People v. Shafier

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-Appellee,

v No. 135435

HAROLD EMMETT SHAFIER III,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

CAVANAGH, J.

We granted leave to appeal in this case to determine whether the

prosecution’s references to defendant’s post-arrest, post-Miranda1 silence violated

defendant’s constitutional due process rights, and, if so, whether defendant is

entitled to a new trial.2 We hold that defendant’s due process rights were violated.

Further, the violation amounted to plain error that affected defendant’s substantial

1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
The issues in this case are similar to those presented in another case we
decide today: People v Borgne, ___ Mich ___; ___ NW2d ___ (Docket No.
134967, issued July 1, 2009). Accordingly, much of the analysis in this opinion is
very similar, and at times the same, as that in Borgne. However, the cases were
argued separately and they are distinct enough that we have not combined them in
one opinion.
rights and seriously affected the fairness and integrity of the trial. We reverse

defendant’s conviction and remand to the trial court for further proceedings.

I. BASIC FACTS AND PROCEEDINGS

Defendant, Harold E. Shafier III, was charged with three counts of first-

degree criminal sexual conduct and two counts of second-degree criminal sexual

conduct for allegedly sexually assaulting his 13-year-old daughter, AS. Defendant

and his wife adopted AS and her three sisters in 1995. In January 2005,

defendant’s wife reported to the police that AS was alleging that she had been

sexually assaulted by defendant. Defendant was arrested immediately. During the

arrest, defendant asked why he was being arrested, and the officer told him that he

was under arrest for criminal sexual conduct. The officer gave him the Miranda

warnings, and defendant remained silent thereafter.

At trial, AS testified that defendant sexually assaulted her on a daily basis

from July 2004 until he was arrested. She testified that the abuse escalated over

time from kissing and touching to digital penetration and oral sex.3 She listed a

few settings where the abuse occurred but initially had some difficulty describing

specific incidents. AS described one instance in which one of her sisters walked

in while defendant was performing oral sex on AS. The sister, age 11, testified

3
AS’s allegations escalated over time. Initially, AS told her mother that
defendant had touched her breasts and genital area. At the preliminary
examination, AS alleged that there had been incidents involving oral sex. Finally,
at trial, AS alleged specific incidents that she had not previously mentioned.

2
and corroborated this story, although there were discrepancies between their

accounts.4 Another sister, age 17, testified that she once walked into the family’s

barn and found AS and defendant standing close to each other and that it appeared

to her that they were about to kiss or had just been kissing.5 AS and her sisters

testified that defendant would sometimes take one or more of the girls to the store

with him upon their request and buy everyone candy, but that he probably bought

AS the most candy. Defendant’s wife testified that she thought defendant had

been favoring AS by taking her shopping and visiting her school.

Defendant testified in his own defense and adamantly maintained that he

had never sexually assaulted any of his daughters. He denied the factual

circumstances of the specific allegations that AS and her sisters made. He stated

that it would have been physically impossible for the alleged incident of oral sex

to have occurred in the manner described by AS and her sister because the table

on which it was supposed to have occurred was covered with boxes at the time.

Defendant also denied favoring AS. He stated that he had begun stopping at AS’s

school to check her progress because she was the only child not doing well in

4
The discrepancies were in regard to when the incident occurred, the exact
physical positions of AS and defendant, and the actions of each of the three people
after the sister’s interruption.
5
This sister also testified that defendant had sexually assaulted her when
she was younger. At the preliminary examination, she stated that defendant had
touched her breasts twice, but one of the times was accidental. At trial, she
alleged for the first time that defendant had regularly touched her, kissed her, and
digitally penetrated her when she was between the ages of 11 and 13.

3
school. He testified that, after school, he often took one or more of the children

shopping with him and would buy candy for any of the children who requested it.

Defendant testified that he suspected that his wife encouraged their

daughters to make false allegations against him because she was jealous of the

time he was spending with their daughters. It is undisputed that up to and during

the period of the alleged incidents, the relationship between defendant and his

wife had deteriorated. Defendant testified that he had become increasingly angry

with his wife’s treatment of the children and consciously decided to become more

involved in the children’s lives in July 2004. Defendant stated that his wife had

reacted with jealousy and anger as he increased the time he spent with the girls.

At trial, the prosecutor referred to defendant’s post-Miranda silence

multiple times, including in his opening and closing statements, direct and redirect

examinations of the arresting officer, and cross-examination of defendant.

Defense counsel objected during the prosecutor’s cross-examination of defendant,

but the basis for the objection was unclear.

After two hours of deliberation, the jury announced that it was deadlocked.

The court instructed the jury to continue to deliberate. On the second day, after

rehearing portions of the trial testimony, the jury acquitted defendant of three

counts of first-degree criminal sexual conduct and convicted him of two counts of

second-degree criminal sexual conduct.

Defendant appealed, and a divided Court of Appeals panel affirmed his

convictions. People v Shafier, 277 Mich App 137; 743 NW2d 742 (2007). The

4
majority held that the prosecutor’s use of defendant’s post-Miranda silence in his

case-in-chief violated defendant’s constitutional rights, reasoning that the

prosecutor’s references “were not inadvertent and they were numerous” and that

“the prosecutor asked the jury to infer that defendant was guilty because he did not

take the affirmative step of questioning the arresting officer . . . or declaring his

innocence . . . .” Shafier, 277 Mich App at 140, 142-143. The majority held that

defendant was not entitled to a new trial, however, because defendant did not

establish that the violation was plain error affecting his substantial rights. Id. at

143-144. The Court of Appeals dissent would have granted defendant a new trial

because “[t]here is no way to know what effect those breaches had on the jurors’

minds, particularly considering the jurors’ initial announcement that they were

deadlocked.” Id. at 145 (Davis, J., dissenting). This Court granted defendant’s

application for leave to appeal.

II. STANDARD OF REVIEW

Defendant raises an unpreserved claim of constitutional error.

Constitutional questions are reviewed de novo. Sidun v Wayne Co Treasurer, 481

Mich 503, 508; 751 NW2d 453 (2008). This Court reviews the effect of an

unpreserved constitutional error under the plain-error standard. People v McNally,

470 Mich 1, 5; 679 NW2d 301 (2004).

5
 III. ANALYSIS

A. VIOLATION OF DEFENDANT’S DUE PROCESS RIGHTS

Defendant argues that his constitutional due process rights were violated

under Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976), and its

progeny. We hold that the prosecution’s repeated references to defendant’s post-

arrest, post-Miranda silence violated defendant’s due process rights under the

United States Constitution.6

1. Rule of Doyle v Ohio and its Progeny

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.7 Miranda v Arizona, 384 US 436, 444-439, 467-468; 86 S Ct 1602; 16 L Ed 2d

694 (1966), established “guidelines for law enforcement agencies and courts to

follow” in order to protect the privilege against compelled self-incrimination

during custodial police interrogations. Thus, under Miranda, every person subject

to interrogation while in police custody must be warned, among other things, that

6
This Court has recognized that the Michigan 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 United States Constitution. See People v
McReavy, 436 Mich 197, 201; 462 NW2d 1 (1990). Because defendant’s due
process rights were so clearly violated under the United States Constitution in this
case, however, it is not necessary to evaluate the protection provided by the state
constitution.
7
The Fifth Amendment has been made applicable to the states through the
Due Process Clause of the Fourteenth Amendment. See Malloy v Hogan, 378 US
1, 3; 84 S Ct 1489; 12 L Ed 2d 653 (1964).

6
the person may choose to remain silent in response to police questioning. Id. at

444-445. 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. Wainwright v Greenfield, 474 US 284, 290-291; 106 S Ct 634; 88 L Ed

2d 623 (1986). Therefore, in general, prosecutorial references to a defendant’s

post-arrest, post-Miranda silence violate a defendant’s due process rights under

the Fourteenth Amendment of the United States Constitution.8 See Wainwright,

474 US at 290-291; Doyle, 426 US at 618-620.

The United States Supreme Court has explained the rationales behind the

constitutional prohibition against the use of a defendant’s post-arrest, post-

Miranda silence. To begin with, a defendant’s silence may merely be the

defendant’s invocation of the right to remain silent, as opposed to a tacit

acknowledgement of guilt. “[E]very post-arrest silence is insolubly

8
The United States Constitution does not prohibit impeaching a defendant
with pre-arrest silence. 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). Federal courts of appeals are split on whether it
violates a defendant’s Fifth Amendment rights under the United States
Constitution for pre-Miranda silence to be used in the prosecution’s case-in-chief.
See generally Combs v Coyle, 205 F3d 269, 285 (CA 6, 2000) (summarizing the
position of each circuit for pre-arrest, pre-Miranda silence). See also United
States v Frazier, 408 F3d 1102, 1111 (CA 8, 2005) (holding that post-arrest, pre-
Miranda silence may be used in the prosecution’s case-in-chief in some
circumstances); United States v Moore, 322 US App DC 334, 344; 104 F3d 377
(1997) (holding that post-arrest, pre-Miranda silence may not be used in the
prosecution’s case-in-chief). This Court has not addressed this issue. See
McNally, 470 Mich at 7 n 4. These issues are not before this Court today, and this
opinion has no effect on their resolution.

7
ambiguous . . . .” Doyle, 426 US at 617. Further, Miranda warnings provide an

implicit promise that a defendant will not be punished for remaining silent. Id. at

618. Once the government has assured a person of his right to remain silent,

“breaching the implied assurance of the Miranda warnings is an affront to the

fundamental fairness that the Due Process Clause requires.” Wainwright, 474 US

at 291.

Consistent with these rationales, a defendant’s post-arrest, post-Miranda

silence cannot be used to impeach a defendant’s exculpatory testimony, see Doyle,

or as direct evidence of defendant’s guilt in the prosecutor’s case-in-chief, see

Wainwright, 474 US at 292-294.9 “What is impermissible is the evidentiary use of

an individual’s exercise of his constitutional rights after the State’s assurance that

the invocation of those rights will not be penalized.” Id. at 295. There are limited

9
In Doyle, the Court held that the prosecution could not use a defendant’s
post-arrest, post-Miranda silence to impeach the credibility of a defendant’s
exculpatory testimony. Doyle, 426 US at 618. The prosecution attempted to use
the defendants’ silence to impeach the credibility of the defendants’ claim, told for
the first time at trial, that they had been framed. Id. at 611-614. The 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.

In Wainwright, the Court held that the prosecution could not use a
defendant’s post-arrest, post-Miranda silence to meet the prosecutor’s burden of
showing beyond a reasonable doubt that the defendant was not insane.
Wainwright, 474 US at 286, 289-296. The Court explained that Doyle’s reasoning
applied with equal force because “[t]he implicit promise, the breach, and the
consequent penalty are identical in both situations.” Id. at 292.

8
exceptions to this general rule, but none applies here.10 This Court has adopted

this understanding of a defendant’s due process rights and stated that post-arrest,

post-Miranda silence “may not be used substantively or for impeachment purposes

since 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,

218; 462 NW2d 1 (1990).

In general, any reference to a defendant’s post-arrest, post-Miranda silence

is prohibited, but in some circumstances a single reference to a defendant’s silence

may not amount to a violation of Doyle if the reference is so minimal that “silence

was not submitted to the jury as evidence from which it was allowed to draw any

permissible inference . . . .” Greer v Miller, 483 US 756, 764-765; 107 S Ct 3102;

97 L Ed 2d 618 (1987). See also People v Dennis, 464 Mich 567, 577-580; 628

NW2d 502 (2001). For example, in Greer, there was no Doyle violation where the

defense counsel immediately objected to a question by the prosecution about

defendant’s post-arrest, post-Miranda silence, and the trial court twice gave a

curative instruction to the jury.11 Greer, 483 US at 759, 764-765.

10
For example, in Doyle, the Court noted that the prosecution may use
evidence of a defendant’s post-arrest, post-Miranda silence to challenge a
defendant “who 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. This
exception is not applicable here because defendant never claimed that he told the
police an exculpatory story after he was given his Miranda warnings.
11
In Greer, the defendant testified that he was innocent, but two other
people had confessed their guilt to him. Greer, 483 US at 758. On cross-

9
 2. Further Background

In this case, the prosecutor made repeated references to defendant’s post-

arrest, post-Miranda silence. In the prosecutor’s opening statement, he said that

the jury would hear that after defendant was arrested, he “didn’t say anything, not

a word. [The officer] told him why he was being arrested, he was arrested and no

statements were made.” Next, in the presentation of the case-in-chief, the

prosecutor deliberately elicited testimony from the arresting officer regarding

defendant’s post-arrest, post-Miranda silence. The following exchange occurred

regarding the circumstances of the arrest:

A. [The Arresting Officer] I asked [defendant] if he knew
what we were here about—what we were there about and he stated he
did not. I then placed him under arrest and informed him he was
under arrest for criminal sexual conduct, advised him of his Miranda
rights which is the right to remain silent and I’m sure we’ve all seen
that, and I placed him in the rear of my patrol vehicle. He did not
make any statements to me prior to getting to jail.

Q. [The Prosecutor] So he never made any statements to you.
He was fully aware of what you were arresting him for?

A. Not reference [sic] the criminal sexual conduct, correct.

On cross-examination, the defense attorney asked the arresting officer questions

that clarified that the officer did not ask defendant any questions after arresting

him and giving him his Miranda warnings. On the prosecutor’s redirect

examination, the prosecutor asked the defendant, “‘Why didn’t you tell this story
to anybody when you got arrested?’” Id. at 759. Defense counsel immediately
objected, and the trial court sustained the objection and twice instructed the jury to
ignore the reference. Id.

10
examination, the prosecutor followed up with additional questions regarding

defendant’s silence:

Q. [The Prosecutor] [Defendant] didn’t make any statements
about the CSC charge, did he?

A. [The Arresting Officer] No, he did not.

Q. Never asked you about it?

A. No, he did not.

After the prosecutor concluded presentation of his case, defendant testified

in his own defense. Defense counsel asked why defendant was silent after he was

given his Miranda warnings, and defendant stated that it was because he “watched

a lot of TV and with something like that I didn’t know what to say, I mean I was

shocked . . . so I just kept my mouth shut and I was going to wait until I talked to

somebody.”12 When the prosecutor cross-examined defendant, the following

exchange occurred:

12
The full exchange between defense counsel and defendant regarding
defendant’s silence was as follows:

Q. [The Defense Counsel]. Were you nervous [when being
arrested]?

A. [Defendant]. Oh yes, scared shit—scared to death.

Q. Did you—what—you just got silent then?

A. Yeah, I didn’t say anything, yeah.

Q. Okay. Why did you not say anything?

11
 Q. [The Prosecutor] [Y]ou didn’t say a single word about
being arrested for criminal sexual conduct. Is that right?

A. [Defendant] When I got to the police station—

Q. Yes or no. Is that right?

A. Yes.

Finally, the prosecutor began his closing argument by highlighting the

significance of defendant’s silence. The prosecutor stated:

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 CSC. 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.

3. Application of Doyle v Ohio and its Progeny

It is clear that the prosecution’s use of defendant’s silence violated

defendant’s due process rights under the federal constitution.

A. Just watched a lot of TV and with something like that I
didn’t know what to say, I mean I was shocked that he even said
that [I was being arrested for CSC] so I just kept my mouth shut
and I was going to wait until I talked to somebody.

Q. Was he [the officer] cooperative with you in talking with
you or was he pretty short with you?

A. He just told me what I had to—what he told, what he felt I
had to know and that was it, yeah.

Q. Okay. So, he wasn’t volunteering information.

A. No.

12
 The prosecutor’s examination of the arresting officer established that the

silence to which the prosecutor referred occurred post-arrest and post-Miranda. A

reference to a defendant’s post-arrest, post-Miranda silence generally constitutes a

Doyle violation unless the reference was so minimal that “silence was not

submitted to the jury as evidence from which it was allowed to draw any

permissible inference . . . .” Greer, 483 US at 764-765. In this case, the

prosecution clearly crossed this line by repeatedly using defendant’s post-arrest,

post-Miranda silence as evidence of defendant’s guilt in its case-in-chief and to

impeach the defendant’s testimony that he was innocent. The prosecutor

impliedly asked the jury to infer guilt from defendant’s silence through references

to defendant’s silence in his opening statement and his examination of the

arresting officer. In his closing argument, the prosecutor expressly asked the jury

to infer guilt from defendant’s silence by explaining that the reason defendant had

been silent was because “the defendant had been making his daughter do things

that no person speaks about.” Further, in his cross-examination of defendant, the

prosecutor attempted to use defendant’s silence to impeach defendant’s credibility.

In sum, the state gave defendant his Miranda warnings, which constituted

an implicit promise that his choice to remain silent would not be used against him.

The state then breached that promise by attempting to use defendant’s silence as

evidence. Depending on the circumstances of the case, even a single reference to

a defendant’s post-arrest, post-Miranda silence, either as evidence of substantive

guilt or impeachment, may violate a defendant’s due process rights. Where, as in

13
this case, the prosecution makes repeated references to a defendant’s silence, both

as substantive evidence of guilt and for purposes of impeachment, the violation is

clear. Therefore, we affirm the Court of Appeals holding that the prosecutor’s

repeated references to defendant’s post-arrest, post-Miranda silence violated the

due process rights guaranteed to defendant by the United States Constitution.

B. PLAIN-ERROR REVIEW

The Doyle violation in this case is an unpreserved, constitutional error.13

This Court determines whether this type of error warrants reversal under the plain-

error standard of review articulated in People v Grant, 445 Mich 535, 547-553;

520 NW2d 123 (1994), and People v Carines, 460 Mich 750, 765-766; 597 NW2d

130 (1999).14

1. Plain-Error Review

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

13
The Court of Appeals dissent suggests that defendant may have preserved
this issue. Shafier, 277 Mich App at 144-145 (Davis, J., dissenting). We will not
address the issue of preservation, however, because the parties agreed that
defendant failed to preserve an objection to any constitutional error in this case.
14
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 done in other cases, I recognize that Carines is
the law in Michigan. See McNally, 470 Mich at 5.

14
must have been an error. Id. “Deviation from a legal rule is ‘error’ unless the rule

has been waived.” Grant, 445 Mich at 548 (quotation marks and citation omitted).

Second, the error must be plain, meaning clear or obvious. Carines, 460 Mich at

763. 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.”15 Id. The defendant bears the burden of establishing

prejudice. Id. Fourth, if the first three requirements are met, reversal is only

warranted if the error “resulted in the conviction of an actually innocent

defendant” or “seriously affected the fairness, integrity or public reputation of

judicial proceedings . . . .” Id. (quotation marks and brackets omitted).

2. Application of Plain-Error Review

In this case, the four requirements of plain-error review are met, and,

therefore, reversal is warranted.

15
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”); Carines, 460 Mich at 763 n 8. 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).

15
 First, there was an error. Defendant’s due process rights were violated by

the prosecution’s references to defendant’s post-arrest, post-Miranda silence, and

defendant did not waive his rights.

Second, the error was plain. As discussed, the error was an obvious

violation of a defendant’s due process rights under Doyle and its progeny.

Third, defendant has shown that the error affected his substantial rights.

Under the third prong of plain-error review, a defendant must generally show that

the error was prejudicial. It is difficult for an appellate court to know what effect

the prosecutor’s repeated use of defendant’s post-Miranda silence might have had

on the jury. Nonetheless, we hold that defendant has shown that the error is

prejudicial, considering (1) the extent of the prosecutor’s comments, (2) the extent

to which the prosecutor attempted to tie defendant’s silence to his guilt, and (3) the

overall strength of the case against 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 defendant’s silence.16 In contrast to the other Doyle

16
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 (CA 9, 1998). Plain-error review, as
articulated in Carines and Grant, is based on the federal courts’ interpretation of
the 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 inevitably
case-specific and fact-intensive inquiry, we find the factors used by the federal
courts of appeals useful for plain-error review in this case. While Veloria was a
“plain error” case, the factors used there to evaluate the effect of a Doyle error on
a trial are traceable to United States v Newman, 943 F2d 1155 (CA 9, 1991),

16
case we decide today, People v Borgne, ___ Mich ___; ___ NW2d ___ (Docket

No. 134967, issued July 1, 2009), in which we consider these same factors, the

error in this case was clearly prejudicial.

To begin with, 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. In this case, the prosecutor’s references to

defendant’s silence were frequent throughout the trial, from the prosecutor’s

opening and closing statements, to his case-in-chief, to his cross-examination of

defendant. The pervasiveness of the prosecutor’s references to defendant’s silence

increases the likelihood that the references had a prejudicial effect.

Further, a prosecutor’s 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. In this case, the references to defendant’s post-arrest silence

were not inadvertent references that the jury might not have connected to

defendant’s guilt. Instead, the prosecutor referred to defendant’s silence in a

manner that deliberately challenged defendant’s credibility and his claim of

innocence. In addition, the prosecutor impliedly suggested that defendant’s

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.

17
silence was evidence of his guilt and even explicitly asked the jury to infer guilt

from defendant’s silence in his closing argument. In comparison, in Borgne, the

prosecutor did use the defendant’s silence to challenge the credibility of

defendant’s exculpatory story, but he did not go so far as to explicitly or impliedly

suggest to the jury that it should infer guilt from the silence.17

Finally, the degree to which prosecutorial references to a defendant’s post-

arrest, post-Miranda silence are prejudicial depends on 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. In this case, the strength of the prosecutor’s overall case against

defendant hinged entirely on the jury’s assessments of the witnesses’ credibility.

It consisted mainly of AS’s testimony and the corroborating testimony of her

sisters, but the sisters’ testimony conflicted at times with AS’s. The jury’s

acquittal of defendant on the charges of first-degree criminal sexual conduct

suggests that at least some of the jurors questioned AS’s credibility as compared to

defendant’s, even with the prosecutor’s impermissible references to defendant’s

silence. The trial was essentially a credibility contest between defendant and AS

and her sisters, and the prosecutor’s repeated references to defendant’s silence

17
This comparison is not intended to suggest that a defendant’s silence
must be used in the prosecutor’s case-in-chief in order to be prejudicial; it is
certainly conceivable that the use of a defendant’s silence only for impeachment
purposes could be prejudicial, depending on a case’s circumstances. See, e.g.,
Veloria, 136 F3d at 652-653.

18
might have undermined defendant’s credibility. In contrast, in Borgne, the degree

to which the jury would have found much of the evidence credible was not directly

affected by the prosecutor’s references to the defendant’s silence. Specifically, the

prosecution in Borgne presented physical evidence against the defendant and

eyewitness testimony corroborating the victim’s account of the events.

In sum, in this case, in light of the prosecutor’s extensive references to

defendant’s silence, the extensive connection of that silence to defendant’s guilt,

the inconsistencies in the prosecutor’s case and the other evidence presented

against him, and the nature of defendant’s defense—which hinged on his own

credibility, we hold that the error was prejudicial.18

Fourth, there is no question that this is the sort of error that compromises

the fairness, integrity, and truth-seeking function of a jury trial. The violation of

defendant’s due process rights rendered the trial fundamentally unfair and cast a

shadow on the integrity of our state’s judicial processes. Therefore, all four

requirements of plain-error review are met, and reversal is warranted.

IV. CONCLUSION

The prosecutor’s references to defendant’s post-arrest, post-Miranda

silence violated defendant’s due process rights under the federal constitution. The

18
We note that, under the circumstances of this case, defense counsel’s
attempts during trial to lessen the impact of the Doyle errors by asking defendant
why he did not make statements before trial, did not waive the error, cure it, or
render it harmless.

19
violation amounts to plain error that affected defendant’s substantial rights, and it

compromised the fairness, integrity, and public reputation of the judicial

proceedings. Therefore, we reverse defendant’s conviction and remand to the trial

court for further proceedings.

Michael F. Cavanagh
Marilyn Kelly
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman
Diane M. Hathaway

20
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135435

HAROLD EMMETT SHAFIER III,

Defendant-Appellant.

KELLY, C.J. (concurring).

I concur with 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
People v Borgne, ___ Mich ___, ___ NW2d ___, issued June 24, 2009
(Docket No. 134967) slip op 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. 135435

HAROLD EMMETT SHAFIER III,

Defendant-Appellee.

YOUNG, J. (concurring).

I concur in the result and analysis of the majority opinion. I write

separately because I will not join footnote 14, 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 is better placed in a concurring statement.

Robert P. Young, Jr.

1
People v Carines, 460 Mich 750; 597 NW2d 130 (1999).