People v. Schollaert

• Decision Date: 04 May 1992
• Docket Number: Docket No. 127836
• Citation: 486 N.W.2d 312,194 Mich.App. 158
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce Wayne SCHOLLAERT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 312

486 N.W.2d 312

194 Mich.App. 158

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce Wayne SCHOLLAERT, Defendant-Appellant.

Docket No. 127836.

Court of Appeals of Michigan.

Submitted Feb. 11, 1992, at Grand Rapids.

Decided May 4, 1992, at 9:50 a.m.

Released for Publication Aug. 3, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Bruce E. Basom, Pros. Atty., and Carole F. Barnett, Asst. Atty. Gen., for the People.

William A. Van Eck, Belding, for defendant-appellant.

Bruce W. Schollaert, in pro per.

Before McDONALD, P.J., and SULLIVAN and REILLY, JJ.

REILLY, Judge.

Following a jury trial, defendant was convicted of two counts of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and one count of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), arising out of the shooting deaths of his ex-wife and her boyfriend. Defendant was sentenced to two terms of forty to sixty years of imprisonment, to be served concurrently, for the murder convictions and a consecutive term of two years of imprisonment for the felony-firearm conviction. Defendant now appeals as of right. We affirm.

I

Defendant first argues that his convictions must be reversed because the prosecutor impermissibly elicited testimony of and commented on defendant's silence when sheriff's deputies went to his home at 3:30 or 4:00 a.m., shortly after the murders were reported, to take in defendant for questioning.

During the case in chief, the prosecutor asked Bruce Trebian, one of the sheriff's deputies who was present at defendant's house, whether defendant asked why the officers were at his home:

Q. Did Mr. Schollaert make any statements to them at that time?

A. As to ...

Q. Just make any statements as they walked in.

A. It kind of surprised me. The only thing he really mentioned is he more or less acted like he knew them, "Come on in." He invited them in. I thought it kind of strange because its four o'clock in the morning, during that period of time. You know, somebody is beating on your door, and there's two people there with ...

Q. Did he ever say, "What are you guys doing here?" or anything like that?

A. I never heard him respond to anything like that until after they'd taken him from the residence and were standing by the edge of the road just before a car pulled up.

The prosecutor asked Lewis Corwin, a detective with the sheriff's department who was also present:

Q. And at anytime did he, while you were inside the residence, ask you why you were there?

A. He didn't ask me that question.

Q. Did you ever hear Bruce make that statement at all?

A. No.

Joe Patino, another sheriff's deputy, testified that he asked defendant if he would be willing to go to the station for questioning and that defendant agreed to go. Deputy Patino testified that defendant did not ask what was going on until he was in the police car. However, during his direct examination, defendant stated that he asked Deputy Patino "What's the problem?" when the deputy arrived at his home.

During closing argument, the prosecutor commented on defendant's failure to question why the deputies were at his house:

He [Deputy Trebian] also testified that he thought it was rather unusual, he went into the house after Detective Patino and Detective Corwin and some of the others arrived, that during the five minutes or so that defendant was in the house, he never asked why the officers were there at all. You remember he said he thought that a little unusual.

During rebuttal, the prosecution stated:

The testimony from the police, when they go in, they said they were there for five minutes and he never asked why we were there. The defendant said that wasn't the way it was. But again, what reason would the place [sic] have to lie about it....

Defendant argues that the prosecutor impermissibly used his silence as substantive evidence of his guilt by inferring that an innocent person would have asked why he was being taken in for questioning at 3:30 in the morning.

Although defendant failed to object to the above-noted questions of the prosecutor or to the prosecutor's comments during closing argument, appellate review is nevertheless appropriate where a significant constitutional question is involved. People v. Alexander, 188 Mich.App. 96, 101, 469 N.W.2d 10 (1991).

Defendant asserts that the above-noted questions and comments of the prosecutor violated the rule announced in People v. Bobo, 390 Mich. 355, 359, 212 N.W.2d 190 (1973). In Bobo, the Michigan Supreme Court stated:

We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. "Nonutterances" are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did. Id. at 359 .

Recently, our Supreme Court has released a series of decisions clarifying the rule announced in Bobo. People v. Sutton (After Remand), 436 Mich. 575, 464 N.W.2d 276 (1990); People v. McReavy, 436 Mich. 197, 462 N.W.2d 1 (1990); People v. Cetlinski, 435 Mich. 742, 460 N.W.2d 534 (1990). In each of these cases, the Court construed Bobo as being coextensive with federal precedent, Sutton, supra at 579, 464 N.W.2d 276, McReavy, supra at 201, 462 N.W.2d 1; Cetlinski, supra at 759, 460 N.W.2d 534, and construed the Michigan Constitution consistently with developments in Fifth and Fourteenth Amendment jurisprudence.

In Cetlinski, the Court held that the use for impeachment purposes of a defendant's prior statement, including omissions, given during contact with police before arrest or accusation, does not violate the defendant's rights under the federal or state constitutions. Cetlinski, supra at 746-747, 460 N.W.2d 534. ¹ In Sutton, the Court held that a defendant's exculpatory testimony may be impeached with prearrest or postarrest, pre-Miranda ² silence, but that a defendant's silence after arrest and following the giving of the Miranda warnings may not be used to impeach an exculpatory story. ³ However, where the defendant not only offers an exculpatory story, but affirmatively testifies that he had made a post-Miranda statement to the police consistent with his trial testimony, the prosecution is permitted to rebut his claim with evidence of the defendant's postwarning silence. Sutton, supra at 599, 464 N.W.2d 276. According to the Court, a defendant does not have a constitutional right to immunity from contradiction.

In McReavy, the Court addressed the issue whether Bobo precluded the admission as substantive evidence of testimony concerning a defendant's behavior and demeanor during a custodial interrogation after a valid waiver of his Fifth Amendment right against compelled self-incrimination. The Court noted that where a defendant's silence is attributable to an invocation of his Fifth Amendment right or a reliance on the Miranda warnings, the use of his silence is error. McReavy, supra at 201, 462 N.W.2d 1. However, the Court found that because the defendant had waived his Fifth Amendment right, there was no basis to conclude that the defendant's unresponsiveness to some questions was attributable to the invocation of that right or reliance on the Miranda warnings. Accordingly, the Court concluded that there was no violation of the defendant's right not to incriminate himself. Id. at 203, 462 N.W.2d 1.

The present case involves an issue not directly addressed by our Supreme Court in Sutton, Cetlinski, or McReavy. The question presented here is whether the admission as substantive evidence of testimony concerning a defendant's silence before custodial interrogation and before the Miranda warnings have been given is a violation of the defendant's constitutional rights. On the basis of our reading of these cases and certain federal precedent decided since Bobo, we conclude that it is not. ⁴

The Fifth Amendment and Const 1963, art 1, Sec. 17 provide that no person shall be compelled to be a witness against himself in a criminal trial. The Fifth Amendment privilege has been extended beyond criminal trial proceedings "to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966).

As Justice Stevens, concurring in Jenkins v. Anderson, 447 U.S. 231, 243-244 100 S.Ct. 2124, 2132, 65 L.Ed.2d 86 (1980), noted:

The fact that a citizen has a constitutional right to remain silent when he is questioned has no bearing on the probative significance of his silence before he has any contact with the police. We need not hold that every citizen has a duty to report every infraction of law that he witnesses in order to justify the drawing of a reasonable inference from silence in a situation in which the ordinary citizen would normally speak out. When a citizen is under no official compulsion whatever, either to speak or remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment. For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent. A different view ignores the clear words of the Fifth Amendment.

See also Justice Boyle's concurring opinion in People v. Collier, 426 Mich. 23, 39-40, 393 N.W.2d 346 (1986).

In the present case, when the sheriff's deputies entered defendant's home, defendant was not in a custodial interrogation situation where he was compelled to speak or to assert his right to remain silent. Although defendant was the focus of the police investigation at that point, the relevant inquiry is whether he was subjected to police interrogation while in custody or deprived of his freedom of action...