People v. Washington

• Decision Date: 08 October 1980
• Docket Number: Docket No. 44702
• Citation: 100 Mich.App. 628,300 N.W.2d 347
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James A. WASHINGTON, Defendant-Appellant. 100 Mich.App. 628, 300 N.W.2d 347
• Court: Court of Appeal of Michigan — District of US

Page 347

300 N.W.2d 347

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James A. WASHINGTON, Defendant-Appellant.

Docket No. 44702.

100 Mich.App. 628, 300 N.W.2d 347

Court of Appeals of Michigan.

Oct. 8, 1980.

Released for Publication Jan. 29, 1981.

[100 MICHAPP 630] James R. Neuhard, State Appellate Defender, Nora J. Pasman, Asst. State Appellate Defender, for defendant-appellant.

[100 MICHAPP 629] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Leonard J. Malinowski, Asst. Atty. Gen., Ward S. Hamlin, Pros. Atty., for plaintiff-appellee.

[100 MICHAPP 630] Before CAVANAGH, P. J., and HOLBROOK and PIERCEY, JJ. ^*

PER CURIAM.

Defendant, James A. Washington, was found guilty by a jury of first-degree premeditated murder, M.C.L. § 750.316; MSA § 28.548. He was sentenced to life imprisonment and appeals by right.

The defendant has raised four issues on appeal. He first contends that the prosecutor improperly questioned witnesses and commented in closing argument on the defendant's silence in the face of an accusatory statement.

The tacit admission rule, which permits a defendant's silence in the face of an accusation to be used against him, is not utilized in criminal cases in Michigan. In People v. Bigge, 288 Mich. 417, 419, 285 N.W. 5 (1939), the Michigan Supreme Court reversed the defendant's conviction where the prosecutor had stated in his opening statement, without proper objection by the defense, that he would produce a witness who would testify that the defendant had not denied his brother-in-law's statement:

"What's the use of going over this matter again. Charles was guilty as hell."

The Court reasoned:

"The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and [100 MICHAPP 631] his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt. He said nothing, and what was said in his presence by another was inadmissible, just as the court later held." 288 Mich. at 420, 285 N.W. 5.

In People v. Parks, 57 Mich.App. 738, 750, 226 N.W.2d 710 (1975), the prosecutor had asked a witness whether the defendant had responded to a statement made by the witness:

"The Witness : I said it was my opinion he did it, and that his job he could not have his job back.

"Q. (By Mr. Wilkinson): Did he respond in any way to your statement?

"A. I don't think so."

In that case, it was not clear if the defendant objected. The Court reversed the defendant's conviction, noting that the adoptive or tacit admission rule in the area of criminal law has been repudiated as violative of the Fifth Amendment right against self-incrimination. See also, People v. Wardell, 26 Mich.App. 69, 181 N.W.2d 788 (1970) (implicating a defendant by showing his failure to have protested his innocence when confronted with incriminating remarks held to be clear error).

The People contend that any error caused by the prosecutor's questions and argument as to the defendant's silence in the face of an accusatory statement was harmless error. The error in this case was not "harmless beyond a reasonable doubt":

[100 MICHAPP 632] "If it is reasonably possible that in a trial free of the errors complained of, even one juror might have voted to acquit the defendant, then the error was not harmless, and the defendant must be retried. If, on the other hand, the proof was so overwhelming, aside from the taint of error, that all reasonable jurors would find guilt beyond a reasonable doubt, then the conviction must stand." People v. Christensen, 64 Mich.App. 23, 33, 235 N.W.2d 50 (1975).

The main evidence in the present case was the testimony of the defendant that Clifton Driver had shot the deceased and the testimony of Clifton and his pregnant girlfriend, Thelma Howard, that the defendant had done the shooting. It is reasonably possible that the prosecutor's injection into the evidence of the defendant's implied admission of guilt through silence could have affected at least one juror's decision in balancing the credibility of these three witnesses, and, thus, it cannot be said to have been "harmless beyond a reasonable doubt".

The defendant's second contention is that it was reversible error for the prosecutor to attempt to bolster witness's trial testimony by introducing, over a defense objection, testimony of a police officer that this witness had made prior consistent statements.

Evidence of prior consistent statements of a witness is generally inadmissible as substantive evidence. Brown v. Pointer, 390 Mich. 346, 351, 212 N.W.2d 201 (1973), People v. Hallaway, 389 Mich. 265, 276, 205 N.W.2d 451 (1973) (Justice Brennan concurring). Evidence of prior consistent statements is admissible, however, to rebut a charge of recent fabrication or as evidence of whether or not a witness had made a prior inconsistent statement. People v. Harris, 86 Mich.App. 301, 305, 272 N.W.2d [100 MICHAPP 633] 635 (1978), People v. Coles, 79 Mich.App. 255, 260-261, 261 N.W.2d 280 (1977). The evidence in the instant case must qualify under the recent fabrication exception if it is to be admissible, since no...