Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED JULY 1, 2009
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 134967
MICHAEL J. BORGNE,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
In this case we must decide whether defendant Michael Borgne’s
constitutional rights under Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d
91 (1976), were violated, and, if they were, what effect that has on his
convictions.1 We hold that defendant’s rights under Doyle were violated when the
trial court erroneously allowed the prosecution to use defendant’s post-arrest, post-
1
The issues in this decision are similar to another case that we decide
today: People v Shafier, ___ Mich ___; ___ NW2d ___ (Docket No. 135435,
issued July 1, 2009). Accordingly, much of the analysis in this opinion is very
similar, and at times the same, as that in Shafier. However, the cases were argued
separately, and they are distinct enough that we have not combined them in one
opinion.
Miranda2 silence against him. However, we also hold that the error did not
amount to plain error affecting defendant’s substantial rights; therefore, the Court
of Appeals judgment is reversed and defendant’s convictions are affirmed.
I. FACTS AND PROCEDURE
On the evening of December 14, 2004, the complaining witness, Caroline
Kessler, was fueling her car at a gas station in Detroit. She went into the
convenience store at the station, and when she returned to finish pumping the gas,
a man approached her from behind. The man put his arm around her and told her
to give him her purse. When Kessler turned around, she saw a man with a gun
pointed at her. The man grabbed her purse and ran away.
Kessler testified at trial that she got a good look at her assailant. She said
he was wearing a blue jacket with red stripes and white lettering on the back. She
also noticed that, under the jacket, he was wearing a black hooded sweatshirt, with
the hood on his head. He was wearing blue jeans. She said he was Caucasian,
clean shaven, young, of medium build, and only a few inches taller than her (she is
5’ 2”).
As the man ran away, Kessler followed him, while yelling out that he had
robbed her. But after crossing the street, she stopped and turned back to the gas
station. Before she started back, however, she noticed a man chasing the assailant
2
See Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694
(1966).
2
as a result of her cries for help. When she got back to the gas station she asked the
attendant to call the police and then called her brother. Her brother, along with a
friend, responded almost immediately because he lived nearby. Eventually,
Kessler, her brother, and the friend went out looking for the assailant. They found
the man who had chased the assailant waiting outside an abandoned commercial
building. When the police arrived, Kessler described the man who robbed her.
The police officers then entered the building and emerged with defendant in
handcuffs. Defendant was wearing blue jeans and a blue and red jacket, with a
black hooded sweatshirt underneath. Upon seeing defendant, Kessler immediately
identified him as the man who robbed her.
Kessler also testified that about two weeks later she was in a minor
automobile accident several blocks away from the site of the robbery. While
Kessler was stopped to exchange information with the other driver, a blue mini-
van drove past. Kessler was outside her car talking to the person whose car she
had hit when the blue minivan stopped next to her and its driver yelled out his
open window, “I’m the motherfucker what robbed you, ha, ha, ha.” Kessler
immediately recognized the driver as defendant. She immediately told the other
motorist that it was defendant who had just yelled at her. The other driver
corroborated Kessler’s spontaneous reaction to the event.
Defendant was charged with armed robbery, MCL 750.529, and possessing
a firearm while committing a felony, MCL 750.227b. The first trial ended in a
mistrial because the jurors had improperly discussed the case. At the second trial,
3
the prosecution presented defendant’s red and blue coat and black hooded
sweatshirt as evidence in its case-in-chief. The prosecution also produced
Kessler’s direct testimony in which she identified defendant as the man who
robbed her, the man whom the police had taken from the abandoned building, and
the man who had yelled at her from the blue minivan.
In his defense, defendant testified that on the night in question he was
simply waiting for a taxi across the street from the gas station. While waiting, he
heard gunshots from across the street and fled into the alleyway, and then into the
abandoned building. Once in the building, he said he heard shots being fired into
the building. He claimed to have waited there until the police arrived. When the
police arrived, they arrested him, took him out of the building, and led him to a
police car. He testified that on the way to the police car he tried to tell the police
the shooting story, but they put him in the backseat of the police car.
It is uncontested that defendant was then taken to the police precinct, where
police officers administered Miranda warnings and attempted to interrogate him.
However, defendant invoked his right to silence and asked for an attorney.
Thereafter, defendant made no statements about the case until trial.
At trial, the prosecution made broad use of defendant’s post-Miranda
silence during both its cross-examination of defendant and its closing argument to
impeach the defendant’s exculpatory testimony. Defendant never objected to this
use of his pretrial silence. Defendant was convicted as charged of armed robbery
and possessing a firearm during the commission of a felony.
4
Defendant appealed, and the Court of Appeals reversed his convictions in a
split decision. People v Borgne, unpublished opinion per curiam of the Court of
Appeals, issued August 9, 2007 (Docket No. 269572). The majority held that the
prosecution’s use of defendant’s post-Miranda silence violated his constitutional
due process rights under Doyle and that the error constituted plain error, which
required a new trial. The dissent would have affirmed the convictions on the
ground that defendant’s post-Miranda silence was admissible under an exception
to Doyle. This Court granted leave to appeal to decide whether defendant’s
constitutional rights under Doyle had been violated and, if they had, whether
reversal was warranted.
II. STANDARD OF REVIEW
Defendant claims that his constitutional due process rights under the
Fourteenth Amendment were violated. Constitutional questions are reviewed de
novo. Sidun v Wayne Co Treasurer, 481 Mich 503, 508; 751 NW2d 453 (2008).
Defendant concedes, however, that his claim of error was not preserved at trial.
This Court reviews the effect of an unpreserved constitutional error for plain error.
People v McNally, 470 Mich 1, 5; 679 NW2d 301 (2004).
III. ANALYSIS
A. THE GENERAL RULE OF DOYLE v OHIO
The first question in this case is whether a Doyle violation occurred. Doyle
dealt with a criminal defendant’s Fifth Amendment right under the United States
Constitution against compelled self-incrimination, which has been made
5
applicable to the states through the Due Process Clause of the Fourteenth
Amendment.3 Specifically, Doyle analyzed a defendant’s post-arrest silence
during a custodial interrogation following Miranda warnings. In Doyle, the
defendants were caught taking part in an illicit narcotics sale. Doyle, 426 US at
611-612. Once the police interceded, both defendants were given Miranda
warnings. Id. at 612. At trial, the defendants argued that they had been framed by
a police informant pretending to be a seller, who tricked them into trying to buy
the narcotics from him. Id. at 612-613. The defendants had never mentioned this
exculpatory story before trial. Id. at 613-614. The prosecution used this pretrial
silence to undercut the defendants’ claims of innocence as follows:
Q. [The Prosecutor] [I]f that is all you had to do with this
and you are innocent, when [the officer] arrived on the scene why
didn’t you tell him? [I]n any event you didn’t bother to tell [the
police] anything about this?
A. [Defendant] No, Sir.
***
Q. . . . You are innocent?
A. I am innocent. Yes Sir.
Q. That’s why you told the police . . . when they arrived . . .
about your innocence?
A. I didn’t tell them about my innocence. No.
Q. You said nothing at all about how you had been set up?
3
See Malloy v Hogan, 378 US 1, 3; 84 S Ct 1489; 12 L Ed 2d 653 (1964).
6
***
Q. As a matter of fact, if I recall your testimony correctly,
you said instead of protesting your innocence, as you do today, you
said in response to a question of [defense counsel],—“I don’t know
what you are talking about.”
A. I believe what I said,—“What’s this all about?” If I
remember, that’s the only thing I said. . . . I was questioning, you
know, what it was about. That’s what I didn’t know. I knew that I
was trying to buy [drugs], which was wrong, but I didn’t know what
was going on. I didn’t know that [the complaining witness] was
trying to frame me, or what-have-you.
Q. All right,—But you didn’t protest your innocence at that
time?
A. Not until I knew what was going on. [Id. at 614, 614 n 5.]
The prosecutor in Doyle also referred to the defendants’ silence in his closing
argument. Id. at 614 n 5. The defendants objected to each of these references. Id.
at 614, 614 n 5. Those objections were overruled, and the defendants were
convicted of various drug charges. Id.
The United States Supreme Court reversed the defendants’ convictions and
summarized its decision as follows:
The question . . . is whether a state prosecutor may seek to
impeach a defendant’s exculpatory story, told for the first time at
trial, by cross-examining the defendant about his failure to have told
the story after receiving Miranda warnings at the time of his arrest.
We conclude that use of the defendant’s post-arrest silence in this
manner violates due process, and therefore reverse the convictions of
both petitioners. [Doyle, 426 US at 611.][4]
4
The Court left no doubt that its holding was grounded in constitutional
principles: “[T]he use for impeachment purposes of [the defendants’] silence, at
7
The Doyle Court reasoned that “it would be fundamentally unfair and a
deprivation of due process to allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.” Id. at 618. Further,
it does not comport with due process to permit the prosecution
during the trial to call attention to his silence at the time of arrest and
to insist that because he did not speak about the facts of the case at
that time, as he was told he need not do, an unfavorable inference
might be drawn as to the truth of his trial testimony. [Id. at 619
(citation and quotation marks omitted).]
And, relying on its earlier decision in United States v Hale, 422 US 171; 95 S Ct
2133; 45 L Ed 2d 99 (1975), the Doyle Court noted that “every post-arrest silence
is insolubly ambiguous . . . .” Doyle, 426 US at 617. It is unclear whether it is
merely evidence of the defendant’s legitimate invocation of his right against
compelled self-incrimination or evidence that he is fabricating his defense theory
at trial. Therefore, “[a]fter an arrested person is formally advised by an officer of
the law that he has a right to remain silent, the unfairness occurs when the
prosecution, in the presence of the jury, is allowed to undertake impeachment on
the basis of what may be the exercise of that right.” Id. at 619 n 10. This Court
has long approved of these principles, and we were somewhat prescient in our pre-
Doyle acceptance of them in People v Bobo, 390 Mich 355, 359-361; 212 NW2d
190 (1973).
the time of arrest and after receiving Miranda warnings, violated the Due Process
Clause of the Fourteenth Amendment.” Id. at 619 (emphasis added).
8
Since Doyle, the United States Supreme Court has articulated exactly when
the general rule from that case applies. It has held that Doyle’s rule does not
apply—i.e., a defendant’s silence may be used to impeach his exculpatory
testimony—if the silence occurred either (1) before arrest or (2) after arrest and
before Miranda warnings were given. See Fletcher v Weir, 455 US 603, 605-607;
102 S Ct 1309; 71 L Ed 2d 490 (1982); Jenkins v Anderson, 447 US 231, 239-240;
100 S Ct 2124; 65 L Ed 2d 86 (1980). This is because, under the United States
Constitution, use of a defendant’s silence only deprives a defendant of due process
when the government has given the defendant a reason to believe both that he has
a right to remain silent and that his invocation of that right will not be used against
him, which typically only occurs post-arrest and post-Miranda. See Fletcher, 455
US at 605-607. This Court has also adopted this structure: “‘Doyle bars the use
against a criminal defendant of silence maintained after receipt of governmental
assurances.’” People v Cole, 411 Mich 483, 488; 307 NW2d 687 (1981), quoting
Anderson v Charles, 447 US 404, 408; 100 S Ct 2180; 65 L Ed 2d 222 (1980).
In the present case, we must evaluate whether Doyle’s general rule applies
to the silence that the prosecutor used against defendant. The prosecutor referred
to defendant’s silence both during his cross-examination of defendant and in his
closing argument. Defendant’s silence was referred to in cross-examination as
follows:
Q. [The Prosecutor] And then you had the opportunity to sit
down with Sargent [sic] Dunbeck here when you were under arrest?
9
A. [Defendant] Yes.
Q. That was at the precinct, correct?[5]
A. Yes.
Q. Okay. You never told Sargent [sic] Dunbeck any of this
[shooting story], did you?
A. I believe I may have said I was being shot at.
Q. You were advised of your constitutional rights, correct?
A. Yes, sir.
Q. No question that you were under arrest and you didn’t
have to give a statement?
A. Yes, sir.
Q. You could have a lawyer there if you wanted to?
A. Yes, sir.
Q. You had the opportunity to give your version of the
event?
A. Yes, sir.
Q. You could stop answering questions at any time?
A. Yes, sir.
Q. That was no surprise to you?
A. Yes, sir.
5
The prosecution concedes that Miranda warnings had been given at this
point.
10
Q. She was polite to you, she wasn’t beating you over the
head with a phone book or anything like that?
A. No.
Q. No problems with Sargent [sic] Dunbeck?
A. No.
Q. But you never made a statement did you?
A. No, I did not want to make a statement without an attorney
present.
Q. Okay. If you were arrested and knew you were being
arrested for armed robbery, somebody was accusing you of robbing
them at gunpoint.
A. I was going to wait for an attorney to help me address the
matter.
Q. You never gave a statement after the fact though, did you?
A. No, I did not. I was advised not to.
Q. This is the first time you’re giving a statement?
A. Yes, sir.
Q. First time anyone has heard this version of events from
you?
A. Yes, sir.
Q. Were you concerned about finding the person that was
shooting at you that night?
A. Yes, I was.
***
Q. And then when you had the chance to sit down with
Sargent [sic] Dunbeck you didn’t say anything that [sic]?
11
A. I wanted a lawyer present for any statement given.
Q. You never gave a statement ever in this case?
A. No, I did not. After that I had retained a lawyer and was
advised not to give a statement.
Q. Well, you didn’t retain a lawyer until after the preliminary
examination in this case, right?
A. Yes, sir.
Q. So when you were arrested that night [in] the early
morning hours of now December 15, 2004 you didn’t have a specific
lawyer in mind, did you?
A. No.
Q. And it wasn’t like you were in the process of consulting
with the attorney, correct?
A. No, I wasn’t.
Q. And then about two weeks later or so you go to the
preliminary examination you still haven’t retained an attorney.
A. I had a State appointed attorney.
Q. Correct. And you never gave a statement at that point
with the State appointed attorney did you?
A. Never had a chance to.
Q. You didn’t do it in court, did you?
A. Never had a chance to. I was never allowed to talk while I
was in the courtroom. The lawyer advised me not to. That’s when
we fired the lawyer and retained Johnathan [sic] Jones.
Q. And up until today you still have given [sic] a statement
in this case, not until the 11th hour of the trial, correct?
12
A. No, sir.
Q. This is basically the end of the trial right here.
A. Yes, sir. I wanted everyone to hear my side.
The prosecutor then used this line of questioning in closing argument as follows:
Mr. Borgne out that night [sic] and he sits down with Sargent
[sic] Dunbeck in the police station, you’re under arrest for Armed
Robbery, someone’s saying you robbed ’em. What’s your side of
the story? Well, nothing. Let me think about it. A year goes by
there’s no statement ever given. If somebody was trying to kill Mr.
Borgne he never mentions it. No concern over who’s trying to kill
him. There’s no statement at all. Is that going to make sense, ladies
and gentlemen? It defies logic.
Forget whether he robbed somebody. If someone’s trying to
kill you and the police were there and had you in custody, you might
want to at least mention it. You might want to say I’m gonna put it
down and sign my name and here, for all eternity I said it.
Somebody tried to kill me. Nothing like that. Nothing like that until
today, a year and a day later. It defies logic. It doesn’t make any
sense.
We conclude that Doyle’s general rule applies to this line of questioning
and this closing argument. The prosecutor’s own questions establish that the
silence to which he was referring occurred (1) after defendant was arrested, (2)
after defendant had been read the Miranda warnings, and (3) after defendant chose
to remain silent. Moreover, it is clear that the prosecutor was emphasizing the
negative implications of defendant’s post-arrest, post-Miranda silence.6 Thus,
6
This Court has recognized that the state constitution’s protection against
the use of a defendant’s post-arrest, post-Miranda silence is at least as extensive as
that provided by the federal constitution. See People v McReavy, 436 Mich 197,
201; 462 NW2d 1 (1990). Because defendant’s due process rights were so clearly
13
Doyle’s general rule applied, and it should have proscribed the prosecutor’s use of
defendant’s silence in this case.
The only way the prosecutor’s use of defendant’s silence would be allowed
is if an exception to Doyle applied.
B. THE IMPEACHMENT EXCEPTION TO DOYLE v OHIO
The Doyle Court noted a single exception to its general rule:
[P]ost-arrest silence [can] 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. [426 US
at 619 n 11.]
This exception can aptly be described as the impeachment exception.
This exception did not apply in Doyle because the defendants in that case
never claimed to have told the authorities their exculpatory story before trial. The
exception only applies when a defendant falsely testifies that he already told his
exculpatory story to the authorities. At that point, the exception allows the
prosecutor to impeach that averment with proof that the defendant actually
remained silent before trial.
violated under the federal constitution in this case, however, it is not necessary to
evaluate the protection provided by the state constitution.
14
The impeachment exception only applies to allow use of a defendant’s
silence that would otherwise be prohibited by Doyle’s general rule.7 Intuitively, in
order for the impeachment exception to apply to allow use of otherwise Doyle-
prohibited silence, the door must be opened by a defendant’s testimony regarding
his post-arrest, post-Miranda conduct. Thus, a prosecutor may not use a
defendant’s testimony regarding his actions before Doyle applied as a means to
open the door to impeach the defendant with his post-Doyle silence. Doyle’s
general rule and its impeachment exception apply to silence occurring after a
defendant has been arrested and given Miranda warnings. Accordingly, if the
prosecution wants to use the impeachment exception, its use must be based on
defendant’s testimony regarding his post-arrest, post-Miranda actions.
In this case, the prosecutor argues that the exception applies because
defendant “opened the door” to impeachment in the following portion of his
direct-examination testimony:
Q. [Defense counsel] When you came out of the building
with the two officers did anyone make any comments or gestures
toward you?
A. [Defendant] Yes, sir.
Q. And who was that?
7
In fact, the impeachment exception expressly applies when a defendant
“testifies to an exculpatory version of events and claims to have told the police the
same version upon arrest.” Doyle, 426 US at 619 n 11. Doyle’s reference to
“arrest” encompasses both a physical seizure of one’s person and advising of the
right to remain silent under Miranda.
15
A. Caroline Kessler [the victim].
Q. Okay.
A. She made a comment that I—she said “that’s the man,
that’s the man that robbed me.”
Q. Did anyone else speak that you remember?
A. The officer asked me where the purse was and where the
gun was. I didn’t have any idea what he was talking about. I tried to
describe the shooting to him and he put me in the back seat of the
police car.
We conclude that the exception was not triggered by this exchange because
defendant never testified that he made post-Miranda attempts to explain his story.
Defendant’s only testimony regarding an attempt to explain his story was related
to his pre-Miranda conduct (when he was being escorted to the police car). If the
prosecutor had wanted to impeach defendant regarding this pre-Miranda silence,
Doyle would have presented no prohibition. But, for whatever reason, the
prosecutor chose not to so impeach defendant. Instead, the prosecutor repeatedly
asked defendant why he did not explain his side of the story after being taken to
the precinct and after being given Miranda warnings. The prosecutor also
repeatedly made defendant admit that he remained silent during that time. Finally,
the prosecutor used this silence in his closing argument to bolster the contention
that defendant’s exculpatory story was not credible. None of these uses of
defendant’s post-arrest, post-Miranda silence is supported by defendant’s
testimony regarding his post-arrest, post-Miranda actions. In sum, the defendant
16
did not open the door to the impeachment exception with his fleeting reference to
his failed attempt to tell his story before Doyle was even applicable.
To counter this conclusion, the prosecution relies on People v Allen, 201
Mich App 98; 505 NW2d 869 (1993). In Allen, the Court stated:
[D]efendant did not claim to have told the police the same
version of his exculpatory story upon arrest. Rather, his claim on
redirect examination was that the trial was his first opportunity to tell
his version of the events. We believe that this case falls within the
exception permitting impeachment of a defendant’s version of his
postarrest behavior. Although defendant’s testimony would not have
permitted the prosecutor to argue that his postarrest silence was
inconsistent with his claim of innocence, it did permit the prosecutor
to attempt to discredit defendant’s testimony by showing that
defendant did have an opportunity before the trial to tell his side of
the story. Having raised the issue of his opportunity to explain his
version of the events, he opened the door to a full and not just a
selective development of that subject. [Id. at 103 (citations and
quotation marks omitted).]
Thus, Allen extended Doyle’s impeachment exception to include not only
instances when a defendant is allegedly lying about his post-arrest behavior, but
when a defendant is falsely asserting that the trial presented his first opportunity to
tell his side of the case.
We do not reach the merits of this extension because the prosecution would
not benefit from it in this case. Defendant was arrested in the abandoned building
and immediately escorted to a police car. At trial, during direct examination,
defendant testified that he unsuccessfully tried to tell his side of the story as he
was being escorted to the police car. It was not until he reached the police station
that he was given Miranda warnings and was interrogated. At that point he
17
invoked his right to silence and, after obtaining counsel, decided to remain silent
until trial. Even under Allen’s extension of the exception, the prosecution would
be incorrect in arguing that defendant opened the door to the impeachment
exception by claiming to have tried to tell his story to the arresting officers
because there was no door to open at that point—Doyle was not even applicable at
that time. Indeed, defendant had only been arrested; he had not been given
Miranda warnings. Under United States Supreme Court precedent, the prosecutor
was free to impeach defendant on his silence before Doyle applied, and could have
asked why defendant did not tell his side of the story after being put into the police
car. See footnote 7 of this opinion. But all the prosecutor’s impeachment tactics
here related to defendant’s silence after he was brought to the precinct and given
Miranda warnings.
Accordingly, we hold that the impeachment exception did not apply in this
case, and, as noted, the general rule in Doyle was violated by the prosecution’s use
of defendant’s post-arrest, post-Miranda silence.
C. PLAIN ERROR AFFECTING SUBSTANTIAL RIGHTS
Recognizing that the prosecution’s use of defendant’s silence constituted
error under Doyle, we must now decide whether that error merits reversing
defendant’s conviction. Both parties agree that this case involves an unpreserved
claim of constitutional error. This Court determines whether this type of error
warrants reversal under the plain-error standard of review articulated in People v
18
Grant, 445 Mich 535, 547-553; 520 NW2d 123 (1994), and People v Carines, 460
Mich 750, 765-766; 597 NW2d 130 (1999).8
There are four steps to determining whether an unpreserved claim of error
warrants reversal under plain-error review. Carines, 460 Mich at 763. First, there
must have been an error. Id. Second, the error must be plain, meaning clear or
obvious. Id. Third, the error must have affected substantial rights. Id. This
“generally requires a showing of prejudice, i.e., that the error affected the outcome
of the lower court proceedings.”9 Id. The defendant bears the burden of
establishing prejudice. Id. Fourth, the error must have “resulted in the conviction
of an actually innocent defendant” or “seriously affected the fairness, integrity or
8
I continue to think that this Court erred by adopting the federal plain-error
doctrine, for the reasons stated in Justice Levin’s Grant dissent, and erred further
by extending the doctrine to unpreserved, constitutional error, for the reasons
stated in then-Justice Kelly’s Carines dissent. See Grant, 445 Mich at 554-557,
(Levin, J., dissenting); Carines, 460 Mich at 775-783, (Kelly, J., dissenting).
Nonetheless, as I have in other cases, I recognize that Carines is the law of the
land in Michigan. See McNally, 470 Mich at 5.
9
Both this Court and the United States Supreme Court have left open the
possibility that there is a category of errors for which the third prong of the plain-
error standard is automatically met. See Grant, 445 Mich at 551-552, 552 n 30
(stating that a defendant should establish prejudice in order to avoid forfeiture of
an unpreserved issue “[e]xcept, of course, in the class of cases in which prejudice
is presumed”). See also Puckett v United States, ___ US ___; 129 S Ct 1423,
1432; 173 L Ed 2d 266 (2009) (stating that “[t]his Court has several times declined
to resolve whether ‘structural’ errors—those that affect ‘the framework within
which the trial proceeds,’ —automatically satisfy the third prong of the plain-error
test”). In any event, this issue does not arise in this case because we agree with
the United States Supreme Court’s determination that a Doyle violation is not the
type of error from which prejudice would generally be presumed. See Brecht v
Abrahamson, 507 US 619, 629; 113 S Ct 1710; 123 L Ed 2d 353 (1993).
19
public reputation of judicial proceedings . . . .” Id. (quotation marks and brackets
omitted).
In this case, as noted, a Doyle violation occurred, which equates to a legal
error. Therefore, the first plain-error element is met. The second plain-error
element is also met because this Doyle violation was clear and obvious. Indeed,
absent an exception, a prosecutor is not permitted to use a defendant’s post-arrest,
post-Miranda silence against him. In this case, the prosecutor clearly and
obviously used the defendant’s post-arrest, post-Miranda silence against him.
This error was plain.
The third plain-error element, however, is not met in this case because
defendant cannot prove that the error affected his substantial rights by causing him
prejudice. We acknowledge that it is difficult for an appellate court to know what
effect the prosecutor’s use of defendant’s post-Miranda silence might have had on
the jury. Nonetheless, we hold that defendant has not shown that the error is
prejudicial, considering (1) the extent of the prosecutor’s comments, (2) the extent
to which the prosecution attempted to tie defendant’s silence to his guilt, and (3)
the relative strength of the other evidence against defendant.10 In contrast to
10
Federal courts of appeals have considered similar factors when
evaluating whether a Doyle violation warrants reversal under plain-error review.
See, e.g., Guam v Veloria, 136 F3d 648, 652-653 (CA 9, 1998). Plain-error
review, as articulated in Carines and Grant, is based on the federal courts’
interpretation of FR Crim P 52(b). See Carines, 460 Mich at 762-766; Grant, 445
Mich at 547-550, 552-553. Although Michigan courts are of course not bound by
the federal courts’ application of FR Crim P 52(b), and plain-error review is an
20
Shafier, in which we apply these same factors, the Doyle error in this case does not
support a finding of prejudice.
First, in this case, the prosecutor’s references to defendant’s post-arrest,
post-Miranda silence, while numerous, were not pervasive. The prosecutor only
referred to defendant’s silence under the mistaken believe 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. In comparison, in Shafier, the prosecutor
was the first party to broach defendant’s silence, bringing it up in the opening
statement, and it played a major role throughout the prosecution’s case-in-chief.
The second element also shows that a less prejudicial Doyle error occurred
in this case than that in Shafier. Again, the prosecutor in this case used the
defendant’s silence to argue that defendant’s exculpatory story should not be
believed. This use of silence did not obviate the prosecutor’s need to
independently prove that defendant committed the crime. And the prosecutor here
inevitably case-specific and fact-intensive inquiry, we find the factors adopted by
the federal courts of appeals useful for plain-error review in this case. While
Veloria was a “plain error” case, the factors it used to evaluate the effect of a
Doyle error on a trial are traceable to United States v Newman, 943 F2d 1155 (CA
9, 1991), which applied the “harmless beyond a reasonable doubt” standard from
Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967). In
footnote 9 of Carines, this Court distinguished “plain error” review from
“harmless error” review. Carines, 460 Mich at 764, n 9. We do not intend to
nullify that distinction by our use of the Veloria test.
21
presented compelling, largely consistent, untainted evidence to prove this
defendant’s guilt. In contrast, the evidence in Shafier consisted entirely of a
credibility contest between the defendant and his accuser; although the accuser’s
sisters also testified on her behalf, their testimony contained numerous
inconsistencies. Thus, the prosecution in that case, in addition to using the
defendant’s silence to impeach his claim of innocence, argued that the defendant
was guilty because he did not verbally protest in the face of accusations of heinous
crimes.11 In contrast, the prosecution in this case did not overtly tie defendant’s
post-arrest, post-Miranda silence to its argument that defendant was guilty of the
charged crime.
Finally, in evaluating the third element, we note that the compelling,
untainted evidence against defendant shows how strong the prosecution’s case
was. First, the testimony of Kessler (the victim) is substantial in its probity
regarding defendant’s guilt. It is uncontested that she looked right at her assailant
from an arm’s length distance when he robbed her. She then chased him in the
direction of where defendant was later found. She described what her assailant
11
The prosecutor in Shafier made the following closing argument:
What we heard is that the defendant made no statements. We
heard that he didn’t ask Officer LaBonte any questions. Why?
You’re being arrested for [criminal sexual conduct]. You’re being
taken out of your home on a Sunday night. Why? Why? Because
between June of 2004 and January of 2005 the defendant had been
making his daughter do things that no person speaks about. Adults
don’t even talk about it between themselves. [Shafier, slip op at 12.]
22
was wearing, which generally matched defendant’s clothing when he was arrested
shortly thereafter. We acknowledge that Kessler’s description of her assailant did
not perfectly match defendant’s appearance when he was arrested.12 Yet, much of
her general description of her assailant did match defendant, a Caucasian with
brown hair who was wearing a blue jacket with red stripes, a hooded sweatshirt
underneath the jacket, and blue jeans. Further, Kessler made numerous
identifications of defendant as her assailant. She unequivocally identified
defendant as her assailant as he was being escorted from the abandoned building.13
Kessler was also able to identify defendant as her assailant when he drove past her
and yelled a self-incriminating obscenity at her.14 Here, again, Kessler made an
unequivocal identification that the driver was both her assailant and defendant.
This was corroborated by a bystander with whom Kessler was talking at the time.
12
Kessler wrongly described defendant as being clean-shaven and five feet,
five inches tall, when in actuality defendant had facial hair and is five feet, nine
inches tall. In addition, a police officer testified that Kessler “described defendant
as wearing ‘a medium light blue jacket with red strips [sic, stripes] or red
lettering,’ whereas the lettering on the jacket defendant was wearing was white.”
Kessler’s direct testimony, however, was more accurate; when asked what her
assailant was wearing she stated, “[B]lue jacket with red strips [sic, stripes] with
white lettering on the back of it.”
13
The arresting officers testified that, upon seeing defendant, Kessler yelled
out, “That’s him, that’s the man that robbed me.”
14
Some days after the robbery, Kessler had stopped her car for a minor
traffic accident in which she was involved. While she was standing outsider her
car, a blue van drove by, stopped, and the driver yelled, “I’m the motherfucker that
robbed you, ha, ha, ha.”
23
Finally, Kessler made two unequivocal in-court identifications of defendant as her
assailant.
We also note the uniquely incriminating aspect of the blue van driver’s
statement to the victim. This is the equivalent of an open confession to the crime.
And, with two witnesses corroborating it, we accept as true that someone drove by
the victim and shouted the obscene confession. It strains reason to contemplate
who, other than the actual assailant, would have done such an act. This makes the
victim’s unwavering identifications of defendant as both the driver and her
assailant more credible.
Finally, the circumstances leading to defendant’s apprehension are also
highly incriminating. Shortly after the robbery, defendant was found crouching in
the corner of an abandoned building that was only a few blocks from the crime
scene. The building is located in the direction that the assailant fled from the
crime scene. Moreover, after being robbed, Kessler cried for help and a bystander
attempted to follow the assailant. The bystander was later found waiting outside
the abandoned building where defendant was found.15
Each of these pieces of evidence is untainted and independent from the
Doyle violation in this case. And, in the aggregate, they stand in stark contrast to
15
Defendant claimed that he had fled to the building after hearing gunshots
while he was waiting for a taxi across the street from the crime scene. However,
he did not produce any witnesses in the vicinity of the crime scene to corroborate
the gunshots. And none of the prosecution witnesses, who were around the crime
scene, testified to hearing any gunshots.
24
the sometimes inconsistent evidence that was presented against the defendant in
Shafier. There, the only evidence against the defendant was the testimony of his
adopted daughters, who were shown to be children caught in a parental dispute.
Moreover, the daughters’ allegations were somewhat incongruous. Thus, in
comparison to the case against the defendant in Shafier, the strength of the
evidence against this defendant is substantial.
In sum, after analyzing these three factors, we conclude that defendant has
not met his burden of proving prejudice under Carines.16 Without proof of
16
In reaching a different conclusion, the Court of Appeals majority focused
on the errors in Kessler’s description of defendant’s height, facial hair, and jacket-
lettering color. The Court of Appeals majority also noted that this case was a
credibility contest and that “[i]t is not a stretch to conclude that, in the absence of
the tainted evidence and arguments, the jurors might have considered defendant’s
version of events plausible and might have found the discrepancies in the case
sufficient to raise a reasonable doubt regarding defendant’s guilt.” Borgne, supra
at 5. The Court of Appeals majority concluded that it “simply cannot conclude,
given the facts of this case, that the flagrant and repeated violation did not affect
the outcome of the lower court proceedings.” Borgne, supra at 6.
We disagree with this conclusion and reverse it. First, we believe that
Kessler’s descriptive errors are not so damaging to her credibility that it
establishes prejudice. On the contrary, they were minor errors in light of the
abundant and untainted incriminating evidence. Second, the Court of Appeals
simply applied the wrong legal standard to gauge the effect of those inaccuracies.
Indeed, the test under Carines and Grant is not, as the Court of Appeals
articulated, whether it is a “stretch to conclude” that the defendant “might have”
been convicted without the Doyle-violative evidence and arguments. It is also not
whether the appellate court “cannot conclude [that the] violation did not affect the
outcome of the lower court proceedings.” The question is whether the defendant
can show prejudice, i.e., that “the error affected the outcome of the lower court
proceedings.” Carines, 460 Mich at 763 (emphasis added). Thus, the Court of
Appeals applied the wrong standard to the facts of this case. This may have
caused its incorrect legal conclusion.
25
prejudice, analysis of the plain-error element is irrelevant; therefore, defendant is
not entitled to appellate relief under Carines.17
It is, nevertheless, important to make clear that the prosecutor’s violation of
Doyle in this case is not taken lightly. Doyle violations are constitutional
violations, and prosecutors commit an offense against the constitution and its
principles by misdeeds such as those seen in this case. Had it not been for the
wealth of incriminating evidence against defendant (which begs the question of
why a prosecutor would even risk a Doyle violation), the prosecutor’s trial victory
would not be affirmed. To be clear, the prosecutor has not won this appeal; rather,
the defendant has lost it because he has not proven that the Doyle violation entitles
him to a new trial under the plain-error doctrine.
IV. CONCLUSION
We agree with the Court of Appeals holding that a Doyle violation occurred
in this case. But the defendant’s convictions are affirmed, and the Court of
17
I do, nonetheless, acknowledge that the Doyle errors in this case present a
close question regarding whether they “seriously affected the fairness, integrity or
public reputation of judicial proceedings . . . .” Carines, 460 Mich at 763
(quotation marks and brackets omitted). But, as the Carines paradigm currently
stands, a defendant would not be entitled to relief if, despite the error seriously
affecting the fairness and integrity of the trial, he could not prove prejudice. This
seems to be an anomaly that should not stand, and it is another reason that I
continue to disagree with the Carines and Grant procedure. As has long been my
position, I would instead subject this unpreserved constitutional error to harmless-
error analysis. Yet, accepting that my position has yet to win the favor of this
Court, I offer no opinion regarding that standard’s application in this case.
26
Appeals is reversed on that issue, because defendant did not show plain error
affecting his substantial rights under Carines.
Reversed.
Michael F. Cavanagh
Marilyn Kelly
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman
Diane M. Hathaway
27
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 134967
MICHAEL J. BORGNE,
Defendant-Appellee.
KELLY, C.J. (concurring).
I concur in the majority opinion. However, I continue to believe that this
Court should not have extended the plain-error doctrine to the kind of unpreserved
constitutional error present in this case. As I stated in my dissent in People v
Carines, I believe that, when there is unpreserved constitutional error, a
defendant’s conviction should be affirmed only “‘if the reviewing court is satisfied
that the error is harmless beyond a reasonable doubt.’”1
It appears that, under the Carines plain-error standard, there is never error
requiring reversal when there is a “wealth of incriminating evidence.”2 Under
1
People v Carines, 460 Mich 750, 778; 597 NW2d 130 (1999) (Kelly, J.,
dissenting), quoting People v Graves, 458 Mich 756, 482; 581 NW2d 229 (1998).
2
Ante at 26.
those circumstances, the judicial system essentially exempts criminal defendants
from the constitutional right to due process of law.
In the interest of preserving the integrity of the judicial system, we should
re-elevate due process to its proper place. The present blatant and repeated
abrogation of people’s constitutional rights threatens the foundation of the court
system.
I recognize that Carines remains the law in Michigan and cannot be
ignored, but I believe the Court should reexamine it at the earliest possible
moment.
Marilyn Kelly
2
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 134967
MICHAEL J. BORGNE,
Defendant-Appellee.
YOUNG, J. (concurring).
I concur in the result and analysis of the majority opinion. I write
separately because I will not join footnotes 8 and 17, in which Justice Cavanagh
“dissents” from the Carines1 plain-error analysis in his own opinion. Justice
Cavanagh is entitled to such views, but his opposition to this Court’s precedent
and preservation of his view are better placed in a concurring statement.
Robert P. Young, Jr.
1
People v Carines, 460 Mich 750; 597 NW2d 130 (1999).