On July 1, 2009, the Michigan Supreme Court issued two separate but intertwined opinions dealing with the issue of whether prosecutors can use a criminal defendant's post-arrest, post-Miranda silence as evidence in the prosecution's case-in-chief or as impeachment of the defendant should he provide exculpatory testimony in defense of the charges. In People v Shafier and People v Borgne, Justice Michael F. Cavanagh, writing for the majority (Justice Marilyn Kelly concurring), reached opposite results on what at first blush may seem to be identical cases.
In Shafier, the defendant was convicted of two counts of Second Degree Criminal Sexual Conduct based upon the allegations of his 13 year-old adopted daughter. The jury acquitted him of three additional counts of First Degree Criminal Sexual Conduct. Once the allegation was made, the defendant was immediately arrested and Mirandized. When he was first confronted by the arresting officer about the allegations, the defendant chose to "keep his mouth shut" because he was "shocked and didn't know what to say" and wanted "to wait and talk to somebody." The prosecutor used the fact of the defendant's silence "pervasively" in the trial - in his opening, direct examination of the arresting officer, cross examination of the defendant and his closing argument. The Court found, rather easily, that the State's use of the post-arrest silence violated the defendant's due process rights pursuant to Doyle v Ohio, 426 US 610 (1976). The issue became, however, because the error was unpreserved at the trial, whether it was "plain error" under the Carines standard. The Court held that it was. The trial was a close credibility question between the defendant and the complainant, the evidence was not overwhelming (the jury acquitted defendant of the most serious offenses) and the outcome "seriously affected the fairness, integrity or public reputation of a judicial proceeding." The Court affirmed the Court of Appeals' decision to reverse the defendant's conviction.
In Borgne, however, the Court reversed the Court of Appeals' decision reversing the defendant's convictions of armed robbery and felony firearm. The victim was pumping gas when she was approached by a man who grabbed her and demanded her purse. He showed a gun and the victim gave the man her purse. She then began screaming that she had been robbed and enlisted the help of bystanders to chase the man. When the police arrived, one of her helpers showed the police an abandoned warehouse. The police went in and found the defendant hiding in a corner. As soon as they exited the building, the victim exclaimed, "That's him, that's the man that robbed me!"
At trial, the defendant testified he was hiding in the building because he had heard gunshots and was afraid of being shot at. On cross, the prosecutor asked the defendant whether he had said anything about this sotry to the police when he was arrested. the defendant stated he had tried to but they put him into the back of the patrol car without listening to him. The prosecutor pressed further and asked about the defendant's further silence about the incident at the police station after he had been Mirandized. The defendant, without objection from his counsel, testified that he told the officer he wanted to wait for a lawyer to help him in the matter before he answered any questions. The prosecutor then utilized the defendant's silence at the station in his summation, arguing that a year has gone by and the defendant had told no one about the story of someone shooting at him.
Though the facts appear similar in both cases, the Supreme Court, again Justice Cavanagh, concluded the Court of Appeals erred in reversing the defendant's convictions. The Court decided against the defendant primarily on the fact that the case against the defendant was overwhelming and that the prosecutor's use of his silence, though a constitutional violation, did rise to the level necessary to satisfy the prongs of the plain error analysis under Carines. However, the Court did have this to say about the prosecutor: "It is, nevertheless, important to make clear that the prosecutor's violation of Doyle in this case is not taken lightly....To be clear, the prosecutor has not won this appeal; rather, the defendant has lost it because he has not proven that the Doyle violation entitles him to a new trial under the plain error doctrine."