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