People v. Boyd

Michigan Supreme Court
Lansing, Michigan

Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 1, 2004

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 118021

ERIC BOYD,

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, C.J.

In this case, we consider whether a defendant must

testify in order to preserve for appellate review a

challenge to a trial court’s ruling in limine allowing

evidence that the defendant exercised his Miranda1 right to

remain silent. In Luce v United States, 469 US 38, 43; 105

S Ct 460; 83 L Ed 2d 443 (1984), the United States Supreme

Court held that a defendant must testify to preserve for

appeal a challenge to a ruling in limine involving

1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed
2d 694 (1966).
impeachment with prior convictions. We adopted the Luce

rule in People v Finley, 431 Mich 506; 431 NW2d 19 (1988)

(opinions by RILEY, C.J., and by BRICKLEY, J., concurring in

part),2 which also involved impeachment by prior

convictions.

Because the same reasons for requiring a defendant to

testify to preserve a challenge to pretrial evidentiary

rulings in Luce and Finley apply in the circumstances of

this case, we extend the rule from Luce and Finley to the

errors alleged here. We hold that defendant was required

to testify to preserve for review his challenge to the

trial court’s ruling in limine allowing the prosecutor to

admit evidence of defendant’s exercise of his Miranda right

to remain silent. Because the statement at issue in this

case would have been properly admissible in one context,

defendant’s failure to testify precludes us from being able

2
Despite the dissent’s contention that we
mischaracterize the holding of the Finley Court, post at 1-
3, a majority of this Court in Finley adopted the rule
announced in Luce. Justices BOYLE and GRIFFIN joined Chief
Justice RILEY’s lead opinion, and Justice BRICKLEY concurred
in the lead opinion’s adoption of the Luce rule, as the
dissent correctly recognizes. Finley, supra at 526
(opinion by BRICKLEY, J.). Contrary to the dissent’s
assertion, we do not contend that Justice BRICKLEY agreed
with every aspect of the lead opinion, but rather, that he
“concurred with the adoption of the rule as defined in
Luce.” Post at 2.

2

to determine whether the trial court’s ruling was erroneous

and, if so, whether the error requires reversal. We thus

affirm the judgment of the Court of Appeals holding that

defendant was required to testify to preserve his challenge

for appellate review.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

On June 14, 1997, the twelve-year-old victim attended

a barbeque at a neighbor’s apartment in the building where

defendant lived. The victim testified that defendant

grabbed her at the barbeque, took her to his apartment, and

had sexual intercourse with her. She told her friend, an

eleven-year-old girl, about the assault immediately

thereafter, but did not tell her father about it until a

week later. Her father then called the police and took her

for a medical examination. The results of the examination

were inconclusive regarding penetration because of the

interval between the alleged penetration and the

examination.

Police arrested defendant shortly after the victim’s

father reported the incident. Defendant furnished a

statement to police after being advised of his Miranda

rights. After defendant answered five or six questions,

the police officer asked him, “When you last saw her [the

victim], how many times did you have sex with her?”

3

Defendant responded, “I am taking the fifth on that one.”

The officer immediately ended the interrogation.

The prosecutor charged defendant with first-degree

criminal sexual conduct, MCL 750.520b(1)(a) (sexual

penetration of victim under thirteen years of age).

Immediately before trial, defendant moved in limine to

exclude that portion of his statement in which he asserted

his Miranda right to remain silent. The prosecutor opposed

the motion, arguing that the entire statement was

admissible. The trial court ruled that defendant’s entire

statement was admissible.

Despite this ruling, the prosecutor never sought to

admit defendant’s statement into evidence and did not refer

to the statement during opening or closing argument.

Defendant elected not to testify, but the record does not

reflect the reason for his decision. Defendant’s brother

testified that defendant had been with him at the apartment

at the time of the alleged assault and that no assault

occurred. The young female friend of the complainant

testified that the victim told her about the assault

immediately after it had occurred. The friend also

testified that the victim was crying, her clothes were

“messed up,” and she was missing a pair of shorts.

4

 The jury convicted defendant of second-degree criminal

sexual conduct, MCL 750.520c, and the trial court sentenced

him to a ten- to fifteen-year term of imprisonment.

The Court of Appeals affirmed.3 Defendant argued,

inter alia, that his decision not to testify at trial was

based on the trial court’s erroneous ruling in limine

allowing the prosecutor to use the assertion of his Miranda

right to remain silent against him. The Court of Appeals

agreed that the trial court’s ruling was erroneous, but,

citing Finley, held that reversal was not required because

defendant did not testify and the evidence was never

admitted. The Court declined to assume that defendant

chose not to testify “out of fear of impeachment.” It also

concluded that the evidence against defendant was

overwhelming and that any error was harmless beyond a

reasonable doubt.

We granted defendant’s application for leave to

appeal.4

3
Unpublished opinion per curiam, issued September 15,
2000 (Docket No. 214097).
4
467 Mich 920 (2002).

5

 II. STANDARD OF REVIEW

This case requires us to determine whether a defendant

must testify in order to preserve for appellate review a

challenge to a ruling in limine allowing admission of his

exercise of his silence. We review de novo this question

of law. People v Mendoza, 468 Mich 527, 531; 664 NW2d 685

(2003).

III. ANALYSIS

A. Luce and Finley

In circumstances analogous to the instant factual

scenario, the United States Supreme Court held that a

defendant must testify to preserve for appeal the issue of

improper impeachment by prior convictions. Luce, supra at

43. In Luce, the petitioner sought to preclude the use of

a prior conviction to impeach his testimony. The trial

court ruled that the prior conviction was admissible under

FRE 609(a). The petitioner did not testify and was

convicted. Luce, supra at 39-40.

The Supreme Court upheld the convictions, citing

numerous reasons for requiring the petitioner to testify to

preserve his challenge to the pretrial evidentiary ruling.

First, the Court reasoned that if the petitioner had

testified and been impeached with the prior conviction, the

trial court’s decision admitting the evidence would have

6

been reviewable on appeal. Id. at 41. The Court

recognized the difficulty inherent in reviewing an

evidentiary ruling outside a factual context, particularly

because FRE 609(a)(1) required a reviewing court to weigh

the probative value of a prior conviction against its

prejudicial effect. To perform this balancing test, the

Court opined, a reviewing court must know the precise

nature of the defendant’s testimony, which is unknown

unless he testifies. Luce, supra at 41. The Court

rejected the notion that an offer of proof would be

sufficient because a defendant’s trial testimony could

differ from the proffer. Id. at n 5.

Second, the Court recognized that any possible harm

from a trial court’s ruling in limine allowing impeachment

with prior convictions is wholly speculative in the absence

of the defendant’s testimony. The Court opined that such a

ruling is subject to change depending on how the case

unfolds at trial and that a court, exercising sound

judicial discretion, could modify a previous ruling in

limine. The Court also stated that without a defendant’s

testimony, a reviewing court has no way of knowing whether

the prosecutor would have sought to introduce the prior

conviction for impeachment. For example, if the

prosecutor’s case is strong and other means of impeachment

7

are available, the prosecutor may choose not to use an

arguably inadmissible prior conviction. Id. at 41-42.

Third, the Court reasoned that appellate courts cannot

assume that an adverse pretrial ruling motivated a

defendant’s decision not to testify. The Court rejected

the notion that a defendant could commit to testifying if

his motion is granted because such a commitment is

relatively risk-free and difficult to enforce. Id. at 42.

In addition, the Court acknowledged the problem

involving application of a harmless error analysis because

“the appellate court could not logically term ‘harmless’ an

error that presumptively kept the defendant from

testifying.” Id. Thus, nearly every error would

automatically require reversal. Finally, the Court opined

that requiring defendants to testify enables reviewing

courts to assess the effect of any erroneous impeachment in

light of the entire record and tends to discourage

gamesmanship whereby a defendant’s motion operates solely

to “plant” error requiring reversal on appeal. Id.

In Finley, a majority of this Court adopted the Luce

rule. We observed that the purpose of the rule is to

provide for meaningful appellate review of a ruling in

limine allowing impeachment by prior convictions. Finley,

supra at 512 (opinion of RILEY, C.J.). The lead opinion

8

stated that “error does not occur until error occurs; that

is, until the evidence is admitted.” Id. It further

stated that even if an offer of proof is made and evidence

is erroneously deemed admissible, error requiring reversal

does not arise until the evidence is actually introduced.

The lead opinion then reiterated the reasons stated in Luce

favoring the rule requiring a defendant’s testimony to

preserve the issue for appellate review. Id. at 512-513.

B. Extension of the Luce and Finley Rule

Many courts have extended the rule announced in Luce

and adopted in Finley to contexts other than those

involving impeachment by prior convictions.5 In United

5
Many of these cases involve federal rules of evidence
other than FRE 609(a), the rule at issue in Luce. See,
e.g., United States v Sanderson, 966 F2d 184, 190 (CA 6,
1992) (“[A]n appeal of a Rule 608(b) ruling is precluded
where the defendant did not testify at trial.”); United
States v Ortiz, 857 F2d 900, 906 (CA 2, 1988) (the
defendant waived his challenge to the trial court’s adverse
ruling in limine on Rule 404(b) motion by failing to insist
on right to fully present “personal use” argument at
trial); United States v Griffin, 818 F2d 97, 103-105 (CA 1,
1987) (“[T]o raise and preserve for review the claim of
improperly constructing the Rule 403 balance, a party must
obtain the order admitting or excluding the controversial
evidence in the actual setting of the trial” and may not
rely on a trial court’s mere ruling in limine.); United
States v Weichert, 783 F2d 23, 25 (CA 2, 1986) (By failing
to testify at trial, challenge to the trial court’s ruling
in limine under Rule 608(b) was not preserved for review.);
United States v Johnson, 767 F2d 1259, 1270 (CA 8, 1985)
(“Although Luce was decided under Fed. R. Evid. 609(a)(1),
Footnotes continued on following page.

9

its logic applies with equal force to motions under Rule
404.”).

In addition, the dissent cites Professor Duane for the
proposition that the United States Supreme Court has been
“reluctant to give Luce any precedential value,” post at
11. To the contrary, the Court has rather recently
accorded such value to Luce in Ohler v United States, 529
US 753, 759; 120 S Ct 1851; 146 L Ed 2d 826 (2000), a case
in which the Court held that once a defendant―not the
government―introduces evidence of a prior conviction, the
defendant waives any right to appeal the trial court’s
ruling in limine permitting the government to admit that
conviction for purposes of impeachment. Moreover, although
four justices dissented, concluding that Luce was
inapplicable because the defendant had testified and thus
the harm was not “wholly speculative,” Luce, supra at 41,
those justices also appeared implicitly to recognize the
importance of Luce:

An appellate court can neither determine why
a defendant refused to testify, nor compare the
actual trial with the one that would have
occurred if the accused had taken the stand.
With unavoidable uncertainty about whether and
how much the in limine ruling harmed the
defendant, and whether it affected the trial at
all, a rule allowing a silent defendant to appeal
would require courts either to attempt wholly
speculative harmless-error analysis, or to grant
new trials to some defendants who were not harmed
by the ruling, and to some who never even
intended to testify. Ohler, supra at 760-761.
(Souter, J., dissenting).

Although the dissent states that the United States
Supreme Court in Ohler “begrudgingly” cited Luce, post at
14, nothing in Ohler’s majority or dissenting opinion
supports that assertion. Further, our reliance on Ohler is
not “misplaced.” Post at 14. Neither the majority nor the
dissent in Ohler questioned Luce’s continuing validity.
Rather, the Court decided that Luce was inapplicable.
Ohler simply does not state that the United States Supreme
Court has been reluctant to accord Luce precedential
effect.

10

States v Wilson, 307 F3d 596, 598 (CA 7, 2002), the

defendant moved in limine to preclude the prosecutor from

introducing evidence of his postarrest “selective silence.”

After waiving his Miranda rights, the defendant answered a

series of questions, but expressly refused to provide the

name of his associate. Id. The trial court granted the

motion in part, ruling that the prosecution could not use

the defendant’s silence against him in its case-in-chief.

During trial, the defendant sought to admit evidence

regarding the associate, but the court ruled that if

defendant raised the matter, the prosecutor would be

permitted to introduce evidence of the defendant’s refusal

to name the associate during questioning. The defendant

opted not to raise the issue. Id. at 598-600.

On appeal, the defendant argued that the trial court’s

ruling allowing the prosecutor to introduce evidence of his

“selective silence” violated his Fifth Amendment privilege

against self-incrimination. Id. at 599. Relying on Luce

and the line of cases extending the Luce holding beyond FRE

609, the court declined to review the defendant’s claim on

the merits. The court stated that because the defendant

exercised his right to refrain from introducing certain

evidence at trial, he “cannot now attack a potential

11

introduction of evidence by the government in response to

his potential testimony.” Id. at 601.

United States v Bond, 87 F3d 695 (CA 5, 1996), also

involved a defendant’s Fifth Amendment privilege against

self-incrimination. In that case, the defendant challenged

the magistrate’s ruling that if he testified regarding the

terms of a plea bargain, he would waive his privilege

against self-incrimination regarding all grounds asserted

in his motion to withdraw his guilty plea. The appellate

court determined that the same practical considerations as

in Luce were present, including the difficulty inherent in

determining whether the defendant’s testimony could be

limited in accordance with his motion without actually

hearing the testimony. The court recognized that other

courts have refused to limit the Luce rule to Rule 609(a)

situations and have instead applied the Luce rule in

analogous contexts. Id. at 700-701.

C. Application of the Luce Rule to the Facts in this
Case

As in Wilson and Bond, we must determine here whether

to extend the Luce rule to defendant’s invocation of his

Miranda right to remain silent. Defendant and the dissent

contend that the logic of Luce and Finley does not apply

because the alleged error has constitutional implications.

12

The alleged errors in Wilson and Bond, however, also had

constitutional implications. In fact, the purported errors

in those cases involved the same constitutional right at

issue in this case, i.e., the Fifth Amendment privilege

against self-incrimination.

The dissent and defendant further fail to appreciate

the constitutional implications present in Luce, Finley,

and every case in which a defendant alleges that a trial

court’s ruling effectively prevented him from testifying.

A defendant’s right to testify in his own defense stems

from the Fifth, Sixth, and Fourteenth amendments of the

United States Constitution. Rock v Arkansas, 483 US 44,

51-52; 107 S Ct 2704; 97 L Ed 2d 37 (1987). Thus, a trial

court’s ruling affecting a defendant’s right to testify

necessarily has constitutional implications.6 The lead

opinion in Finley correctly stated, “A ruling in limine on

impeachment by prior convictions does not present

constitutional implications.” Finley, supra at 514. The

effect of such a ruling on a defendant’s right to testify,

however, does present constitutional implications.

6
While the United States Supreme Court did not decide
Rock until after it decided Luce, its decision in Rock made
clear that a defendant’s challenge involving his right to
testify in his own defense is one of constitutional
magnitude.

13

Therefore, the distinction that the dissent attempts to

draw between this case and Finley is illusory. Any ruling,

even if on a mere evidentiary issue, necessarily affects a

defendant’s constitutional rights if it has a chilling

effect on the exercise of the right to testify.

Defendant further asserts that, because his invocation

of his Miranda right to remain silent could never be

admitted at trial, the trial court’s ruling in limine that

his statement was admissible constituted error that could

never be harmless. Defendant’s argument is premised on the

erroneous assumption that his invocation of his privilege

against self-incrimination could never be admissible.

Under Doyle v Ohio, 426 US 610, 619; 96 S Ct 2240; 49 L Ed

2d 91 (1976), and People v Bobo, 390 Mich 355, 359; 212

NW2d 190 (1973), however, defendant’s “taking the fifth”

statement would have been properly admissible in one

context. The United States Supreme Court held in Doyle,

supra at 619, “that the use for impeachment purposes of

petitioners’ silence at the time of arrest and after

receiving Miranda warnings, violate[s] the Due Process

Clause of the Fourteenth Amendment.” The Court recognized,

however, that “the fact of post-arrest silence could be

used by the prosecution to contradict a defendant who

testifies to an exculpatory version of events and claims to

14

have told the police the same version upon arrest.” Id. at

619 n 11.

Similarly, in Bobo, this Court held that the

prosecution could not introduce a defendant’s postarrest

silence to impeach his exculpatory testimony at trial.

Bobo, supra at 359. We cautioned, however, that this rule

was not an absolute ban on the use of post-Miranda silence

and stated that “[t]he fact that a witness did not make a

statement may be shown only to contradict his assertion

that he did.”7 Id.; see also People v Dennis, 464 Mich 567,

573 n 5; 628 NW2d 502 (2001), citing Doyle, supra at 619 n

11.

If defendant had offered exculpatory testimony at

trial and claimed to have told his exculpatory story to the

police in response to questioning, his silence would have

been admissible for impeachment purposes. As this Court

recently stated in Dennis, Doyle does not apply where “a

defendant testifies to having earlier provided an

exculpatory version of events to the police and the

prosecution offers evidence of defendant’s silence to rebut

7
In People v Collier, 426 Mich 23, 39; 393 NW2d 346
(1986), this Court confined Bobo “to impeachment for and
comment on silence at the time of arrest in the face of
accusation.” See also People v Hackett, 460 Mich 202, 215
n 6; 596 NW2d 107 (1999).

15

such a claim.” Dennis, supra at 573 n 5.8 Thus,

defendant’s contention that his “taking the fifth”

statement would never have been admissible is incorrect.9

Rather, the statement’s admissibility would depend on the

context in which the prosecutor had sought to admit it.10

Because the admissibility of post-Miranda silence

depends on the factual setting in which the prosecutor

seeks to admit it, we are faced with the same problem

encountered in Luce and Finley, i.e., that defendant’s

8
See also People v Sutton (After Remand), 436 Mich
575, 579; 464 NW2d 276 (1990) (“Where a defendant claims
that he gave an exculpatory statement to the police after
arrest and warnings, neither Bobo nor any federal
constitutional authority would preclude impeachment with
prior inconsistent conduct, including silence.”).
9
We are not presented with a situation in which
defendant’s statement would never have been admissible, and
we express no opinion regarding whether a claim of error
would be reviewable in that instance absent a defendant’s
testimony at trial.
10
For this reason, the dissent’s contention that our
holding “requires the defendant to choose which
constitutional right to give up, his Fifth Amendment right
to post-Miranda silence or his Fifth Amendment right not to
testify,” is misleading. Post at 16-17. Because a
defendant may, in a certain circumstance, testify and
properly be impeached with his post-Miranda silence without
offending constitutional protections, he is not necessarily
forced to give up either his Fifth Amendment privilege
against self-incrimination or his Miranda right to remain
silent. In fact, this argument supports the notion that a
defendant must testify in order to determine whether any
error occurred at all.

16

claim of error is wholly speculative. Not only could the

statement have been admitted to contradict a defendant who

testified about an exculpatory version of events and claims

to have told the police that version upon his arrest, but,

as Luce suggests, it might not have been admitted at all,

even if defendant had testified. As the Luce Court

recognized, the trial court could have ultimately concluded

that the statement was inadmissible, or the prosecution

could have changed its trial strategy and not sought to

admit the statement.

In addition, as Luce recognized, we cannot assume that

the possible introduction of the “taking the fifth”

statement motivated defendant’s decision not to testify.

The Luce Court rejected the notion that appellate courts

can properly discern the effect of a ruling in limine on a

defendant’s trial strategy. Luce, supra at 42. Thus, it

is equally possible that defendant simply chose to present

his defense through his brother’s testimony, which

contradicted the complainant’s allegations, rather than to

testify himself and be subject to cross-examination.

Because numerous factors undoubtedly influence a

defendant’s decision whether to testify, we refuse to

speculate regarding what effect, if any, a ruling in limine

may have had on this decision.

17

 Defendant cites State v Lamb, 84 NC App 569, 580-581;

353 SE2d 857 (1987), quoting United States v Lipscomb, 226

US App DC 312, 332; 702 F2d 1049 (1983), for the

proposition that “when a defendant seeks an advance ruling

on admission of a prior conviction, it is reasonable to

presume that the ruling will be an important factor in his

decision whether to testify.” The Lamb court, however,

failed to acknowledge that a rule allowing appeals based on

evidence contested in limine but never introduced at trial

is subject to abuse. For example, a defendant could move

in limine to exclude a number of prior statements, all the

while never intending to testify. The Luce Court

recognized this potential for abuse, stating that its rule

“will also tend to discourage making [motions] solely to

‘plant’ [error requiring reversal] in the event of

conviction.” Luce, supra at 42. Thus, we find defendant’s

reliance on Lamb unpersuasive.

Further, unlike the dissent, we appreciate the

difficulty inherent in evaluating a trial court’s ruling on

a motion in limine when the evidence is never actually

admitted. The dissent would have us review defendant’s

claim of error in a vacuum and engage in speculation

regarding whether the statement would have been properly

admissible. The speculative exercise that the dissent

18

offers, post at 23-24, is exactly what we are seeking to

avoid. Often, a factual record is necessary to determine

the soundness of the trial court’s ruling if for no other

reason than to conduct a harmless error analysis.

Extension of the Luce and Finley rule to the instant

circumstance ensures that appellate courts are not forced

to entertain abstract allegations of error.

Because the practical considerations extant in Luce

and Finley of evaluating theoretical error in the absence

of a defendant’s testimony are also present in this case,

we follow the lead of Wilson and Bond and extend the Luce

rule to encompass alleged error implicating a defendant’s

Fifth Amendment privilege against self-incrimination.

Thus, to preserve for appellate review a challenge to a

trial court’s ruling in limine allowing into evidence a

defendant’s exercise of his Fifth Amendment privilege, the

defendant must testify at trial. Because the statement at

issue in this case would have been properly admissible in

one context, it is impossible to determine whether the

trial court’s ruling was erroneous.11 Accordingly, we are

unable to review defendant’s allegation of error.

11
Although we review claims of error under the
standard announced in People v Carines, 460 Mich 750, 763;
Footnotes continued on following page.

19

 IV. CONCLUSION

We conclude that defendant was required to testify to

preserve for review his challenge to the trial court’s

ruling in limine allowing the prosecutor to admit evidence

of defendant’s exercise of his Miranda right to remain

silent. Because the statement at issue in this case would

have been properly admissible in one context, defendant’s

failure to testify precludes us from being able to

determine whether the trial court’s ruling was erroneous

and, if so, whether the error requires reversal.

Accordingly, we affirm the judgment of the Court of

Appeals.12

Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

597 NW2d 130 (1999), that standard applies only when an
error exists. Because defendant’s decision not to testify
prevents us from being able to determine whether the trial
court’s ruling was erroneous, the Carines plain error
standard is inapplicable.
12
The dissent criticizes our opinion for declining to
review the sentencing issue that defendant raised in his
application for leave to appeal. Post at 26-27. Defendant
has abandoned that issue by failing to address it in his
brief on appeal in this Court. Steward v Panek, 251 Mich
App 546, 558; 652 NW2d 232 (2002).

20

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 118021

ERIC BOYD,

Defendant-Appellant.
_______________________________

KELLY, J. (dissenting).

I would not extend the ruling in Luce v United States1

and People v Finley2 to this case. I find that the trial

court's error here was plain enough to require reversal,

despite defendant's decision not to testify. Therefore, I

would reverse the Court of Appeals decision and remand this

case for a new trial.

The Majority Mischaracterizes Finley

Finley does not stand for anything more than a

specific application of Luce. It holds that, to preserve a

claim of error concerning improper impeachment by prior

1
Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed
2d 443 (1984).
2
People v Finley, 431 Mich 506; 431 NW2d 19 (1988).
convictions under MRE 609, a defendant must testify.

Although Justices Boyle and Griffin joined Chief Justice

Riley's lead opinion, Justice Brickley joined only part of

it. Finley, supra at 526-531. He concurred with the

adoption of the rule as defined in Luce. However, he

disagreed with certain elements of the opinion. Finley,

supra at 526. One of his specific concerns was that it

used overly broad language in obiter dictum. Id. at 530.

He wrote that the lead opinion had no authority for its

statement that

“the straightforward logic of Luce . . . is that
as to evidentiary rulings, error does not occur
until error occurs; that is, until the evidence
is admitted. Obviously, in other contexts, if an
offer of proof is made and the court erroneously
permits the introduction of hearsay, character
evidence, similar acts, or the myriad of evidence
objectionable under the MRE, there is no error
requiring reversal unless the evidence actually
is introduced.” [Id., quoting lead opinion at
512.]

He also noted that “the notion that reviewable error

does not occur until admission of the challenged evidence

does not square with actual practice.” Id. at 531.

Interlocutory appeals are regularly taken on
evidentiary questions and pretrial rulings are
often deemed erroneous in spite of the fact that
their effect has not yet been felt at trial.
[Id.]

He cautioned that “[e]rror can also occur at
trial in varying forms, and the Court should not
be so quick to define a universal principle,

2

 particularly since the specific grounds for the
adoption of the Luce requirement are so clearly
explained by the Chief Justice.” Id.

Thus, although Justice Brickley supported the adoption

of Luce, he agreed to only a limited adoption of its

principle. He left no doubt that he would not apply Finley

beyond its specific grounds.

Justice Cavanagh concurred in the result, but

dissented from the rationale of the lead opinion with one

exception noted below. Id. at 531-544. Justices Levin and

Archer concurred in Justice Brickley's opinion, "except for

the language of his opinion concurring in the language of

the plurality opinion that fails to recognize that a

defendant who wishes to preserve for appeal an adverse

ruling on the admission of a prior conviction record may do

so by testifying outside the presence of the jury." Id. at

557-558 (Levin, J.).

Therefore, the majority in this case incorrectly cites

the Finley lead opinion for the proposition that "’error

does not occur until . . . the evidence is admitted.’"

Ante at 9 quoting id., p 512 (Riley, C.J.). Finley does

not hold that if an offer of proof is made and the evidence

is erroneously deemed admissible, there is no error

requiring reversal unless the evidence is actually

introduced. Ante at 8.

3

 Contrary to the majority's citation here, four Finley

justices rejected the lead opinion's sweeping premise. See

id. at 530-531 (Brickley, J.); 537-538 (Cavanagh, J.); 557-

558 (Levin, J.). The "majority" of the Finley Court was

composed of only three justices who in obiter dictum saw

an application of Luce beyond MRE 609. Hence, the

rationale in the lead opinion in Finley giving an expanded

view of Luce is erroneously based.

Luce and Finley are Inapplicable

Defendant seeks review of an incorrect ruling

involving his right to remain silent after receiving

Miranda warnings. Miranda v Arizona, 384 US 436; 86 S Ct

1602; 16 L Ed 2d 694 (1966). The majority “extends” the

holding of Luce to this case. This extension ignores

language in both Luce and Finley specifically limiting

their holdings to cases involving a subtle evidentiary

balancing test of nonconstitutional dimensions concerning

impeachment with prior convictions. Luce, 469 US 43;

Finley, 431 Mich 514 (Riley, C.J.), 553-554 (Levin, J.).

Indeed, Chief Justice Burger's opinion for the Court

in Luce carefully distinguished Luce from Brooks v

Tennessee and New Jersey v Portash. Brooks v Tennessee,

406 US 605; 92 S Ct 1891; 32 L Ed 2d 358 (1972); New Jersey

v Portash, 440 US 450; 99 S Ct 1292; 59 L Ed 2d 501 (1979).

4

Brooks and Portash involved “Fifth Amendment challenges to

state court rulings that operated to dissuade defendants

from testifying.” Justice Burger wrote that they did not

involve “a federal court's preliminary ruling on a question

that did not reach constitutional dimensions, such as a

decision under [FRE 609(a)]." Luce, 469 US 42-43.

The Luce Court was primarily concerned about the

practical problem of trial courts being forced to make FRE

609 evidentiary rulings in a factual vacuum:

A reviewing court is handicapped in any
effort to rule on subtle evidentiary questions
outside a factual context. This is particularly
true under Rule 609(a)(1), which directs the
court to weigh the probative value of a prior
conviction against the prejudicial effect to the
defendant. To perform this balancing, the court
must know the precise nature of the defendant's
testimony, which is unknowable when, as here, the
defendant does not testify. [Luce, 469 US 41.]
I agree with the dissent in Finley that the above

rationale from Luce is unpersuasive even in the limited

context of a ruling in limine on an FRE 609 motion. Finley,

431 Mich 537 (Cavanagh, J.). In any event, the review of

prior conviction evidence under FRE 609(a) involves both a

nonconstitutional question and a subtle balancing test.

The test is heavily dependent on the precise scope of the

defendant’s testimony. However, the claimed error in this

case involves solely a legal question and is one of

constitutional dimensions.

5

 The majority presents case law from federal circuit

courts of appeals that have expanded Luce to claims other

than those involving FRE 609 determinations. Included are

opinions from two jurisdictions that have extended the Luce

rule to questions involving constitutional claims of error.

However, the majority places too much reliance on the warm

reception of these courts to the unwarranted expansion of

Luce by federal circuit courts. "It is only understandable

that our extremely overworked judges will display a natural

fondness for any strict preservation of error rule, which

necessarily lightens the often crushing case load of both

trial and appeals court judges." Duane, Appellate review of

in limine rulings, 182 FRD 666, 682 (1999).

Various federal and state court opinions have

recognized the inapplicability of Luce to Fifth Amendment

and Sixth Amendment violations, as well as other similar

questions of constitutional error.3 I find these opinions

persuasive.

3
See, e.g., United States ex rel Adkins v Greer, 791
F2d 590, 593-594 (CA 7, 1986)(a confession elicited in
violation of the defendant’s Fifth Amendment rights can be
reviewed despite the defendant’s election not to testify);
United States v Chischilly, 30 F3d 1144, 1150-1151 (CA 9,
1994) (a defendant was permitted to challenge the
admissibility of a confession, despite the fact that it was
not introduced, because the trial court's ruling that the
confession could be used prevented the defendant from
Footnotes continued on following page.

6

 There are a number of important reasons for the

differentiation they recognize. First, as aptly noted by

Justice Cavanagh in Finley, Luce's requirement that a

defendant testify to preserve the impeachment issue was

“inconsistent with the spirit, if not the precise holding,”

of two of the United States Supreme Court's own decisions,

Brooks and Potash. Both specifically dealt with questions

of Fifth Amendment challenges to state court rulings.

Finley, 431 Mich 535-536 (Cavanagh, J.). Justice Brennan

in his Luce concurrence specifically recognized the factual

differences of such a claim. He noted, also, that a

different “calculus of interests” sets the types of claims

raising an insanity defense); Biller v Lopes, 834 F2d 41,
43-45 (CA 2, 1987) (a habeas corpus petitioner was
permitted to raise a claim that the denial of a motion in
limine unfairly kept him from testifying, when the motion
was based on the unconstitutionality of a prior
conviction); United States v Jenkins, 785 F2d 1387 (CA 9,
1986) (the use of grand jury testimony for impeachment was
moot because the government did not introduce it at trial);
Pillotti v Superintendent, 759 F Supp 1031 (SD NY, 1991) (a
challenge to impeachment evidence obtained with a
fraudulently obtained guilty plea in a prior case). See
also State v Greve, 67 Wash App 166; 834 P2d 656 (1992);
State v Brings Plenty, 459 NW2d 390 (SD, 1990); State v
Brunelle 148 Vt 347; 534 A2d 198 (1987); People v
Henderson, 745 P2d 265 (Colo App, 1987); State v Lamb, 84
NC App 569, 580-581; 353 SE2d 857 (1983); People v Brown,
42 Cal App 4th 461; 49 Cal Rptr 2d 652 (1996).
Interestingly, the court in United States v Wilson, 307 F3d
596 (CA 7, 2002), failed to address the precedent of its
own circuit in reaching its decision.

7

of error apart from one another. Luce, 469 US 44 (Brennan,

J., concurring).

I agree with Justice Brennan that a different

“calculus of interests” is present when the alleged claim

of error is a constitutional one. I find that, even more

than in a review of an FRE 609 ruling, the calculus of

interests involved where the alleged error is

constitutional in nature requires appellate court review.

This is true even if the defendant does not testify at

trial and the evidence is not provided to the jury. As

Justice Cavanagh so eloquently stated in his dissent in

Finley:

Let us start with the language of the Fifth
Amendment itself, which states in part:
No person . . . shall be compelled in any
criminal case to be a witness against himself
. . . . [US Const, Am V.]
Implicit in this constitutional guarantee is
that no penalty, no sanction, no disadvantage to
the defendant shall flow from his decision not to
testify at trial.
Griffin v California, 380 US 609; 85 S Ct
1229; 14 L Ed 2d 106 (1965), reh den 381 US 957
(1965), held unconstitutional a statute
permitting the prosecution to comment on the
failure of the defendant to testify at his
criminal trial. Carter v Kentucky, 450 US 288;
101 S Ct 1112; 67 L Ed 2d 241 (1981), held that
the Fifth Amendment required the court, upon the
request of a nontestifying defendant, to instruct
the jury not to draw an adverse inference from
the failure of the defendant to testify. The
central theme of both cases was "that a defendant
must pay no court-imposed price for the exercise

8

 of his constitutional privilege not to testify."
450 US 301. (Emphasis added.)
Similarly, the Court in Lefkowitz v
Cunningham, 431 US 801, 805; 97 S Ct 2132; 53 L
Ed 2d 1 (1977), observed:
“[Our] cases have established that a State
may not impose substantial penalties because a
witness elects to exercise his Fifth Amendment
right not to give incriminating testimony against
himself.”
The Luce rule exacts a heavy price from the
defendant for electing not to testify at his
trial. He is denied the right on appeal to raise
what may be a substantial issue. [Finley, 431
Mich 533-534 (Cavanagh, J.).]
Here, the majority's decision exacts an even heavier

price on defendant’s decision not to testify at trial. An

accused in the position of the defendant in Finley must

testify or give up the right to raise a substantial issue.

In this case, however, the claim of error surrendered is a

constitutional one, not simply an evidentiary one.

Luce Did Not Invoke Constitutional Questions

In an attempt to justify why retroactive application

is unwarranted in this case, the majority chooses to find

constitutional implications present in Luce and Finley.

However, both the majority and the concurrence in Luce and

the lead opinion in Finley took pains to distinguish Rule

609 questions from those involving constitutional claims of

error. In direct response to Justice Cavanagh's dissent in

Finley, the lead opinion stated:

9

 [D]espite the suggestions in Justice
Cavanagh's opinion, it cannot be seriously
claimed that the Fifth Amendment bars adoption of
Luce. Whatever one's views of the philosophy of
particular justices, in Luce, all eight justices
agreed that the issue did not involve a Fifth
Amendment challenge. The issue presented is what
procedural steps are necessary to preserve an
issue for appeal, a matter that no more levies a
"court-imposed price" for the exercise of a
constitutional privilege than procedural rules
requiring the timely assertion of other
constitutional rights. [Finley, 431 Mich 520
(Riley, J.).]

The majority’s recognition that "[a] defendant's right

to testify in his own defense stems from the Fifth, Sixth,

and Fourteenth amendments of the United States

Constitution", ante at 12, arises from its reading of Rock

v Arkansas, 483 US 44, 46-47; 107 S Ct 2704; 97 L Ed 37

(1987). However, Rock was not published until after Luce

had been decided and was not mentioned in Finley, which was

released soon after Rock. As noted by Professor Duane,

there is no indication that the defendant in Luce raised,

or that the Luce Court saw itself as deciding, any

constitutional claim whatsoever. At the time Luce was

decided:

Chief Justice Burger and a majority of the
Court still regarded it as an open question
whether a criminal accused had a constitutional
right to testify in his own trial. Two years
after Luce, Chief Justice Burger wrote for the
majority in Nix v Whiteside that "this Court has
never explicitly held that a criminal defendant
has a due process right to testify in his own

10

 behalf . . . ." [Nix v Whiteside, 475 US 157,
164; 106 S Ct 988; 89 L Ed 2d 123 (1986)]. This
comment provoked a response by a minority of four
justices who were "puzzled by the Court's
implicit suggestion that whether a defendant has
a constitutional right to testify in his own
defense remains an open question." [Id. at 186 n
5 (Blackmun, J., concurring).]

Since the time Burger wrote for the Court in
Luce and Nix, however, the Supreme Court has
formally settled that an accused has a
constitutional right to testify at his trial
[e.g., Rock, supra at 49-51]. That being the
case, there is now a plausible basis for a
criminal appellant to claim—unlike the appellant
in Luce—that an erroneous ruling to allow
impeachment amounted to an impermissible burden
on the exercise of his constitutional rights.
[Duane, supra at 686.]

Professor Duane used this observation to show why Luce

was out of step with previous Supreme Court decisions. He

theorized that this was the reason that the Supreme Court

apparently has been highly reluctant to give Luce any

precedential value in the years since it was issued. Also,

he believes that the Supreme Court would not rule as it did

in Luce were it again presented with the same issue.

The Majority’s Reliance on Ohler is Misplaced

The majority reads too much into the decision in Ohler

v United States, 529 US 753; 120 SCt 1851; 146 L Ed 2d 826

(2000). There, defendant was confronted with the potential

introduction of evidence of a prior conviction. The

defendant sought in limine to preclude the evidence under

11

FRE 609, and the trial court denied the motion. The

defendant then elected to testify and explain the earlier

conviction before he could be impeached with it. After

being convicted, he asserted on appeal that the trial

court’s ruling infringed his right to testify. The United

States Supreme Court, in a five-to-four decision, affirmed

the conviction.

The majority, in an opinion by Chief Justice

Rehnquist, found that the defendant “runs into the position

taken by the Court in a similar, but not identical,

situation in Luce” that any possible harm from the decision

whether to testify is wholly speculative. Ohler, 529 US

759. This is the only mention of Luce in the majority

opinion. The Court’s holding was based primarily on a

waiver analysis: “We conclude that a defendant who

preemptively introduces evidence of a prior conviction on

direct examination may not on appeal claim that the

admission of such evidence was error.” Id. at 760.

The dissent, authored by Justice Souter, disagreed

with the waiver analysis. It discussed Luce in three

paragraphs. The majority here has quoted the second

paragraph, yet conveniently omitted the first and third.

The relevant text, id. at 760-761, is as follows:

12

 The only case of this Court that the
majority claims as even tangential support for
its waiver rule is Luce v United States, 469 US
38; 105 S Ct 460; 83 L Ed 2d 443 (1984). Ante at
[759]. We held there that a criminal defendant
who remained off the stand could not appeal an in
limine ruling to admit prior convictions as
impeachment evidence under Federal Rule of
Evidence 609(a). Since the defendant had not
testified, he had never suffered the impeachment,
and the question was whether he should be allowed
to appeal the in limine ruling anyway, on the
rationale that the threatened impeachment had
discouraged the exercise of his right to defend
by his own testimony. The answer turned on the
practical realities of appellate review.
An appellate court can neither determine why
a defendant refused to testify, nor compare the
actual trial with the one that would have
occurred if the accused had taken the stand. With
unavoidable uncertainty about whether and how
much the in limine ruling harmed the defendant,
and whether it affected the trial at all, a rule
allowing a silent defendant to appeal would
require courts either to attempt wholly
speculative harmless-error analysis, or to grant
new trials to some defendants who were not harmed
by the ruling, and to some who never even
intended to testify. In requiring testimony and
actual impeachment before a defendant could
appeal an in limine ruling to admit prior
convictions, therefore, Luce did not derive a
waiver rule from some general notion of fairness;
it merely acknowledged the incapacity of an
appellate court to assess the significance of the
ruling for a defendant who remains silent.
This case is different, there being a
factual record on which Ohler's claim can be
reviewed. She testified, and there is no question
that the in limine ruling controlled her
counsel's decision to enquire about the earlier
conviction; defense lawyers do not set out to
impeach their own witnesses, much less their
clients. Since analysis for harmless error is
made no more difficult by the fact that the
convictions came out on direct examination, not

13

 cross-examination, the case raises none of the
practical difficulties on which Luce turned, and
Luce does not dictate today's result.1
__________________________________________________________________________
1
The Luce Court anticipated as much: “It is
clear, of course, that had petitioner testified
and been impeached by evidence of a prior
conviction, the District Court's decision to
admit the impeachment evidence would have been
reviewable on appeal along with any other claims
of error. The Court of Appeals would then have
had a complete record detailing the nature of
petitioner's testimony, the scope of the cross-
examination, and the possible impact of
impeachment on the jury's verdict." 469 US at
41. There are, of course, practical issues that
may arise in these cases; for example, the trial
court may feel unable to render a final and
definitive in limine ruling. The majority does
not focus on these potential difficulties, and
neither do I, though some lower courts have
addressed them. See, e.g., Wilson v Williams,
182 F.3d 562 (CA 7, 1999) (en banc). For the
purposes of this case, we need consider only the
circumstance in which a district court makes a
ruling that is plainly final.
_________________________________________________

It is manifest that the majority's reliance on Ohler

in the instant case is misplaced. The United States

Supreme Court only begrudgingly cited Luce in Ohler.

Additionally, Ohler is the only United States Supreme Court

decision to even mention Luce in passing. Finally, Ohler

and Luce, unlike the instant case, involved alleged error

stemming from the introduction of prior conviction evidence

under FRE 609. For all practical matters, Ohler is yet

another decision indicating that Luce should be confined to

14

prior conviction evidence and should not be extended to

claims of constitutional error.

The Holding in Luce Should Not Be Extended

The majority has found no case law holding that Luce

involved a constitutional claim of error. I have

discovered none. Most certainly, the lead opinion in

Finley did not do so.

In my view, the majority's acknowledgment today of the

implication of an FRE 609 ruling on a defendant's Fifth

Amendment right to testify proves the correctness of

Justice Cavanagh's position in Finley. Such an

acknowledgment also strengthens, rather than detracts from,

the arguments against extending Finley to claims outside

its narrow holding.

Even if Luce can be read to distinguish evidentiary

"questions not reaching constitutional dimensions" from

claims of error that involve direct constitutional error,

the Luce holding presents little support for expansion

beyond its borders. The trial court’s decision in this

case fully implicates both a defendant’s Fifth Amendment

right to testify and his Fifth Amendment right to remain

silent in the face of post-Miranda accusations. These

rights come into play even when the trial court's ruling

restricts the admission of evidence of a prior conviction

15

to rebuttal, in contrast to the trial court’s more

expansive ruling here.

The magnitude of the choice that the ruling places on

the defendant far outweighs that to be made under an FRE or

MRE 609 ruling. In a rule 609 question, the defendant must

choose between testifying and not testifying. If he does

not testify, he relinquishes his opportunity to present his

account of the incident. If he does testify, the

prosecution may use improperly admitted prior convictions

to impeach his credibility.

In this case, by contrast, if the defendant chooses

not to testify, he will forgo the opportunity to present

his account of the incident and lose all chance to appeal.

If he testifies, he risks being impeached with improperly

admitted substantive statements that the jury is certain to

use as evidence of his guilt of the instant offense.

The risk that this damaging impeachment evidence will

destroy defendant’s credibility in the jury’s eyes produces

a chilling effect on defendant’s exercise of the right to

testify. That risk acts as an impermissible "penalty

imposed by courts for exercising a constitutional

privilege." Griffin, 380 US 614. In essence, the

majority’s holding here requires the defendant to choose

which constitutional right to give up, his Fifth Amendment

16

right to post-Miranda silence or his Fifth Amendment right

not to testify.4

Even if one believes that Luce gave due deference to

the chilling effect on a defendant's right to testify, the

instant case brings into sharp focus the observation by

Justice Brennan: the "calculus of interests” may be much

different in a matter involving a simple evidentiary ruling

than in one involving a claimed error of constitutional

magnitude.

No Weighing of Evidence Is Appropriate

As noted by Justice Brennan,5 concerns about ruling in

a factual vacuum are not present to the same extent when

the court’s ruling turns on legal, rather than factual,

considerations. See, e.g., United States ex rel Adkins v

Greer, 791 F2d 590, 594 (CA 7, 1986). The majority implies

4
The majority calls this statement "misleading." When
attempting to substantiate its dismissive characterization
of the statement, it ignores the fact that defendant in
this case was confronted with an erroneous trial court
ruling. It ignores, in addition, that no facts suggest
that, had he taken the stand, defendant would have claimed
to have made an exculpatory statement to the police.
Hence, the impeachment he faced would have had to be
improper and, contrary to the majority's reasoning,
defendant could not properly have been impeached with his
post-Miranda silence.
5
Luce, 469 US 43-44 (Brennan, J.).

17

that the question presented here involves a factual, rather

than legal, question. It is incorrect.

The prosecution's threatened use as a confession of

defendant's post-Miranda affirmative assertion of his right

to remain silent would violate the Constitution in all but

extremely limited circumstances. Doyle v Ohio, 426 US 610,

619 n 11; 96 S Ct 2240; 49 L Ed 2d 91 (1976). It is

important to realize that the exception in Doyle is not as

broad as the majority's quotation implies. Postarrest

silence can be used to contradict a defendant who testifies

that he made an exculpatory statement to the police. It

cannot be used to impeach the substance of a defendant's

testimony. Doyle, 426 US 619 n 11. See also People v

Dennis, 464 Mich 567, 573 n 5; 628 NW2d 502 (2001).

As recognized in People v Bobo,6 the only use of post-

Miranda silence is to contradict a specific assertion that

a defendant provided a statement to the police. Id. at

359. Any remaining validity for the rationale of Luce and

later evidentiary decisions examining evidentiary rulings,

such as those involving MRE 403 and MRE 404(b), does not

apply here.

6
People v Bobo, 390 Mich 355; 212 NW2d 190 (1973).

18

 The Luce Court opined that a reviewing court's

weighing of the probative value and prejudicial effect of a

prior conviction under Rule 609 depends on the nature of

the defendant’s testimony. No such weighing was necessary

in this case. At the time of the ruling in limine, the

trial court was not required to determine the extent of

defendant’s actual testimony. It was required merely to

conclude that the invocation of silence could not be used

as substantive evidence in the prosecution’s case-in-chief

or to rebut the substance of defendant’s testimony.

Moreover, the trial court should have held that

defendant’s statement was admissible only if defendant took

the stand and asserted that he made an exculpatory

statement to the police when arrested. Appellate review

does not depend on knowledge of the exact extent of

defendant's later trial testimony or a weighing of factors

such as those present in a Rule 609 analysis.

Defendant’s Claim of Error is Not Speculative

Nor do I agree with the majority's determination that

defendant's claim of error is "speculative" because

defendant did not testify and his earlier statement was not

given to the jury. That determination ignores the plain

error present in this case. It disregards the chilling

effect on defendant's decision not to testify and the

19

important distinction Michigan recognizes between reviewing

constitutional error and nonconstitutional evidentiary

error.

The majority's assertion that "it is impossible to

determine whether the trial court's ruling was erroneous,"7

overlooks the content of the ruling that it is reviewing.

The majority places much emphasis on the fact that the

admissibility of a defendant's post-Miranda silence depends

on the context in which the prosecutor sought to admit it.

Ante at 13. The context here, judging from the substance

of the prosecutor's arguments and the trial court's actual

ruling, confirms that the trial court admitted the

statement for any and all purposes. The ruling was based

on an entirely flawed view of the scope of the Fifth

Amendment. It was premised on the erroneous conclusion that

the challenged statement was not protected by the Fifth

Amendment:

[Defendant] agrees that he's going to give a
statement and he starts. The law says that you
can't stop in the middle and say, well, now I
want to assert my Fifth Amendment rights. You
don’t have any further Fifth Amendment rights
once you start to give a statement. You can’t
say what you want said and not say anything else.

7
Ante at 18.

20

 As previously recognized by our Court, in a situation

where "a defendant answered several questions and then

invoked his right to remain silent, Doyle, supra at 618-

619, would prevent the prosecutor from commenting on this

silence." People v McReavy, 436 Mich 197, 219 n 23; 462

NW2d 1 (1990). See also 218-219. Such silence includes

"not only 'muteness; [but] includes the statement of [the

defendant's] desire to remain silent, as well as of a

desire to remain silent until an attorney has been

consulted,'" Id., 218 n 21, citing Wainwright v Greenfield,

474 US 284, 295, n 13; 106 S Ct 634; 88 L Ed 2d 623 (1986).

Despite this basic principle, the trial court here did

not limit in any way the use of defendant's statement. It

did not recognize the specific limitations in Doyle v Ohio,8

or this Court's majority opinion in People v Dennis, 464

Mich 567, 573 n 5; 628 NW2d 508 (2001). In Dennis, the

erroneously admitted evidence involved inadvertently

elicited trial testimony about the defendant's refusal to

submit to a police interview. Id. at 578. This Court

recognized the error in the introduction of the evidence,

but found the evidence harmless. It relied in large part

on the fact that, because the trial court specifically

8
Supra at 619 n 11.

21

found error in the admission, it gave a "forceful curative

instruction" to the jury that the evidence "'cannot be used

by you in any way and is not an indication of anything.'"

Id.

The trial court’s ruling here placed no restriction on

the prosecution's use of the statement, either during

direct testimony or in rebuttal. The court found simply

that the Fifth Amendment did not apply at all. Not only

was the trial court's ruling erroneous, the error was

plain. The problems of “ruling in a vacuum” are simply not

applicable here.

The Error is Not Harmless

The majority's analysis of the error also fails to

note that the trial court’s ruling was clearly erroneous.

Moreover, it fails to recognize the important distinction

between the error in Luce and the error in the instant

case. The ruling in Luce, upon which the defendant's claim

of error was predicated, involved a nonconstitutional

evidentiary issue.

In Michigan today, it is the defendant who bears the

burden of demonstrating that a nonconstitutional error

harmed him by causing him not to testify. People v Lukity,

460 Mich 484, 495-496; 596 NW2d 607 (1999). If, instead,

the error were a preserved constitutional one, the burden

22

would be on the prosecution to "prove beyond a reasonable

doubt that the error complained of did not contribute to

the verdict obtained." People v Anderson (After Remand),

446 Mich 392, 406 n 36; 521 NW2d 538 (1994), quoting

Chapman v California, 386 US 18, 23; 87 S Ct 824; 17 L Ed

2d 705 (1967).

Thus, concerns about the "speculative" effect of an

erroneous FRE or MRE 609 ruling on a defendant's decision

not to testify are not present in the instant case. The

effect is presumed to be prejudicial. Indeed, given the

clear error in the trial court's broad ruling of

admissibility, I question the truth of the majority's

assertion that it cannot determine whether the ruling was

erroneous. In addition, I would find that the

prosecution's choice not to elicit defendant's statement on

direct examination did not remove from the flawed ruling

its chilling effect.

The majority's assertion that the evidence "might not

have been admitted at all" even if defendant had testified9

ignores the realities of the trial court's misunderstanding

about the limited admissibility of the statement.

Statements made at the hearing in limine demonstrate that

9
Ante at 17.

23

the prosecution intended to introduce defendant’s statement

if he testified about having provided an exculpatory

statement to the police. However, even if he had not, the

prosecution would have introduced the statement to rebut

other parts of his testimony. The trial court's ruling

made clear that it would have admitted the statement for an

improper purpose, because the court was under the mistaken

impression that the Fifth Amendment did not apply.

At the time of the decision to testify, defendant was

faced with an erroneous ruling involving substantive

evidence of guilt. Unlike the majority, I would not expect

defendant to forecast that the court would have a

revelation about the impropriety of its ruling, especially

because it immediately predated the trial. Nothing in the

record suggests that such a revelation would occur and,

given the rationale used by the trial court in making the

ruling, I find such a result highly unlikely. Whatever

validity that argument may have in different circumstances,

it is inapplicable here.

The Challenge In Limine was Appropriate

Nor do I find persuasive the majority's assertion that

a reversal based on the admission of evidence contested in

limine, but never introduced at trial, will invite abuse.

This argument fails to recognize that appellate courts will

24

review claims of error, even when they are not preserved at

all. People v Carines, 460 Mich 750, 763; 597 NW2d 130

(1999). Moreover it has little merit in the setting where

claims of constitutional error are raised, and none in the

instant case.

A defendant does not abuse the system by seeking

before trial to suppress evidence obtained in violation of

his constitutional rights and directly bearing on the

analysis of guilt. To the contrary, as this Court has

noted, a contemporaneous objection provides the trial court

"'an opportunity to correct the error, which could thereby

obviate the necessity of further legal proceedings and

would be by far the best time to address a defendant's

constitutional and nonconstitutional rights.'" Carines,

supra at 764-765 (citations omitted). As recognized by a

majority of the justices in Finley, preliminary evidentiary

rulings are valid, important, and logical ways to review

questions of evidentiary error. Finley, supra at 531

(Brickley, J.), at 537 (Cavanagh, J.), and at 557-558

(Levin, J.).

Conclusion

The error in this case was preserved by timely

objection. Also, the trial court's specific ruling on the

motion in limine was erroneous. Therefore, defendant's

25

conviction must be reversed unless the prosecution can

prove beyond a reasonable doubt that the error did not

contribute to the verdict. Anderson (After Remand), supra.

The prosecution has failed to do this.

The conviction in this case was dependent almost

entirely on the testimony of the twelve-year-old

complainant, about whose honesty the jury obviously had

doubts. Had defendant testified, the case would have been

a credibility contest. But, because of the trial court’s

erroneous ruling, defendant did not testify. Hence, the

verdict was influenced by the trial court's error. The

prosecution has not shown that the evidence at trial so

overwhelmingly proved defendant’s guilt that his testimony

would not have made a difference.

Therefore, the trial court erred and the prosecution

cannot show that the error was harmless beyond a reasonable

doubt. I would reverse defendant's conviction and remand

this case for a new trial. Because of this conclusion, I

need not review defendant’s additional claim that the trial

court improperly exceeded the sentencing guidelines for his

conviction. However, I note that the sentence seems to

have been influenced by the trial court’s view that

defendant committed first-degree criminal sexual conduct,

notwithstanding his acquittal of that charge. The issue is

26

hardly frivolous, yet the majority makes no mention of it,

merely alluding to the lower court’s decisions to justify

not reaching the matter.

Marilyn Kelly
Michael F. Cavanagh

27