People v. Karam

• Decision Date: 19 May 1981
• Docket Number: Docket No. 47724
• Citation: 308 N.W.2d 220,106 Mich.App. 383
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred KARAM a/k/a Fred Bommarito, Defendant-Appellant. 106 Mich.App. 383, 308 N.W.2d 220
• Court: Court of Appeal of Michigan — District of US

Page 220

308 N.W.2d 220

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred KARAM a/k/a Fred Bommarito, Defendant-Appellant.

Docket No. 47724.

106 Mich.App. 383, 308 N.W.2d 220

Court of Appeals of Michigan.

May 19, 1981.

Released for Publication July 24, 1981.

[106 MICHAPP 385] James R. Neuhard, State Appellate Defender, Kim R. Fawcett, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Chief Appellate Atty., A. George Best, II, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and CAVANAGH and KAUFMAN, JJ.

BRONSON, Presiding Judge.

Following a jury trial in the Wayne County Circuit Court, defendant was convicted of soliciting another to commit the crime of assault with intent to do great bodily harm less than murder, to-wit: the breaking of the kneecaps [106 MICHAPP 386] of Angelo Comito or members of his family. M.C.L. § 750.157b; M.S.A. § 28.354(2) and M.C.L. § 750.84; M.S.A. § 28.279. Defendant was sentenced to a term of 3 to 10 years in prison. His motion for a new trial was denied on July 6, 1979. Defendant appeals as of right.

The proofs presented at trial showed that the following occurred. Defendant hired Charles Prebee and Gilbert Richard to break the knees of his father-in-law, Angelo Comito. Defendant blamed Comito for marital difficulties that the defendant was experiencing with his wife.

On April 8, 1978, Prebee and Richard entered the home of Isabelle and Angelo Comito. Either Prebee or Richard carried a gun. They announced a holdup. However, the Comitos' daughter, defendant's estranged wife, was also on the premises. The pair had not expected her to be at the house and abruptly fled.

Prebee and Richard decided defendant might be satisfied with merely obtaining some money from Comito. Consequently, they decided to extort $5,000 from him. When the pair went to collect the money they were arrested. Each pled guilty to extortion in return for a year's probation and agreed to testify against defendant. Furthermore, Prebee and Richard were each granted immunity from prosecution on a conspiracy charge to break Comito's kneecaps.

I

Defendant first contends that the prosecutor committed reversible error by questioning him concerning his prearrest silence in the fact of an incriminating statement made by an accomplice and exacerbated this error in his rebuttal argument[106 MICHAPP 387] by asking the jury to infer guilt from this silence.

A conversation between defendant (Mr. Bommarito), Richard, and Prebee was played for the jury. One excerpt indicated:

"MR. BOMMARITO: What do you mean, a lot of money? What did they get you for?

"MR. PREBEE: Huh?

"MR. BOMMARITO: What did they get you for?

"MR. PREBEE: Extortion.

"MR. BOMMARITO: What do you mean, extortion, where do you get extortion from?

"MR. PREBEE: We tried, you know, like I say, we tried to set it up so he could meet us there at St. Clair Shores.

"MR. BOMMARITO: That's not extortion.

"MR. PREBEE: Yeah, but we were going to break his knees, like you said, he came, and we said, we'd try to get him there by luring him away with money, told him we wouldn't bother him if he gave us some money and when he came there the police got us.

"MR. BOMMARITO: I didn't tell you to ask him for any fucking money."

In a later portion of the conversation, defendant vigorously protested any involvement in the extortion attempt. He also corrected Mr. Richard's use of the term "hit" in relation to the assault on his father-in-law, stating that "hitting means knocking them off". Defendant subsequently did not respond to Richard's statement, which was: "Well, okay, breaking his leg, his knees then".

During cross-examination, the prosecutor asked defendant why he did not deny telling Richard and Prebee to break Angelo Comito's legs. During his rebuttal argument, the prosecutor stated:

"Let me conclude with a couple of other thoughts. [106 MICHAPP 388] First of all, as you listen to the second tape, the one from August 31st, you will hear Prebee saying something to the effect: Well, you told us to go break the legs and so and so and so and so. And Bommarito comes back and said: I never had anything to do with the extortion.

"Now, it seems to me that most people, if someone said to them: Hey, Charley, you told me to go out and break his legs and if Charley didn't have anything to do with this leg breaking or it wasn't his idea at all and he had never heard of it, the first thing he would say is: What in the hell are you talking about? I didn't tell you to do anything about breaking legs.

"A human being's natural reaction to that kind of suggestion, if the suggestion is false, is to say: I didn't have anything to do with that, what are you talking about, breaking legs. I never told you to break any legs. I told you to go talk to the guy and scare him a little bit. That's not what Bommarito does. Bommarito doesn't say anything about the accusation of breaking legs. He just goes on to say: I didn't have anything to do with the extortion.

"Well, no one said he had anything to do with the extortion."

In People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973), the Michigan Supreme Court ruled that a defendant's silence in the face of accusation, whether prior to or after arrest and whether the accuser is a police officer or a private citizen, cannot be used as evidence consistent with Fifth Amendment guarantees that no person can be compelled to act as a witness against himself. The Court in Bobo held that a defendant's silence is inadmissible as either substantive or impeaching evidence. Bobo was recently reaffirmed by the Michigan Supreme Court in People v. Sain, 407 Mich. 412, 285 N.W.2d 772 (1979).

Recent decisions by the United States Supreme Court render Bobo of dubious precedential value relative to the proper construction of the Fifth [106 MICHAPP 389] Amendment. ¹ In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court ruled that Federal constitutional law did not prohibit the states from allowing impeachment by evidence of prearrest silence. Rather, each of the states could resolve this question as they saw fit through evidentiary rules. In Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), the Court held that a defendant who gave his version of the events at trial, but had earlier given police inconsistent statements concerning certain aspects of the transaction and had failed to say anything about other events, could be impeached by both the post-arrest inconsistencies and silence. By so holding in Jenkins and Anderson, the United States Supreme Court took a restrictive view of their decision in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle, the Court ruled that post-arrest silence is "insolubly ambiguous" due to the requirement that defendants be given Miranda ² warnings. Doyle was distinguished in Jenkins on the basis that no governmental action induced defendant to remain silent, since prearrest nonutterances were involved. Doyle was distinguished in Anderson on the theory that, once defendant has made some post-arrest statements, he has not chosen to remain silent. Thus, the questioning is fair since defendant voluntarily spoke after receiving Miranda warnings.

Since the prosecutor in the instant case used defendant's silence as substantive evidence of guilt, rather than for mere impeachment purposes, Jenkins and Anderson do not dispose of the constitutional[106 MICHAPP 390] issue. Moreover, even had evidence of the statements been used solely for impeachment, it is not obvious that the Michigan Supreme Court would renounce Bobo as a matter of state constitutional law.

Numerous decisions from this Court provide that Bobo is inapplicable where defendant does make a statement and the questioning concerns omissions from the statement. The majority of these opinions, however, involve the use of silence for impeachment purposes where some statement has been made. See, People v. Richendollar, 85 Mich.App. 74, 82, 270 N.W.2d 530 (1978), lv. den. 405 Mich. 820 (1979); People v. Whitty, 96 Mich.App. 403, 420, 292 N.W.2d 214 (1980); People v. Gerald Wells, 102 Mich.App. 558, 302 N.W.2d 232 (1980). Here, the prosecutor used silence as both substantive and impeachment evidence. The tape recording of the conversation was introduced during the prosecution's case in chief, and the prosecutor urged the jurors to infer guilt from defendant's failure to deny hiring Prebee and Richard to break his father-in-law's knees.

The prosecutor, then, wanted the jury to use defendant's silence as an adoptive admission. Two recent decisions from this Court have broadly stated that tacit admissions or adoptive admissions through silence are not applicable in criminal cases. People v. Washington, 100 Mich.App. 628, 630, 300 N.W.2d 347 (1980); People v. Hurd, 102 Mich.App. 424, 301 N.W.2d 881 (1980). Another panel of this Court held in People v. Dietrich, 87 Mich.App. 116, 130-131, 274 N.W.2d 472 (1978), that while adoptive admissions are not favored in criminal cases, they may be admissible where it unambiguously appears defendant assented to the statement made.

[106 MICHAPP 391] We believe that the blanket rule adopted by Washington and Hurd inaccurately states current Michigan law. MRE 801(d)(2)(B) provides that adoptive admissions are admissible subject to the rule of Bobo, supra. Thus, the key to understanding to what extent adoptive admissions may be used in criminal cases turns on how Bobo is to be construed. ³ We are convinced that Bobo was not intended to preclude the use of adoptive admissions in all situations.

Bobo involved true nonutterances. That is, Bobo remained absolutely silent after receiving Miranda warnings. Here, defendant vehemently denied an intent to extort money from or to kill his father-in-law, but did not...