People v. Hicks, Docket No. 5665

• Citation: 178 N.W.2d 193,22 Mich.App. 446
• Decision Date: 23 March 1970
• Docket Number: No. 1,Docket No. 5665,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin Garfield HICKS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 193

178 N.W.2d 193

22 Mich.App. 446

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin Garfield HICKS, Defendant-Appellant.

Docket No. 5665.

Court of Appeals of Michigan, Division No. 1.

March 23, 1970.

Released for Publication June 26, 1970.

Lawrence W. Rattner, Dotroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for appellee.

Before LESINSKI, C.J., and LEVIN and DANHOF, JJ.

LESINSKI, Chief Judge.

On March 15, 1967, defendant was arraigned on a charge of knowingly having in his possession a stolen motor vehicle, M.C.L.A. § 257.254 (Stat.Ann.1968 Rev. § 9.1954). On March 27, 1967, while represented by assigned counsel, defendant waived preliminary examination. On the day trial commenced in the Recorder's Court of the city of Detroit, the court allowed the prosecution to amend the information to add a count of unlawfully driving away a motor vehicle, M.C.L.A. § 750.413 (Stat.Ann.1954 Rev. § 28.645). On December 8, 1967, the jury found defendant guilty on both counts. Defendant was later sentenced to imprisonment for a period of from 4 1/2 to 10 years on the first count and for a period of from 4 1/2 to 5 years on the second count, sentences to run concurrently.

On appeal defendant alleges that the trial court committed reversible error by allowing the amendment to the information which added the second count, thereby depriving defendant of his right of examination on the second charge. Plaintiff, during oral argument, conceded error on this point. Therefore, the conviction of the defendant on the second count of unlawfully driving away a motor vehicle is reversed and the matter is remanded for arraignment and a new trial.

Defendant also contends the court committed reversible error in allowing testimony regarding defendant's failure to make a statement following his arrest. Defendant objects to the following testimony by Detective Peter Shaheen on direct examination:

'Q: What did you do when you saw Mr. Hicks?

'A: I had him sit at a table across from me in one of the interrogation rooms. And my first duty was to hand him a slip which is called a Detroit Police Department Constitutional Rights Certificate of Notification. And I told him to read it and I gave it to him to read.

'Q: Did you inform him of all the constitutional rights he had prior to asking him any questions in regard to this case?

'A: Yes, I did. And I had him read the statement and I asked him if he understood it thoroughly. Then I had him sign it at 8:20 a.m. And I signed it as a witness to his signature.

'Q: Did you inform him he had a right not to say anything about this case?

'A: Yes, I did.

'Q: Did he say anything to you about this case?

'A: No, he did not make a statement at that time.'

Defendant did not object to this testimony.

Defendant additionally alleges error occurred when he was cross-examined by the prosecutor regarding Jerry Fields. Defendant's explanation was that he had borrowed the vehicle in question from Fields who claimed that it was his sister-in-law's automobile and she had permitted him to drive it since she was going to be out of town. The following transpired:

'Q: Who is 'Jerry?'

'A: His name is Gerald Fields. I call him Jerry. A friend of mine.

'Q: You ever seen Detective Shaheen before?

'A: Yes. I saw him before.

'Q: You ever told him about Gerald Fields before?

'A: No, I didn't.

'Q: Why?

'MR. HARPER: I object to that, Your Honor.

'THE COURT: Why is that?

'MR. HARPER: I think Mr. Shaheen testified he had advised him of his constitutional right and he made no statement at all.

'THE COURT: Yes. I don't understand your objection, though.

'MR. HARPER: I feel that to ask him why he didn't is strictly a violation of the right to remain silent.

'THE COURT: He has the privilege of remaining silent. But he is no longer silent, as I understand it.

'MR. HARPER: But the officer already testified he told him nothing.

'THE COURT: Absolutely correct. He is on the stand now.

'MR. HARPER: Okay.

'Q: (By Mr. Poehlman) Why didn't you tell the detective about Mr. Fields?

'A: Well, because I got arrested. I told the police officer that arrested me. It was a friend of mine's car. When I talked to him, his attitude led me to believe that what I told him wouldn't do any good at all. So I didn't tell him anything.'

The essence of the line of questioning indicated above, which was objected to, when read in context with the prior unobjected to questions herein complained of is to bring before the jury the fact that defendant exercised his constitutional right to remain silent.

In People v. McCrea (1942), 303 Mich. 213, 279--286, 6 N.W.2d 489, our Supreme Court held that once a defendant takes the stand he then becomes subject to cross- examination as any other witness.* This was true even as to cross-examination regarding grand jury testimony, which disclosed that he had stood upon his constitutional rights. The Court in deciding this point, at p. 282, 6 N.W.2d at p. 516, noted the comment by Justice Potter on page 465 of his work on Michigan Evidence, that 'By being sworn in his own behalf he waives his constitutional privilege against self-incriminating questions material to the case.'

This rule of law prevailed in Michigan as the rule to be applied in state cases where the defendant takes the stand to testify in his own behalf. However, as early as 1957 in Grunewald v. United States (1957), 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, and later in Stewart v. United States (1961), 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84, in cases of Federal prosecution the Supreme Court ruled that it was improper to allow cross-examination of the defendant so as to reveal that the defendant exercised his Fifth Amendment privileges.

In Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the Supreme Court expressly held that the Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against Federal infringement--the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such silence.

In Grunewald, supra, the Court in deciding the propriety of allowing the complained of cross-examination stated as follows at 353 U.S. p. 421, 77 S.Ct. p. 982:

'Recent re-examination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect Innocent men.' (Emphasis by the Court)

In Slochower v. Board of Higher Education (1956), 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, the Supreme Court also commented on the Fifth Amendment privilege when the Court said at pp. 557, 558, 76 S.Ct. at p. 641:

'The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.'

See, also, Fowle v. United States (CA 9, 1969), 410 F.2d 48, and People v. Fry (1969), 17 Mich.App. 229, 232, 169 N.W.2d 168.

In the case before us there can be no question that by allowing cross-examination which shows that defendant exercised his privilege to remain silent he was required to pay a penalty for same. Juries composed of ordinary laymen not trained in the law tend to associate the exercise of the Fifth Amendment privilege with guilt rather than possible innocence and exposure to ambiguous compromising situations. While we cannot affirmatively say that every jury would so react, we cannot speculate that it would not.

While our own Supreme Court has not addressed its attention to this issue since Malloy v. Hogan, Supra, we have no alternative but to find that under the rule of that case which we are obliged to follow, the questioning objected to was improperly allowed and that People v. McCrea, Supra, no longer is controlling on this issue.

Reversed and remanded for a new trial.

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