People v. McReavy

• Decision Date: 02 November 1990
• Docket Number: Docket No. 80422
• Citation: People v. McReavy, 436 Mich. 197, 462 N.W.2d 1 (Mich. 1990)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joseph Gene McREAVY, Defendant-Appellee. 436 Mich. 197, 462 N.W.2d 1
• Court: Michigan Supreme Court

Page 1

462 N.W.2d 1

PEOPLE of the State of Michigan Plaintiff-Appellant, v. Joseph Gene McREAVY, Defendant-Appellee.

Docket No. 80422.

436 Mich. 197, 462 N.W.2d 1

Supreme Court of Michigan.

Argued March 9, 1988.

Decided Sept. 19, 1990.

Rehearing Denied Nov. 2, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph T. Barberi, Pros. Atty., Isabella County, Mark H. Duthie, Sr. Asst. Pros. Atty., Isabella County, Mt. Pleasant, Pros. Attys. Appellate Service, for plaintiff-appellant.

State Appellate Defender Office by F. Martin Tieber, Deputy Defender, North Lansing, for defendant-appellee.

BOYLE, Justice.

The issue presented in this case is whether People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973), precludes the admission at trial of evidence of a defendant's behavior and demeanor during a custodial interrogation after a valid waiver of his Fifth Amendment privilege against compelled self-incrimination.

Despite our observations in People v. Collier, 426 Mich. 23, 393 N.W.2d 346 (1986), the Court of Appeals squarely held that Bobo requires reversal. Thus, the issue cannot be avoided by holding as the dissent does that if there was error it does not require reversal of McReavy's conviction. ¹ (P. 13.) Instead, pursuant to a construction of Bobo as coextensive with federal constitutional law, People v. Cetlinski, 435 Mich. 742, 460 N.W.2d 534 (1990), the constitutional question is properly analyzed under the test set forth in People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965), i.e., whether the trial court erred in finding that defendant waived his Fifth Amendment privilege against compelled self-incrimination until he invoked his rights on the morning following the inquiry in question. The evidentiary issue should be analyzed as a party admission under MRE 801(d)(2)(A).

Where the record indicates that a defendant's silence is attributable to an invocation of his Fifth Amendment privilege or a reliance on Miranda warnings, use of his silence is error. ² Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [436 MICH 202] (1966). There is no basis here, however, to conclude that the trial court erred in finding that defendant waived his Fifth Amendment right to remain silent and that the defendant did not invoke his Fifth Amendment privilege until the following morning. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972). It follows that there is no basis to conclude that defendant's unresponsiveness was attributable to invocation of that privilege or reliance on Miranda warnings. Thus, in this case, there is no violation of the defendant's Fifth Amendment right not to incriminate himself.

Miranda v. Arizona enunciated the obligation owed to a defendant in custody and the procedures that must be fulfilled prior to substantive use of his statements or assertive conduct. There being no question in the instant case of compliance with the procedural requirements of Miranda, anything defendant said thereafter is admissible as the statement of a party opponent, so long as it is relevant. MRE 801(d)(2)(A). What defendant did, that is, his lack of responsiveness during the interview, was not evidence of silence. Rather, it was nonverbal nonassertive conduct evidence that was admissible along with the defendant's express statements indicating consciousness of guilt so as to allow the factfinder to more fully determine the probative significance of the defendant's complete statement to the police.

Construing the Michigan Constitution consistently with developments in Fifth and Fourteenth Amendment jurisprudence there was no constitutional violation. The admission for substantive purposes of evidence of the defendant's demeanor and statements made during custodial interrogation after a valid waiver of his Fifth Amendment privilege against compelled self-incrimination and prior to invoking the right to remain silent is neither error of constitutional dimension nor a violation of the Michigan Rules of Evidence. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for consideration of the remaining issues raised on appeal. ³

I

Defendant McReavy was convicted by a jury of armed robbery, ⁴ kidnapping, ⁵ and possession of a firearm during the commission of a felony. ⁶ He subsequently was convicted of being a third-time habitual offender ⁷ and was sentenced to a term of from eight to twenty years plus a consecutive two-year term for the felony-firearm conviction.

During the trial, it was established that sometime during the night of February 21 and 22, 1985, the attendant of a gas station in Mount Pleasant was robbed. The victim testified that the defendant walked into the station at approximately 11:30 p.m. and asked to use the phone, claiming to be having car problems. The victim stated that after the defendant made several calls over the period of approximately an hour and a half, he asked for a bag and, while pointing a small silver pistol at the victim, told him to put the money from the cash register into the bag. The victim then stated that he and the defendant left in the victim's car and that he was finally told to get out of the car and warned that if he went to the authorities the defendant would come back and get him. ⁸ The victim's car and the gun used in the robbery were found the following day. The gun was registered to the defendant's landlord, who testified at trial that he had never given defendant or anyone else permission to use his gun.

The defendant did not testify at the trial. In its case in chief, the prosecution presented testimony of the arresting officers that at the time of his arrest the defendant was twice given Miranda warnings and agreed to speak with the officers. ⁹ The first officer testified that during the interview the defendant appeared very dejected, sat with his head in his hands, and told police that everything was going fine until "this happened." The officer stated that the defendant then discussed his desire to have custody of his daughter and said that when he had seen her the past weekend she had not recognized him, a subject the robber had also discussed with his victim.

Further, in response to the prosecutor's inquiry as to what happened next, the officer testified that the defendant did not respond to direct questions regarding the robbery or deny his involvement, but simply put his head in his hands and looked down, that he didn't respond yes or no to those questions. At that point defense counsel objected "Now my client's silence is being used against him. I'd object to that question, that answer, and I'd like the court to now instruct the jury that my client's silence may never be used against him."

The prosecutor argued that the detective was telling the jury only that the defendant answered some questions and not others, and not that the defendant invoked his right to silence. The objection was overruled.

The officer then testified that at this point they began to employ negative questions. When they asked the defendant whether he had borrowed the gun used in the robbery from his landlord, the defendant denied that his landlord had loaned him the gun. When asked whether it was safe to assume the landlord had nothing to do with the robbery, the defendant answered, "yes, he's a real nice guy." When asked whether he was saying he didn't pull the robbery the defendant stated, "no." Finally, the officer stated that the defendant said that he did not want to answer any more questions about the robbery and wanted time to think. He told the officers to contact him in the morning and he "would clear up everything." When asked whether he meant clear up the robbery, the defendant said, "yes."

The prime investigator, Detective Fox, testified that the defendant appeared very nervous during the interview and at times it appeared as though tears were coming into his eyes. Fox further testified that the defendant indicated that he knew about the robbery from the paper and radio reports. The detective's testimony was consistent with that of the other detective.

On cross-examination, in response to defense counsel's question, Detective Vincent stated that the interview with the defendant had lasted between thirty and forty minutes. Twice defense counsel asked whether the defendant had answered any direct questions, and then whether the detectives had asked the negative questions in an attempt to trip the defendant up during the interrogation. Defense counsel then asked in regard to the answers the defendant gave to the negative question:

"Now you felt that to mean that he [defendant] wasn't denying the robbery? I mean you were there. You perceived, right, what he was saying, his actions, his mannerisms?"

The witness answered that "[f]rom these answers he [defendant] convinced me he was involved in the robbery...." Further, defense counsel asked questions concerning the time defendant indicated he did not wish to answer any more questions and his statement that he would clear up everything in the morning, noting that at no time did the defendant ever confess to the robbery.

On cross-examination, defense counsel questioned Detective Fox regarding why the interrogation had not been recorded, suggesting that the detective's report was inaccurate and written in a manner which indicated that defendant had essentially confessed to the robbery, when in fact he had not.

During the closing argument, the prosecutor reviewed the evidence presented, including the testimony of the detectives who interrogated the defendant, focusing on what the defendant meant by his postarrest statements. The full context of this section of the argument follows:

"And look at the consistency of all the evidence as it fits together. I mean there has got to be fifteen things that tie in this case, and it just can't be by accident. It would cause the mind to be boggled based on the...