People v. Cetlinski

460 N.W.2d 534, 435 Mich. 742

• Court: Michigan Supreme Court
• Decided: September 11, 1990
• Docket: 81176, (Calendar No. 11)
• Status: Published

Opinions

AFTER REMAND

Boyle, J.

The issue raised in this case is whether People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), precludes cross-examination regarding a prior statement, including omissions, to a police officer.¹

In People v Cetlinski² the Court of Appeals held on initial appeal that the Fifth Amendment precluded asking the defendant during cross-examination why he had not told investigating officers, in the course of prearrest voluntary conversations with them regarding the fire, that he had had a conversation with his waitress and that the waitress had suggested the idea of burning Cetlinski’s business. The court reversed the defendant’s conviction. After our decision in People v Collier, 426 Mich 23; 393 NW2d 346 (1986), we remanded the case to the Court of Appeals for reconsideration in light of that decision.³ On remand, the Court of Appeals adhered to its previous position, again concluding that Bobo required reversal and opining that Collier was inapplicable.⁴

Despite the fact that over the years the issue whether Bobo correctly construes the requirement of the Fifth Amendment and if not, whether the Michigan Constitution requires a higher standard has spawned a degree of conflict and confusion in the Court of Appeals,⁵ and despite the fact that the precise issue before us has produced a conflict in the Court of Appeals with regard , to whether People v Collier or Bobo applies to prior inconsistent statements,⁶ Justice Levin asserts it is not necessary in this case to reach the Fifth Amendment issue or to address the due process requirements of the Fourteenth Amendment.

In Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980),⁷ the United States Supreme Court held that the use of prearrest silence for impeachment purposes did not violate the Fifth Amendment. Moreover, regardless of whether this case involved a situation in which the defendant’s silence was used to impeach or one where the defendant made statements to the police, omitting some material facts, the critical events took place prearrest and pre-Miranda⁸ and thus there could be no due process claim that the state unfairly used defendant’s silence or omission against him at trial in violation of the implicit assurance in Miranda that silence will not be penalized. Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976).⁹

We hold that the use for impeachment purposes of a defendant’s prior statement, including omissions, given during contact with the police, prior to arrest or accusation, does not violate the defendant’s constitutional rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution. Indeed, long before Jenkins v Anderson, the United States Supreme Court had held the Fifth Amendment was not violated by impeachment of a testifying defendant with voluntarily given prior inconsistent statements. Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). The use of a defendant’s prearrest, preMiranda "statements” for impeachment purposes is one of relevancy, an evidentiary matter.¹⁰ The threshold inquiry is whether this evidence makes "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. See Collier, supra, p 36.

This analysis is consistent with the United States Supreme Court’s ruling in Jenkins. There the Court emphasized that

[i]mpeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. . . . Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence, § 1042, p 1056 (Chadbourn rev 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence [or statements, including omissions] is so inconsistent with present statements that impeachment by reference to such silence [or statements] is probative [of defendant’s credibility]. [Id., pp 238-239.]

The statement of a party opponent is defined as an oral or written assertion or nonverbal conduct, MRE 801(d)(2). For impeachment purposes, the failure to assert a material fact when formerly narrating on the matter now dealt with amounts to an assertion, or statement, of the nonexistence of the fact.¹¹ Thus, as an evidentiary matter, omissions from an affirmative voluntary response to questions about the same subject matter testified to at trial do not constitute "silence.”¹² Rather, they are "prior inconsistent statements,” and can be used to impeach testimony at trial in which the witness admitted the fact’s existence. As the Jenkins Court noted, the "[u]se of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts.” Id., p 238.¹³

As stated above, when an individual has not opted to remain silent, but has made affirmative responses to questions about the same subject matter testified to at trial, omissions from the statements do not constitute silence. The omission is nonverbal conduct that is to be considered an assertion of the nonexistence of the fact testified to at trial if a rational juror could draw an inference of inconsistency. To be sure, the witness may explain the omission by a desire not to implicate himself or because of a lapse of memory. Such explanations, however, do not remove the relevance of the inconsistency.

On this record, however, the majority is persuaded that evidentiary error, if any, was not prejudicial to the defendant. Accordingly, we reverse the decision of the Court of Appeals and reinstate the defendant’s conviction.

i

On December 11, 1983, a fire destroyed a bar that the defendant owned and managed adjacent to the motel in which he and a woman companion lived. After almost six months of investigation, the defendant was charged with burning real property and burning insured property.

At trial the expert fire investigator’s testimony revealed that the fire had been set intentionally by spreading kerosene throughout the bar. In addition, having found the bar locked at the time of the fire, the investigator concluded the fire was set by someone with a key to the bar. Only five people had keys to the bar, the defendant, his live-in girl friend and business partner, the bartender on duty that night, a friend who had borrowed defendant’s car, and a waitress.

The waitress testified for the prosecution that about three months prior to the actual fire, the defendant and she had discussed burning down the bar, the details of how he wanted the fire to be set, and how defendant wanted the scene to appear to investigators. She also testified that defendant asked her if she knew anyone that would burn the bar and that he could pay $500 for the fire to be set after he received the insurance money. She stated that she told the defendant she would talk to her brother and that when she approached her brother about this he told her to stay out of it and to tell the defendant that it cost $5,000, more than defendant, wished to pay. When she relayed the message to defendant, she said he told her to forget it.¹⁴

When defendant Cetlinski took the stand, in exculpation on direct examination, he stated while looking at the jury that he had discussed burning the bar with the waitress "as a joke.” Further, he stated that it was she who first brought up the idea, that it was her idea to check on what the cost would be, and that after about a week she told defendant her brother said he knew someone who would burn the bar if the defendant wanted it done.¹⁵ Although stating he only had joked with the waitress about burning the bar, the defendant testified that he later discussed the conversation with his girl friend and business partner, and that he agreed with her that it would be wrong. He then stated that he told his girl friend that "[W]e’re going to go talk to [her] and tell her we don’t want it burned. I told her [the waitress] two or three days in a row I don’t want it burned .... I says, that’s it.”

This testimony served not only to rebut the waitress’ testimony, but to suggest that she committed the arson and that defendant himself had nothing to do with the burning of the bar. Other proofs showed that she was one of four people who had keys to the bar and that she was present at the time of the fire.

The defendant also described being awakened by the police at his motel room next to the bar on the night of the fire, and stated he answered what the Court of Appeals characterized as "general investigation questions” at that time, as well as at various times during the course of the investigation.¹⁶ It is undisputed that defendant gave generally exculpatory statements to the police during this period of time.

During cross-examination, the defendant testified that after the waitress suggested she knew someone who could burn the bar and that it could be made to look like a robbery, he had had a second conversation with her about a week after the first one, and it was at that time that she talked about price. Then, after1 his testimony established the fact that after the fire the bar looked exactly as the waitress had testified that she and the defendant had discussed it should look, the prosecutor asked the following question:

Q. Mr. Cetlinski, after the fire when you saw these things out there, why didn’t you tell the police about this conversation [the waitress] had had with you?

A. Because it was just . . .

Defense counsel objected and, after the jury was removed, moved for a mistrial on the basis that the prosecutor’s question infringed upon defendant’s constitutional right to refrain from incriminating himself.

In response, the prosecutor argued that the defendant took the stand, testified, gave numerous voluntary statements to the police officers concerning the fire and its possible origin, and, thus, that the state had the right to inquire why defendant never told police about the conversation with the waitress. The trial judge recessed until the following morning and instructed the attorneys to research the law and that he would make a ruling at that time. The following day the court determined that on the basis of the fact that defendant talked freely to the police there was no issue of silence in the case and denied defense counsel’s motion for mistrial.¹⁷

The prosecutor was permitted to resume questioning:

Q. Mr. Cetlinski, during the course of the investigation of this fire at your bar, you talked to the police officers a number of times; isn’t that correct?

A. Yes.

Q. Different officers at different times?

A. Yes.

Q. During any of the course [sic] of those conversations with those officers, did you ever mention to them this conversation you had with [the waitress]?

A. No.

Q. You didn’t tell them about that at all?

A. No.

Q. Why didn’t you tell them about that at all?

A. I didn’t — I forgot about it.

The prosecutor never again raised the issue with the defendant or any other witness, or made reference during closing argument to defendant’s failure to tell police of the conversation with his employee.¹⁸ Defense counsel argued during closing argument that the prosecutor’s question regarding the defendant’s failure to tell police about the conversation was unfair because there was no claim that defendant failed to answer all of the questions during the investigation or that he ever lied to anyone. Further, defense counsel noted that even if the waitress’ version of the conversation was correct “she had all kind [sic] of motivation [to lie] including her fight with [the defendant’s girl friend’s] son . . . .”

At the conclusion of the four-day trial, the defendant was convicted by a jury of burning insured property, MCL 750.75; MSA 28.270. On March 7, 1985, the defendant was sentenced to five years probation, with the first year to be served in the Lenawee County Jail.

On initial appeal, the Court of Appeals held that the cross-examination by the prosecutor regarding the defendant’s “pre-arrest” failure to tell the investigating officer, “at the scene” “immediately after he and [his companion] were awakened,” about his prior conversation violated "defendant’s constitutional right against self-incrimination” under the rule of Bobo.19 Although noting “Pobo had been appropriately limited and defined in recent decisions of this court ... in the light of subsequent decisions of the United States Supreme Court,” the panel concluded nonetheless that Bobo required reversal.²⁰

After this Court held in Collier that impeachment with "prearrest silence” was not constitutionally precluded, Cetlinski was remanded to the Court of Appeals. On remand, the Court of Appeals again reversed on the basis of Bobo. It distinguished Collier on the ground that Collier was cross-examined regarding his failure to report to the police, prior to any contact with the police, a crime of which he had allegedly been the victim. The panel interpreted Collier only as limiting the Bobo holding

"to those situations where the state seeks to impeach a defendant with his silence maintained during contact with police officers. Here, the prosecutor impeached defendant regarding his failure to report a robbery to the police. There was no questioning or mention of defendant’s silence at or after his contact with the police.” [Citing Collier, supra, p 31. Emphasis added.]

Therefore, because "defendant [Cetlinski] was in contact with the police, and the police were questioning him during their investigation,” the panel concluded Collier did not require a different result in this case.

Thus, the Court of Appeals, post-Collier, erroneously held that Bobo prevents impeachment of a testifying defendant with a prior inconsistent statement made voluntarily to the police prior to arrest and during general investigatory questioning.

ii

The decision in People v Cetlinski is evidence that this Court must respond to the issues the Court of Appeals has identified and the parties have briefed and argued, and speak to an issue which has been the subject of a sixteen-year effort by the trial and appellate judges of this state: to understand and apply this Court’s pronouncements in Bobo.

Understanding and analysis of the Bobo issue requires that we initially explain the facts, holding, and dicta of Bobo, and that we then acknowledge federal authority which casts doubt on the Fifth Amendment rationale of that opinion. The Court in People v Bobo, supra, pp 359-361, opined that the Fifth Amendment of the United States Constitution precluded any reference to a defendant’s silence under any circumstances during a trial:²¹

We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. ”Nonutteranees” are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.

What concerned the parties and what prompted our grant of leave was the propriety of using the fact of defendant’s silence either as evidence of guilt or for the purpose of impeachment.

Whether his [defendant’s] silence was prior to or at the time of arrest makes little difference — the defendant’s Fifth Amendment right to remain silent is constant.

It is unimportant whether the accuser be a police officer or not. Manifestly whenever a person is stopped for interrogation by the police, whether technically under arrest or not, the Fifth Amendment guarantees that his silence may not be used against him.

Although the factual context of the holding in Bobo was the prosecutor’s use of the defendant’s prearrest silence during contact with a police officer to impeach the defendant’s exculpatory testimony at trial, the Court of Appeals subsequently applied the rationale of Bobo to both pre- and postarrest silence, to substantive and impeachment use of "silence,” and to contact with police officers or citizens.²²

This Court’s first consideration of the question whether the federal or the state constitution governs the permissible use of a criminal defendant’s silence came thirteen years after Bobo and after a substantial body of federal precedent had construed the Fifth Amendment.²³ People v Collier, supra. In People v Collier, we held that neither the Fifth Amendment nor the Michigan Constitution precluded the use of prearrest silence for impeachment purposes.

The Court recognized that the United States Supreme Court had held that the Fifth Amendment did not preclude cross-examination of a testifying defendant with prearrest silence, Jenkins v Anderson, supra, and declined to find a violation of either due process or self-incrimination protection under the Michigan Constitution:

For us to find that this case invokes the Michigan Constitution would require us to differ with the Jenkins majority’s analysis in a prearrest silence impeachment situation involving a factual setting less favorable to the defendant than that in Jenkins. Not only is there no federal Fifth Amendment precedent for such a finding, we are also aware of no other state that has taken such a step in the interpretation of its own self-incrimination provision. We have been offered no satisfactory arguments why we should be the first to use our own constitution to so enlarge upon existing Fifth Amendment jurisprudence.

We conclude that to the extent Bobo is viable it is confined to impeachment for and comment on silence at the time of arrest in the face of accusation. [Collier, supra, pp 38-39. Emphasis added.]

In Collier, we concluded that the issue of prearrest silence is one of relevancy and that the Court of Appeals had erroneously construed Bobo. However, while our holding in Collier limited Bobo to impeachment for and comment on silence at the time of arrest in the face of accusation, this Court did not overrule Bobo, but rather found Bobo inapplicable on the facts. Thus, a continuing question exists with regard to whether Bobo is to be understood and applied consistent with intervening developments in Fifth and Fourteenth Amendment jurisprudence.²⁴ Indeed, confusion regarding this question may actually have increased since Collier. Prior to Collier, a substantial number of panels of the Court of Appeals had recognized a distinction between the use of silence for impeachment and impeachment with prior prearrest statements inconsistent with trial testimony, and held that Bobo was inapplicable to prearrest statements.²⁵ The Court of Appeals panel in the case at bar characterized the prosecutor’s reference to defendant’s prior pretrial statements, including omissions, as Bobo "silence” and thus is convincing contemporary evidence of the need for further clarification of this area of the law.

hi

People v Cetlinski is the only case before us in which this Court has asked the Court of Appeals to redetermine the admissibility of a defendant’s statements, including omissions, in light of the limitation of Bobo set forth in People v Collier.26 The Court of Appeals reversed the defendant’s conviction on the basis of its finding that the use at trial of the defendant’s prearrest, pre-Miranda "silence” for impeachment purposes was improper under the rule of Bobo.27

At the outset, it must be recognized that the Court of Appeals erred in characterizing and analyzing the issue under a constitutional approach. As stated above, there was no constitutional error. The issue involved is cross-examination designed to test the veracity of in-court assertions by comparison with out-of-court statements, including omissions, and is properly analyzed under an evidentiary approach only. Because the broad Bobo rationale arguably supports the Court of Appeals mischaracterization of the question, we again observe, as we did in Collier, supra, that, in light of both pre- and post-Bobo decisions of the United States Supreme Court, it is clear that the Fifth Amendment rationale no longer supports the Bobo rationale. Thus, no error of federal constitutional law occurred. Because the Court of Appeals finding of error under Bobo is sustainable only if the Michigan Constitution requires a higher standard, we also address that issue.²⁸

Consistent with our rationale in Collier, we conclude that an evidentiary approach to the use of a defendant’s prearrest, pre-Miranda statements, including omissions, will adequately protect the policy interest in foreclosing the factfinder from unfair inferences of guilt. We therefore construe Bobo as being coextensive with the Fifth Amendment of the United States Constitution and the due process analysis of Doyle v Ohio, 426 US ; 96 S Ct 2240; 49 L Ed 2d 91 (1976).²⁹ The use of a defendant’s silence during contact with the police that does not occur "at the time of arrest in the face of accusation,” Collier, p 39, for impeachment purposes does not violate the Fifth Amendment or the Michigan Constitution.³⁰

People v Collier adopted the evidentiary rule that nonverbal conduct by a defendant, a failure to come forward, is relevant and probative for impeachment purposes when the court determines that it would have been "natural” for the person to have come forward with the exculpatory information under the circumstances.³¹ Because a defendant has no duty to come forward, the Court observed that his failure to do so was so ambiguous that it did not in and of itself allow a trial judge to conclude that it amounted to an assertion of the nonexistence of the fact testified to. Thus, where the prosecutor’s theory of impeachment is that the defendant is not telling the truth because he did not come forward and offer what he now testifies to, we held that a trial court properly permits impeachment if it would have been natural and expected for the defendant to come forward with the story he relates during trial.³² In doing so, we necessarily concluded that the mere failure to come forward did not permit a rational juror to draw an inference as to credibility. We also necessarily recognized that nonverbal conduct, the failure to come forward, could be conduct inconsistent with trial testimony.

The issue in this case concerns the permissibility of cross-examination about defendant’s statements, including omissions, in light of the fact that the defendant voluntarily gave those statements to the police during a six-month investigation. A majority of the justices are persuaded that the record is insufficient to permit us to determine whether there was evidentiary error³³ because the record was developed pre-Collier and thus failed to address factors later made critical under the evidentiary analysis enunciated in Collier. Therefore, we might remand for development of an evidentiary record were we not also persuaded that error, if any, was not prejudicial to the defendant.³⁴ The jury had before it both the waitress’ and Cetlinski’s version of their conversations about burning Cetlinski’s business. The challenged questioning by the prosecution played a very small role in the defendant’s trial, and the other evidence presented at trial was more than sufficient to allow the jury to find Cetlinski guilty beyond a reasonable doubt. Furthermore, it was only the defense counsel who raised the issue of the defendant’s failure to inform the police of these conversations in closing argument. Thus, we are persuaded error, if any, did not prejudice Cetlinski’s defense or affect the outcome in this case. Therefore, we reverse the judgment of the Court of Appeals and reinstate the defendant’s conviction.

CONCLUSION

The Court of Appeals erred in concluding that the Fifth Amendment precluded the cross-examination of the defendant and, on the basis of that conclusion, in reversing the defendant’s conviction. The prosecutor did not ask the jury to infer guilt from the defendant’s silence.³⁵ Thus, the prosecutor’s cross-examination did not violate this defendant’s right not to incriminate himself as guaranteed under the Fifth Amendment. Construing Bobo’s constitutional foundation as coextensive with federal law, the use at trial of a defendant’s prearrest, pre-Miranda statement for impeachment purposes was permissible under the federal and Michigan Constitutions.

Finally, although the defendant objected to the impeachment use of his prearrest, pre-Miranda statements on constitutional ground, but not on an evidentiary basis, error, if any, was not prejudicial to the defendant. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the defendant’s conviction.

Riley, C.J., and Brickley and Griffin, JJ., concurred with Boyle, J.

1 This Court cannot avoid addressing this issue by concluding as Justice Levin does that the error did not prejudice the defendant’s defense. Post, p 764.

2 People v Cetlinski, unpublished opinion of the Court of Appeals, decided May 19,1986 (Docket No. 83585).

3 People v Cetlinski, 428 Mich 861 (1987).

4 People v Cetlinski (On Remand), unpublished opinion per curiam of the Court of Appeals, decided June 8,1987 (Docket No. 98518).

5 This includes each Court of Appeals panel in the instant case and the companion cases, that concluded a reversal was dictated by the rationale in Bobo. People v McReavy, unpublished opinion per curiam of the Court of Appeals, decided January 14, 1987 (Docket No. 88620); People v Sutton, unpublished opinion per curiam of the Court of Appeals, decided April 24,1986 (Docket No. 81069).

6 People v Wigfall, 160 Mich App 765; 408 NW2d 551 (1987).

7 If the Court of Appeals had based its decision on a subsidiary finding that the defendant had been given Miranda (v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 [1966]) warnings, which it clearly did not, a finding of a violation of the Fifth Amendment would still be incorrect under federal law. Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982) (per curiam).

8 Miranda, n 7 supra.

9 Justice Levin argues that the record is unclear whether Cetlinski received Miranda warnings during his various conversations with law enforcement personnel. Absent a factual finding whether the warnings were given and if so, when defendant received them, he asserts there cannot be an accurate determination whether the impeachment use of Cetlinski’s prearrest silence violated the Due Process Clause. However, in Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982), the United States Supreme Court made such a determination in a postarrest situation, holding that there was no due process violation in the prosecutor’s use of a defendant’s postarrest silence for impeachment purposes, and clarifying that Doyle is applicable only if the issue involves post-Miranda silence.

The Fletcher Court did not base its decision on a factual finding that Miranda warnings were not given. Rather it stated that the record was unclear whether the defendant had received such warnings and noted that "[t]he significant difference between the present case and Doyle is that the record does not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest.” Id., p 605.

In Doyle, the Court held the impeachment use of a defendant’s post-Miranda silence violated the Due Process Clause because the defendant had relied on the implicit governmental assurance in the Miranda warnings that his silence would not be used against him. Absent evidence of Miranda warnings in the record, there simply is no Doyle error. This was true in Fletcher and is true in Cetlinski also. Justice Levin’s statement that such factual findings should precede a determination of whether the cross-examination violates the Due Process Clause is simply incorrect. (Post, pp 769-770.)

10 Consequently, this defendant’s conviction cannot be reversed unless the court determines whether there was an evidentiary error and if so, whether the admission of the evidence constituted a "miscarriage of justice.” MCL 769.26; MSA 28.1096.

11 See 3 Weinstein & Berger, Evidence, ¶ 607[06], pp 607-97 to 607-98. See also 3A Wigmore, Evidence (Chadbourn rev), § 1042, pp 1056-1058.

12 As the United States Supreme Court said in Anderson v Charles, 447 US 404, 409; 100 S Ct 2180; 65 L Ed 2d 222 (1980), "[e]ach of two inconsistent descriptions of events may be said to involve 'silence’ insofar as it omits facts included in the other version [but] [t]he questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.”

Moreover, this Court itself has unanimously recognized the rule in Anderson as a proper interpretation of our own rules of evidence. In People v Cole, 411 Mich 483; 307 NW2d 687 (1981), we held that cross-examination of the defendant with regard to her failure to include certain details in a prior inconsistent statement was permissible under the Michigan Rules of Evidence. This Court found the Cole situation was similar to that confronted by the United States Supreme Court in Anderson v Charles, supra, and noted that " 'cross-examination that merely inquires into prior inconsistent statements . . . makes no unfair use of silence .... As to the subject matter of his statements, the defendant has not remained silent at all.’ ” Cole, p 488. (Emphasis added.)

13 See also 3 Weinstein & Berger, Evidence, ¶ 607[06], p 607-101:

The approach of relying during cross-examination on a failure of a witness to tell all the details of his observations at a preliminary interview or proceeding is often used by defense counsel .... [Id.]

14 The witness also stated that a couple times after that the defendant again told her to forget it and that she had assured him it was forgotten.

15 The defendant testified that right after the waitress began working for him, one day when the two of them were by themselves in the bar, she suggested that she call someone and check on the possibility of having someone burn the bar.

16 The defendant was not under arrest, nor was there any claim that he was the focus of the investigation.

17 The defendant made no objection that there was an insufficient foundation to determine whether there was an inconsistency between the contents of the prior statements and defendant’s trial testimony.

18 Defense counsel never requested any special instruction regarding the questioning and testimony of the defendant concerning his failure to mention the conversation with the employee to the police.

19 The Court found this language of Bobo literally required such a conclusion:

We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. "Nonutterances” are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.

Whether his silence was prior to or at the time of arrest makes little difference — the defendant’s Fiñh Amendment right to remain silent is constant. [Bobo, supra, pp 359-360. Emphasis added.]

20 The panel believed that none of the decisions limiting the rule of Bobo were applicable to the present case. See, e.g., People v Karam, 106 Mich App 383; 308 NW2d 220 (1981), lv den 414 Mich 870 (1982); People v Lane, 127 Mich App 663; 339 NW2d 552 (1983).

21 Justice Levin’s opinion fails to acknowledge this primary reliance on the Fifth Amendment, thus permitting or suggesting the clearly incorrect theory that Bobo allows an evidentiary analysis of the relevancy of a witness’ failure to make certain statements.

22 People v Ray, 119 Mich App 724; 326 NW2d 622 (1982); People v Hoshowski, 108 Mich App 321; 310 NW2d 228 (1981); People v Wade, 93 Mich App 735; 287 NW2d 268 (1979).

23 During this period, the Court of Appeals had issued in excess of eighty published opinions involving the Bobo issue, all without guidance from this Court.

24 Compare People v Cetlinski (On Remand), n 4 supra, with People v Wigfall, n 6 supra, p 780, in which the Court of Appeals held that in the absence of further guidance from this Court, "we deem it appropriate to look to the United States Supreme Court for guidance.”

25 People v Wells, 102 Mich App 558; 302 NW2d 232 (1980), lv den 417 Mich 916 (1983); People v Fortuin, 143 Mich App 279; 372 NW2d 530 (1985); People v Gant, 55 Mich App 510; 222 NW2d 784 (1974).

26 People v Cetlinski, 429 Mich 858 (1987).

27 Contrary to the finding by the Court of Appeals on initial appeal, the questioning by the prosecutor was not limited to the time period immediately after defendant was awakened by the police the night of the fire.

28 On remand, the Court of Appeals held that Bobo precludes impeachment with silence during a prearrest investigation by the police. However, we clearly had stated in Collier, supra, p 39, that Bobo "is confined to impeachment for and comment on silence at the time of arrest in the face of accusation.” Because the Fifth Amendment would permit impeachment and comment, the Court of Appeals finding of error can only be sustained if Bobo rests on an independent state constitutional ground.

29 This Court has emphasized a receptivity to independent examination of the meaning of our own constitution. That inquiry invites, at a minimum, public policy reasons or prior decisions of this Court which would require a different interpretation. See Paramount Pictures Corp v Miskinis, 418 Mich 708; 344 NW2d 788 (1984); People v Nash, 418 Mich 196; 341 NW2d 439 (1983).

However, to the extent that Bobo was based upon an understanding of the Fifth Amendment in excess of the now clearly defined constitutional standard, "[W]e decline to now convert our past misunderstandings of Miranda into an interpretation of that provision.” People v Hill, 429 Mich 382, 392; 415 NW2d 193 (1987).

To the extent Bobo was based on this Court’s ruling in People v Bigge, 288 Mich 417; 285 NW 5 (1939), we find that that case has no application to the facts of the instant case. See n 35, p 763.

30 In regard to the issue whether defendant’s rights guaranteed under the Fourteenth Amendment were violated, Justice Levin’s discussion of Doyle, supra, is curious, given the fact that this defendant has never asserted, nor does the record support such a finding, that the prosecutor cross-examined the defendant about his failure to tell the police about the conversation with his employee after he was given Miranda warnings. There has never been a suggestion or a finding that the "silence at issue” (that is, the omission of the defendant’s conversation with Rodriquez from his conversations with the police) occurred after receipt of Miranda warnings. See n 9.

31 As a general rule of evidence, prior silence of a witness with regard to a fact to which he has testified, where such silence occurs under circumstances in which he would be expected to speak out, may be used to impeach during cross-examination. 3A Wigmore, Evidence (Chadboum rev), § 1042, p 1056.

32 Jenkins v Anderson, supra, p 240, established that the state may allow impeachment with prearrest silence without infringing upon federal constitutional rights, emphasizing "[e]ach jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial.” See also 3 Weinstein & Berger, Evidence, ¶ 607[06], p 607-99.

With regard to this type of cross-examination, designed to shed light on the credibility of a defendant’s direct testimony, the test of relevancy is not whether the answer sought will prove the main issue, but whether it will be useful and aid the jury in appraising the credibility of the witness' and assess the probative value of the direct testimony. McCormick, Evidence (3d ed), § 29, p 63.

33 A majority of the justices is persuaded that the record is insufficient to allow a comparison between in-court assertions and out-of-court statements under an evidentiary approach.

34 Although we do not address the question whether it would have been "natural” for the defendant to mention the waitress’ conversation with him in the immediate wake of the fire, we note that the responding opinion continues to place undue focus on that time in its evidentiary analysis. This question must be considered in light of the fact that the prosecutor’s inquiry to the defendant was why he had not mentioned this version of the conversation during the numerous times he talked with different police officers at different times during the subsequent six-month investigation.

Justice Levin finds that

[o]n the present record, we would hold that Cetlinski’s failure to mention the conversation did not have probative value because it would not have been natural for Cetlinski to have volunteered the information. We would hold, in agreement with the Court of Appeals, that the prosecutor’s cross-examination was improper. [Post, p 781.]

In contrast we find that on this record, we cannot decide whether there was Collier error.

35 Therefore, the holding of People v Bigge, n 29, supra, where the Court found error requiring reversal in the use of a defendant’s silence as substantive evidence of his guilt, has no application to the circumstances of the present case. Id., p 430. In Bigge, this Court found that the prosecutor’s allegation during the opening statement that the unanswered allegation by another that the defendant was guilty of embezzlement was proof the defendant was guilty, was just as prejudicial to a defendant as testimony of a former plea of guilty would be on the trial of the case if the defendant had pleaded guilty and then changed his plea. Id., p 431.