People v. Perez

• Decision Date: 26 January 1976
• Docket Number: Docket No. 20636--7
• Citation: 239 N.W.2d 432,66 Mich.App. 685
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rudy PEREZ, Defendant-Appellant. 66 Mich.App. 685, 239 N.W.2d 432
• Court: Court of Appeal of Michigan — District of US

Page 432

239 N.W.2d 432

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rudy PEREZ, Defendant-Appellant.

Docket No. 20636--7.

66 Mich.App. 685, 239 N.W.2d 432

Court of Appeals of Michigan.

Jan. 26, 1976.

Released for Publication March 24, 1976.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

[66 MICHAPP 686] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Rostash, Pros. Atty., for plaintiff-appellee.

[66 MICHAPP 687] Before ALLEN, P.J., and BRONSON and MAHER, JJ.

BRONSON, Judge.

Defendant was bound over on a charge of 'open murder', M.C.L.A. § 767.44; M.S.A. § 28.984, and M.C.L.A. § 767.71; M.S.A. § 28.1011, and assault with intent to commit murder, M.C.L.A. § 750.83; M.S.A. § 28.278. He was found guilty by a jury of manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553, and assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279. He was sentenced to concurrent terms of 10 to 15 years and six to 10 years, respectively.

On the night of October 26, 1973, defendant was driving his girl friend, Gloria Ferdin, and her mother, Alice Ferdin, to their home. They were heading west on a two-lane dirt road when a car driven by Pablo Torres and Martin Garcia, neighbors of defendant and the Ferdins, approached from the other direction. As both vehicles reached a one-lane bridge, they stopped. Defendant and the Ferdins testified that the other car had forced them off the road by swerving into the wrong lane. Martin Garcia testified that Torres, who was driving, had stopped by the side of the road to let defendant's car pass.

Defendant emerged from his car after taking a gun from the floorboard. Martin Garcia testified that defendant was angrily shouting about being forced off the road, and immediately shot and killed Torres as he exited the vehicle. According to Garcia, he too was shot and wounded as he got out [66 MICHAPP 688] of the other side of the car. Defendant and the Ferdins then fled.

Defendant admitted shooting these two men, but gave a different version of the story. He stated that he grabbed his gun because he had just been run off the road by a car, and that he did not recognize its occupants at that time. When he got out of the car, he recognized his neighbors, but Garcia began swearing at him, and pulled a knife. Defendant stated that he shot Garcia when Garcia took several steps toward him and Torres when Torres ran towards him with a board in his hand threatening to kill him.

Neither Gloria Ferdin nor Alice Ferdin saw the firing of the second shot. Both testified, however, that Garcia put his hand in his pocket as he emerged from the car, and was shot when he took two or three steps toward defendant. The Ferdins and defendant stated that they drove away to get help.

After his arrest, defendant gave a statement to the police indicating that defendant had shot Garcia when Garcia suspiciously put his hand in his pocket. Torres was shot while getting out of the car. Defendant admitted he may have acted hastily. Nothing in the statement was said about Torres coming at defendant with a board and Garcia attacking him with a knife. When defendant was asked to sign a written statement, he refused and requested an attorney.

A police officer first testified as to defendant's statement upon arrest. Then, during direct examination, defendant was asked if he told the police during questioning that Garcia had pulled a knife. Defendant responded that he did not remember if he did or not. On cross-examination, the prosecutor asked defendant if he had told the police about [66 MICHAPP 689] either the knife or the board. Defendant again said he could not remember.

During closing argument, the prosecutor directly commented on defendant's silence with respect to the knife and the board:

'And in a statement that Rudy gave to the officers, Patterson and Carlson, when he said, perhaps I acted too hasty, you might wonder if it might not be a natural thing to say when you're arrested and in jail for shooting two people, to say, that is, if it did happen as he has so slowly and deliberately testified for us here, that 'Officer, the only reason I did it is one came after me with an open knife and the other one came after me with a board two feet long'.

'But the officers never heard this. Only now, almost four months later, it is his defense that is, but when he is in the jail talking to the officers he never tells them this. Probably that could be for one of two reasons, that either he didn't think of it or either it didn't happen.'

Defendant contends that the prosecutor's cross-examination and closing argument constituted an impermissible comment on his exercise of his constitutional right to remain silent. We agree, and reverse his conviction.

A criminal accused has the constitutional right to remain silent when he is arrested and faced with accusation, and his silence may not be used against him, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Violation of that right clearly results from prosecutorial cross-examination of the defendant asking him why he did not tell the police his version of the facts when arrested, If defendant makes no allegations on direct examination as to what was said or was not said at the time of his arrest, People v. Seales, 16 Mich.App. 572, 168 N.W.2d 428 (1969); People v. McColor, 36 Mich.App. 455, 194 [66 MICHAPP 690] N.W.2d 99 (1971) (Judge, now Justice, Levin's dissenting opinion); People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973). We must decide here whether defendant's statement on direct examination that he Could not remember whether or not he told the police his version of the facts takes this case outside the general rule.

Two recent Michigan Supreme Court cases control our decision. In People v. Graham, 386 Mich. 452, 192 N.W.2d 255 (1971), defendant was convicted of robbing a doughnut shop at knifepoint. Defendant claimed that his closed knife fell from his pocket when he was getting out his money, and that the proprietress jumped to the conclusion that he was attempting a robbery. He alleged that he was unable to calm her down after she became hysterical, so he left with his own money. He was apprehended by the police as he was leaving.

Graham testified on direct examination that he attempted to tell the police his side of the story at the shop, in the police car, and upon his arrival at the cell block. The trial judge allowed several police officers to testify that defendant refused to say anything to them. The Graham Court held that defendant's silence was properly used for impeachment pursuant to the reasoning of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

The Supreme Court in Graham emphasized that such impeachment was proper only where defendant's silence was 'wholly inconsistent' with defendant's statements on direct examination:

'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 [66 MICHAPP 691] States, supra, 353 U.S. 423, 77 S.Ct. 963. At trial, the defendant testified that he continually attempted to give his version of the episode in the doughnut shop, but none of the policemen would even permit him to speak. He painted a picture of an innocent individual who attempted at every turn to explain a basic misunderstanding.

'The testimony of Detective Baeyens is wholly inconsistent with the defendant's statements at trial. Baeyens testified that in fact approximately six hours after his arrest the defendant was given an opportunity to tell a policeman his version of what had occurred. The defendant refused to speak at all. This refusal to speak is inconsistent with his testimony at trial that he was constantly attempting to explain to the police what had occurred. Therefore such refusal to speak was properly admitted for the purpose of impeaching the defendant's credibility.

'Defendant says he never denied that he was unwilling to tell his story to Detective Baeyens, and consequently he never said anything inconsistent to the testimony that Baeyens gave in alleged rebuttal. However, his whole posture of building up this desire to tell his story to police officers was certainly...