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Docket Number

Docket No. 44702.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Ward S. Hamlin, Jr., Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people. Nora J. Pasman, Assistant State Appellate Defender, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

People v Washington, Docket No. 44702 (Mich. Ct. App. Oct. 8, 1980)

Factual and Procedural Background

Defendant James A. Washington was convicted by a jury of first-degree premeditated murder (MCL 750.316; MSA 28.548) and sentenced to life imprisonment. He appealed as of right, raising four issues. The Court of Appeals issued a per curiam opinion addressing those issues and, after its decision, leave to appeal was denied by the Michigan Supreme Court (410 Mich. 878).

Legal Issues Presented

Whether the prosecutor improperly questioned witnesses and commented in closing argument on the defendant's silence in the face of an accusatory statement.
Whether it was reversible error for the prosecutor to introduce testimony of a police officer that a prosecution witness had made prior consistent statements, over defense objection.
Whether the prosecutor improperly vouched for witness credibility by informing the jury of plea bargains used to secure testimony.
Whether the trial judge erred in failing to give, sua sponte, an accomplice testimony instruction.

Arguments of the Parties

Defendant's Arguments

The prosecutor improperly elicited evidence and argued to the jury regarding the defendant's silence in response to accusations (tacit/adoptive admission).
The prosecutor improperly bolstered a prosecution witness by introducing testimony that the witness's pretrial statements were consistent with trial testimony.
The prosecutor vouched for witness credibility by informing the jury of plea bargains used to secure witnesses' testimony.
The trial judge should have given an accomplice-testimony instruction sua sponte.

People's Arguments

The people contended that any error arising from questioning or argument about the defendant's silence was harmless beyond a reasonable doubt.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Bigge, 288 Mich. 417, 419; 285 N.W. 5 (1939)	Rejects use of a defendant's silence in the face of accusations as evidence of guilt; no "confession of guilt by silence."	Used to support the proposition that Michigan does not utilize the tacit/adoptive admission rule in criminal cases and that statements about a defendant's silence are inadmissible.
People v Parks, 57 Mich. App. 738, 750; 226 N.W.2d 710 (1975)	Illustrates reversal where prosecutor asked whether defendant responded to an accusatory remark; tacit admission rule repudiated as violative of the Fifth Amendment.	Cited to show that similar questioning about a defendant's silence has resulted in reversal and that the tacit admission doctrine has been repudiated in criminal cases.
People v Wardell, 26 Mich. App. 69; 181 N.W.2d 788 (1970)	Implication of a defendant by showing his failure to protest innocence when confronted with incriminating remarks is clear error.	Referenced to support the court's view that implicating a defendant by silence is erroneous.
People v Christensen, 64 Mich. App. 23, 33; 235 N.W.2d 50 (1975)	Harmless-error standard: error is not harmless unless it is "harmless beyond a reasonable doubt" — i.e., no reasonable juror could have acquitted absent the error.	Applied to conclude that the prosecutor's injection of the defendant's silence could reasonably have affected at least one juror, and therefore the error was not harmless.
Brown v Pointer, 390 Mich. 346, 351; 212 N.W.2d 201 (1973)	Prior consistent statements of a witness are generally inadmissible as substantive evidence; admissible to rebut recent fabrication or to show absence of a prior inconsistent statement.	Cited to explain the general inadmissibility of prior consistent statements and the limited exception for rebutting charges of recent fabrication.
People v Hallaway, 389 Mich. 265, 276; 205 N.W.2d 451 (1973) (Justice BRENNAN concurring)	Supports the proposition that prior consistent statements are generally inadmissible as substantive evidence.	Referenced as authority for the rule limiting admissibility of prior consistent statements.
People v Harris, 86 Mich. App. 301, 305; 272 N.W.2d 635 (1978)	Prior consistent statements admissible to rebut charges of recent fabrication or to address prior inconsistent statements.	Used to describe one of the recognized exceptions to the general rule against admitting prior consistent statements.
People v Coles, 79 Mich. App. 255, 260-261; 261 N.W.2d 280 (1977)	Discusses admissibility of prior consistent statements under limited circumstances (rebuttal of fabrication/inconsistency).	Cited as further authority for the limited admissibility of prior consistent statements.
Brown v Pointer, 41 Mich. App. 539, 548; 200 N.W.2d 756 (1972), rev'd on other grounds 390 Mich. 346 (1973)	Sets forth guidelines (two-part test) for admission of prior consistent statements to rebut a charge of recent fabrication.	Quoted for the two-part criteria: (1) impeachment attacked testimony as recent contrivance/fabrication, and (2) earlier consistent statement preceded any motive to fabricate.
People v Miniear, 8 Mich. App. 591; 155 N.W.2d 222 (1967)	Authority cited in articulating standards for admissibility of prior consistent statements to rehabilitate an impeached witness.	Referenced within the formulation of the two-part test for admissibility of prior consistent statements.
People v Gardineer, 2 Mich. App. 337; 139 N.W.2d 890 (1966)	Authority cited in articulating standards for admissibility of prior consistent statements to rehabilitate an impeached witness.	Referenced within the formulation of the two-part test for admissibility of prior consistent statements.
People v Therrien, 97 Mich. App. 633; 296 N.W.2d 8 (1979)	Addresses admissibility limits where prior consistent statements were not shown to predate the motivating facts that could produce recent fabrication.	Applied to conclude that the officer's testimony about consistency did not qualify under the recent-fabrication exception because the prior statements were not shown to predate the alleged motives to fabricate.

Court's Reasoning and Analysis

The court addressed each of the defendant's contentions in turn.

On the prosecutor's questions and argument about the defendant's silence: The court reiterated Michigan authority rejecting the tacit/adoptive admission rule in criminal cases (citing People v Bigge and People v Parks). The court noted that asking whether the defendant responded to accusatory statements and commenting on silence is impermissible because it effectively uses silence as evidence of guilt. The people argued the error was harmless; the court applied the Christensen harmless-error standard and concluded the error was not harmless beyond a reasonable doubt. The court explained that the principal evidence consisted of the defendant's testimony blaming Clifton Driver and testimony from Clifton Driver and Thelma Howard blaming the defendant. Because credibility among these witnesses was central to the jury's verdict, it was reasonably possible that injection of evidence of the defendant's silence could have affected at least one juror.

On admission of testimony that a witness's prior statements were consistent: The court reviewed governing law that prior consistent statements are generally inadmissible as substantive proof (Brown v Pointer; People v Hallaway) but admissible to rebut charges of recent fabrication or to show absence of a prior inconsistent statement (People v Harris; People v Coles). The court quoted the two-part Brown v Pointer/Miniear/Gardineer guideline for admissibility to rebut recent fabrication: (1) impeachment asserted a motive for recent contrivance or fabrication; and (2) the earlier consistent statement occurred prior to any fact that would motivate bias or fabrication. In the present case, the officer testified only that Clifton Driver's trial testimony was "the same" or "for the most part" the same as earlier statements; the officer did not relate the content of those prior statements. More importantly, the prior statements were not shown to precede the statements elicited on cross-examination that suggested possible recent fabrication. Relying on People v Therrien, the court concluded the prior-consistency testimony was not admissible under the recent-fabrication exception.

The court found the cumulative effect of (1) the improper injection of the defendant's silence and (2) admission of testimony about prior consistent statements was to diminish the defendant's credibility and to bolster a prosecution witness. Given the conflicting evidence, witness credibility was crucial, and under Christensen the errors could have affected at least one juror's verdict; thus, the errors were not harmless.

On the prosecutor's alleged vouching and the trial judge's failure to give a sua sponte accomplice instruction: The court concluded without extended discussion that the prosecutor did not improperly vouch for witness credibility by informing the jury of the plea bargain used to secure testimony, and the trial judge did not err in failing to instruct sua sponte on accomplice testimony under the circumstances of this case.

Holding and Implications

Holding: Reversed and remanded for new trial.

Implications: The court ordered a new trial because (1) questioning and argument about the defendant's silence in the face of accusation was improper and not harmless under the Christensen standard, and (2) testimony that a prosecution witness's pretrial statements were "the same" was improperly admitted because it did not meet the criteria for the recent-fabrication exception. The direct effect is that the defendant's conviction was set aside and the case remanded for retrial. The opinion applies existing Michigan precedent on tacit admissions, prior consistent statements, and harmless-error analysis; it does not announce that it is establishing a new legal rule beyond the precedents it applies.

Reversed and remanded for new trial.

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PEOPLE v WASHINGTON

PER CURIAM.

Defendant, James A. Washington, was found guilty by a jury of first-degree premeditated murder, MCL 750.316; MSA 28.548. He was sentenced to life imprisonment and appeals by right.

The defendant has raised four issues on appeal. He first contends that the prosecutor improperly questioned witnesses and commented in closing argument on the defendant's silence in the face of an accusatory statement.

The tacit admission rule, which permits a defendant's silence in the face of an accusation to be used against him, is not utilized in criminal cases in Michigan. In People v Bigge, 288 Mich. 417, 419; 285 N.W. 5 (1939), the Michigan Supreme Court reversed the defendant's conviction where the prosecutor had stated in his opening statement, without proper objection by the defense, that he would produce a witness who would testify that the defendant had not denied his brother-in-law's statement:

"What's the use of going over this matter again. Charles was guilty as hell."

The Court reasoned:

"The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt. He said nothing, and what was said in his presence by another was inadmissible, just as the court later held." 288 Mich. 417, 420.

In People v Parks, 57 Mich. App. 738, 750; 226 N.W.2d 710 (1975), the prosecutor had asked a witness whether the defendant had responded to a statement made by the witness:

"The Witness: I said it was my opinion he did it, and that his job — he could not have his job back.

"Q. (By Mr. Wilkinson): Did he respond in any way to your statement?

"A. I don't think so."

In that case, it was not clear if the defendant objected. The Court reversed the defendant's conviction, noting that the adoptive or tacit admission rule in the area of criminal law has been repudiated as violative of the Fifth Amendment right against self-incrimination. See also, People v Wardell, 26 Mich. App. 69; 181 N.W.2d 788 (1970) (implicating a defendant by showing his failure to have protested his innocence when confronted with incriminating remarks held to be clear error).

The people contend that any error caused by the prosecutor's questions and argument as to the defendant's silence in the face of an accusatory statement was harmless error. The error in this case was not "harmless beyond a reasonable doubt". An error is not "harmless beyond a reasonable doubt":

"If it is reasonably possible that in a trial free of the errors complained of, even one juror might have voted to acquit the defendant, then the error was not harmless, and the defendant must be retried. If, on the other hand, the proof was so overwhelming, aside from the taint of error, that all reasonable jurors would find guilt beyond a reasonable doubt, then the conviction must stand." People v Christensen, 64 Mich. App. 23, 33; 235 N.W.2d 50 (1975).

The main evidence in the present case was the testimony of the defendant that Clifton Driver had shot the deceased and the testimony of Clifton and his pregnant girlfriend, Thelma Howard, that the defendant had done the shooting. It is reasonably possible that the prosecutor's injection into the evidence of the defendant's implied admission of guilt through silence could have affected at least one juror's decision in balancing the credibility of these three witnesses, and, thus, it cannot be said to have been "harmless beyond a reasonable doubt".

The defendant's second contention is that it was reversible error for the prosecutor to attempt to bolster a witness's trial testimony by introducing, over a defense objection, testimony of a police officer that this witness had made prior consistent statements.

Evidence of prior consistent statements of a witness is generally inadmissible as substantive evidence. Brown v Pointer, 390 Mich. 346, 351; 212 N.W.2d 201 (1973), People v Hallaway, 389 Mich. 265, 276; 205 N.W.2d 451 (1973) (Justice BRENNAN concurring). Evidence of prior consistent statements is admissible, however, to rebut a charge of recent fabrication or as evidence of whether or not a witness had made a prior inconsistent statement. People v Harris, 86 Mich. App. 301, 305; 272 N.W.2d 635 (1978), People v Coles, 79 Mich. App. 255, 260-261; 261 N.W.2d 280 (1977). The evidence in the instant case must qualify under the recent fabrication exception if it is to be admissible, since no evidence of any prior inconsistent statement had been brought out during cross-examination. In Brown v Pointer, 41 Mich. App. 539, 548; 200 N.W.2d 756 (1972), rev'd on other grounds 390 Mich. 346 (1973), this Court set forth the guidelines for admission of prior consistent statements to rebut a charge of "recent fabrication":

"Michigan permits the admissibility of prior consistent statements in order to rehabilitate an impeached witness if (1) the impeachment of the sworn testimony attacked the witness as having had a motive for changing or falsifying his testimony so as to have been of recent contrivance or fabrication, and (2) if the earlier consistent statement was given at a time prior to the existence of any fact which would motivate bias, interest, or corruption. People v Miniear, 8 Mich. App. 591 [ 155 N.W.2d 222] (1967); People v Gardineer, 2 Mich. App. 337 [ 139 N.W.2d 890] (1966)."

The evidence at issue in the present case was testimony of a police officer that Clifton Driver's testimony at trial was "the same" or "for the most part" the same as his earlier statements to the officer on the morning of the shooting and at other times thereafter. The officer did not testify as to the content of the earlier statements. This evidence was not properly admitted to rebut an implication of "recent fabrication" raised by defense counsel during cross-examination of Clifton Driver, since the prior consistent statements were not prior in time to the alleged statements brought out during cross-examination showing a possibility of recent fabrication and, therefore, did not tend to show that the witness's version of the case remained unchanged. See People v Therrien, 97 Mich. App. 633; 296 N.W.2d 8 (1979).

The cumulative effect of the admission of evidence of the defendant's silence in the face of accusation and evidence that Clifton Driver's earlier pretrial statements were consistent with his testimony at trial was to diminish the credibility of the defendant and to bolster the credibility of a witness for the prosecution. See People v Harris, supra, 305. Since the evidence presented by each side in this case was conflicting, witness credibility was crucial to the jury's verdict. It is reasonably possible that in a trial free of these errors at least one juror might have voted to acquit the defendant. People v Christensen, supra. Therefore, this error was not harmless.

The defendant's final two claims do not warrant extended discussion. The prosecutor did not improperly vouch for the credibility of witnesses by informing the jury of the plea bargain entered into to secure their testimony, and the trial judge did not err in failing to give a sua sponte instruction on accomplice testimony under the circumstances in this case.