People v. Norris

253 N.W.2d 767, 74 Mich. App. 361, 1977 Mich. App. LEXIS 734

• Court: Michigan Court of Appeals
• Decided: March 29, 1977
• Docket: Docket 25376, 25700
• Status: Published

Opinions

M. F. Cavanagh, P. J.

Defendants Tyrone Norris and Clyde Poole were jury-convicted of unarmed robbery, MCLA 750.530; MSA 28.798, on June 16, 1975. On July 1, 1975, defendant Norris was sentenced to 5 to 15 years in prison; defendant Poole was sentenced to 3-1/2 to 15 years in prison. Both appeal from their convictions as of right.

Although the defendants raise several issues on appeal, we find that treatment of a single issue is dispositive. The prosecutor’s attempt to impeach the defendants’ trial testimony by their silence during and after their arrest impermissibly burdened their state and Federal Constitutional rights to remain silent.

At their trial, both defendants Poole and Norris testified that they had alibis for the night of the robbery. During the prosecutor’s cross-examination of defendant Poole, the following exchange occurred:

"Q Apparently, you were arrested about five days after this happened?

"Q Did you tell the police at that time where you were at?

"A I can’t remember.

"Q Can’t remember?

"A At the time, I couldn’t.

"Q Excuse me?

"A They really didn’t ask me.

"Q You’re sure about that?

"A Yes.

"Q Did you ever tell anybody you were at home, instead?

"A Sir?

"Q Did you ever tell anybody that you were at home instead of the Mark Three?

"A No, sir.

"Q Never told anybody that?

"A No, sir.

"Q You’re under oath.

"A Yes.”

On cross-examination of defendant Norris, the prosecutor inquired whether he had discussed his alibi with anyone after he was arrested. Defendant Norris answered no.

Although no objections were made at the time of these questions, the next morning counsel for defendant Norris moved for a mistrial on the basis of the prosecutor’s reference to Mr. Norris’ failure to make a statement to the police. The prosecutor argued that this line of questioning had been proper cross-examination. The trial court refused to grant a mistrial.

Again during the final argument to the jury, the prosecutor raised the failure of defendant Norris to come forward to the police with his alibi.

Although defendant Poole failed to object to the prosecutor’s action at trial, counsel for defendant Norris placed the question squarely before the trial judge. The offending cross-examination occurred late in the day, shortly before recess. Defense counsel made his mistrial motion at the commencement of proceedings the next morning. Even total failure to object at trial will not preclude this Court from review of an alleged infringement of the constitutional right to remain silent. People v Gant, 55 Mich App 510; 222 NW2d 784 (1974), People v Miller, 49 Mich App 53; 211 NW2d 242 (1973). The issue of the defendants’ right to remain silent was sufficiently preserved for our review.

Michigan courts have repeatedly held that an accused may not be impeached by evidence of his silence at the time of arrest or during custody. People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), People v Bigge, 288 Mich 417; 285 NW 5 (1939). "To allow the prosecution to use the silence of an accused against him would place an impermissible penalty upon the exercise of his privilege against self-incrimination.” People v Swan, 56 Mich App 22, 31; 223 NW2d 346, 351 (1974). The single exception to the rule exists if the accused makes allegations on direct examination as to what was said or not said at the time of arrest or during custody. People v Graham, 386 Mich 452; 192 NW2d 255 (1971), People v Perez, 66 Mich App 685, 689; 239 NW2d 432 (1976). Neither defendant in this case testified on direct examination as to any statements made in custody.

Although the state argues that the prosecutor’s questions did not infringe the defendants’ rights, that argument comes years too late. The pattern of questions condemned in People v Bobo, supra, closely resembles what transpired in this trial:

"'Q. Did you say anything to him [the questioning police officer] about the two other men running on the street?

" 'A. He didn’t ask me.

" 'Q. I said did you say anything to him?

" A. No, I didn’t.’ ”

390 Mich at 358; 212 NW2d at 192, fn 3.

The sole remaining issue is whether this error requires reversal. Michigan courts recognize a two-step test of reversible constitutional error:

"The first step in determining whether an error is harmless is thus to ascertain whether it is unduly 'offensive to the maintenance of a sound judicial process’. An error may be intolerably offensive if it is deliberately injected into the proceedings by the prosecutor, if it deprives the defendant of a fundamental element of the adversary process, or if it is of a particularly inflammatory or persuasive kind.” People v Swan, 56 Mich App 22, 31-32; 223 NW2d 346, 351-352 (1974).

If the error does not constitute an affront to the integrity of the trial process, "we must also be able to say that it was 'harmless beyond a reasonable doubt’ ”. 56 Mich App at 33; 223 NW2d at 352. Although People v Swan held the error in that case harmless beyond a reasonable doubt, this Court warned that such errors would not be condoned in the future:

"We will find it difficult in the future to believe that prosecutors and police are ignorant of the well-established principle of law which forbids comment upon an accused’s silence or that clear violations of the principle arise from inadvertence. Deliberate violations of this rule may lead us to reverse convictions even where evidence might be overwhelming. The prosecutor who comments, or elicits comment, on a defendant’s silence thus risks the loss of a perfectly good case for no reason.” 56 Mich App at 35; 223 NW2d at 353.

We cannot find the errors in this case, harmless. The trial of these defendants took place in June of 1975, a year after Swan and two years after Bobo. The prosecutor’s comments were clearly directed at exposing the defendants’ silence while in custody, in order to cast doubt on their alibis. Unlike other cases in which similar errors were held harmless, the testimony regarding the defendants’ silence was not obtained by inadvertence, nor was it relevant to an important issue other than guilt. Even on appeal, the state refuses to admit that error occurred. We conclude that the prosecutor’s conduct was either deliberate or flagrantly negligent. Other cases have found such conduct intolerably offensive to the maintenance of a sound judicial process, and we agree. People v Parks, 57 Mich App 738; 226 NW2d 710 (1975), People v Dunn, 46 Mich App 226; 208 NW2d 239 (1973). As this Court foresaw in 1972,

"Continued expansion of the harmless error rule will merely encourage prosecutors to attempt to get such testimony in, since they know that, if they have a strong case, such testimony will not be considered to be reversible error, yet if they have a weak case, they will use such testimony to buttress the case to gain a conviction and then hope that the issue is not raised on appeal.” People v Jablonski, 38 Mich App 33, 39; 195 NW2d 777 (1972).

(Indeed, on this appeal, defendant Poole failed to raise the error.) We believe that the Supreme Court in People v Bobo clearly stated its intention to eliminate references at trial to the accused’s exercise of his constitutional right to silence.

Reversed.

R. M. Maher, J., concurred.