People v. Rolston

• Decision Date: 26 February 1971
• Docket Number: Docket No. 5317,No. 1,1
• Citation: 31 Mich.App. 200,187 N.W.2d 454
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert ROLSTON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 454

187 N.W.2d 454

31 Mich.App. 200

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert ROLSTON, Defendant-Appellant.

Docket No. 5317.

Court of Appeals of Michigan, Division No. 1.

Feb. 26, 1971.

Rehearing Denied April 8, 1971.

Released for Publication June 10, 1971.

Leave to Appeal Denied June 30, 1971.

M. Glenn Grossman, Grossman & Grossman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and J. H. GILLIS and BRONSON, JJ.

LEVIN, Presiding Judge.

The defendant, Robert Rolston, and Larry Markham were convicted of kidnapping by a jury. ¹ Markham's conviction was affirmed by our Court upon a separate appeal. ² This is Rolston's appeal; he raises a number of issues, but our disposition makes it unnecessary for us to consider all of them.

I.

He contends, firstly, that the evidence presented at his preliminary examination was insufficient to support a finding of probable cause and that he should not have been bound over for trial. ³

The people's evidence showed that the victim, Mrs. Kathleen Riddell, a trusted and responsible employee of Delaney's Great Lakes Bar, suddenly left her place of work without a word of warning to her employer or anyone else shortly after an exchange of communications with Markham and Rolston, who had earlier entered the bar.

Shortly after taking a seat at the bar, Rolston handed Mrs. Riddell a note. She thereafter accompanied Markham into an unoccupied room near where her employer kept a large sum of money; Markham emerged from the room and signalled Rolston to join him outside--Rolston did so. Mrs. Riddell was not seen alive after her departure from the bar. She left behind an untended bar and her personal belongings. Several hundred dollars of her employer's money was missing.

From these facts the magistrate could justifiably infer that it was more probable than not that her departure from the bar was involuntary, that she was forcibly removed, and he could properly conclude that there was probable cause to believe that the crime of kidnapping had been committed. ⁴

II.

Rolston next contends, and we think with merit, that his Fifth Amendment right not to be compelled to incriminate himself was violated when the people were permitted to prove that he chose to exercise that right when the police attempted to question him.

Rolston surrendered to a lawyer on February 7, 1967, who, before turning him over to the police, took a stenographic statement from him. On the following day, February 8, when Rolston was in custody, the police sought to obtain a statement, but he declined to answer any questions, standing on his Fifth Amendment privilege.

Subsequently Rolston's lawyer gave the prosecutor a copy of the statement he had obtained from Rolston on February 7. At the trial the people introduced that statement into evidence. The people were then permitted to prove, over objection, by reading a transcript of the February 8 questioning, that Rolston had exercised his constitutional right to remain silent when the police questioned him; this was error.

It was the people, not defense counsel, who introduced Rolston's February 7 statement into evidence. There is nothing in the February 8 transcript at all inconsistent with the February 7 statement; ⁵ on February 8 Rolston, except for preliminary questions, refused to answer all questions.

Rolston's exercise of his constitutional privilege was stressed by reading several pages of the February 8 transcript which showed that he had repetitiously answered, 'I don't care to answer that' or words to that effect, in response to questions like: Do you know Larry Markham? Did you see Larry Markham on the night of January 23? Was Rolston at the Great Lakes Bar that evening? Does Rolston own an automobile? Where had he been since January 23? Did he desire to make a statement regarding the charged offense of kidnapping? Did he know a bar maid who was employed at the Great Lakes Bar? The apparent and only purpose of reading the transcript was to incriminate Rolston by showing that he had refused to answer those pertinent questions.

The constitutional privilege against self-incrimination 'protects an accused person from introduction at trial of evidence that he remained silent or claimed that privilege in the face of an accusation made after he was taken into custody.' People v. Fry (1969), 17 Mich.App. 229, 233, 169 N.W.2d 168, 170. ⁶ While there is authority in other jurisdictions that this rule does not apply when the defendant takes the stand and subjects himself to cross-examination, and there are statements in opinions of our Court to the same effect, ⁷ our Court has consistently held (People v. Hicks (1970), 22 Mich.App. 446, 178 N.W.2d 193; People v. Seales (1969), 16 Mich.App. 572, 168 N.W.2d 428; People v. Williams (1970), 26 Mich.App. 218, 230, 182 N.W.2d 347) that the rule of constitutional law which protects an accused person who does not take the stand against proof that he exercised his Fifth Amendment right in the face of accusation protects as well a defendant who exercises his separate constitutional right ⁸ to take the stand and testify in his own behalf. Relevant in this connection is the principle that it is 'intolerable that one constitutional right should have to be surrendered in order to assert another.' ⁹

An accused person who chooses to take the stand does, indeed, subject himself to cross-examination; what he says as a witness, inculpatory and exculpatory, must be carefully scrutinized--he is no longer silent. But it is impertinent, not legally relevant, that on an earlier occasion he made a different choice, that he Then chose to remain silent.

The right to remain silent is severable, that is, it may be exercised on one occasion and waived on another, or Vice versa, viz. the refusal of an accused person to answer questions before trial does not preclude him from taking the stand at the time of trial; on the other hand, even if he makes a statement before the trial he may decline to testify at his trial. ¹⁰

True, if the accused makes a statement before the trial (E.g., Rolston's February 7 statement later turned over to the police), it may be shown in evidence at trial without regard to whether he testifies. ¹¹ This subjects the accused to possible adverse conclusion by the trier of fact based on what the accused said when he did Not assert the privilege to remain silent; that does not penalize free assertion of this constitutional privilege. It would, however, penalize assertion of this privilege to permit the people to challenge those accused persons who take the stand for asserting it.

It unnecessarily and, therefore, impermissibly chills exercise of both the pretrial and the trial choice of whether to speak or to remain silent and the trial choice of whether to testify, to allow the people to challenge an accused person who testifies in his own behalf by showing--here, even before he took the stand--that before trial (I.e., at a different time and place) he exercised his severable right to remain silent. ¹²

III.

Rolston raises another issue, one that may arise again upon the retrial. While we now advert to it, we do not think the record is adequate to permit definitive consideration.

Before and after his preliminary examination on February 16, 1967, Rolston shared a cell with one Daniel Brome. Brome testified at the trial that Rolston told him before February 16 that Larry Markham forced him at gunpoint to participate in the kidnapping of Mrs. Riddell; this was entirely consistent with Rolston's trial testimony--indeed his defense was that his participation was coerced.

When Brome attempted to testify concerning certain confidences which Rolston shared with him after February 16, Rolston's attorney objected. He claimed that on February 16 Brome became an agent for the police and that his task was to obtain inculpatory information from Rolston. In this connection it is relevant that Rolston was represented by an attorney throughout the period when he was incarcerated with Brome.

Brome reported to the police on February 16, the day of Rolston's preliminary examination, that Rolston was talking. The record is unclear whether Brome expected or was offered or received any consideration from the people for reporting post-February 16 conversations. At the trial he denied he was motivated by a hope that he would be dealt with more leniently, but in response to questions as to whether it was not a fact that he was hopeful that if he cooperated the police would make a 'deal' or give him a 'break,' he responded that one of the detectives may have said that and, also, that another officer said he 'would see what he could do.' The charges against Brome were dismissed before Rolston's trial.

Although the people contended at the trial that Brome should be allowed to testify concerning the post-February 16 conversations, the assistant prosecuting attorney eventually announced that he would not, in view of Rolston's lawyer's objections, question Brome further regarding those conversations. Evidence of the conversations was, nevertheless, introduced in response to questions put by Markham's counsel. Parenthetically, while Markham's and Rolston's defenses were inconsistent, no motion for a separate trial was made in Rolston's behalf.

In Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, the United States Supreme Court ruled that it was an infringement upon a defendant's Sixth Amendment right to the assistance of counsel to use against him at his trial (p. 206, 84 S.Ct. p. 1203) 'evidence of his own incriminating words, which federal agents had deliberately elicited from him (through a codefendant who had been wired for sound) after he had been indicted and in...