FILED JULY 1, 2009 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 135435 HAROLD EMMETT SHAFIER III, Defendant-Appellant.

BEFORE THE ENTIRE BENCH CAVANAGH, J. We granted leave to appeal in th is case to determine whether the prosecution’s references to defendant’s post-arrest, post- Miranda 1 silence violated defendant’s constitutional du e process rights, and, if so, whether defendant is entitled to a new trial. 2 We hold that defendant’s due process rights were violated. Further, the violation amounted to plain erro r that affected defendant’s substantial

1 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

2 The issues in this case are similar to those presented in another case we decide today: People v Borgne , ___ Mich ___; ___ NW 2d ___ (Docket No. 134967, issued July 1, 2009). Accordingly, much of th e analysis in this opinion is very similar, and at time s the same, as that in Borgne . However, the cases were argued separately and they ar e distinct enough that we have not combined them in one opinion. Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Marilyn Kelly Justices: Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway2 rights and seriously affected the fairness an d integrity of the trial. We reverse defendant’s conviction and remand to the trial court for further proceedings.
I. BASIC FACTS AND PROCEEDINGS Defendant, Harold E. Shafier III, was ch arged with three counts of firstdegree criminal sexual conduct and two counts of second-degree criminal sexual conduct for allegedly sexually assaulting hi s 13-year-old daughter, AS. Defendant and his wife adopted AS and her three sisters in 1995. In January 2005, defendant’s wife reported to the police th at AS was alleging that she had been sexually assaulted by defendant. Defendant was arrested immediately. During the arrest, defendant asked why he was being a rrested, and the office r told him that he was under arrest for criminal sexual conduct. The officer gave him the Miranda warnings, and defendant rema ined silent thereafter. At trial, AS testified that defendant sexually assaulted her on a daily basis from July 2004 un til he was arrested. She testifie d that the abuse escalated over time from kissing and touching to di gital penetration and oral sex. 3 She listed a few settings where the abuse occurred but initially had some di fficulty describing specific incidents. AS described one inst ance in which one of her sisters walked in while defendant was performing oral se x on AS. The siste r, age 11, testified

3 AS’s allegations escalated over time. Initially, AS told her mother that defendant had touched her breasts and genital area. At the preliminary examination, AS alleged that there had been incidents in volving oral sex. Finally, at trial, AS alleged specific incidents th at she had not previo usly mentioned.3 and corroborated this story, although there were discrepancies between their

accounts. 4 Another sister, age 17, testified that she once walked into the family’s barn and found AS and defend ant standing close to each other and that it appeared to her that they we re about to kiss or had just been kissing. 5 AS and her sisters testified that defendant would sometimes take one or more of the girls to the store with him upon their request and buy ever yone candy, but that he probably bought AS the most candy. Defendant’s wife te stified that she thought defendant had been favoring AS by taking her shopping and visiting her school. Defendant testified in hi s own defense and adamantly maintained that he had never sexually assaulte d any of his daughters. He denied the factual circumstances of the specific allegations th at AS and her sisters made. He stated that it would have been physically impossi ble for the alleged incident of oral sex to have occurred in the manner described by AS and her sister because the table on which it was supposed to have occurred was covered with boxes at the time. Defendant also denied favorin g AS. He stated that he had begun stopping at AS’s school to check her progress because she was the only child not doing well in

4 The discrepancies were in regard to when the incident occurred, the exact physical positions of AS and defendant, and the actions of each of the three people after the sister’s interruption.

5 This sister also testified that de fendant had sexually assaulted her when she was younger. At the preliminary exam ination, she stated that defendant had touched her breasts twice, but one of the times was a ccidental. At trial, she alleged for the first time that defendant had regularly touched her, kissed her, and digitally penetrated her when she was between the ages of 11 and 13.4 school. He testified that, after school, he often took one or more of the children shopping with him and would buy candy for any of the ch ildren who requested it. Defendant testified that he suspecte d that his wife encouraged their daughters to make false allegations agai nst him because she was jealous of the time he was spending with th eir daughters. It is undi sputed that up to and during the period of the alleged incidents, th e relationship betwee n defendant and his wife had deteriorated. Defendant testifie d that he had become increasingly angry with his wife’s treatment of the children and consciously decided to become more involved in the childr en’s lives in July 20 04. Defendant stated that his wife had reacted with jealousy and anger as he increa sed the time he spent with the girls. At trial, the prosecutor re ferred to defendant’s post- Miranda silence multiple times, including in hi s opening and closing statem ents, direct and redirect examinations of the arresting officer, and cross-examination of defendant. Defense counsel objected during the prosecu tor’s cross-examina tion of defendant, but the basis for the objection was unclear. After two hours of deliberation, the ju ry announced that it was deadlocked. The court instructed th e jury to continue to deliberat e. On the second day, after rehearing portions of the tr ial testimony, the jury ac quitted defendant of three counts of first-degree criminal sexual c onduct and convicted him of two counts of second-degree criminal sexual conduct. Defendant appealed, and a divided Co urt of Appeals panel affirmed his convictions. People v Shafier , 277 Mich App 137; 743 NW2d 742 (2007). The5 majority held that the prosecut or’s use of defendant’s post- Miranda silence in his case-in-chief violated defendant’s c onstitutional rights, reasoning that the prosecutor’s references “were not inadve rtent and they were numerous” and that “the prosecutor asked the jury to infer th at defendant was guilty because he did not take the affirmative step of questioning the arresting offi cer . . . or declaring his innocence . . . .” Shafier , 277 Mich App at 140, 142-143. The majority held that defendant was not entitled to a new tria l, however, because defendant did not establish that the violation was plain e rror affecting his substantial rights. Id. at 143-144. The Court of Appeals dissent would have granted defendant a new trial because “[t]here is no way to know what effect those br eaches had on the jurors’ minds, particularly considering the juro rs’ initial announcemen t that they were deadlocked.” Id. at 145 (Davis, J., dissenting). This Court granted defendant’s application for leave to appeal.
II. STANDARD OF REVIEW Defendant raises an unpreserved claim of constitutional error. Constitutional questions are reviewed de novo. Sidun v Wayne Co Treasurer , 481 Mich 503, 508; 751 NW2d 453 (2008). This Court re views the effect of an unpreserved constitutional error u nder the plain-error standard. People v McNally , 470 Mich 1, 5; 679 NW2d 301 (2004).6 III. ANALYSIS
A

. VIOLATION OF DEFENDAN T’S DUE PROCESS RIGHTS Defendant argues that hi s constitutional due process rights were violated under Doyle v Ohio , 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976), and its progeny. We hold that the prosecution’s repeated references to defendant’s postarrest, post- Miranda silence violated defendant’s due process rights under the United States Constitution. 6
1. Rule of Doyle v Ohio and its Progeny The United States Constitution guara ntees that no person “shall be compelled in any criminal case to be a witness against himself.” US Const, Am
V. 7 Miranda v Arizona , 384 US 436, 444-439, 467-468; 86 S Ct 1602; 16 L Ed 2d 694 (1966), established “guidelines for la w enforcement agenci es and courts to follow” in order to protect the privile ge against compelled self-incrimination during custodial police inte rrogations. Thus, under Miranda , every person subject to interrogation while in police custody mu st be warned, among other things, that

6 This Court has recognized that th e Michigan Constitution’s protection against the use of a defendant’s post-arrest, post- Miranda silence is at least as extensive as that provided by the United States Constitution. See People v McReavy , 436 Mich 197, 201; 462 NW2d 1 (1990). Because defendant’s due process rights were so clearly violated un der the United States Constitution in this case, however, it is not necessary to evalua te the protection provided by the state constitution.

7 The Fifth Amendment has been made a pplicable to the states through the Due Process Clause of the Fo urteenth Amendment. See Malloy v Hogan , 378 US 1, 3; 84 S Ct 1489; 12 L Ed 2d 653 (1964).7 the person may choose to remain silent in response to police questioning. Id. at 444-445. As a general rule, if a person remains silent after being arrested and given Miranda warnings, that silence may not be used as evidence against that
person. Wainwright v Greenfield , 474 US 284, 290-291; 106 S Ct 634; 88 L Ed 2d 623 (1986). Therefore, in general, prosecutorial re ferences to a defendant’s post-arrest, post- Miranda silence violate a defendant’s due process rights under the Fourteenth Amendment of the United States Constitution. 8 See Wainwright , 474 US at 290-291; Doyle , 426 US at 618-620. The United States Supreme Court has explained the rationales behind the constitutional prohibition against the use of a defendant’s post-arrest, postMiranda silence. To begin with, a defenda nt’s silence may merely be the defendant’s invocation of the right to remain silent, as opposed to a tacit acknowledgement of guilt. “[E]very post-arrest silence is insolubly

8 The United States Constitution does not prohibit impeac hing a defendant with pre-arrest silence. See Fletcher v Weir , 455 US 603, 6 05-607; 102 S Ct 1309; 71 L Ed 2d 490 (1982); Jenkins v Anderson , 447 US 231, 239-240; 100 S Ct 2124; 65 L Ed 2d 86 (1980 ). Federal courts of appeals are split on whether it violates a defendant’s Fifth Amendm ent rights under the United States Constitution for pre- Miranda silence to be used in the prosecution’s case-in-chief. See generally Combs v Coyle , 205 F3d 269, 285 (CA 6, 2000) (summarizing the position of each circuit for pre-arrest, pre- Miranda silence). See also United States v Frazier , 408 F3d 1102, 1111 (CA 8, 2005) (holding that post-arrest, preMiranda silence may be used in the pros ecution’s case-in-chief in some circumstances); United States v Moore , 322 US App DC 33 4, 344; 104 F3d 377 (1997) (holding that post-arrest, pre- Miranda silence may not be used in the prosecution’s case-in-chief). This Cour t has not addressed this issue. See McNally , 470 Mich at 7 n 4. Thes e issues are not before th is Court today, and this opinion has no effect on their resolution.8 ambiguous . . . .” Doyle , 426 US at 617. Further, Miranda warnings provide an implicit promise that a defendant will no t be punished for remaining silent. Id. at 618. Once the government has assured a person of his right to remain silent, “breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Du e Process Clause requires.” Wainwright , 474 US at 291. Consistent with these rationales, a defendant’s post-arrest, post- Miranda silence cannot be used to impeach a defendant’s exculpatory testimony, see Doyle , or as direct evidence of defendant’s gu ilt in the prosecutor’s case-in-chief, see Wainwright , 474 US at 292-294. 9 “What is impermissible is the evidentiary use of an individual’s exercise of his constituti onal rights after the State’s assurance that the invocation of those right s will not be penalized.” Id . at 295. There are limited

9 In Doyle , the Court held that the prosec ution could not use a defendant’s post-arrest, post- Miranda silence to impeach the cr edibility of a defendant’s exculpatory testimony. Doyle , 426 US at 618. The prosecution attempted to use the defendants’ silence to impeach the credib ility of the defendants’ claim, told for the first time at trial, that they had been framed. Id. at 611-614. The Court reasoned that “it would be fundamentally unfair and a depriva tion of due process to allow the arrested pers on’s silence to be used to impeach an explanation subsequently offered at trial.” Id . at 618. In Wainwright , the Court held that the prosecution could not use a defendant’s post-arrest, post- Miranda silence to meet the prosecutor’s burden of showing beyond a reasona ble doubt that the defendant was not insane. Wainwright , 474 US at 286, 289-296. The Court explained that Doyle ’s reasoning applied with equal force because “[t]he implicit promise, the breach, and the consequent penalty are identi cal in both situations.” Id. at 292.9 exceptions to this general rule, but none applies here. 10 This Court has adopted this understanding of a defe ndant’s due process rights and stated that post-arrest, post- Miranda silence “may not be used substan tively or for impeachment purposes since there is no way to know after the fact whether it was due to the exercise of constitutional rights or to guilty knowledge.” People v McReavy , 436 Mich 197, 218; 462 NW2d 1 (1990). In general, any reference to a defendant’s post-arrest, post- Miranda silence is prohibited, but in some circumstances a single reference to a defendant’s silence may not amount to a violation of Doyle if the reference is so minimal that “silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference . . . .” Greer v Miller , 483 US 756, 764-765 ; 107 S Ct 3102; 97 L Ed 2d 618 (1987). See also People v Dennis , 464 Mich 567, 577-580; 628 NW2d 502 (2001). For example, in Greer , there was no Doyle violation where the defense counsel immediately objected to a question by the prosecution about defendant’s post-arrest, post- Miranda silence, and the trial court twice gave a curative instructi on to the jury. 11 Greer , 483 US at 759, 764-765.

10 For example, in Doyle , the Court noted that the prosecution may use evidence of a defendan t’s post-arrest, post- Miranda silence to challenge a defendant “who testifies to an exculpatory version of ev ents and claims to have told the police the same version upon arrest.” Doyle , 426 US at 619 n 11. This exception is not applicable he re because defendant never claimed that he told the police an exculpatory story after he was given his Miranda warnings.

11 In Greer , the defendant testified that he was innocent, but two other people had confessed their guilt to him. Greer , 483 US at 758. On cross-10 2. Further Background In this case, the prosecutor made re peated references to defendant’s postarrest, post- Miranda silence. In the prosecutor’s opening statement, he said that the jury would hear that after defendant was arrested, he “didn’t say anything, not a word. [The officer] told him why he wa s being arrested, he was arrested and no statements were made.” Next, in th e presentation of the case-in-chief, the prosecutor deliberately elicited testimony from the arresting officer regarding defendant’s post-arrest, post- Miranda silence. The following exchange occurred regarding the circumstan ces of the arrest:
A. [ The Arresting Officer ] I asked [defendant] if he knew what we were here about —what we were there about and he stated he did not. I then placed him under a rrest and informed him he was under arrest for criminal sexual conduct, advised him of his Miranda rights which is the right to remain silent and I’m sure we’ve all seen that, and I placed him in the rear of my patrol vehicle. He did not make any statements to me prior to getting to jail. Q. [ The Prosecutor ] So he never made any statements to you. He was fully aware of what you were arresting him for?
A. Not reference [sic] the crim inal sexual conduct, correct. On cross-examination, the defense attorney asked the arresting officer questions that clarified that the offi cer did not ask defendant a ny questions after arresting him and giving him his Miranda warnings. On the prosecutor’s redirect
examination, the prosecutor asked the defe ndant, “‘Why didn’t you tell this story to anybody when y ou got arrested?’” Id . at 759. Defense counsel immediately objected, and the trial court sustained the obj ection and twice instructed the jury to ignore the reference. Id.11 examination, the prosecuto r followed up with add itional questions regarding defendant’s silence: Q. [ The Prosecutor ] [Defendant] didn’t make any statements about the CSC charge, did he?
A. [ The Arresting Officer ] No, he did not. Q. Never asked you about it?
A. No, he did not. After the prosecutor concluded presenta tion of his case, de fendant testified in his own defense. Defense counsel aske d why defendant was s ilent after he was given his Miranda warnings, and defendant stated th at it was because he “watched a lot of TV and with something like that I didn’t know what to say, I mean I was shocked . . . so I just kept my mouth shut and I was go ing to wait until I talked to somebody.” 12 When the prosecutor cross-ex amined defendant, the following exchange occurred:

12 The full exchange between defens e counsel and defendant regarding defendant’s silence was as follows: Q. [ The Defense Counsel ]. Were you nervous [when being arrested]?
A. [ Defendant ]. Oh yes, scared shit—scared to death. Q. Did you—what—you just got silent then?
A. Yeah, I didn’t say anything, yeah. Q. Okay. Why did you not say anything?12 Q. [ The Prosecutor ] [Y]ou didn’t say a single word about being arrested for criminal se xual conduct. Is that right?
A. [ Defendant ] When I got to th e police station— Q. Yes or no. Is that right?
A. Yes. Finally, the prosecutor began his closing argument by highlighting the significance of defendant’s silence. The prosecutor stated: What we heard is that the defe ndant made no statements. We heard that he didn’t ask Officer LaBonte any questions. Why? You’re being arrested for CSC. Yo u’re being taken out of your home on a Sunday night. Why? Why? Because between June of 2004 and January of 2005 the defendant ha d been making his daughter do things that no person spea ks about. Adults don’t even talk about it between themselves. 3. Application of Doyle v Ohio and its Progeny It is clear that the prosecution’s use of defendant’s silence violated defendant’s due process rights u nder the federal constitution.

A. Just watched a lot of TV and with something like that I didn’t know what to say, I mean I was shocked that he even said that [I was being arrested for CSC] so I just kept my mouth shut and I was going to wait un til I talked to somebody. Q. Was he [the officer] cooperativ e with you in talking with you or was he pretty short with you?
A. He just told me what I had to—what he told, what he felt I had to know and th at was it, yeah. Q. Okay. So, he wasn’t volunteering information.
A. No.13 The prosecutor’s examinati on of the arresting office r established that the silence to which the pr osecutor referred occurred post-arrest and post- Miranda . A reference to a defendant’s post-arrest, post- Miranda silence generally constitutes a Doyle violation unless the reference was so minimal that “silence was not submitted to the jury as evidence fro m which it was allowed to draw any permissible inference . . . .” Greer , 483 US at 764-765. In this case, the prosecution clearly crossed this line by repeatedly using defendant’s post-arrest, post- Miranda silence as evidence of defendant’ s guilt in its case-in-chief and to impeach the defendant’s testimony that he was innocent. The prosecutor impliedly asked the jury to infer guilt from defe ndant’s silence th rough references to defendant’s silence in his opening statement and his examination of the arresting officer. In his closing argument, the prosecutor expressly asked the jury to infer guilt from defendant’s silence by explaining that the reason defendant had been silent was because “the defendant ha d been making his daughter do things that no person speaks about.” Further, in his cross-examination of defendant, the prosecutor attempted to use defendant’s s ilence to impeach defendant’s credibility. In sum, the state gave defendant his Miranda warnings, which constituted an implicit promise that his choice to remain silent would not be used against him. The state then breached that promise by attempting to use defendant’s silence as evidence. Depending on the circumstances of the case, even a single reference to a defendant’s post-arrest, post- Miranda silence, either as ev idence of substantive guilt or impeachment, may violate a defendan t’s due process rights. Where, as in14 this case, the prosecution makes repeated re ferences to a defendant’s silence, both as substantive evidence of guilt and for purposes of impeachment, the violation is clear. Therefore, we affirm the Court of Appeals holding that the prosecutor’s repeated references to de fendant’s post-arrest, post- Miranda silence violated the due process rights guaranteed to defendant by the United States Constitution.
B. PLAIN-ERROR REVIEW The Doyle violation in this case is an unpreserved, constitutional error. 13
This Court determines whethe r this type of error warrant s reversal under the plainerror standard of review articulated in People v Grant , 445 Mich 535, 547-553; 520 NW2d 123 (1994), and People v Carines , 460 Mich 750, 765-766; 597 NW2d 130 (1999). 14
1. Plain-Error Review There are four steps to determining whether an u npreserved claim of error warrants reversal under plain-error review. Carines , 460 Mich at 763. First, there

13 The Court of Appeals dissent suggests that defendant may have preserved this issue. Shafier , 277 Mich App at 144-145 (Davis , J., dissenting). We will not address the issue of preservation, howe ver, because the parties agreed that defendant failed to preserve an objection to any constitutional error in this case.

14 I continue to think that this Court erred by adopting the federal plainerror doctrine, for the reasons stated in Justice Levin’s Grant dissent, and erred further by extending the doctrine to unp reserved, constitutional error, for the reasons stated in then-Justice Kelly’s Carines dissent. See Grant , 445 Mich at 554-557 (Levin, J., dissenting); Carines , 460 Mich at 775-783 (Kelly, J., dissenting). Nonetheless, as I have done in other cases, I recognize that Carines is the law in Michigan. See McNally , 470 Mich at 5.15 must have been an error. Id. “Deviation from a legal rule is ‘error’ unless the rule has been waived.” Grant , 445 Mich at 548 (quotation marks and citation omitted). Second, the error must be plai n, meaning clear or obvious. Carines , 460 Mich at 763. Third, the error must have affected substantial rights. Id. This “generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” 15 Id. The defendant bears the burden of establishing prejudice. Id. Fourth, if the first three require ments are met, reversal is only warranted if the error “resulted in th e conviction of an actually innocent defendant” or “seriously affected the fa irness, integrity or public reputation of judicial proceedings . . . .” Id . (quotation marks and brackets omitted). 2. Application of Plain-Error Review In this case, the four requirements of plain-error review are met, and, therefore, reversal is warranted.

15 Both this Court and the United States Supreme Court have left open the possibility that there is a cat egory of errors for which th e third prong ofthe plainerror standard is auto matically met. See Grant , 445 Mich at 551-552, 552 n 30 (stating that a defendant should establish prejudice in order to avoid forfeiture of an unpreserved issue “[e]xcept, of course, in the class of cases in which prejudice is presumed”); Carines , 460 Mich at 763 n 8. See also Puckett v United States , ___ US ___; 129 S Ct 1423, 1432; 173 L Ed 2d 266 (2 009) (stating that “[t]his Court has several times declined to resolv e whether ‘structural’ errors—those that affect ‘the framework within which the trial proceeds,’ —automatically satisfy the third prong of the plain-error test”). In a ny event, this issue does not arise in this case because we agree with the United States Supreme Co urt’s determination that a Doyle violation is not the type of error fro m which prejudice would generally be presumed. See Brecht v Abrahamson , 507 US 619, 629; 11 3 S Ct 1710; 123 L Ed 2d 353 (1993).16 First, there was an error. Defendant’s due process rights were violated by the prosecution’s references to defendant’s post-arrest, post- Miranda silence, and defendant did not waive his rights. Second, the error was plain. As discussed, the error was an obvious violation of a defendant’s due process rights under Doyle and its progeny. Third, defendant has shown that the e rror affected his substantial rights. Under the third prong of plai n-error review, a defendant must generally show that the error was prejudicial. It is difficult for an appellate court to know what effect the prosecutor’s repeated use of defendant’s post- Miranda silence might have had on the jury. Nonetheless, we hold that defendant has shown that the error is prejudicial, considering (1) the extent of the prosecutor’s comme nts, (2) the extent to which the prosecutor attempted to tie de fendant’s silence to his guilt, and (3) the overall strength of the case against defenda nt when considered in light of the degree to which the jury’s assessment of the evidence might have been affected by the prosecutor’s references to defendant’s silence. 16 In contrast to the other Doyle

16 Federal courts of appeals have considered similar factors when evaluating whether a Doyle violation warrants reversal under plain-error review. See, e.g., Guam v Veloria , 136 F3d 648, 652 (CA 9, 1998 ). Plain-error review, as articulated in Carines and Grant , is based on the federal courts’ interpretation of the FR Crim P 52(b). See Carines , 460 Mich at 762-766; Grant , 445 Mich at 547- 550, 552-553. Although Michigan courts are of course not bound by the federal courts’ application of FR Crim P 52(b), and plain-error review is an inevitably case-specific and fact-intensive inquiry, we find the factors used by the federal courts of appeals useful for plain- error review in this case. While Veloria was a “plain error” case, the factors used there to evaluate the effect of a Doyle error on a trial are traceable to United States v Newman , 943 F2d 1155 (CA 9, 1991 ) ,17 case we decide today, People v Borgne , ___ Mich ___; _ __ NW2d ___ (Docket No. 134967, issued Ju ly 1, 2009), in which we cons ider these same factors, the error in this case was clearly prejudicial. To begin with, the more extensive a prosecutor’s references to a defendant’s post-arrest, post- Miranda silence, the more likely it is that the references had a prejudicial effect. In th is case, the prosecutor’s references to defendant’s silence were frequent throughout the trial, from the prosecutor’s opening and closing statements, to his ca se-in-chief, to his cross-examination of defendant. The pervasiveness of the prosec utor’s references to defendant’s silence increases the likelihood that the re ferences had a prejudicial effect. Further, a prosecutor’s references to a defendant’s post-arrest, postMiranda silence are more likely to be prejudici al the more directly or explicitly the prosecutor uses the sile nce to challenge a defendant ’s credibility or show a defendant’s guilt. In this case, the references to defe ndant’s post-arrest silence were not inadvertent refere nces that the ju ry might not have connected to defendant’s guilt. Instead, the prosecutor referred to defendant’s silence in a manner that deliberately challenged defe ndant’s credibility and his claim of innocence. In addition, the prosecutor impliedly suggested that defendant’s
which applied the “harmless beyond a reasonable doubt” standard from Chapman v California , 386 US 18; 87 S Ct 82 4; 17 L Ed 2d 705 (1967 ). In footnote 9 of Carines , this Court distinguished “plain e rror” review from “harmless error” review. Carines , 460 Mich at 764 n 9. We do not intend to nullify that distinction by our use of the Veloria test.18 silence was evidence of his guilt and even explicitly aske d the jury to infer guilt from defendant’s silence in his clos ing argument. In comparison, in Borgne , the prosecutor did use the defendant’s sile nce to challenge the credibility of defendant’s exculpatory story, but he did no t go so far as to explicitly or impliedly suggest to the jury that it s hould infer guilt from the silence. 17 Finally, the degree to which prosecutor ial references to a defendant’s postarrest, post- Miranda silence are prejudicial depends on the overall strength of the case against the defendant and the degree to which the jury’s assessment of the evidence might have been aff ected by the prosecutor’s re ferences to a defendant’s silence. In this case, the strength of the prosecutor’s overall case against defendant hinged entirely on the jury’s assessments of the witnesses’ credibility. It consisted mainly of AS’s testim ony and the corroborating testimony of her sisters, but the sisters’ testimony conf licted at times with AS’s. The jury’s acquittal of defendant on the charges of first-degree criminal sexual conduct suggests that at least some of the jurors questioned AS’s credibility as compared to defendant’s, even with the prosecutor’s impermissible referenc es to defendant’s silence. The trial was essentially a cred ibility contest between defendant and AS and her sisters, and the pros ecutor’s repeated references to defendant’s silence

17 This comparison is not intended to suggest that a defendant’s silence must be used in the prosecutor’s case-in- chief in order to be prejudicial; it is certainly conceivable that the use of a defendant’s silence only for impeachment purposes could be prejudicial, depending on a case’s circumstances. See, e.g., Veloria , 136 F3d at 652-653.19 might have undermined defendant’ s credibility. In contrast, in Borgne , the degree to which the jury would have found much of the evidence credib le was not directly affected by the prosecutor’s references to the de fendant’s silence. Specifically, the prosecution in Borgne presented physical evidence against the defendant and eyewitness testimony corroborating the vi ctim’s account of the events. In sum, in this case, in light of th e prosecutor’s extensive references to defendant’s silence, the exte nsive connection of that s ilence to defendant’s guilt, the inconsistencies in the prosecutor’s case and the other evidence presented against him, and the nature of defend ant’s defense—which hinged on his own credibility, we hold that the error was prejudicial. 18 Fourth, there is no question that this is the sort of error that compromises the fairness, integrity, and truth-seeking func tion of a jury trial. The violation of defendant’s due process rights rendered the trial fundamentally unfair and cast a shadow on the integrity of our state’s judicial processes. Therefore, all four requirements of plain-error review are met, and reversal is warranted.
IV. CONCLUSION The prosecutor’s references to defendant’s post-arrest, post- Miranda silence violated defendant’s due process rights under the federal constitution. The

18 We note that, under the circumstance s of this case, defense counsel’s attempts during trial to lessen the impact of the Doyle errors by asking defendant why he did not make statements before tr ial, did not waive th e error, cure it, or render it harmless.20 violation amounts to plain error that affect ed defendant’s substantial rights, and it compromised the fairness, integrity, a nd public reputation of the judicial proceedings. Therefore, we reverse defe ndant’s conviction and remand to the trial court for further proceedings.

Michael F. Cavanagh Marilyn Kelly Elizabeth A. Weaver Maura D. Corrigan Stephen J. Markman Diane M. HathawayS T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 135435 HAROLD EMMETT SHAFIER III, Defendant-Appellant.

KELLY, C.J. ( concurring ). I concur with the majority opinion. Ho wever, I continue to believe that this Court should not have extended the plain-e rror doctrine to the kind of unpreserved constitutional error present in this case . As I stated in my dissent in People v
Carines , I believe that, when there is unpreserved constitutional error, a defendant’s conviction should be affirmed only “‘if th e reviewing court is satisfied that the error is harmle ss beyond a reasonable doubt.’” 1 It appears that, under the Carines plain error standard, there is never error requiring reversal when there is a “wealth of incriminating evidence.” 2 Under

1 People v Carines , 460 Mich 750, 778; 597 NW2d 130 (1999) (Kelly, J., dissenting), quoting People v Graves , 458 Mich 756, 482; 581 NW2d 229 (1998).

2 People v Borgne , ___ Mich ___, ___ NW2d _ __, issued June 24, 2009 (Docket No. 134967) slip op at 26.2 those circumstances, the judicial system essentially exempts criminal defendants from the constitutional right to due process of law. In the interest of preserving the integr ity of the judicial system, we should re-elevate due process to its proper plac e. The present blatant and repeated abrogation of people’ s constitutional rights threatens the foundation of the court system. I recognize that Carines remains the law in Mi chigan and cannot be ignored, but I believe the Court should reexamine it at the earliest possible

moment. Marilyn KellyS T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v No. 135435 HAROLD EMMETT SHAFIER III, Defendant-Appellee.

YOUNG, J. ( concurring ). I concur in the result and analysis of the majority opinion. I write separately because I will not join fo otnote 14, in which Justice Cavanagh “dissents” from the Carines 1 plain-error analysis in hi s own opinion. Justice Cavanagh is entitled to such views, but his opposition to this Court’s precedent and preservation of his vi ew is better placed in a concurring statement.
Robert P. Young, Jr.

1 People v Carines , 460 Mich 750; 59 7 NW2d 130 (1999).