People v. Sholl

• Decision Date: 30 December 1996
• Docket Number: Docket No. 106139
• Citation: 556 N.W.2d 851,453 Mich. 730
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Daniel Clyde SHOLL, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 851

556 N.W.2d 851

453 Mich. 730

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Daniel Clyde SHOLL, Defendant-Appellee.

Docket No. 106139.

Supreme Court of Michigan.

Dec. 30, 1996.

[453 Mich. 731] Frank J. Kelley, Attorney General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Sr. Assistant Prosecuting Attorney, for the People.

OPINION

PER CURIAM.

At the conclusion of a jury trial, the defendant was convicted of third-degree criminal sexual conduct. The Court of Appeals reversed, finding three instances of error. We reverse the judgment of the Court of Appeals and reinstate the defendant's conviction.

I

In this case, the defendant and the complainant were in the initial stages of a dating relationship. They had spent time together on several occasions. On a January evening in 1992, they had sexual intercourse. The defendant says that the sexual relations were voluntary. The complainant says that they were accomplished through force or coercion.

The defendant was charged with one count of third-degree criminal sexual conduct. M.C.L. § 750.520d(1)(b); M.S.A. § 28.788(4)(1)(b). A September 1992 trial ended in a mistrial, when the jury was unable to reach a verdict. The defendant was tried again in August 1993. The second jury found him guilty, as charged.

The defendant was sentenced to a term of thirty months to fifteen years in prison. The circuit court denied his motion for new trial.

As indicated, the Court of Appeals reversed the conviction, finding three errors in the trial. ¹ The Court of Appeals later denied rehearing. ²

The prosecutor has applied to this Court for leave to appeal.

II

The first error identified by the Court of Appeals was the admission of certain testimony from the investigating officer. He had interviewed the defendant two weeks after the incident (and about three months before an arrest warrant was issued). After giving the defendant the familiar Miranda ³ warnings, he questioned the defendant. Here is the officer's testimony:

Q. Did you tell him why you asked him to come in to speak to you?

A. Yes, I contacted him and had him come into the office, that I was investigating a sexual assault case wherein he was the alleged perpetrator.

Q. In the course or your conversation with him, did you ask him if he had had intercourse with [the complainant]?

A. Yes, I did.

Q. And what did he say?

A. He denied to answer that and further stated that he felt that that was up to her to prove that.

Q. Now, were you present when the Defendant testified [at the first trial]?

A. Yes.

Q. And what did he say about that having intercourse with [the complainant] that day?

A. If I remember correctly, he indicated that they did have but it was consensual.

Q. But he didn't say that to you when you interviewed him, is that correct?

A. No, he did not.

Q. Did you ask him about other events on that evening of what occurred?

A. After---as far as he indicated that he would talk with me in reference to the relationship, as far as other incidents that evening that we got into that later.

* * * * * *

Q. What did he say about what they did during the time that they were alone together?

A. He indicated that there was some contact between the two of them. There was some kissing and hugging. And I believe he used the term---there was intimacy between them.

Q. Did he ever say that they had intercourse?

A. No, he did not.

Q. His only statement regarding intercourse was that she had to prove that, is that correct?

A. Correct.

The Court of Appeals noted that the defendant did not object to the introduction of this evidence, but nonetheless found it to be error that warranted reversal:

An investigating police officer testified in the prosecution's case in chief that defendant exercised his right to remain silent when questioned about whether he had intercourse with complainant. Although there was no objection to this evidence at trial, the issue involved a significant constitutional question, and we follow People v. Alexander, 188 Mich.App. 96, 469 N.W.2d 10 (1991), where this Court determined that the prosecution cannot deliberately inject a defendant's silence after the defendant has been given Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This is not a question of impeaching defendant by his somewhat ambivalent exercise of his Miranda rights after he has testified. This is a question of presenting to the jury in the prosecution's case in chief, before it could even know if defendant were going to take the stand, that he had affirmatively asserted his right to remain silent as to a question propounded to him by an investigating police officer when he was the focus of investigation.

For many years, the leading authority with regard to the prosecution's right to question a defendant's silence was People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973). Recent years have brought several clarifying decisions, beginning with People v. Collier, 426 Mich. 23, 393 N.W.2d 346 (1986), in which we approved cross-examination with regard to a defendant's prearrest failure to tell the police the version of the crime that he later offered in his trial testimony.

A trilogy of post-Bobo cases was decided in 1990. People v. Cetlinski, 435 Mich. 742, 460 N.W.2d 534 (1990), People v. McReavy, 436 Mich. 197, 462 N.W.2d 1 (1990), and People v. Sutton (After Remand ), 436 Mich. 575, 464 N.W.2d 276 (1990).

In Cetlinski, we again permitted a defendant to be impeached with prearrest and pre-Miranda statements, including omissions within those statements:

We hold that the use for impeachment purposes of a defendant's prior statement, including omissions, given during contact with the police, prior to arrest or accusation, does not violate the defendant's constitutional rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution. Indeed, long before Jenkins v. Anderson, [447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) ], the United States Supreme Court had held the Fifth Amendment was not violated by impeachment of a testifying defendant with voluntarily given prior inconsistent statements. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The use of a defendant's prearrest, pre-Miranda "statements" for impeachment purposes is one of relevancy, and evidentiary matter. The threshold inquiry is whether this evidence makes "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. See Collier, supra, p. 36, 393 N.W.2d 346.

* * * * * *

The statement of a party opponent is defined as an oral or written assertion or nonverbal conduct, MRE 801(d)(2). For impeachment purposes, the failure to assert a material fact when formerly narrating on the matter now dealt with amounts to an assertion, or statement, of the nonexistence of the fact. Thus, as an evidentiary matter, omissions from an affirmative voluntary response to questions about the same subject matter testified to at trial do not constitute "silence." Rather, they are "prior inconsistent statements," and can be used to impeach testimony at trial in which the witness admitted the fact's existence. As the Jenkins Court noted, the "[u]se of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and facts." Id., p. 238, 100 S.Ct. at p. 2129.

As stated above, when an individual has not opted to remain silent, but has made affirmative responses to questions about the same subject matter testified to at trial, omissions from the statements do not constitute silence. The omission is nonverbal conduct that is to be considered an assertion of the nonexistence of the fact testified to at trial if a rational juror could draw an inference of inconsistency. To be sure, the witness may explain the omission by a desire not to implicate himself or because of a lapse of memory. Such explanations, however, do not remove the relevance of the inconsistency. [435 Mich. at 746-749, 460 N.W.2d 534.]

In McReavy, the defendant was given Miranda warnings and agreed to speak with the police. In its case in chief, the prosecutor presented the testimony of the arresting officers, who talked about the defendant's demeanor during questioning, and his failure to respond to some of the questions from the police during a conversation when he answered other questions. In its analysis, this Court contrasted the situation in which a defendant refuses to say anything after being given Miranda warnings.

In Sutton, a defendant claimed that he gave an exculpatory statement to the police after being arrested and receiving his Miranda warnings. The police impeached him on rebuttal with testimony that he had not given such a statement to them. This Court found such testimony proper.

In all three of these cases (Cetlinski, McReavy, and Sutton ), this Court talked about the rule of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). As this Court explained in each opinion,Doyle precludes the use of a defendant's post-Miranda silence, since it would violate the right to 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.

In McReavy, this Court noted the potential problem that can arise when a defendant has received Miranda warnings and then offers limited responses to police questions. Concerning the possible interplay with Doyle, this Court said:

Unlike the situation in Anderson, Warden v. Charles [ ⁴] or People v. Cetlinski, the instant case involves the use of defendant's statements and demeanor as substantive evidence of guilt. In situations where a defendant voluntarily waives his Fifth Amendment right to be silent, makes some statements, and then fails to respond to...