A primer for prosecution use of defendant's post-arrest, post-Miranda silence.

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.