In People v Bailey, Unpub Per Curiam
Opinion (3/6/2014, #309879) the Court of Appeals held that although the
prosecution clearly crossed the line by repeatedly using defendant's
post-arrest, post-Miranda silence to infer guilt; and defense counsel's failure
to object was objectively unreasonable, the same was not reversible error
because the unchallenged evidence against defendant was very strong.
The United States Constitution
guarantees that no person “shall be compelled in any criminal case to be a
witness against himself.” US Const Am V. Miranda, 384 US 436, established
guidelines for law enforcement agencies and courts to follow in order to protect
the privilege against compelled self-incrimination during custodial police
interrogations. People v Shafier, 483 Mich 205 (2009). A defendant’s right to remain silent is
protected by the Fourteenth Amendment which precludes the use of a defendant’s
silence following Miranda warnings to impeach an exculpatory story. People v
Alexander, 188 Mich App 96 (1991). 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.
Shafier, 483 Mich at 212-213, citing Wainwright v Greenfield, 474 US 284 (1986)
because there is no way to know after the fact whether it was due to the
exercise of constitutional rights or to guilty knowledge. People v McReavy, 436
Mich 197 (1990). Accordingly, where the record indicates that a defendant’s
silence is attributable to an invocation of his Fifth Amendment privilege or a
reliance on Miranda warnings, use of his silence is error. Id. at 202.
In order to prevail on a claim of
ineffective assistance of counsel, defendant must show that: (1) counsel’s
performance fell below an objective standard of reasonableness in light of
prevailing professional norms at the time the representation took place, and
(2) counsel’s deficient performance prejudiced the defense such that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. People v Carbin, 463 Mich
590 (2001), quoting Strickland v Washington, 466 US 668 (1984).
Where silence follows Miranda warnings,
the prosecution is not permitted to use postwarning silence to impeach a
defendant’s exculpatory trial testimony, Shafier, 483 Mich at 213, or as direct
evidence of a defendant’s guilt in its case-in-chief, id. at 213-214, unless
the defendant claims to have told the police the same version upon arrest,
People v Sutton, 436 Mich 575 (1990), quoting Doyle v Ohio, 426 US 610, 619 n
11 (1976).
In Shafier, 483 Mich at 215, the
prosecutor made references to the defendant’s post-arrest, post-Miranda silence
during trial. The prosecutor deliberately elicited testimony from the arresting
officer regarding the defendant’s silence by asking if the defendant spoke to
the officer after he was arrested and given his Miranda warnings. Id. at
215-216. The defendant testified that he had not committed the charged crime;
during cross-examination, the prosecutor attempted to impeach his testimony by
asking “You didn’t say a single word about being arrested for criminal sexual
conduct. Is that right?” Id. at 216-217. The defendant responded that he had
not. Id. at 217. The prosecutor began his closing argument by highlighting the
significance of the defendant’s silence; he argued that the defendant was silent
because “the defendant had been making his daughter do things that no person
speaks about.” Id. at 217. Our Supreme Court noted that “a reference to a
defendant’s post-arrest, post-Miranda silence” is generally a constitutional
violation unless the reference was minimal. Id. at 217-218. It held, however,
that “the prosecution clearly crossed [the] line by repeatedly using [the]
defendant’s post-arrest, post-Miranda silence as evidence in its case-in-chief
and to impeach the defendant’s testimony that he was innocent.” Id. at 218. The
Court held that the defendant’s Fourteenth Amendment due process rights were
violated by the prosecutor’s repeated use of the defendant’s silence to infer
his guilt. Id. at 218-219. The Court reversed the defendant’s conviction and
remanded to the trial court “for further proceedings.” Id. at 224.
Here, detective Gruzin testified at
trial that he went to the jail to interview defendant. He testified that
defendant was given his Miranda warnings. The prosecutor asked, “And at that
time, he invoked his Fifth Amendment right and didn’t wish to speak with you
regarding any investigation, right?” Gruzin responded that defendant only
stated “I have nothing to say to you.” Accordingly, like in Shafier, the
prosecution “deliberately elicited testimony” from Gruzin concerning
defendant’s post-arrest, post-Miranda silence. During defendant’s testimony the
prosecution asked defendant twice if he had shared his exculpatory story with
Gruzin, to which defendant said “no.” Also, during defendant’s testimony, the
prosecutor stated, “Now, how are we supposed to know where to go? You won’t
talk to Detective Gruzin at all.” Accordingly, like in Shafier, the prosecutor
used defendant’s silence in an attempt to impeach his testimony that he was
“innocent.” During closing arguments, the prosecution referenced the fact that
defendant failed to share his exculpatory testimony with Gruzin twice. The
prosecutor submitted to the jury that this supported that defendant fabricated
his testimony. Accordingly, like in Shafier, the prosecutor highlighted the
significance of defendant’s silence to infer his guilt in his closing argument.
As in Shafier, the prosecution in the
instant case clearly crossed the line by repeatedly using defendant’s
post-arrest, post-Miranda silence as evidence in his case-in-chief and to
impeach the defendant’s testimony that he was innocent. Accordingly,
defendant’s due process rights were violated by the prosecutor’s repeated use
of his silence to infer his guilt. See Shafier, 483 Mich at 218-219. It is well
established that the prosecution is not permitted to use post-warning silence
to impeach a defendant’s exculpatory trial testimony, id. at 213, or as direct
evidence of a defendant’s guilt in the prosecutor’s case-in-chief, id. at
213-214, where the defendant has not claimed “to have told the police the same
version upon arrest.” Sutton, 436 Mich at 592. Further, defense counsel’s
failure to object to the prosecution’s repeated use of defendant’s post-arrest,
post-Miranda silence with respect to Gruzin was objectively unreasonable. See
Carbin, 463 Mich at 600.
It then becomes necessary to consider
whether defense counsel’s deficient performance prejudiced the defense such
that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. In
Shafier, 483 Mich at 221-223, our Supreme Court considered whether improperly
admitting evidence of the defendant’s post-arrest, post-Miranda silence into
evidence affected the defendant’s substantial rights. The Court considered the
following factors: (1) the extent of the prosecutor’s comments, (2) the extent
to which the prosecutor attempted to tie [the] defendant’s silence to his
guilt, and (3) the overall strength of the case against [the] defendant when
considered in light of the degree to which the jury’s assessment of the
evidence might have been affected by the prosecutor’s references to [the]
defendant’s silence. [Id. at 221.] While the Shafier Court was analyzing
whether the defendant was prejudiced by the improper evidence under the plain
error doctrine, id. at 220-221, the Court’s considerations regarding the effect
that the improper admittance had on the outcome at trial is also relevant in
determining whether the outcome of trial would have been different “but for”
defense counsel’s unprofessional error.
With respect to the first factor, the
Shafier Court noted that “the more extensive a prosecutor’s references to a
defendant’s post-arrest, post-Miranda silence, the more likely it is that the
references had a prejudicial effect.” Id. at 221-222. Here, the prosecution’s
references to defendant’s silence when Gruzin attempted to question him were
frequent throughout the second day of trial. The prosecutor elicited the
testimony from Gruzin concerning defendant’s silence, asked defendant twice on
cross-examination about his failure to provide his exculpatory story to Gruzin,
and made two references to defendant’s failure to speak to Gruzin during his
closing argument. Accordingly, because the prosecutor repeatedly referenced
defendant’s silence with respect to Gruzin, the references prejudiced the
defense. See id.
With respect to the second factor, the
Shafier Court also held that the references “to a defendant’s post-arrest,
post-Miranda silence are more likely to be prejudicial the more directly or
explicitly the prosecutor uses the silence to challenge a defendant’s
credibility or show a defendant’s guilt.” Id. at 222. In so holding, the Court
considered whether the references were inadvertent. Id. Here, the references
were not inadvertent. Rather, the prosecutor specifically questioned Gruzin and
defendant about defendant’s invocation of his right to silence. The prosecutor
directly stated the following to defendant during cross examination: “[H]ow are
we supposed to know where to go? You won’t talk to detective Gruzin at all.”
More importantly, the prosecutor specifically referenced defendant’s silence
with respect to Gruzin twice in his closing argument. The prosecutor suggested
that the fact that defendant failed to share the “story” with Gruzin was
evidence that defendant had waited to hear what other witnesses stated in order
to “fabricate a story that fit the evidence.” The prosecutor also stated that
“if he was telling the truth, he would have told . . . Detective Gruzin when he
had the opportunity.” Accordingly, the
prosecutor used defendant’s silence to directly challenge defendant’s
credibility and show his guilt, thus increasing the prejudicial effect. See id.
Finally, with respect to the third
factor, the Shafier Court considered “the overall strength of the case against
the defendant and the degree to which the jury’s assessment of the evidence
might have been affected by the prosecutor’s references to a defendant’s
silence.” Shafier, 483 Mich at 222-223. Here, Lobbezoo testified that he was
ten feet away from defendant when he saw him removing property from the
victim’s vehicle. Defendant ran from him; and, thereafter, Lobbezoo gave
dispatch a description of defendant. Defendant was seen in the neighborhood
twice by Lobbezoo as he searched for the perpetrator, and defendant was
apprehended by other officers a short period of time after the charged crimes
occurred. Defendant matched Lobbezoo’s description with the exception that he
was wearing glasses at the time of arrest and was not wearing the green coat;
he was also older than Lobbezoo initially described. However, Lobbezoo was
“positive” that defendant was the perpetrator because of his dreadlocks, facial
structure, and the fact that they were both covered in the same “foliage.” The
victim’s “Dewars bag, change, and golf tees were found in defendant’s pocket.
Although this Court does not make credibility determinations, People v Wolfe,
440 Mich 508 (1992), amended 441 Mich 1201 (1992), defendant’s attempt to
explain how he came into possession of the victim’s property was patently
incredible. Accordingly, the unchallenged evidence establishes that the
prosecution’s case against defendant was very strong, and was not solely a
credibility contest between police and defendant as defendant claims. Moreover,
as discussed infra, defendant’s failure to provide Lobbezoo with his
exculpatory statement was properly before the jury by way of other testimony
because defendant specifically waived his right to silence while being
transported to the jail; thus, the jury was already aware of defendant’s
failure to share his exculpatory story immediately after his arrest. Because
the prosecution’s case was strong and defendant’s silence with respect to
Lobbezoo was properly in the record, the jury’s verdict was not likely a result
of the prosecutor’s references to defendant’s silence with respect to Gruzin.
Therefore, the final factor lessens the prejudicial effect on the defense. See
People v Borgne, 483 Mich 178 (2009) (holding that, because “the untainted
evidence against [the] defendant show[ed] how strong the prosecution’s case
was,” reversal was not necessary despite the prosecution’s use of defendant’s
post-arrest, post-Miranda silence).
In sum, the record establishes that the
prosecutor’s injection of the silence issue was deliberate and was used to
challenge defendant’s credibility and show his guilt, thus increasing the
prejudicial effect. However, because the jury’s verdict was not likely a result
of the prosecutor’s references to defendant’s silence with respect to Gruzin,
defense counsel’s failure to object to the prosecution’s repeated use of
defendant’s silence did not prejudice defendant such that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” See Carbin, 463 Mich at
600. Therefore, defendant was not denied effective assistance of counsel.
