People v. Dennis

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 3, 2001

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 116852

ERIC SHERROD DENNIS,

Defendant-Appellee.

____________________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

Defendant was convicted by a jury of (1) possession with

intent to deliver more than 50, but less than 225, grams of

cocaine, MCL 333.7401(2)(a)(iii); (2) possession of marijuana,

MCL 333.7403(2)(d); (3) carrying a concealed weapon in a

vehicle, MCL 750.227; (4) malicious destruction of police

property, MCL 750.377b; (5) possession of a firearm during the

commission of a felony, MCL 750.227b; and (6) felon in

possession of a firearm, MCL 750.224f. The Court of Appeals

reversed defendant’s convictions because of testimony from a

police detective that referenced defendant’s refusal to submit

to police questioning. While the testimony was inappropriate,

we conclude that it did not amount to a violation of

defendant’s constitutional right to due process and that the

trial court did not abuse its discretion by denying

defendant’s motion for a mistrial. Accordingly, we reverse

the judgment of the Court of Appeals and reinstate

defendant’s convictions.

I

On the afternoon of August 23, 1997, defendant was a

passenger in a van that was stopped by the police. A police

officer observed that defendant was sitting with an object

that turned out to be a safe between his legs. Eventually,

the police called for a drug sniffing dog to be brought to the

scene. At that point, defendant became “extremely enraged”

and was placed in the back of a police car. After being

placed in the police car, defendant kicked out its rear

window, completely shattering the window. Eventually, the dog

was brought inside the van, and it alerted to the safe.

Later, the police opened the safe and found several packets of

2

cocaine, a small amount of marijuana, a loaded “Tech Nine”

handgun, and over $2,000 in cash.1 This led to the present

charges and convictions against defendant.

At issue now is the following testimony from defendant’s

trial that transpired during the direct examination of police

detective Kent Cooper by the prosecutor after eliciting

testimony that defendant had been arrested:

Q. What type of investigation follow-up did

you do with regard to this?

A. I went out and attempted to interview

[defendant], and at that time it was refused. He

wished to speak to an attorney prior to me asking

him any questions.

We note that the trial record does not include any express

mention that defendant had been advised of his Miranda2 rights

to remain silent and to have an attorney present during

custodial interrogation. However, the prosecution has

effectively stipulated that defendant was in police custody

following his arrest at the time of the attempted questioning

1
Notably, defendant had also been a passenger in another

vehicle that was stopped earlier that day. Defendant

consented to a search of his person during that earlier stop.

The police found over $1,000 in cash in one of his pockets,

mostly in $20 bills, and several “corner baggies,” which are

plastic baggies with the bottoms torn off and that are tied

off with a knot. A police officer indicated that “corner

baggies” are frequently used by drug dealers. However, no

drugs were found on defendant’s person at that time and he was

released.

2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d

694 (1966).

3

and had been advised of his Miranda rights before rejecting

Detective Cooper’s attempt to interview him.3 Accordingly,

our decision presumes that defendant’s refusal to submit to

police questioning constituted “post-Miranda” silence.

Defense counsel requested a mistrial on the basis of

Detective Cooper’s testimony about defendant refusing to be

questioned before speaking with an attorney. The trial court

denied this request, stating that it was convinced the

prosecutor did not intend to elicit testimony on this point

and that it did not think “the jury picked it up or caught it

in any way.”

In its final instructions to the jury, the trial court

provided the following curative instruction with regard to

Detective Cooper’s testimony referencing defendant’s refusal

to submit to a police interview:

Also, at one time Detective Cooper made

mention of the fact that when we [sic] went out to

the jail to talk to [defendant], [defendant] did

not want to talk to him and [defendant] said that

he wanted a lawyer.

This is an absolute right that every citizen

of this country has. In fact, if Officer Cooper

had talked to [defendant], he would have had to

tell [defendant] before he even started talking

that [defendant] had a right to refuse to talk, and

[defendant] had a right to have a lawyer present

3
In its brief to this Court, the prosecution states that

it is not “arguing that the defendant’s comment was pre-

Miranda or that the defendant’s invocation of his right to

counsel should have been admissible.”

4

 when he was talking to the officer.

So the fact that [defendant] said he wanted a

lawyer and didn’t want to talk to the officer

cannot be used by you in any way and is not any

indication of anything. It’s a constitutional

right that every citizen of this country has.

II

Defendant argued before the Court of Appeals that the

trial court improperly denied his motion for a mistrial. The

Court of Appeals agreed with that conclusion. It treated the

improper testimony from Detective Cooper as constituting a

preserved claim of constitutional error that requires reversal

unless it was harmless beyond a reasonable doubt. The Court

stated that it could not conclude the error was harmless

beyond a reasonable doubt and, accordingly, held that the

trial court abused its discretion by denying defendant’s

motion for a mistrial. Unpublished opinion per curiam, issued

April 14, 2000 (Docket No. 215244).

In its appeal to this Court, the prosecution argues that

there was no constitutional violation because the prosecution

did not attempt to use defendant’s post-Miranda silence

against him and that the trial court did not abuse its

discretion by denying defendant’s motion for a mistrial. As

we will explain below, we agree.

5

 III

We review a trial court’s decision to deny a motion for

a mistrial for an abuse of discretion. See, e.g., People v

Grove, 455 Mich 439, 475-476; 566 NW2d 547 (1997).

In Miranda v Arizona, 384 US 436; 865 S Ct 1602; 16 L Ed

2d 694 (1966), the United States Supreme Court articulated the

rule that the police must advise a suspect before custodial

interrogation that the suspect has the right to remain silent,

that anything the suspect says may be used against him, and

that the suspect has a right to the presence of retained or,

if indigent, appointed counsel during questioning.4 To be

clear, the present case does not involve any allegation of a

violation of Miranda itself because there is no claim that

defendant was interrogated by the police without being

afforded the warnings required by Miranda. Neither does this

case involve any other type of claim under the Self-

Incrimination Clause of the Fifth Amendment, inasmuch as there

is no claim that any involuntary statement by defendant was

used against him.

Rather, properly understood, the present case involves a

question regarding whether the testimony at issue from

4
In Dickerson v United States, 530 US 428; 120 S Ct

2326, 2336; 147 L Ed 2d 405 (2000), the Court quite recently

held that Miranda announced a binding “constitutional rule”

under the Fifth Amendment in requiring these warnings.

6

Detective Cooper violates defendant’s constitutional right to

due process under the Fourteenth Amendment. In Doyle v Ohio,

426 US 610, 619; 96 S Ct 2240; 49 L Ed 2d 91 (1976), the

United States Supreme Court held that the use of a criminal

defendant’s silence “at the time of arrest and after receiving

Miranda warnings” for impeachment purposes violates the Due

Process Clause of the Fourteenth Amendment of the United

States Constitution.

The Doyle Court explained that silence in the face of

Miranda warnings cannot be used as evidence5 to cast doubt on

the defendant’s credibility for two basic reasons. First,

silence in the face of Miranda warnings may reflect nothing

more than an exercise of Miranda rights (as opposed to being

any implicit acknowledgment of guilt):

Silence in the wake of these warnings may be

nothing more than the arrestee’s exercise of these

Miranda rights. Thus, every post-arrest silence is

insolubly ambiguous because of what the State is

required to advise the person arrested. [Doyle,

supra at 617.]

Second, the Miranda warnings carry an implicit assurance that

silence in reliance on those warnings will not be penalized:

5
The only exception is a situation in which 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 such a claim. Doyle, supra at

619, n 11. The Court, however, declined to allow the fact of

silence to be raised by the officers in testimony even when

the defendant offers an exculpatory version of events at

trial.

7

 Moreover, while it is true that the Miranda

warnings contain no express assurance that silence

will carry no penalty, such assurance is implicit

to any person who receives the warnings. In such

circumstances, 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. [Doyle,

supra at 618.]

Accordingly, the Doyle Court quoted with approval the

statement in Justice White’s concurrence in United States v

Hale, 422 US 171, 183-184; 95 S Ct 2133; 45 L Ed 2d 99 (1975),

that “it seems to me that it does not comport with due process

to permit the prosecution during the trial to call attention

to [the defendant’s] silence at the time of arrest . . .”

after the defendant has received Miranda warnings. Doyle,

supra at 620. The Doyle Court reversed the convictions of the

defendants on the basis of the prosecution’s conduct in using

their post-Miranda silence against them.

The circumstances of the present case differ greatly from

those of Doyle. In Doyle, the prosecution unabashedly used

the silence of each of the two defendants in the face of

Miranda warnings against them at their respective trials. The

prosecution repeatedly asked each defendant questions to

emphasize that he did not provide an exculpatory version of

events to the police after being arrested. In contrast, the

present case involves a single question and answer in which

Detective Cooper revealed in response to an open-ended

8

question that defendant had refused to be interviewed by the

detective before speaking with an attorney.

We recognize that Detective Cooper’s answer may not

reasonably be viewed as nonresponsive to the prosecutor’s

open-ended question asking about the “type of investigation

follow-up” pursued by the detective. Detective Cooper’s reply

about his attempt to interview defendant described something

that he did in attempting to investigate the case after

defendant was arrested. On the other hand, there is nothing

to reasonably support a conclusion that the prosecutor

intended for this question to elicit a reference to the

attempted interview. Immediately after the detective’s answer

referencing defendant’s refusal of the police interview, the

detective began testifying about his other investigative

efforts. In our view, it is evident that the prosecutor’s

question, while it may have been inartfully phrased, was aimed

at eliciting testimony about these investigative efforts, not

about the defendant’s refusal of a police interview.6

6
Nevertheless, this case provides an excellent

opportunity to underscore the prosecutor’s continuing duty to

carefully question witnesses so as to avoid improper,

unforeseen testimony that may result from open-ended

questions.

We respectfully disagree with the dissent’s

characterization of this case as involving “a series” of

questions and answers focused on defendant’s silence. Slip

op, pp 1, 10. As may be seen from the quotation of the

(continued...)

9

 In considering the implication of the substantial

difference between this case and Doyle, we are guided by the

intervening decision of the United States Supreme Court in

Greer v Miller, 483 US 756; 107 S Ct 3102; 97 L Ed 2d 618

(1987). In Greer, the defendant7 testified at his trial,

claiming that he was innocent of the murder and related crimes

charged and providing an exculpatory version of events that

implicated two others as the perpetrators. Id. at 758.

During the prosecutor’s cross-examination of the defendant, he

asked, “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 instructed the

jury to ignore the question. Importantly, the prosecution did

not pursue the inquiry further or mention it during closing

argument. In its jury instructions, the trial court told the

6
(...continued)

testimony set forth in the dissent, slip op, pp 6-7, the

prosecutor only asked Detective Cooper one question that

specifically regarded whether other people spoke with him.

The prosecutor never commented on or stated that any inference

should be drawn from the apparent willingness of certain

witnesses to speak with Detective Cooper as opposed to

defendant’s refusal to be interviewed prior to speaking to an

attorney.

7

Greer was actually a federal habeas corpus action.

However, the important points of Greer involve the trial in

which the petitioner was a criminal defendant. To avoid

confusion, we will refer to the petitioner in Greer as the

“defendant” in that case.

10

jury to disregard questions about which objections were

sustained. Id.

The United States Supreme Court in Greer held that,

despite the prosecutor asking an improper question, no actual

violation of Doyle occurred. Greer, supra at 764-765. The

Court explained:

[T]he trial court in this case did not permit

the inquiry that Doyle forbids. Instead, the court

explicitly sustained an objection to the only

question that touched upon Miller’s postarrest

silence. No further questioning or argument with

respect to Miller’s silence occurred, and the court

specifically advised the jury that it should

disregard any questions to which an objection was

sustained. Unlike the prosecutor in Doyle, the

prosecutor in this case was not “allowed to

undertake impeachment on,” or “permit[ted] . . . to

call attention to,” Miller’s silence. The fact of

Miller’s postarrest silence was not submitted to

the jury as evidence from which it was allowed to

draw any permissible inference, and thus no Doyle

violation occurred in this case. [Id., citation

omitted.]

Thus, the Court held that the prosecutor’s improper question

did not require reversal of the defendant’s convictions. Id.

at 761. Notably, the Greer Court emphasized that “[i]t is

significant that in each of the cases in which this Court has

applied Doyle, the trial court has permitted specific inquiry

or argument respecting the defendant’s post-Miranda silence.”

Id. at 764.

We conclude that the circumstances of this case are

analogous to Greer and that no Doyle violation actually

11

occurred. Indeed, the conduct of the prosecutor in Greer was

far worse in that he attempted to directly inject the

defendant’s silence into the defendant’s trial while the

prosecutor in the present case inadvertently elicited

testimony about the present defendant’s refusal to submit to

a police interview. As in Greer, apart from the single

impropriety, the prosecution did not call attention to

defendant’s silence. While the dissent essentially

hypothesizes that the jury may have drawn some type of

negative inference from the willingness of other witnesses to

speak to Detective Cooper, the prosecution never made such an

argument to the jury. In our view, it would be strained to

believe that the prosecution intended to draw—or that the jury

actually drew—such an implicit “comparison” from Detective

Cooper’s testimony which was overwhelmingly focused on

presenting expert testimony about the drug trade. There was

no further questioning or argument regarding defendant’s

silence. Thus, the trial court did not allow (or have

occasion to allow) any specific inquiry or argument about

defendant’s post-Miranda silence. Further, because defendant

in the present case did not testify, there was obviously no

attempt to use his prior silence for impeachment purposes.8

8
Of course, we recognize that a defendant’s post-Miranda

silence could be improperly used against him in violation of

(continued...)

12

Moreover, the trial court gave a forceful curative instruction

to the jury that defendant saying he wanted a lawyer and did

not wish to talk with the officer “cannot be used by you in

any way and is not an indication of anything.” Thus, as in

Greer, “[t]he fact of [the defendant’s] postarrest silence was

not submitted to the jury as evidence from which it was

allowed to draw any permissible inference . . . .” Id. At

764.

Critical to our conclusion is that Doyle prohibits “the

use for impeachment purposes of [a defendant’s] silence, at

the time of arrest and after receiving Miranda warnings

. . . .” Doyle, supra at 619. Because defendant did not

testify, the testimony at issue by Detective Cooper could not

possibly have been used against defendant for impeachment

purposes. Thus, this is not a case like Doyle in which the

prosecution essentially attempted to use a defendant’s post-

Miranda silence to further an argument that the defendant

presented a fabricated version of events on the basis of

hearing the evidence presented by the prosecution at trial.

8
(...continued)

Doyle even in cases where the defendant did not testify. We

merely note that the fact that the testimony at issue was

obviously not used for impeachment purposes is one factor

suggesting that there was no “use” of defendant’s post-Miranda

silence against him in the present case.

13

This reinforces that the prosecution did not use defendant’s

post-Miranda silence against him in this case.

We note that our conclusion that no Doyle violation

occurred in this case is supported by the decision of the

United States Court of Appeals for the Eleventh Circuit in

United States v Stubbs, 944 F2d 828 (CA 11, 1991). That case

similarly involved improper testimony by a witness in response

to an open-ended question. The prosecutor asked a prosecution

witness what happened after she talked to a federal agent. In

her answer, the witness said that the agent told her that the

defendant would not “say anything.” Id. at 834. As in the

present case, the prosecution in Stubbs did not attempt to

draw out further information about the defendant’s cooperation

with the police and never mentioned the issue during closing

argument. However, the defendant argued on appeal that the

testimony improperly commented on her postarrest refusal to

talk with the police in violation of Doyle. The Eleventh

Circuit concluded that no Doyle violation occurred:

While a single comment alone may sometimes

constitute a Doyle violation,[9] the Supreme Court’s

opinion in Greer makes clear that a single mention

does not automatically suffice to violate

defendant’s rights when the government does not

9
Accordingly, contrary to the dissent’s indication, we

do not suggest that a single comment may never constitute a

Doyle violation. Slip op, p 7, n 6. We merely conclude that

the single isolated incident at issue in the present case did

not constitute a Doyle violation.

14

 specifically and expressly attempt to use–as was

attempted in Doyle and in Greer–the improper

comment to impeach the defendant. See Lindgren v

Lane, 925 F2d 198, 201 (CA 7, 1991) (“As explained

in Greer v Miller, . . . it is the use of an

accused’s silence against him at trial by way of

specific inquiry or impeachment that forms the

basis for a violation of the Fourteenth

Amendment.”) (emphasis added). As was the case in

Greer, the prosecutor here “was not allowed to

undertake impeachment on, or permitted to call

attention to [defendant’s] silence.” Greer, 483 US

at 764 (citation omitted). The prosecution made no

“specific inquiry or argument” about defendant’s

postarrest silence. Id. Accordingly, we conclude

there was no Doyle violation in this case.

[Stubbs, supra at 835 (emphasis in original).]

As in Stubbs, the present case involved no specific inquiry by

the prosecution regarding defendant’s silence or any attempt

to use that silence for impeachment purposes. Accordingly,

Stubbs reinforces our conclusion that there was no violation

of defendant’s constitutional right to due process under Doyle

in the present case.10

10
Our decision is also consistent with the holding of the

Indiana Supreme Court in Cook v State, 544 NE2d 1359, 1363

(Ind, 1989), that testimony by a federal agent that there was

no further contact with the defendant at a certain point

because he “had made a request to speak to an attorney” did

not constitute a Doyle violation. Similar to the present

case, the remark was an “isolated statement,” and there was no

specific inquiry or argument from the prosecution regarding

the defendant’s post-Miranda silence. Cook, supra. See also

Pulley v Commonwealth, 31 Va App 600, 605; 525 SE2d 51 (2000)

(holding that there was no Doyle violation from a police

officer’s nonresponsive comment that the defendant invoked his

right to counsel where the prosecution did not exploit the

issue); State v Baccam, 476 NW2d 884, 886-887 (Iowa App, 1991)

(finding no abuse of discretion in the trial court’s denial of

a mistrial on the basis of a single comment related to the

(continued...)

15

 We acknowledge that, as argued by defendant, this case

differs from Greer in that a witness actually testified in the

presence of the jury that defendant refused to submit to

police questioning. Essentially, defendant contends that this

circumstance makes this case worse than Greer and involves an

actual Doyle violation because evidence of the defendant’s

silence was actually placed before the jury as opposed to a

question that merely insinuated such silence. However, we do

not accept this argument. The prosecutor in the present case

made no effort to use the testimony about defendant’s silence

against him. In contrast, the prosecutor in Greer insinuated

that the defendant’s testimony in that case was questionable

because he did not provide his story to the police at an

earlier point. If the prosecutor’s conduct in Greer did not

constitute “use” of the defendant’s silence against him, then

neither did the inadvertently elicited testimony in this

case.11

10
(...continued)

defendant’s post-Miranda silence where trial court gave

curative instruction and the silence was not used against the

defendant).

11
We note that, in light of our conclusion that no

constitutional error occurred, the “harmless beyond a

reasonable doubt” test used by the Court of Appeals is

inapposite. Like the Eleventh Circuit in Stubbs, “[w]e do not

reach the issue of harmless error because we conclude that,

absent use by the prosecution of the comment on defendant’s

postarrest silence, there was no Doyle violation.” Stubbs,

(continued...)

16

 In light of our conclusion that there was no violation of

defendant’s due process rights under Doyle, we hold that the

trial court did not abuse its discretion in denying

defendant’s motion for a mistrial. As the Greer Court stated,

“we normally presume that a jury will follow an instruction to

disregard inadmissible evidence inadvertently presented to it,

unless there is an ‘overwhelming probability’ that the jury

will be unable to follow the court’s instructions, and a

strong likelihood that the effect of the evidence would be

‘devastating’ to the defendant.” Id. at 767, n 8 (citations

omitted). The trial court in the present case emphatically

instructed the jury to place no weight on defendant’s

invocation of his Miranda rights. Thus, it was reasonable for

the trial court to conclude that any possible prejudice from

the improper testimony from Detective Cooper could be cured

with a cautionary instruction and that a mistrial was not

required.12

11
(...continued)

supra at 835, n 10 (emphasis in original).

12
Indeed, this analysis is consistent with Greer. The

Greer Court stated that it had no reason to believe that the

jury was incapable of obeying curative instructions and that,

far from being “devastating,” evidence of the defendant’s

postarrest silence was at most “insolubly ambiguous.” Id. at

767, n 8. As a further consideration, Detective Cooper’s

testimony did not state that defendant absolutely refused to

be interviewed by the police, but rather only that he wanted

to speak to an attorney before being questioned. A desire to

(continued...)

17

 For the foregoing reasons, we disagree with the Court of

Appeals decision to reverse defendant’s convictions.13

Our judgment that the circumstances of the present case

do not warrant reversal of defendant’s convictions should in

no way be taken as condoning the inappropriate injection of a

defendant’s exercise of the Miranda rights into a trial by

either prosecutors or the police. In the present case,

considering (1) the limited nature of the improper testimony,

(2) the lack of any effort by the prosecution to improperly

use defendant’s invocation of the Miranda rights against him,

(3) the strong curative instruction used by the trial court,

12
(...continued)

involve an attorney in a police interview or interrogation

could well be understood by a juror as reflecting a concern

for being treated fairly and wishing the assistance of a

sophisticated advocate to respond to any unfair questioning

that might seek to turn the suspect’s words against himself.

A typical citizen should understand such concerns and not

regard the request for an attorney before questioning as being

“suspicious” in the same way that an absolute refusal to speak

with the police might be taken. Accordingly, the present

opinion does not address a situation in which police testimony

makes clear that a defendant has absolutely refused to be

interviewed by the police.

13
We also note that we are puzzled at that Court’s

decision to reverse defendant’s conviction of malicious

destruction of police property. From the record, and even

from the recitation of facts in the Court of Appeals opinion,

there was undisputed evidence that defendant openly kicked out

the window of a police car in the presence of police officers.

Accordingly, it is evident that any possible error was

harmless beyond a reasonable doubt with regard to the

malicious destruction charge in light of the overwhelming

evidence of guilt regarding that charge.

18

and (4) that defendant did not testify so there is no concern

of his post-Miranda silence having been used for impeachment

purposes, we conclude that there was no constitutional

violation and that the trial court did not abuse its

discretion by declining to order a mistrial.

IV

In sum, we conclude that the inadvertent elicitation of

testimony that defendant exercised his Miranda right to

decline police questioning without the presence of counsel did

not constitute a violation of defendant’s constitutional right

to due process under Doyle. The circumstances of this case

did not involve use by the prosecution of defendant’s post-

Miranda silence against him within the meaning of Doyle and

Greer. Thus, we reverse the judgment of the Court of Appeals

and reinstate defendant’s convictions.

CORRIGAN , C.J., and WEAVER , YOUNG , and MARKMAN , JJ., concurred

with TAYLOR , J.

19

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

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 116852

ERIC SHERROD DENNIS,

Defendant-Appellee.

___________________________________

KELLY, J. (dissenting).

I find that the prosecutor in this case used defendant's

post-Miranda1 silence against him. He asked a series of

questions that compared and contrasted defendant's refusal to

submit to a police interview with the acquiescent responses of

other witnesses in similar circumstances. By doing so, the

prosecutor submitted defendant's post-Miranda silence to the

jury as evidence from which it was allowed to draw an

inference of guilt, thereby violating due process. Thus, I

would affirm the Court of Appeals decision to reverse

1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d

694 (1966).

defendant's convictions and hold that the trial court's

refusal to grant a mistrial was an abuse of discretion.

I. Doyle and its Progeny

In finding no due process violation below, the majority

takes solace in the fact that the prosecutor did not "use"

defendant's invocation of Miranda rights to impeach him. I

think that this is an overly narrow view of due process

protections.

A defendant's due process right not to have his post-

Miranda silence used against him exists in more situations

than where a prosecutor uses the silence to impeach. To be

sure, Doyle v Ohio2 held that due process is violated where a

prosecutor impeaches a defendant with evidence of his post-

Miranda silence. But, the point of Doyle is "that it is

fundamentally unfair to promise an arrested person that his

silence will not be used against him and thereafter . . .

us[e] the silence to impeach [him]" or otherwise "make use of

the . . . exercise of those rights in obtaining his

conviction." Wainright v Greenfield, 474 US 284, 292; 106 S Ct

634; 88 L Ed 2d 623 (1986). "What is impermissible is the

evidentiary use of . . . his constitutional rights after the

. . . assurance" of Miranda. Id. at 295.

I believe that it is also fundamentally unfair, and

2
426 US 610, 618; 96 S Ct 2240; 49 L Ed 2d 91 (1976).

2

therefore, a deprivation of due process, for the prosecution

to use a defendant's post-Miranda silence as affirmative proof

at trial. This conclusion is consistent with that in several

decisions that applied Doyle to references made to a

defendant's post-Miranda silence during the prosecution's case

in chief. See, e.g., United States v Moreno, 185 F3d 465, 473

(CA 5, 1999); People of Territory of Guam v Veloria, 136 F3d

648, 651-653 (CA 9, 1998); United States v Massuet, 851 F2d

111, 114 (CA 4, 1988); United States v Elkins, 774 F2d 530,

537 (CA 1, 1985); State v Treesh, 90 Ohio St 3d 460, 479; 739

NE2d 749 (2001).

The issue in this case is whether defendant's trial was

fundamentally unfair. It is whether the prosecutor used

defendant's post-Miranda silence against him so that it was

submitted to the jury as evidence from which the jury could

infer guilt.

II. The Prosecution's "Use" of

Defendant's Post-Miranda Silence

Although the majority acknowledges that Detective

Cooper's testimony was "inappropriate," it nevertheless finds

that there was no improper "use" of defendant's post-Miranda

silence against him in this case. It cites the "limited

nature" of the improper testimony and asserts that the

prosecutor neither pursued the matter further nor raised the

issue during oral argument. I disagree and maintain that the

3

prosecutor did impermissibly use defendant's post-Miranda

silence against him.

In my view, the majority arrives at an erroneous

conclusion in part because it fails to consider Detective

Cooper's testimony in context. With this in mind, I will

provide a brief review of the facts surrounding this case.

On the afternoon of August 23, 1997, defendant telephoned

his grandmother and asked that she send someone to get him in

an automobile. She sent her daughter, Nancy Kennebrew, and

defendant's half-sister, Evonne Ezell, in the grandmother's

van.3 After defendant got into the van, Grand Rapids Police

Officers Beckett and Anderson saw it fail to stop at a stop

sign. They stopped the van and found that Ezell was driving,

Nancy Kennebrew was in the passenger seat, and defendant was

in the back seat apparently straddling a safe.

The officers asked permission to search the occupants.

Defendant and Nancy Kennebrew refused, while Ezell agreed.

Although no contraband was found on Ezell's person, the

officers detained her, directed Nancy Kennebrew and defendant

to wait inside the officers' cruiser, then searched the van.

Inside, they discovered a locked safe, prompting them to call

3
Defendant's grandmother and her daughter are both named

"Nancy Kennebrew." To help avoid confusion, I will refer to

the elder Kennebrew as "the grandmother," and the junior

Kennebrew as "Nancy Kennebrew."

4

for assistance from a police dog to determine whether there

were prohibited substances inside the safe. Meanwhile, while

in the police cruiser, defendant kicked out its rear window.

A subsequent search of the safe revealed a handgun, cocaine,

marijuana, and a large amount of cash.

At trial, the prosecutor called Grand Rapids Detective

Kent Cooper as an expert witness on the subject of controlled

substances. After several preliminary questions, the trial

court qualified him as an expert. Although one would expect

the prosecutor then to query him regarding his expert opinion

on certain matters of evidence, the prosecutor opted not to do

so immediately. Instead, he questioned Cooper regarding his

investigation of the case and engaged in the following

colloquy:

Q. [The prosecutor]: Detective, you in fact

were the assigned detective for the investigation

after the arrest of [defendant], is that correct?

A. [Cooper]: Correct.

Q. Can you tell the jury how you initially

came into contact with this case?

A. I was assigned to the Vice Unit day team,

and on the day team we are assigned the cases from

the previous night of arrest or from the weekend

prior to the day that we work.

Q. And this arrest occurred on Saturday

afternoon, actually, of the 23rd of August?

A. Right, and on Monday I received the case.

5

 Q. What type of investigation follow-up did

you do with regard to this?

A. I went out and attempted to interview

[defendant], and at that time it was refused. He

wished to speak to an attorney prior to me asking

him any questions.

Q. Did you speak with the other persons in

this particular case?

A. I believe it was the next day that I went

to the Kennebrew residence and spoke with Nancy

Kennebrew, the younger one. I spoke with the

grandmother, and I spoke with Evonne Ezell.

Q. And did they give you statements as to

their knowledge or lack of knowledge of this

incident?

A. Yes.

Q. And then you obtained warrants in this

particular manner?

A. Yes.[Emphasis added.]

Cooper's testimony unequivocally communicated to the

jurors that defendant "refused" to submit to police

questioning after his arrest and "wished to speak to an

attorney" before answering any questions. Whereas the

majority labels this as testimony of a "limited nature," it

is, in fact, an explicit statement that defendant invoked his

Miranda rights. It enabled the jury to infer guilt from

defendant's silence, thereby violating his due process

rights.4

4
Contrary to the majority's inherent suggestion, a single

(continued...)

6

 Even if Cooper's reference to defendant's post-Miranda

silence did not constitute a "use" of post-Miranda silence by

itself, in subsequent questions the prosecutor did use

defendant's post-Miranda silence against him. Immediately

after Cooper told the jury of the "refusal" to speak, the

prosecutor asked Cooper if he spoke with "the other persons in

this particular case." Cooper related that he spoke with

defendant's grandmother, as well as Nancy Kennebrew and Evonne

Ezell. The prosecutor then asked Cooper whether those

witnesses gave statements to him. Cooper replied that they

did, and then explained that those witnesses' statements led

to the issuance of arrest warrants.5

4
(...continued)

improper comment about a defendant's post-Miranda silence may

rise to the level of a due process violation. See Moreno,

supra at 473; Veloria, supra at 651-653; Lindgren v Lane, 925

F2d 198, 203 (CA 7, 1991); United States v Stubbs, 944 F2d

828, 835 (CA 11, 1991); Booton v Hanauer, 541 F2d 296, 298-299

(CA 1, 1976). Greer v Miler, 483 US 756; 107 S Ct 3102; 97 L

Ed 2d 618 (1987), does not hold otherwise. See id. at 764, n

5, rebutting the dissent's contention that the Court held that

"a single comment cannot be sufficient to constitute a Doyle

violation;" id. at 770 (Brennan, Blackmun, and Marshall, JJ.,

dissenting). Indeed, the Court in Greer explained that the

lack of a violation there stemmed from the "sequence of

events," not the fact that there was but one comment. See id.

at 764-765.

5
The majority interprets the prosecutor's follow-up

questions regarding Cooper's interview with the other

witnesses as constituting the real aim of the prosecutor's

question to Cooper regarding his "investigation follow-up." I

find this interpretation unpersuasive. See United States v

Baker, 999 F2d 412, 416 (CA 9, 1993), stating that counsel's

(continued...)

7

 Viewed in context, the prosecutor's questions and

Detective Cooper's answers demonstrate how the prosecutor

compared defendant's willingness to be interviewed by police

with the willingness of the other witnesses directly involved.

The prosecutor conveyed that defendant refused to speak, but

that others who were in the van when it was stopped, and the

van's owner, agreed to speak to police. Given that the others

were initially implicated with the safe, questions regarding

the degree of cooperation by defendant and the others in

Cooper's investigation implied that defendant's silence

evidenced guilt.6

Everything considered, I believe it reasonable to

conclude that the prosecutor's line of questioning was

intended to call attention to defendant's post-Miranda silence

and use it against him. The tactics rendered the trial

"fundamentally unfair."7

5
(...continued)

"subjective intent cannot save his overly broad statements."

The majority glosses over the fact that the entire series of

questions and answers contrasted defendant's and the other

witnesses' degree of cooperation in front of the jury.

6
Apparently, Nancy Kennebrew was charged at one point

with possession of the safe's contents.

7
See Moreno, supra at 473-474, finding error where the

prosecutor's question's "natural consequence, if not purpose,"

was to draw meaning from the defendant's post-Miranda silence;

Veloria, supra at 652, finding Doyle error after reviewing

entire context of improper testimony; Elkins, supra at 537, a

(continued...)

8

 My conclusion is not altered by the cautionary

instruction given in the instant case. A curative instruction

does not always eradicate a due process violation brought

about by the use of a defendant's post-Miranda silence.8 The

instruction here did not address the prosecutor's

juxtaposition of defendant's response to Cooper's request for

an interview and the other witnesses' responses. Thus,

notwithstanding the instruction, the effect of the comparison

remained unassailed in the jury's perception. Therefore, the

curative instruction does not preclude a finding that the

prosecutor used defendant's post-Miranda silence against him.9

7
(...continued)

"Doyle violation occurs not only when the objectionable

comments explicitly refer to a defendant's failure to answer

questions . . . but when the reference to defendant's silence

is more oblique . . . ;" United States v Newman, 943 F2d 1155,

1158 (CA 9, 1991), finding error requiring reversal where the

effect of a police officer's statements, "intended or

otherwise, was to suggest to the jury that [the defendant]

must have been guilty because an innocent person would not

have remained silent"; State v DiGuilio, 491 So2d 1129, 1131

(Fla, 1986), it was constitutional error for a police officer

to give testimony that was "fairly susceptible of being

interpreted by the jury as a comment on silence."

8
See Newman, supra at 1156-1157, finding a Doyle

violation despite two cautionary instructions.

9
In effect, the majority's reliance on the trial court's

curative instruction merely ensures that improper testimony

like that submitted here will be admitted in other criminal

trials in Michigan. When it occurs, the trial court may give

the same curative instruction that was given here,

anticipating no error requiring reversal.

9

 The impermissible use of defendant's post-Miranda silence

in this case makes the majority's reliance on Greer, supra,

inapposite. Here, unlike in Greer, there was a series of

questions and answers that focused on defendant's post-Miranda

silence.10 Thus, there was actual testimony presented here

that conveyed to the jury that defendant "refused" to speak to

an investigating officer and wanted to speak to an attorney.

Additionally, the trial court in Greer gave two

cautionary instructions; the trial court in the present case

gave merely one. See Greer, supra at 759. The trial court's

instructions in Greer did not specifically mention the earlier

impropriety.11 By contrast, here the trial court's instruction

expressly cited Cooper's improper testimony, highlighting the

earlier testimonial error and reminding the jury of

defendant's refusal to submit to a police interview.

10
The majority explains its conclusion that there was no

"use" against defendant of his post-Miranda silence by stating

that Cooper's testimony "did not state that defendant

absolutely refused to be interviewed by the police, but rather

only that he wanted to speak to an attorney before

questioning." Slip op at 18, n 12. I find it a distinction

without a difference. Also, the majority ignores the

preceding sentence where Cooper stated that his request to

interview defendant was "refused."

11
In Greer, the trial court's first instruction directed

the jury to "ignore [the] question, for the time being." Id.

at 759. The second instruction informed the jury to "disregard

questions . . . to which objections were sustained." Id.

10

 Finally, unlike in Greer, the record here supports the

conclusion that there was an improper use of defendant's

post-Miranda silence against him. Here, the prosecutor

highlighted for the jury the fact that defendant chose not to

speak to an investigating officer, whereas other persons,

possibly associated with the safe, did speak. Because there

was a far greater burdening of defendant's rights in the

instant case than in Greer, I believe that the majority errs

in finding Greer analogous. See Moreno, supra at 474, limiting

Greer to cases where no answer is given to an improper

question; Newman, supra at 1157-1158.

I would find the prosecutor's use of defendant's post-

Miranda silence violative of due process and the trial court's

refusal to grant a mistrial an abuse of its discretion.12

III. Conclusion

The prosecutor used defendant's post-Miranda silence

against him by calling the jury's attention to it and by

inferring defendant's guilt from it. This rendered defendant's

12
The majority's reliance on Stubbs, supra, is unavailing.

Stubbs did not involve, as here, a prosecutor engaging in a

specific comparison of defendant's and other witnesses'

willingness to speak to police, or a cautionary instruction

that expressly reminded the jurors of the improper reference

to defendant's post-Miranda silence. Id. at 835. Also, the

improper testimony in Stubbs came from a civilian witness;

here, the improper testimony came from a police officer and,

thus, is subject to greater scrutiny. See People v Holly, 129

Mich App 405, 415-416; 341 NW2d 823 (1983).

11

trial "fundamentally unfair" and violated defendant's due

process rights. Thus, I would affirm the Court of Appeals

decision to reverse defendant's convictions.

CAVANAGH , J., concurred with KELLY , J.

12