People v. Sutton

• Decision Date: 27 December 1990
• Docket Number: Docket No. 80844
• Citation: 464 N.W.2d 276,436 Mich. 575
• Parties: PEOPLE v. SUTTON (After Remand). 436 Mich. 575, 464 N.W.2d 276
• Court: Michigan Supreme Court

Page 276

464 N.W.2d 276

PEOPLE v. SUTTON (After Remand).

Docket No. 80844.

436 Mich. 575, 464 N.W.2d 276

Supreme Court of Michigan.

Argued March 9, 1988.

Decided Sept. 28, 1990.

Rehearing Denied Dec. 27, 1990.

[436 MICH 578] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief, Criminal Div., Research, Training and Appeals, and Don W. Atkins, Chief Appellate Atty., for the people.

State Appellate Defender by Susan J. Smith, for defendant.

AFTER REMAND

BOYLE, Justice.

The defendant has no standing to claim error on appeal in the impermissible use of silence when his position at trial was that he had not remained silent, but in fact had given a postarrest, postcustody statement that the shooting was an accident.

Defense counsel waived any claim of such error. Not only did he fail to object to the prosecutor's cross-examination of the defendant, counsel thereafter affirmatively sought to create the impression that the defendant's trial testimony, that he had There is no conflict on this record between People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973), and federal decisions construing the Fifth and Fourteenth Amendments. Where a defendant claims that he gave an exculpatory statement to the police after arrest and warnings, neither Bobo nor any federal constitutional authority would preclude impeachment with prior inconsistent conduct, including silence. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The Court of Appeals thus erred in holding that Bobo required reversal. On this point it has never been questioned that Bobo is coextensive with federal law. People v. Graham, 386 Mich. 452, 192 N.W.2d 255 (1971). We would therefore reverse the decision of the Court of Appeals and reinstate the defendant's conviction.

told the police that the shooting was an accident, was truthful. Therefore, impeachment with inconsistent conduct, the refusal to give a statement, was proper.

To the extent that the Court of Appeals relied on Bobo to conclude that the Fifth Amendment prevented impeachment with all reference to postarrest silence, the court erred. As a matter of constitutional law, the federal and Michigan Constitutions do not preclude the use of a defendant's prearrest or postarrest, pre-Miranda ¹ silence for purposes of impeachment at trial. People v. Cetlinski, 435 Mich. 742, 460 N.W.2d 534 (1990). Nor is there any constitutional barrier to the impeachment use of postwarning silence where the defendant claims at trial that he did not remain silent but made statements to the police consistent with his exculpatory testimony. The prosecution cannot use postwarning silence to impeach a defendant's exculpatory trial testimony, but both Bobo and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), recognize that silence is admissible to impeach a defendant's claim that he did not remain silent. Bobo, supra, 390 Mich. p. 359, 212 N.W.2d 190.

To the extent the prosecutor's initial question might have been aimed intentionally at the defendant's postarrest, post-Miranda silence the question would have been objectionable under the rule of Doyle or Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). ² To the extent the prosecutor's inquiry called for an irrelevant answer, it would have been objectionable under People v. Collier, 426 Mich. 23, 393 N.W.2d 346 (1986). However, these issues cannot be addressed on this record.

The defendant's failure to object prevented development of a record that would allow us to decide whether the prosecutor's question was (1) a legitimate inquiry testing the credibility of defendant' testimony on direct examination implying that he would have made an explanation consistent with his trial testimony but for the police conduct in "grabbing him," or (2) an attempt to make less probable the inference that the defendant sought to establish, i.e., that his prearrest conduct indicated his innocence, by exploring the defendant's statement on cross-examination that he had told Mr. Brandywine of the accident prior to going to the police and that he voluntarily went to the police. Thus, it is not possible to determine whether the inquiry was improper for constitutional or evidentiary reasons. ³ We would resolve this case on the basis that the defendant failed to object and thereafter claimed that he had made a post-Miranda statement to the police consistent with his trial testimony. It was the defendant's position at trial that he did not remain silent. Moreover, the defendant affirmatively sought to establish that he did in fact make a pretrial statement and used that testimony to bolster his accident defense. Defendant thus converted a potentially objectionable situation into a claim of postarrest, postwarning conduct consistent with innocence. Evidence of Sutton's postarrest, postcustody behavior was permissibly used not to impeach defendant's exculpatory story, but rather to directly contradict the claim that defendant had told his story after arrest. People v. Bobo, supra; Doyle v. Ohio, supra, 426 U.S. pp. 619-620, n. 11, 96 S.Ct. p. 2245, n. 11. "The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Harris, supra, 401 U.S. p. 226, 91 S.Ct. p. 646.

I

On February 14, 1982, the defendant, accompanied by the lawyer who ultimately became trial counsel, voluntarily came to the Taylor police station after learning that the police wanted to question him regarding the shooting death of Milton Taylor which took place the previous evening during a dance the defendant had attended with his brother. Upon arrival at the station, the police arrested the defendant and charged him with first-degree murder.

At the defendant's trial, ⁴ the prosecution presented proofs that prior to the shooting incident, which took place sometime after midnight, the defendant's brother and the victim began to fight. As people tried to break up the fight, a shot was fired, hitting the victim. A witness testified that he saw the defendant pull out a gun and shoot the victim. ⁵ The prosecutor also called Sergeant Thomas Bonner. He testified that, as part of the investigation, he had learned that the deceased uttered the words, "Sutton shot me, Thomas Sutton shot me." The officer further testified that he learned that David Sutton, the defendant's brother, had no brother named Thomas and that he and the defendant were the only Suttons. ⁶

During cross-examination of Sergeant Bonner, defense counsel began to suggest defendant's cooperation with the authorities by establishing that the defendant had initially voluntarily submitted himself to the police and was immediately charged with the crime, and further, that the defendant had voluntarily returned from Ohio following his flight from prosecution. ⁷ No reference was made by the prosecution to any conduct of the defendant which might be construed as silence. The prosecution rested.

The defendant took the stand and on direct examination by his counsel said that his brother had given him the gun to hold during the dance, and that around 2:00 A.M., while he was helping collect money from people at the doorway, somebody said a fight had started. The defendant stated that he rushed over when he saw that it was his brother fighting and that he pulled out the gun, and said " 'Why don't somebody stop the fight?' " At that point while he was trying to move closer to where his brother was fighting, the defendant stated that someone hit him and knocked the gun out of his hand. As he fell against one of Q. You are telling me as soon as you got up from the table, Mr. Hansbury had the gun?

the tables and tried to catch his balance he heard a weapon discharge. Defendant testified that he last saw the gun in the possession of a person named Hansbury. He stated that he left the dance approximately one half hour later, and that he never knew that anyone had been shot until the next day. The defendant testified that his only interest had been to protect his brother, and asserted that when he heard that someone had been shot he [436 MICH 584] voluntarily went to the police department. He implied that he was prevented from relating his exculpatory version of the event when he added that he had no idea that he was going to be charged with murder and that Sergeant Bonner "just grabbed me" and said, " 'You are being charged with first-degree murder.' " ⁸ During cross-examination the defendant said that he did hear the gun go off after he dropped it, and that he did not look for the gun after he regained his balance and was on his feet. After composing himself, he looked around and saw a Mr. Hansbury walking down a hallway holding the gun. The prosecutor then asked:

A. When I seen [sic] him, he had it.

Q. And what was Mr. Hansbury doing with the gun?

A. He was walking down the hallway with it.

Q. Did he give it to you?

A. No, sir.

Q. Did you ask him for it?

A. No, sir.

Q. How many people at that point, Mr. Sutton, did you tell that [it] was an accident, [that] the gun was knocked from your hand?

A. I told Mr. Brandywine.[ ⁹]

The prosecutor also asked:

Q. How many times did you inquire when you composed yourself after hitting that table, how many times did you inquire if anyone got shot because the gun went off?

A. I asked Mr. Brandywine.

The following colloquy then occurred:

Q. Now, when, Mr. Sutton, did you first learn that someone had been shot at the Fandango Hall.

A. The day after the cabaret.

* * * * * *

Q. When did you tell the police it was an accident?

* * * * * *

A. I can't remember exactly when.

Q. You did tell the police?

A. Yes.

Q. Do you have any idea when you told the police?

A. No. I can't remember.

Q. Do you have any idea what police you told?

A. Sergeant Bonner.

Q. Sergeant Bonner?

A. Yes.

Q. What year was that...