Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack, Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

January 10, 2020

159871

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v SC: 159871

COA: 336775

Oakland CC: 2016-259413-FC

NICHOLAS COLE SINNETT,

Defendant-Appellant. 

_________________________________________/

On order of the Court, the application for leave to appeal the May 9, 2019 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the question presented should be reviewed by this Court.

CAVANAGH, J. (concurring). 

I concur in the Court’s order denying leave to appeal in this case but write 

separately to identify a serious trial court error, which would warrant reversal of 

defendant’s conviction were it not rendered harmless by the overwhelming evidence of 

defendant’s guilt.

Defendant was tried before a jury for armed robbery, possession of a firearm 

during the commission of a felony, and unlawfully driving away a motor vehicle. After 

the prosecution rested, defense counsel informed the trial court that defendant had 

intended to testify but had been threatened in the jail by an individual who would likely 

be called as a rebuttal witness. According to defendant, a man named Derrick Johnson 

threatened him “don’t be a rat” because defendant planned to implicate an associate of 

Johnson’s. Defense counsel asked for time to confer with defendant about whether he 

still intended to testify. Following a brief off-the-record discussion, defense counsel 

made a record:

[Defense Counsel]: Okay. And as we stand here today and you are 

here to make your final decision, do you wish to testify or do you wish to 

remain silent?

The Defendant: It would be better for me to stay silent.

[Defense Counsel]: Has anyone promised you or threatened you to 

get you to make this decision?

The Defendant: Besides Derrick Johnson, no.
2

After that, the trial court also questioned defendant about the alleged threat. 

Defendant elected not to testify and was ultimately found guilty as charged. Defendant’s 

convictions were affirmed on appeal; the Court of Appeals concluded that defendant 

waived his right to testify and there was no plain error affecting his substantial rights.

A defendant’s right to testify is grounded in the Fifth, Sixth, and Fourteenth 

Amendments of the United States Constitution. People v Bonilla-Machado, 489 Mich 

412, 419 (2011). The right to testify is “essential to due process of law in a fair adversary 

process.” Rock v Arkansas, 483 US 44, 51 (1987) (quotation marks and citation omitted). 

In fact, a defendant’s right to present his own version of events is fundamental, and 

sometimes “the most important witness for the defense” is the defendant himself. Id. at 

52. A defense attorney may counsel a defendant against testifying as a matter of sound 

trial strategy; however, the ultimate decision to testify rests solely with the defendant. 

Bonilla-Machado, 489 Mich at 419. In Michigan, the trial court is not required to 

determine whether a defendant waives the right to testify, and if the defendant “decides 

not to testify . . . the right will be deemed waived.” People v Simmons, 140 Mich App 

681, 685 (1985) (quotation marks and citation omitted).

In the Court of Appeals, defendant argued that that trial court failed to take 

sufficient steps to protect his constitutional right to testify. I agree. The record shows 

that defendant repeatedly informed the trial court that he believed he had been threatened 

not to testify, but the trial court did nothing about it:

The Court: All right. Mr. Sinnett, this is your decision as to whether 

you want to testify or not. You’ve talked to your attorney at length prior to 

this case starting, during this week, additionally this morning. Has anyone 

promised you or threatened you?

The Defendant: I actually, ma’am, I had intended on taking the stand 

the whole time until this morning. I was—I had made my attorney aware 

that I had been threatened in the past. That my paperwork had been stolen 

and she knows of it and I only recently—

The Court: What, what was the threat? What was the threat and 

where did it come from?

The Defendant: The threat came from a black guy they call DJ that 

was in your holding tank . . . .

* * *

The Court: What, what was the threat?

The Defendant: The threat was don’t be a rat. Don’t be a rat. I 
3

know Duane and I was like—

* * *

The Court: It is up to you to decide whether you want to testify or 

not. If you think it’s in your best interest to testify and say whatever it is 

that you want to say in front of this jury then you do it. If, if you don’t 

want to do it, you don’t do it. It is your decision ultimately. 

You’ve had plenty of time to speak with your attorney correct?

The Defendant: Yes ma’am. 

The Court: Okay. And so you know you have an absolute [sic] not 

to testify.

The Defendant: I do.

The Court: And that I’m going to instruct the jury that they are to not 

take that into account whatsoever in their deliberations because you have a 

right not to testify, you understand that?

The Defendant: Yes ma’am.

The Court: Okay. You also have a right to testify if you want to. 

Okay. So when [defense counsel] is asking you whether anyone has 

promised you anything or threatened you you’re indicating to me that 

you’re deciding not to testify because of something you heard from another 

person that’s in custody, correct?

The Defendant: That the prosecution plans to call against me as a 

rebuttal.

The Court: It doesn’t matter—that doesn’t matter. You’re indicating 

the reason why you’re not going to testify is because someone else that’s in 

custody—

The Defendant: Yes.

The Court:—has accused or, or said to you don’t be a rat.

* * *

The Court: Okay. All that aside, I don’t know any of this and I don’t 

know the truth to any of that. Okay. So all I’m hearing is that someone is 

accusing you of potentially if you testify that you might be a rat, okay. 
4

Correct?

The Defendant: Right.

The Court: Okay. There have been no threats other than that, other 

than those statements, correct?

The Defendant: I mean that’s the most serious one, yes.

The Court of Appeals suggested that this was sufficient to protect defendant’s 

constitutional rights, outlining:

Here, the trial court provided defendant the opportunity to consult with 

counsel before making a decision whether to testify. The court then placed 

defendant under oath and questioned him about the alleged threat. 

Defendant agreed on the record that he had sufficient time to talk with 

counsel and that he was aware that he had an absolute right to testify. 

Indeed, on appeal defendant does not dispute that it was his decision not to 

testify. [People v Sinnett, unpublished per curiam opinion of the Court of 

Appeals, issued May 9, 2019 (Docket No. 336775), p 6.]

I fail to see how any of this procedure safeguarded defendant’s right to testify. 

Consulting with his attorney and putting the threat on the record did nothing to resolve 

the threat. The trial court did not hold an evidentiary hearing to ascertain if defendant’s 

allegations were credible, nor did it assure defendant that it would take appropriate 

curative action if he wished to exercise his constitutional rights. The court could have, 

for example, ensured that defendant would not be placed in a holding cell with the man 

who allegedly imperiled his safety. Although I recognize that in Michigan the trial court 

is under no duty to confirm on the record that a waiver of the right to testify is made 

intelligently and knowingly, Simmons, 140 Mich App at 684, I believe that when the trial 

court is informed that the free exercise of a constitutional right is at stake, its duty to 

protect that right is clearly implicated.1

 1 I find instructive the following holding from the Court of Appeals of Alaska:

A trial judge faced with a defendant who, in the course of this 

process, voices fears of reprisal as a consequence of testifying—even vague 

and insubstantial fears—must do everything realistically possible to delve 

into the issue and elicit an informed, voluntary choice. To this end, the 

judge should invite a full disclosure by the defendant and the defendant’s 

counsel of any purported threat, offer to invoke the full weight of the 

court’s protective powers against the source of any threat, and conduct a 

thorough inquiry in response to any information disclosed. [Knix v State, 

922 P2d 913, 919 (Alas App, 1996).]
5

Next, I am troubled by the Court of Appeals’ conclusion that defendant waived his 

constitutional right to testify. A waiver is the “intentional relinquishment or 

abandonment of a known right.” People v Carines, 460 Mich 750, 762 n 7 (1999) 

(quotation marks and citation omitted). Furthermore, “[i]ntelligent waiver, of course, is 

made to depend upon the considered choice of defendant . . . .” People v McKinley, 383 

Mich 529, 536 (1970). A waiver of a constitutional right based on intimidation or 

coercion is invalid as it is not a freely made choice. See People v Akins, 259 Mich App 

545, 564 (2003). Taking defendant at his word—given that, as noted, the trial court 

failed to meaningfully delve into the nature and circumstances of the threats or ascertain 

whether the threats were credible—his decision not to testify does not appear to be one 

made upon considered choice. In my view, the choice to stay silent or to exercise a right 

and face potential physical harm2 is no choice at all.

I also disagree with the Court of Appeals’ conclusion that defendant failed to 

preserve this issue since he “did not argue in the trial court that he was denied his 

constitutional right to testify on his own behalf . . . .” Sinnett, unpub op at 5. The record 

clearly shows that both defense counsel and the trial court put defendant’s “waiver” of his 

constitutional right to testify on the record. In fact, the trial court’s questioning of 

defendant on this topic spans seven pages of the transcript. “The purpose of the appellate 

preservation requirements is to induce litigants to do what they can in the trial court to 

prevent error and eliminate its prejudice, or to create a record of the error and its 

prejudice.” People v Mayfield, 221 Mich App 656, 660 (1997). Other than using the 

word “constitutional” when informing the trial court that he wished to testify but would 

not because he had allegedly been threatened, I am unsure what else defendant could 

have done to preserve this issue or why the Court of Appeals would require more. 

Defendant raised this issue, a record was created, and the trial court had an opportunity to 

alleviate the prejudice. Because this issue was preserved, the Court of Appeals erred by 

reviewing the claim for plain error instead of for harmless error. 

All this aside, however, I join the Court’s denial order because even under the 

appropriate harmless-error standard of review, see People v Anderson (After Remand), 

446 Mich 392, 405-406 (1994), I cannot conclude that defendant is entitled to relief. 

Defendant visited the victim’s home the day before the robbery and earlier on the same 

day as the robbery. The victim was able to identify him as was an employee of the 

victim’s husband. On the afternoon of the robbery, defendant visited the home acting 

suspiciously; for example, he offered to buy the home for a price that exceeded its

appraised value, asked to come inside and look around, and asked the victim why she was

 2 At defendant’s posttrial Ginther hearing, he explained that in his opinion being labeled 

“a rat” would be a “death sentence” in the county jail. See People v Ginther, 390 Mich 

436 (1973).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 January 10, 2020

a0107

6

Clerk

not wearing her wedding ring. While speaking with defendant, the victim noted that 

defendant was wearing shoes that did not match the rest of his professional attire. During 

the robbery, the victim observed that the suspect had a similar physical build to defendant 

and that he was wearing the same shoes that defendant had worn when he visited her 

home earlier that day. In addition, the victim’s stolen Jeep was discovered in a parking 

lot about one-half mile from her home. Surveillance video footage from that parking lot 

showed that just prior to the robbery a black Ford F-150 backed into that parking lot and 

a man exited the truck. Approximately 15 minutes later, the victim’s Jeep was shown 

pulling up next to the F-150. The driver exited the Jeep and got into the F-150 and drove 

away. Defendant later admitted to police that he drove a black Ford F-150. Furthermore, 

defendant’s phone number and that of his girlfriend, whose phone had an area code from 

Arizona, were linked to phone calls associated with the crime. Finally, defendant 

provided police with information about a man named Duane Butler. When a search was 

conducted at Butler’s residence, the victim’s credit cards were found. Overall, the 

prosecution presented substantial and overwhelming evidence that defendant was the 

perpetrator of the charged crimes, and I cannot conceive what defendant could have 

testified to that would have altered the verdict.3

 3 In addition, it is clear from a review of the Ginther hearing transcript that the trial court 

did not find defendant credible, and this strengthens my conclusion that any testimony 

provided to the jury would not have been likely to help defendant’s cause.