Order Michigan Supreme Court
Lansing, Michigan
September 11, 2009 Marilyn Kelly,
Chief Justice
Michael F. Cavanagh
Elizabeth A. Weaver
Rehearing No. 558 Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway,
1 January 2009 Justices
134967
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
SC: 134967
v COA: 269572
Wayne CC: 05-000173-01
MICHAEL J. BORGNE,
Defendant-Appellee.
_____________________________________
The defendant’s motion for rehearing of this Court’s opinion, 483 Mich 178
(2009), is GRANTED in part. We consider defendant’s argument that he was denied his
constitutional right to the effective assistance of counsel because trial counsel failed to
object to the prosecutor’s improper comments and questions concerning defendant’s post-
arrest, post-Miranda1 silence. The prosecutor’s comments and questions outlined in our
opinion, id. at 188-192, violated Doyle v Ohio, 426 US 610 (1976). Id. at 181.
Nonetheless, we concluded that the unpreserved error did not amount to plain error
affecting defendant’s substantial rights under People v Carines, 460 Mich 750 (1999),
and affirmed his convictions. Id. at 181, 201-202. We again affirm.
Defendant argues that reversal was required on the basis of ineffective assistance
of counsel pursuant to Strickland v Washington, 466 US 668 (1984). Under Strickland, a
defendant “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
Even if defendant’s trial attorney erred by failing to object, reversal is not
required. Rather, in light of the “compelling, untainted evidence against defendant,” see
1
Miranda v Arizona, 384 US 436 (1966).
2
Borgne, supra at 198-201, there was no reasonable probability that, but for the error, the
result of the trial would have been different. As we observed previously, the prosecutor’s
comments “were not pervasive”; the prosecutor “only referred to defendant’s silence
under the mistaken belie[f] that defendant had raised the subject in his fleeting mention of
having tried to tell his exculpatory story while being escorted to the police car. The
prosecutor also referred to defendant’s silence in closing argument, but it, again, was only
an attempt to impeach defendant’s exculpatory story.” Id. at 198. We continued: “This
use of silence did not obviate the prosecutor’s need to independently prove that defendant
committed the crime. And the prosecutor here presented compelling, largely consistent,
untainted evidence to prove this defendant’s guilt.” Id. at 199. The victim consistently
identified defendant as her assailant, including when defendant was apprehended near the
scene of the crime. Id. at 199-200. She further identified him as the man who drove past
her after the crime and yelled a self-incriminating comment at her. Id. at 200. A second
witness corroborated this event. Id. at 200-201. Defendant’s act of yelling at the victim
after the crime was “uniquely incriminating” and was “the equivalent of an open
confession to the crime.” Id. at 200. Finally, the circumstances leading to defendant’s
arrest were also “highly incriminating.” Id. at 201. He was found “crouching in the
corner of an abandoned building” that was located “a few blocks from the crime scene”
and “in the direction that the assailant fled from the crime scene.” Id. This was the very
building to which a bystander chased the assailant, and the bystander was found waiting
outside this building. Id.
For these reasons, just as the Doyle error in this case does not support a finding of
prejudice under the Carines plain-error standard, id. at 196-198, defendant cannot show
that he was prejudiced by counsel’s errors under the Strickland standard. Accordingly, we
again AFFIRM defendant’s convictions.
Kelly, C.J. and Cavanagh and Hathaway, JJ., would, in lieu of granting rehearing,
remand to the Court of Appeals for consideration of the issue of ineffective assistance of
counsel.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 11, 2009 _________________________________________
Clerk