People v. Rice, Docket No. 200228.

Citation235 Mich. App. 429,597 N.W.2d 843
Decision Date09 August 1999
Docket NumberDocket No. 200228.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benjamin RICE, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

597 N.W.2d 843
235 Mich.
App. 429

PEOPLE of the State of Michigan, Plaintiff-Appellee,
Benjamin RICE, Defendant-Appellant

Docket No. 200228.

Court of Appeals of Michigan.

Submitted January 27, 1999, at Lansing.

Decided May 4, 1999, at 9:00 a.m.

Released for Publication August 9, 1999.

597 N.W.2d 846
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Angela Pasula, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people

Martin J. Beres, St. Claire Shores, for the defendant on appeal.


597 N.W.2d 844


597 N.W.2d 845

In our prior decision, People v. Rice, 231 Mich.App. 126, 585 N.W.2d 331 (1998), rev'd 459 Mich. 896, 589 N.W.2d 280 (1998), remanded 459 Mich. 924, ___ N.W.2d ___ (1998), we reluctantly reversed and remanded for a new trial only because we were compelled do so pursuant to the precedent of People v. Anderson, 398 Mich. 361, 247 N.W.2d 857 (1976). Were we permitted, we would have followed the rule of the majority of other jurisdictions in holding "that a defendant's request to represent himself must be made in a timely manner or else the defendant relinquishes the unconditional right to represent himself and the matter then rests in the discretion of the trial court." See anno: Accused's right to represent himself in state criminal proceeding—modern state cases, 98 A.L.R.3d 13, § 15, p. 68, and cases cited therein.

In Anderson, supra at 367-368, 247 N.W.2d 857, our Supreme Court held that upon a defendant's initial request to proceed pro se, the trial court must determine that (1) the defendant's request is unequivocal, (2) the right has been asserted knowingly, intelligently, and voluntarily by advising the defendant of the dangers and disadvantages of self-representation, and (3) the defendant's self-representation will not disrupt, unduly inconvenience, and burden the court and the administration of the court's business. See also People v. Dennany, 445 Mich. 412, 519 N.W.2d 128 (1994) (opinion by Griffin, J.).

Later, in People v. Adkins (After Remand), 452 Mich. 702, 723, 726-727, 551 N.W.2d 108 (1996), the Supreme Court held that a judicial inquiry substantially in compliance with Anderson was required whenever the trial court was confronted with an initial request for self-representation:

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This Court expects that judges will create a record that establishes the trial court's compliance with the court rules and Anderson during the initial waiver process.

* * *

We hold, therefore, that trial courts must substantially comply with the aforementioned substantive requirements set forth in both Anderson and MCR 6.005(D). Substantial compliance requires that the court discuss the substance of both Anderson and MCR 6.005(D) in a short colloquy with the defendant, and make an express finding that the defendant fully understands, recognizes, and agrees to abide by the waiver of counsel procedures. The nonformalistic nature of a substantial compliance rule affords the protection of a strict compliance rule with far less of the problems associated with requiring courts to engage in a word-for-word litany approach.

In the present case, the trial court did not create a record or substantially comply with Anderson and MCR 6.005(D). See Rice, supra at 129-130, 585 N.W.2d 331. Although we urged the Supreme Court to adopt a timeliness requirement for asserting the right of self-representation, we recognized that to date our Supreme Court has upheld the appropriateness of a request for self-representation made on the eve or day of trial. See Anderson, supra, and Adkins, supra. We reversed and remanded for a new trial on the basis that pursuant to Anderson and Adkins defendant was denied his right of self-representation. In view of our disposition, we found it unnecessary to address the other issues raised by defendant. Rice, supra at 138, 585 N.W.2d 331.

In an order dated November 10, 1998, the Supreme Court reversed our decision:

In lieu of granting leave to appeal, the judgment of the Court of Appeals is reversed, and the judgment of the Berrien Circuit Court is reinstated. MCR 7.302(F)(1). The record does not establish that defendant made an unequivocal request to represent himself that was knowing, intelligent, and voluntary, nor did the illiterate defendant's brief mention of the subject suggest that self-representation would not be disruptive or unduly burdensome. [People v. Rice, 459 Mich. 896, 589 N.W.2d 280 (1998) (emphasis added).]

Thereafter, in response to defendant's motion for reconsideration, the Court modified its previous order "so as to remand the case to the Court of Appeals for consideration of the six issues not addressed by that Court during its initial review of this case." Rice, supra at 459 Mich. 924, ___ N.W.2d ___.

In accordance with the Supreme Court's directive, we now address defendant's other issues. After doing so, we affirm defendant's convictions and sentences.


Defendant alleges that he was denied his right to a fair trial by several instances of prosecutorial misconduct. We disagree.

The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v. Paquette, 214 Mich.App. 336, 342, 543 N.W.2d 342 (1995). Prosecutorial misconduct issues are decided case by case, and the reviewing court must examine the pertinent portion of the record and evaluate a prosecutor's remarks in context to determine whether the defendant was denied a fair and impartial trial. People v. Legrone, 205 Mich.App. 77, 82-83, 517 N.W.2d 270 (1994).

Defendant first argues that although he had been Mirandized1 and had already answered some police questions, his subsequent silence in the interviews with police constituted an invocation of his

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right to remain silent. Defendant alleges that the prosecutor improperly introduced testimony at trial regarding this silence and argued in closing that the jury should infer defendant's guilt from his nonverbal conduct during police questioning.

Defendant did not tender a specific objection at trial to the prosecutor's conduct in offering this evidence or the prosecutor's closing remarks. Thus, review is foreclosed unless the prejudicial effect of the comments was so great that it could not have been cured by an appropriate instruction, or a failure to review the issue would result in a miscarriage of justice. People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994).

Our Supreme Court has held that Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), proscribes the use of a defendant's post-Miranda silence because it would violate due process to so impeach a defendant who may have been relying on the governmental assurance that his silence would not be used against him. People v. Sholl, 453 Mich. 730, 736-737, 556 N.W.2d 851 (1996). However, in People v. McReavy, 436 Mich. 197, 217-220, 462 N.W.2d 1 (1990), the Court further held as follows:

If the defendant had refused to say anything after being given his Miranda warnings, testimony about that refusal would have been improper. Miranda, supra at 468, n. 37, 86 S.Ct. 1602. The relevant inquiry is first whether the defendant has remained silent. If so, there is an irrebuttable presumption of irrelevancy, and such silence may not be used substantively or for impeachment purposes since there is no way to know after the fact whether it was due to the exercise of constitutional rights or to guilty knowledge. Where the defendant has not maintained "silence," but has chosen to speak, the Court has refused to endorse a formalistic view of silence. Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980).
... In situations where a defendant voluntarily waives his Fifth Amendment right to be silent, makes some statements, and then fails to respond to other questions, the focus of the inquiry is whether the defendant is now manifesting either a total or selective revocation of his earlier waiver of Fifth Amendment rights and whether that revocation is induced by the implicit assurances contained in the Miranda warnings. If it is concluded that a defendant's lack of response constituted invocation of the right to remain silent which was induced by the government, the failure to respond would again present the "insoluble" ambiguity that Doyle forbids....
We have found no authority for the proposition that a defendant's nonverbal conduct during interrogation, after a valid waiver of the right to remain silent, is an exercise of that Fifth Amendment right to remain silent or that the "description of partial silence" in such a setting is an error of constitutional dimension.

The McReavy Court further indicated that if a defendant "manifested a total revocation of his earlier waiver" or "answered several questions and then invoked his right to remain silent," the prosecutor would not be entitled to introduce evidence of that silence at trial or to comment on it during summation. Id. at 218-219, 462 N.W.2d 1, ns. 22 and 23.

In the instant case, defendant waived his Fifth Amendment rights at the outset of each interrogation. In the first interview, defendant made some statements, stopped talking, and hung his head down, and then again responded to questioning. In the second interview, after waiving his rights, defendant merely looked down, nodded, and cried. There is no evidence of record that during either interview defendant verbally invoked his Fifth Amendment right to remain silent or stated that he did not care to answer any further questions, except when he requested a halt to the interview, which the

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officers granted. We conclude that the present circumstances do not present the "insoluble" ambiguity forbidden by Doyle. McReavy, supra. Therefore, the officers' testimony concerning defendant's nonverbal conduct and silence...

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