People v. Vanover, Docket No. 150695

• Decision Date: 06 July 1993
• Docket Number: Docket No. 150695
• Citation: 200 Mich.App. 498,505 N.W.2d 21
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis VANOVER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 21

505 N.W.2d 21

200 Mich.App. 498

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis VANOVER, Defendant-Appellant.

Docket No. 150695.

Court of Appeals of Michigan.

Submitted May 12, 1993, at Detroit.

Decided July 6, 1993, at 9:20 a.m.

Released for Publication Sept. 23, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Thomas M. Chambers, Asst. Pros. Atty., for the People.

Goldpaugh & Associates, P.C. by Donald H. Stolberg, Farmington Hills, for defendant-appellant.

Before JANSEN, P.J., and REILLY and

KNOBLOCK, ^* JJ.

REILLY, Judge.

Defendant appeals as of right his conviction, after a jury trial, of one count of criminal sexual conduct in the first degree, M.C.L. § 750.520b(1)(b); M.S.A. § 28.788(2)(1)(b). We affirm.

The victim in this case was a fifteen-year-old runaway from a juvenile facility. She testified that in the early morning hours of June 25, 1990, defendant, an off-duty Detroit police officer, used his authority as a police officer to take her to a hotel, where he sexually assaulted her under threat of injury. The victim testified that no one else was present in the room at the time of the assault.

Defendant testified that after his shift ended on June 25, 1990, he picked up a female friend, Kim Watkins, from a restaurant and agreed to drive her home. Defendant stated that on the way he picked up the victim in the parking lot of another restaurant after Watkins identified her as a friend. It was defendant's testimony that the victim suggested that the threesome get a room in a motel. Defendant claimed that once at the motel he merely watched as Watkins and the victim fondled each other. According to defendant, once the victim found out that he was a police officer, she became upset and wanted to leave. The three then left the motel, and defendant dropped off the victim at her requested destination.

Kim Watkins denied that she was present at a hotel room with defendant and the victim. She testified that on the day after the incident, defendant came to her home and stated that he needed her help. Defendant told her that he had had sex with the victim at a motel and that now she was accusing him of rape. He asked her to go to an internal affairs investigation with him and state that she had been with defendant when he picked up the victim and that she participated in the consensual sexual activity at the motel. Watkins made such a statement, but later retracted it.

Two other witnesses testified that they saw the victim in a gas station parking lot on the evening of the assault and gave her a ride. On the way to their destination, they stopped at the home of one of the witnesses. While they were in the driveway, a car pulled up and defendant approached their vehicle. One of the witnesses testified that defendant identified himself as a police officer and stated that the victim would have to come with him because she was a runaway. ¹

On appeal, defendant argues that he was denied his right to a fair trial because the trial court permitted the prosecution, over defense counsel's objection, to question defendant on cross-examination about his refusal to make a statement after receiving Miranda ² warnings.

The Due Process Clause of the Fourteenth Amendment prohibits the use of postarrest, post-Miranda silence to impeach a defendant's exculpatory story at trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); People v. Sutton (After Remand), 436 Mich. 575, 592, 464 N.W.2d 276 (1990) (opinion by Boyle, J.). However, this general rule is inapplicable where a defendant claims to have told the police the same version of the exculpatory story upon arrest. Id. at 593, 464 N.W.2d 276. Citing United States v. Fairchild, 505 F.2d 1378 (C.A.5, 1975), the Doyle Court made the following distinction:

It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest. [Doyle, supra, 426 U.S. at 619, n. 11, 96 S.Ct. at 2245, n. 11.]

In this case, defendant did not claim to have told the police the same version of the exculpatory story that was presented at trial. However, defendant, through his direct testimony, attempted to give the jury the impression that he had cooperated fully with the authorities.

Defendant testified as follows during his direct examination:

Q. Do you know that you're charged with the rape of a juvenile; you understand that?

A. Yes.

Q. And the accusation is that you had sex with her vaginally?

A. Yes, I understand that.

Q. And is that true?

A. Of course not.

Q. Did you have--Go ahead.

A. I just want to say that I don't know if it was brought up in this trial, but as you know and even against your own will and you're my attorney, I told you when this thing first started I voluntarily said I'll do anything that they ask. If they want to take blood samples or hair samples or whatever they want to do, if they want to take the car, if they want me to take any type of test, I took 'em even against your objections because I knew that no test would be found that I had not touched her or Kim that night and I had nothing to hide from that.

Q. Did you submit hair?

A. Yes, I did.

Q. Semen?

A. Yes.

Q. Blood?

A. Yes.

Q. Saliva?

A. Yes.

Q. Anything else?

A. It was whatever was going on at the time. Whatever they asked me to do, I did it voluntarily.

Q. All right. And with regard to another count that you're charged with, you know you're charged with having sex with this juvenile and having anal sex with her. How do you answer to that charge?

A. Again, I voluntarily--I took whatever test they had. The whole thing was I was gonna just watch these two women go at it, that's the only intention I had. When they got to about this money deal and all this other stuff, I said I'm out of here.

Q. All right. You know what the other allegation is. The other allegation is that you forced [the victim] to perform fellatio or oral sex on you.

A. Again, and as Investigator Clark know, [sic] I volunteered 100 percent, I gave whatever they wanted.

At this point the prosecutor asked that the jury be excused and expressed his intention to cross-examine defendant regarding his failure to make a statement to the police after receiving Miranda warnings. Over defense counsel's objection, the trial court ruled that defendant had opened the door, because a fair implication to be drawn from defendant's testimony was that he had cooperated in all ways with the investigation in this case.

In United States v. Fairchild, supra at 1383, the defense attorney asked one of the investigating officers in the case: "During the period of time that this investigation has been going on, to your knowledge has Mr. Fairchild cooperated fully with the FBI and U.S. attorney's office in responding with anything that you all wanted?" Subsequently, the trial court allowed cross-examination of the defendant regarding his postarrest, post-Miranda silence. The court noted that evidence of a defendant's silence after receiving Miranda...