People v. Shafier

• Decision Date: 01 July 2009
• Docket Number: Calendar No. 2.,Docket No. 135435.
• Citation: 768 N.W.2d 305,483 Mich. 205
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold Emmett SHAFIER III, Defendant-Appellant.
• Court: Michigan Supreme Court

768 N.W.2d 305

483 Mich. 205

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold Emmett SHAFIER III, Defendant-Appellant.

Docket No. 135435.

Calendar No. 2.

Supreme Court of Michigan.

Argued January 21, 2009.

Decided July 1, 2009.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Frederick Anderson, Prosecuting Attorney, and Douglas E. Ketchum, Assistant Prosecuting Attorney, for the people.

Christine DuBois, Bloomfield Hills, for the defendant.

John Hallacy, Kym L. Worthy, and Timothy A. Baughman, for amicus curiae the Prosecuting Attorneys Association of Michigan.

Opinion

MICHAEL F. CAVANAGH, J.

We granted leave to appeal in this case to determine whether the prosecution's references to defendant's post-arrest, post-Miranda¹ silence violated defendant's constitutional due process rights, and, if so, whether defendant is entitled to a new trial.² We hold that defendant's due process rights were violated. Further, the violation amounted to plain error that affected defendant's substantial rights and seriously affected the fairness and integrity of the trial. We reverse defendant's conviction and remand to the trial court for further proceedings.

I. BASIC FACTS AND PROCEEDINGS

Defendant, Harold E. Shafier III, was charged with three counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct for allegedly sexually assaulting his 13-year-old daughter, AS. Defendant and his wife adopted AS and her three sisters in 1995. In January 2005, defendant's wife reported to the police that AS was alleging that she had been sexually assaulted by defendant. Defendant was arrested immediately. During the arrest, defendant asked why he was being arrested, and the officer told him that he was under arrest for criminal sexual conduct. The officer gave him the Miranda warnings, and defendant remained silent thereafter.

At trial, AS testified that defendant sexually assaulted her on a daily basis from July 2004 until he was arrested. She testified that the abuse escalated over time from kissing and touching to digital penetration and oral sex.³ She listed a few settings where the abuse occurred but initially had some difficulty describing specific incidents. AS described one instance in which one of her sisters walked in while defendant was performing oral sex on AS. The sister, age 11, testified and corroborated this story, although there were discrepancies between their accounts.⁴ Another sister, age 17, testified that she once walked into the family's barn and found AS and defendant standing close to each other and that it appeared to her that they were about to kiss or had just been kissing.⁵ AS and her sisters testified that defendant would sometimes take one or more of the girls to the store with him upon their request and buy everyone candy, but that he probably bought AS the most candy. Defendant's wife testified that she thought defendant had been favoring AS by taking her shopping and visiting her school.

Defendant testified in his own defense and adamantly maintained that he had never sexually assaulted any of his daughters. He denied the factual circumstances of the specific allegations that AS and her sisters made. He stated that it would have been physically impossible for the alleged incident of oral sex to have occurred in the manner described by AS and her sister because the table on which it was supposed to have occurred was covered with boxes at the time. Defendant also denied favoring AS. He stated that he had begun stopping at AS's school to check her progress because she was the only child not doing well in school. He testified that, after school, he often took one or more of the children shopping with him and would buy candy for any of the children who requested it.

Defendant testified that he suspected that his wife encouraged their daughters to make false allegations against him because she was jealous of the time he was spending with their daughters. It is undisputed that up to and during the period of the alleged incidents, the relationship between defendant and his wife had deteriorated. Defendant testified that he had become increasingly angry with his wife's treatment of the children and consciously decided to become more involved in the children's lives in July 2004. Defendant stated that his wife had reacted with jealousy and anger as he increased the time he spent with the girls.

At trial, the prosecutor referred to defendant's post-Miranda silence multiple times, including in his opening and closing statements, direct and redirect examinations of the arresting officer, and cross-examination of defendant. Defense counsel objected during the prosecutor's cross-examination of defendant, but the basis for the objection was unclear.

After two hours of deliberation, the jury announced that it was deadlocked. The court instructed the jury to continue to deliberate. On the second day, after rehearing portions of the trial testimony, the jury acquitted defendant of three counts of first-degree criminal sexual conduct and convicted him of two counts of second-degree criminal sexual conduct.

Defendant appealed, and a divided Court of Appeals panel affirmed his convictions. People v. Shafier, 277 Mich.App. 137, 743 N.W.2d 742 (2007). The majority held that the prosecutor's use of defendant's post-Miranda silence in his case-in-chief violated defendant's constitutional rights, reasoning that the prosecutor's references "were not inadvertent and they were numerous" and that "the prosecutor asked the jury to infer that defendant was guilty because he did not take the affirmative step of questioning the arresting officer ... or declaring his innocence...." Shafier, 277 Mich.App. at 140, 142-143, 743 N.W.2d 742. The majority held that defendant was not entitled to a new trial, however, because defendant did not establish that the violation was plain error affecting his substantial rights. Id. at 143-144, 743 N.W.2d 742. The Court of Appeals dissent would have granted defendant a new trial because "[t]here is no way to know what effect those breaches had on the jurors' minds, particularly considering the jurors' initial announcement that they were deadlocked." Id. at 145, 743 N.W.2d 742 (Davis, J., dissenting). This Court granted defendant's application for leave to appeal.

II. STANDARD OF REVIEW

Defendant raises an unpreserved claim of constitutional error. Constitutional questions are reviewed de novo. Sidun v. Wayne Co. Treasurer, 481 Mich. 503, 508, 751 N.W.2d 453 (2008). This Court reviews the effect of an unpreserved constitutional error under the plain-error standard. People v. McNally, 470 Mich. 1, 5, 679 N.W.2d 301 (2004).

III. ANALYSIS

A. VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS

Defendant argues that his constitutional due process rights were violated under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and its progeny. We hold that the prosecution's repeated references to defendant's post-arrest, post-Miranda silence violated defendant's due process rights under the United States Constitution.⁶

1. Rule of Doyle v. Ohio and its Progeny

The United States Constitution guarantees that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. Am. V.⁷ Miranda v. Arizona, 384 U.S. 436, 444-439, 467-468, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), established "guidelines for law enforcement agencies and courts to follow" in order to protect the privilege against compelled self-incrimination during custodial police interrogations. Thus, under Miranda, every person subject to interrogation while in police custody must be warned, among other things, that the person may choose to remain silent in response to police questioning. Id. at 444-445, 86 S.Ct. 1602. As a general rule, if a person remains silent after being arrested and given Miranda warnings, that silence may not be used as evidence against that person. Wainwright v. Greenfield, 474 U.S. 284, 290-291, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). Therefore, in general, prosecutorial references to a defendant's post-arrest, post-Miranda silence violate a defendant's due process rights under the Fourteenth Amendment of the United States Constitution.⁸ See Wainwright, 474 U.S. at 290-291, 106 S.Ct. 634; Doyle, 426 U.S. at 618-620, 96 S.Ct. 2240.

The United States Supreme Court has explained the rationales behind the constitutional prohibition against the use of a defendant's post-arrest, post-Miranda silence. To begin with, a defendant's silence may merely be the defendant's invocation of the right to remain silent, as opposed to a tacit acknowledgement of guilt. "[E]very post-arrest silence is insolubly ambiguous...." Doyle, 426 U.S. at 617, 96 S.Ct. 2240. Further, Miranda warnings provide an implicit promise that a defendant will not be punished for remaining silent. Id. at 618, 96 S.Ct. 2240. Once the government has assured a person of his right to remain silent, "breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires." Wainwright, 474 U.S. at 291, 106 S.Ct. 634.

Consistent with these rationales, a defendant's post-arrest, post-Miranda silence cannot be used to impeach a defendant's exculpatory testimony, see Doyle, or as direct evidence of defendant's guilt in the prosecutor's case-in-chief, see Wainwright, 474 U.S. at 292-294, 106 S.Ct. 634.⁹

"What is impermissible is the evidentiary use of an individual's exercise of his constitutional rights after the State's assurance that the invocation of those rights will not be penalized." Id. at 295, 106 S.Ct. 634. There are limited exceptions to this general rule, but none applies here.¹⁰ This Court has adopted this understanding of a defendant's due process rights and stated that post-arrest, post-Miranda silence "may not be used substantively or for impeachment purposes since there is...