Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr.,
Chief Justice

Michael F. Cavanag h Marilyn Kell y Stephen J. Markma n Diane M. Hathawa y Mary Beth Kell y Brian K. Zahra,

J ustices 

# Order

May 6, 2011

141983

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 141983 COA: 292734 Macomb CC: 2 008-001876-FC GREGORY RYAN TERRY, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the October 12, 2010 judgment of the Court of Appeals is consid ered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to a ppeal, we REVERSE the judgmen t of the Court of Appeals holding that the prosecutor’s introduction of polygraph evid ence was harmless error, we

VACATE the defendant’s convictions and se ntences, and we REMAND this case to the

Macomb Circuit Court for a new trial. The Court of Appeals erred in relying on the invited response rule applied in People v Kahley , 277 Mich App 182, 183-184 (2007), in which the polygraph testimony was volunteered by a police witness, rather than, as in this case, intentionally introduced by the prosecution by posi ng a clearly improper question for the sole purpose of eliciting inadmissibl e polygraph evidence that conveyed to the jury the implication that codefendant Blair Lindsay’s testimony against the defendant was

truthful. See People v Jones , 468 Mich 345 (2003), and th e proper application of the invited response doctrine explicated therein. In light of the extens ive impeachment of the prosecution witnesses, all of whom acknowle dged having initially im plicated Lindsay as the shooter, the curative instruction was insufficient to pr event prejudice to the defendant from the inference of truthfulness that the pr osecutor sought to suggest by the improper, uninvited question concerning the polygraph test administered to Lindsay before he was allowed to plead guilty under the plea bargain.

In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.

M ARILYN K ELLY , J. ( concurring ).2

I concur fully with the order reversing the judgment of the Court of Appeals, vacating defendant’s convictions and sentences, and remanding to the trial court for a new trial. I write separately only because I would reverse on another issue as well. I would hold that the prosecutor’s questions regarding defend ant’s failure to report the crime and proclaim his inno cence before his arrest were improperly admitted.

The Court of Appeals relied on People v Goodin

. 1 One element of the offense in that case was a failure to report . Notably, no such element is contained in assault with intent to commit murder, the offe nse charged in this case.

Moreover, the facts of this case would not have prompted an innocent person to proclaim his innocence to the police preemptively. 2 For example, there is no evidence

that defendant was aware before his arrest that the police consid ered him a suspect. Lindsay, the key prosecution w itness at trial, was the prime suspect, and all the witnesses initially identified Lindsay as the perpetra tor. The prosecutor laid no foundation to impeach defendant with his silence by showi ng that the police had any information that would give rise to th e charges ultimately filed against hi m. Nor is there evidence that

defendant was aware that Lind say had implicated him.

Under these circumstances, it was “natural ” for the defendant not to go to the police unbidden and inform on his friend Linds ay. More importantly, it was also natural for him not to spontaneously profess his own innocence to police before he was accused of anything. Thus, defendant’s pre-arrest silence was inadmissible. The trial court’s ruling allowing the prosecutor to question defenda nt about his failure to do so prejudiced his right to remain silent. 3 Finally, the jury never received a limiting instru ction that such evidence could be considered only for imp eachment purposes, further compounding the

error.

I concur in the order reversing the judg ment of the Court of Appeals because the prosecutor’s introduction of polygraph evid ence was not harmless error. However, because the issue involving defe ndant’s failure to profess his innocence will likely arise on retrial, I would also reverse the Court of Appeals holding that allowed the use of his pre-arrest silence.

1 257 Mich App 425, 433 (2003).

2 See People v Collier , 426 Mich 23, 34 (1986) (“[I]mp eachment with prearrest silence ‘should be approached with cau tion, and, wherever it is unde rtaken, it should be prefaced by a proper demonstration that it was “natural ” to expect the defenda nt to speak in the circumstances.’”), quoting Commonwealth v Nickerson, 386 Mass 54, 61-62 (1982).

3 Collier , 426 Mich at 34.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk May 6, 2011

p0503 3

Z AHRA

, J., did not participate because he was on the Court of Appeals panel.