were apparently missing from the defendant's home afterwards, and, when confronted by defendant, Logue admitted taking certain items. Logue returned the items taken, except, contends defendant, a Godiva chocolate box that ultimately reappeared on August 13, 1991, containing the cocaine sold to Detective Gilbert.
Logue also met detective Gilbert in 1991. Detective Gilbert was participating in an undercover investigation of Logue's employer, Erotic Image, a company that provided strippers for parties. Logue worked for Erotic Image as a stripper, an escort for female strippers, and as a sales representative. Logue took the job at Erotic Image to be near women and drugs. He smoked marijuana on a daily basis.
Logue testified that defendant supplied cocaine for each of the sales Logue transacted with Detective Gilbert, although the cocaine Logue first sold to Detective Gilbert was actually intended for Logue's boss. Following the first sale, Logue made several drug sales to Detective Gilbert, through and including the sale on August 13. For that sale, Logue had initially agreed to exchange four ounces of cocaine and $1,500 for five pounds of marijuana in a parking lot. Logue testified that defendant modified the deal at the last minute to be an exchange of five ounces of cocaine for five pounds of marijuana and that defendant suggested changing the location of the transaction to a hotel room.
Logue testified that late in the evening on August 12, he went to defendant's house, where defendant asked for his keys. The prosecutor theorized that defendant placed the cocaine in Logue's trunk at that time. Logue then went to Kevin Hall's home where he again met with defendant. Logue then drove to a Knight's Inn in Sterling Heights where he was to meet Detective Gilbert. Following close behind Logue was defendant, riding in a car driven by Mark Boyle. A police officer testified that the car in which defendant was riding mimicked the lane changes of Logue's car and that defendant appeared to be checking behind Boyle's car periodically. The officer testified that he followed Boyle's car at distances varying from thirty to one-hundred yards. When Logue pulled into the motel, Boyle picked up coffee at a nearby drive through and parked at a restaurant near the motel. Police testified that defendant waited outside the car, looked under the hood with Boyle, and appeared nervous. He walked toward the motel a couple times, before stopping and remaining at Boyle's car. Defendant testified that Boyle's car was having trouble and he was helping Boyle look under the hood.
At the motel, Logue took a bag from the trunk and placed it in a garbage can. He met with Detective Gilbert, tested the marijuana, and then retrieved the cocaine. The cocaine was in a plastic cellophane bag, inside the Godiva chocolate box, and inside a brown bag. Logue's fingerprint was later discovered on the brown bag and defendant's fingerprint on the foil interior of the Godiva box. Logue, Boyle, and defendant were arrested. A search of Boyle's car produced a gun.
Logue, defendant, and Boyle were arraigned on August 14, 1991. The three posted bond on August 15, 1991, and were released. At the preliminary examination in October 1991, defendant claimed that the case against him should be dismissed because of the lack of a basis for his arrest. On May 29, 1992, the district judge agreed, dismissing all charges against defendant and Boyle. Logue, however, was bound over on one count of delivering 50 to 225 grams of cocaine. The circuit court affirmed the district court's dismissal of charges against defendant, and the Court of Appeals denied the prosecutor's application for leave to appeal.
In May 1993, Logue pleaded guilty to the August 13, 1991, drug sale, in exchange for dismissal of other cases. In September 1993, he pleaded guilty to a July 1991 drug sale to Detective Gilbert. After pleading guilty and before his sentencing, Logue agreed to testify against defendant. Consequently, another complaint was filed against defendant and a warrant issued for his arrest. Defendant, with his attorney, surrendered to the police on November 8,1993. On August 12, 1994, defendant was bound over on two counts of delivery. The defendant was ultimately tried on one count of delivering 50 to 225 grams of cocaine and one count of delivering less than 50 grams of cocaine.
The April 1995 trial of defendant lasted five days. During the prosecutor's cross-examination of defendant, the following exchange occurred:
A. I was quite concerned and upset, yes.
Q. Well, I would hope so. You're an innocent man, been accused of a very serious offense?
A. That's correct.
Q. And the first opportunity you got to tell Patrick to set the record straight, you did that, didn't you?
A. I don't understand the question.
Defense counsel did not object to this testimony. Nor did defense counsel object when, during closing arguments, the prosecutor harkened back to this testimony as follows:
[There] wouldn't be bars strong enough to keep persons falsely accused from trying to just get at the person that made that accusation. Tell him, tell the police, you tell those police I had nothing to do with this, and you know why it didn't happen? You know why it didn't happen? Because at the time they were arrested it could not have been foreseen Mr. Logue would be giving testimony against Mr. Hackett. And another reason it didn't happen is because it is not true. Mr. Logue is not falsely accusing Mr. Hackett. He's truthfully accusing Mr. Hackett. Mr Hackett is involved. Mr. Hackett involved [sic] the cocaine and Mr. Hackett is guilty, and that's why Mr. Hackett did not act like a person falsely accused because he was not.
The jury acquitted defendant of the lesser charge related to a July sale of cocaine by Logue to Detective Gilbert, but convicted defendant of delivering between 50 and 225 grams of cocaine in the early morning hours of August 13, 1991. Defendant was sentenced below the presumptive mandatory ten- to twenty-year sentence for a term of four to twelve years. Defendant's motion for a new trial was ultimately denied. On defendant's appeal of right, the Court of Appeals reversed. We granted the prosecutor leave to appeal and denied defendant's cross-application. 459 Mich. 893, 589 N.W.2d 277 (1998).
We address whether the prosecutor's use of defendant's silence was error. As a preliminary matter, the parties have never agreed on when the silence referenced by the prosecutor occurred. Indeed, up to and through oral argument before this Court, this question remained hotly contested. The timing of the referenced silence is critical to determining whether the prosecutor's references to defendant's silence constituted error.
The prosecutor first referred to defendant's silence during cross-examination of defendant. As the...
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