People v. Rolston

187 N.W.2d 454, 31 Mich. App. 200, 1971 Mich. App. LEXIS 2075

• Court: Michigan Court of Appeals
• Decided: February 26, 1971
• Docket: Docket 5317
• Status: Published

Opinions

Levin, P. J.

The defendant, Robert Rolston, and Larry Markham were convicted of kidnapping by a jury.¹ Markham’s conviction was affirmed by our Court upon a separate appeal.² This is Rolston’s appeal; he raises a number of issues, but our disposition makes it unnecessary for us to consider all of them.

I.

He contends, firstly, that the evidence presented at his preliminary examination was insufficient to support a finding of probable cause and that he should not have been bound over for trial.³

The people’s evidence showed that the victim, Mrs. Kathleen Riddell, a trusted and responsible employee of Delaney’s Great Lakes Bar, suddenly left her place of work without a word of warning to her employer or anyone else shortly after an exchange of communications with Markham and Rolston, who had earlier entered the bar.

Shortly after taking a seat at the bar, Rolston handed Mrs. Riddell a note. She thereafter accompanied Markham into an unoccupied room near where her employer kept a large sum of money; Markham emerged from the room and signalled Rolston to join him outside — Rolston did so. Mrs. Riddell was not seen alive after her departure from the bar. She left behind an untended bar and her personal belongings. Several hundred dollars of her employer’s money was missing.

From these facts the magistrate could justifiably infer that it was more probable than not that her departure from the bar was involuntary, that she was forcibly removed, and he could properly conclude that there was probable cause to believe that the crime of kidnapping had been committed.⁴

II.

Rolston next contends, and we think with merit, that his Fifth Amendment right not to be compelled to incriminate himself was violated when the people were permitted to prove that he chose to exercise that right when the police attempted to question him.

Rolston surrendered to a lawyer on February 7, 1967, who, before turning him over to the police, took a stenographic statement from him. On the following day, February 8, when Rolston was in custody, the police sought to obtain a statement, but he declined to answer any questions, standing on his Fifth Amendment privilege.

Subsequently Rolston’s lawyer gave the prosecutor a copy of the statement he had obtained from Rolston on February 7. At the trial the people introduced that statement into evidence. The people were then permitted to prove, over objection, by reading a transcript of the February 8 questioning, that Rolston had exercised his constitutional right to remain silent when the police questioned him; this was error.

It was the people, not defense counsel, who introduced Rolston’s February 7 statement into evidence. There is nothing in the February 8 transcript at all inconsistent with the February 7 statement;⁵ on February 8 Rolston, except for preliminary questions, refused to answer all questions.

Rolston’s exercise of his constitutional privilege was stressed by reading several pages of the February 8 transcript which showed that he had repetitiously answered, “I don’t care to answer that” or words to that effect, in response to questions like: Do yon know Larry Markham? Did you see Larry Markham on the night of January 23? Was Rolston at the Great Lakes Bar that evening? Does Rolston own an automobile? Where had he been since January 23? Did he desire to make a statement regarding the charged offense of kidnapping? Did he know a bar maid who was employed at the Great Lakes Bar? The apparent and only purpose of reading the transcript was to incriminate Rolston by showing that he had refused to answer those pertinent questions.

The constitutional privilege against self-incrimination “protects an accused person from introduction at trial of evidence that he remained silent or claimed that privilege in the face of an accusation made after he was taken into custody”. People v. Fry (1969), 17 Mich App 229, 233.⁶ While there is authority in other jurisdictions that this rule does not apply when the defendant takes the stand and subjects himself to cross-examination, and there are statements in opinions of our Court to the same effect,⁷ our Court has consistently held (People v. Hicks [1970], 22 Mich App 446; People v. Seales [1969], 16 Mich App 572; People v. John Willie Williams [1970], 26 Mich App 218, 230) that the rule of constitutional law which protects an accused person who does not take the stand against proof that he exercised his Fifth Amendment right in the face of accusation protects as well a defendant who exercises his separate constitutional right⁸ to take the stand and testify in his own behalf. Relevant in this connection is the principle that it is “intolerable that one constitutional right should have to be surrendered in order to assert another”.⁹

An accused person who chooses to take the stand does, indeed, subject himself to cross-examination; what he says as a witness, inculpatory and exculpatory, must be carefully scrutinized — he is no longer silent. But it is impertinent, not legally relevant, that on an earlier occasion he made a different choice, that he then chose to remain silent.

The right to remain silent is severable, that is, it may be exercised on one occasion and waived on another, or vice versa, vis.: the refusal of an accused person to answer questions before trial does not preclude him from taking the stand at the time of trial; on the other hand, even if he makes a statement before the trial he may decline to testify at his trial.¹⁰

True, if the accused makes a statement before the trial (e.g., Rolston’s February 7 statement later turned over to the police), it may be shown in evidence at trial without regard to whether he testifies.¹¹ This subjects the accused to possible adverse conclusion by the trier of fact based on what the accused said when he did not assert the privilege to remain silent; that does not penalize free assertion of this constitutional privilege. It would, however, penalize assertion of this privilege to permit the people to challenge those accused persons who take the stand for asserting it.

It unnecessarily and, therefore, impermissibly chills exercise of both the pretrial and the trial choice of whether to speak or to remain silent and the trial choice of whether to testify, to allow the people to challenge an accused person who testifies in his own behalf by showing — here, even before he took the stand — that before trial (i.e., at a different time and place) he exercised his severable right to remain silent.¹²

III.

Rolston raises another issue, one that may arise again upon the retrial. While we now advert to it, we do not think the record is adequate to permit definitive consideration.

Before and after his preliminary examination on February 16, 1967, Rolston shared a cell with one Daniel Brome. Brome testified at the trial that Rolston told him before February 16 that Larry Markham forced him at gunpoint to participate in the kidnapping of Mrs. Riddell; this was entirely consistent with Rolston’s trial testimony — indeed his defense was that his participation was coerced.

When Brome attempted to testify concerning certain confidences which Rolston shared with him after February 16, Rolston’s attorney objected. He claimed that on February 16 Brome became an agent for the police and that his task was to obtain inculpatory information from Rolston. In this connection it is relevant that Rolston was represented by an attorney throughout the period when he was incarcerated with Brome.

Brome reported to the police on February 16, the day of Rolston’s preliminary examination, that Rolston was talking. The record is unclear whether Brome expected or was offered or received any consideration from the people for reporting post-Fehruary 16 conversations. At the trial he denied he was motivated by a hope that he would be dealt with more leniently, but in response to questions as to whether it was not a fact that he was hopeful that if he cooperated the police would make a “deal” or give him a “break”, he responded that one of the detectives may have said that and, also, that another officer said he “would see what he could do”. The charges against Brome were dismissed before Rolston’s trial.

Although the people contended at the trial that Brome should be allowed to testify concerning the post-February 16 conversations, the assistant prosecuting attorney eventually announced that he would not, in view of Rolston’s lawyer’s objections, question Brome further regarding those conversations. Evidence of the conversations was, nevertheless, introduced in response to questions put by Markham’s counsel. Parenthetically, while Markham’s and Rolston’s defenses were inconsistent, no motion for a separate trial was made in Rolston’s behalf.

In Massiah v. United States (1964), 377 US 201 (84 S Ct 1199, 12 L Ed 2d 246), the United States Supreme Court ruled that it was an infringement upon a defendant’s Sixth Amendment right to the assistance of counsel to use against him at his trial (p 206) “evidence of his own incriminating words, which Federal agents had deliberately elicited from him [through a codefendant who had been wired for sound] after he had been indicted and in the absence of his counsel”.

Clearly the Massiah rulé does not protect an accused person from betrayal of information confided before the police become aware of the confidant’s willingness to become an informer.¹³ It is also clear, however, that, if information is imparted after charges have been lodged against an accused person and he is represented by counsel, its use would not necessarily be justified merely because the information was knowingly confided by the accused to another person, not merely overheard by means of a microphone secretly installed by the police.

In United States, ex rel. Milani, v. Pate (CA 7, 1970), 425 F2d 6, it was determined that the informer’s testimony related only to conversations that took place before he agreed with the police to report further conversations; decision on the question with which we are concerned was, therefore, unnecessary.¹⁴ Nevertheless, the majority of the Seventh Circuit panel declared that admissibility of this variety of informer testimony turns on whether the police encouraged the informer to continue to insinuate himself into the confidence of the accused person or whether they were passive beneficiaries of a totally uninspired effort of the informer. One judge, concurring separately, indicated that he would hold that once the police learn that an accused person represented by counsel is confiding in an informer and they make it possible for the accused to continue so to share his confidences, the informer should be deemed to be the agent of the police even though he is not actively encouraged.

In other eases it has been held that the Massiah rule applies even when the post-indictment statements obtained by the government agent were not “deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception”.¹⁵

The issue is one on which we are in doubt. The record in this case is far from clear as to the character of the conversations on February 16 between Brome and the police and the other surrounding circumstances. We think it would be better to defer consideration of the question until it is determined more precisely how passive or encouraging the police were when Brome made it known to them that Eolston was talking.¹⁶

Eeversed and remanded for a new trial.

Bronson, J., concurred.

1 MCLA § 750.349 (Stat Ann 1954 Rev § 28.581).

2 See People v. Markham (1969), 19 Mich App 616, leave to appeal denied (1970), 383 Mich 804.

3 The defendant’s attorney preserved this point for appeal by resisting the people’s motion to bind the defendant over following the examination and by moving to quash the information before trial.

The rule in Michigan is that if the people fail to establish probable cause at the preliminary examination the defendant’s conviction must be overturned even though additional evidence sufficient to support the magistrate’s decision is subsequently developed at the trial. See People v. Kennedy (1968), 9 Mich App 346.

4 See People v. Spann (1966), 3 Mich App 444, 455; People v. Dellabonda (1933), 265 Mich 486, 490; People v. Karcher (1948), 322 Mich 158, 163.

5 Cf. People v. John Willie Williams (1970), 26 Mich App 218, 226, fn 10, where we said that the rule which prevents questioning a defendant on his exercise of his Fifth Amendment right to remain silent does not preclude questioning him regarding a prior inconsistent statement.

6 That the rule prohibiting comment on an accused’s previous silence or exercise of his Fifth Amendment privilege also applies to pre-custody confrontations and accusations, see People v. Bigge (1939), 288 Mich 417, 420.

7 See People v. Russell (1970), 27 Mich App 654.

In Russell, the fact that the defendant had stood on his constitutional privilege was shown during his cross-examination, not, as here, before the defendant took the stand. Rolston did not testify until after the people brought out, during their case in chief, that he had exercised his constitutional privilege.

Also, in contrast with Russell, Rolston made no statement before the trial inconsistent with either his trial testimony or his declination to answer questions on February 8; the February 8 transcript does not contradict the February 7 statement introduced by the people.

Further, since Eolston’s at-trial defense of coercion was consistent with his February 7 statement, his failure to answer questions on February 8 was not even of probative value.

The statement from People v. Graham (1971), 29 Mich App 528, quoted in Judge J. H. Gillis’ opinion was one of three alternative grounds of decision; one of the other two being that the defendant himself opened the door to the testimony when he stated on direct examination that he attempted on several occasions to tell the officers his account of how the incident took place and that no one would listen to him, and the remaining reason being that, even if the defendant’s constitutional rights had been violated, the error was harmless beyond a reasonable doubt.

In People v. Shugar (1970), 29 Mich App 139, also eited in Judge J. H. G-illis’ opinion, the fact that the defendant had remained silent at the police station was brought out on direct examination of the defendant by his own attorney. In Shugar we said (p 145):

“In the case at bar, in contrast with Seales, defendant made no objection to the questions at the time they were asked by the prosecution. Moreover, before the now objected to questions were asked, the defendant’s lawyer brought out on direct examination of the defendant that he had exercised his constitutional right to remain silent based upon the advice of counsel. Having explained this to the jury himself, he cannot properly say that the additional questioning by the people prejudiced him.”

8 Cf. In re Oliver (1948), 333 US 257, 273 (68 S Ct 499, 507, 92 L Ed 682, 694) ; MacKenna v. Ellis (CA5, 1960), 280 F2d 592, 595, cert den 368 US 877 (82 S Ct 121, 7 L Ed 2d 78); Ferguson v. Georgia (1961), 365 US 570 (81 S Ct 756, 5 L Ed 2d 783).

9 Simmons v. United States (1968), 390 US 377, 394 (88 S Ct 967, 976; 19 L Ed 2d 1247, 1259). Other cases holding unconstitutional rules that needlessly penalize assertion of constitutional rights include United States v. Jackson (1968), 390 US 570, 583 (88 S Ct 1209, 20 L Ed 2d 138); Groshart v. United States (CA9, 1968), 392 F2d 172, 180; People v. Luna (1967), 37 Ill 2d 299, 308 (226 NE2d 586, 590); Griffin v. California (1965), 380 US 609, 614 (85 S Ct 1229, 14 L Ed 2d 106).

10 See People v. James (1971), 29 Mich App 522.

11 See People v. James, supra, where we held that the transcript of a defendant’s testimony at his preliminary examination was admissible at his trial even though he did not testify at his trial.

12 The people have not claimed that the error is harmless. The record is voluminous; accordingly, we have not attempted to evaluate the harmlessness of the error without the benefit of briefs of counsel directed to that issue.

We observe, however, that Rolston’s presence during the commission of the crime of kidnapping Mrs. Eiddell was admitted by him, as were the essential facts and circumstances of that offense. Eolston’s defense was that his participation was coerced by Markham. Whether his defense would succeed turned largely on the jury’s appraisal of Rolston’s credibility. It would be difficult to say, in a case where the critical issue is credibility, that we are convinced that innuendo of the kind injected by the prosecutor through the reading of the February 8 transcript was harmless beyond a reasonable doubt. See Harrington v. California (1969), 395 US 250 (89 S Ct 1726, 23 L Ed 2d 284).

If such error is harmless in a case where there is no significant evidence on the critical issue in the case other than the testimony of the defendant and another interested witness (Markham), then the error would, as a matter of law, become harmless “beyond a reasonable doubt” in almost every case; it would be tantamount to saying that the error is never reversible error. The rule of law that the jury, not the appellate or trial court, is the judge of the credibility of the witnesses cuts both ways; we become thirteenth jurors for this purpose only when a motion for a new trial has been filed. See Dyer v. MacDougall (CA2, 1952), 201 F2d 265, 271, 272 (Frank, J., concurring).

13 Stowers v. United States (CA 9, 1965), 351 F2d 301; People v. Milani (1968), 39 Ill 2d 22 (233 NE2d 398).

14 The Seventh Circuit Court rejected Milani’s petition for a writ of habeas corpus. See fn 13 for citation to the earlier opinion of the Illinois Supreme Court affirming Milani’s conviction.

15 See Hancock v. White (CA 1, 1967), 378 F2d 479, 482; People v. Milani, supra, pp 401, 402.

In Beatty v. United States (1967), 389 US 45 (88 S Ct 234, 19 L Ed 2d 48), the United States Supreme Court reversed Beatty v. United States (CA 5, 1967), 377 F2d 181. The Fifth Circuit had attempted to distinguish Massiah on the ground that the defendant Beatty had sought the interview with the informer while Massiah had been induced to talk by the informer; the Fifth Circuit had declared that the Massiah (p 189) “rule only applies to those statements induced or deliberately elicited by officers or their agents from the accused after his indictment while he is without assistance of counsel.” The Supreme Court reversed per curiam and without opinion citing Massiah. We also note that the fact that the informer in Beatty went to work for the police before indictment and was allowed to relate pre-indictment conversations was not treated as a relevant factor in determining the admissibility of his post-indictment conversations.

16 See Stowers v. United States, supra, where the United States Court of Appeals for the Ninth Circuit refused to infer that Federal officers moved a cellmate to act in their behalf from evidence showing that the cellmate was interviewed by Federal officers on the day before his conversation with the defendant Stowers and was released on bail on the second day after the questioned conversation.

In Stowers, as here, the informer and the accused person were cellmates; in Milani they were fellow inmates, but the intimacy of sharing a cell was lacking. There was no finding in Stowers that the cellmate had agreed with the police to report further conversations with Stowers; in this case, in contrast, the evidence is clear that Brome did agree to report further conversations with Rolston.