**_______________________________** Michigan Supreme Court Lansing, Michigan

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman 

# Opinion

FILED JULY 1, 2004

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,** 

**v No. 118021**  **ERIC BOYD, Defendant-Appellant.** 

**BEFORE THE ENTIRE BENCH CORRIGAN, C.J.**  **In this case, we consider whether a defendant must testify in order to preserve for appellate review a**  **challenge to a trial court’s ruling in limine allowing evidence that the defendant exercised his**  Miranda **1 right to**  **remain silent. In** Luce v United States **, 469 US 38, 43; 105 S Ct 460; 83 L Ed 2d 443 (1984), the United States Supreme**  **Court held that a defendant must testify to preserve for appeal a challenge to a ruling in limine involving** 

1 Miranda v Arizona **, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).** **impeachment with prior convictions. We adopted the** Luce **rule in** People v Finley **, 431 Mich 506; 431 NW2d 19 (1988) (opinions by R**  **ILEY , C.J., and by B**  **RICKLEY , J., concurring in**  **part), 2**  **which also involved impeachment by prior convictions.**  **Because the same reasons for requiring a defendant to testify to preserve a challenge to pretrial evidentiary**  **rulings in** Luce **and** Finley **apply in the circumstances of this case, we extend the rule from**  Luce **and** Finley **to the errors alleged here. We hold that defendant was required**  **to testify to preserve for review his challenge to the trial court’s ruling in limine allowing the prosecutor to**  **admit evidence of defendant’s exercise of his** Miranda **right to remain silent. Because the statement at issue in this**  **case would have been properly admissible in one context, defendant’s failure to testify precludes us from being able** 

2 **Despite the dissent’s contention that we mischaracterize the holding of the**  Finley **Court,** post **at 1 -**  **3, a majority of this Court in** Finley **adopted the rule announced in**  Luce **. Justices B OYLE**  **and G RIFFIN**  **joined Chief Justice R**  **ILEY ’s lead opinion, and Justice B**  **RICKLEY concurred**  **in the lead opinion’s adoption of the** Luce **rule, as the dissent correctly recognizes.**  Finley, supra **at 526 (opinion by B**  **RICKLEY ,**  **J.). Contrary to the dissent’s assertion, we do not contend that Justice B**  **RICKLEY agreed**  **with every aspect of the lead opinion, but rather, that he “concurred with the adoption of the rule as defined in**  Luce **.”** Post **at 2.**

2**to determine whether the trial court’s ruling was erroneous and, if so, whether the error requires reversal. We thus**  **affirm the judgment of the Court of Appeals holding that defendant was required to testify to preserve his challenge**  **for appellate review.**

**I. UNDERLYING FACTS AND PROCEDURAL HISTORY**  **On June 14, 1997, the twelve-year-old victim attended a barbeque at a neighbor’s apartment in the building where**  **defendant lived. The victim testified that defendant grabbed her at the barbeque, took her to his apartment, and**  **had sexual intercourse with her. She told her friend, an eleven-year-old girl, about the assault immediately**  **thereafter, but did not tell her father about it until a week later. Her father then called the police and took her**  **for a medical examination. The results of the examination were inconclusive regarding penetration because of the**  **interval between the alleged penetration and the examination.**  **Police arrested defendant shortly after the victim’s father reported the incident. Defendant furnished a**  **statement to police after being advised of his** Miranda **rights. After defendant answered five or six questions, the police officer asked him, “When you last saw her [the**  **victim], how many times did you have sex with her?”**

3**Defendant responded, “I am taking the fifth on that one.” The officer immediately ended the interrogation.**  **The prosecutor charged defendant with first-degree criminal sexual conduct, MCL 750.520b(1)(a) (sexual**  **penetration of victim under thirteen years of age). Immediately before trial, defendant moved in limine to**  **exclude that portion of his statement in which he asserted his**  Miranda **right to remain silent. The prosecutor opposed the motion, arguing that**  **the entire statement was admissible. The trial court ruled that defendant’s entire**  **statement was admissible. Despite this ruling, the prosecutor never sought to**  **admit defendant’s statement into evidence and did not refer to the statement during opening or closing argument.**  **Defendant elected not to testify, but the record does not reflect the reason for his decision. Defendant’s brother**  **testified that defendant had been with him at the apartment at the time of the alleged assault and that no assault**  **occurred. The young female friend of the complainant testified that the victim told her about the assault**  **immediately after it had occurred. The friend also testified that the victim was crying, her clothes were**  **“messed up,” and she was missing a pair of shorts.**

4**The jury convicted defendant of second-degree criminal sexual conduct, MCL 750.520c, and the trial court sentenced**  **him to a ten- to fifteen-year term of imprisonment. The Court of Appeals affirmed.**  **3 Defendant argued,**  **inter alia, that his decision not to testify at trial was based on the trial court’s erroneous ruling in limine**  **allowing the prosecutor to use the assertion of his** Miranda **right to remain silent against him. The Court of Appeals agreed that the trial court’s ruling was erroneous, but,**  **citing** Finley **, held that reversal was not required because defendant did not testify and the evidence was never**  **admitted. The Court declined to assume that defendant chose not to testify “out of fear of impeachment.” It also**  **concluded that the evidence against defendant was overwhelming and that any error was harmless beyond a**  **reasonable doubt. We granted defendant’s application for leave to**  **appeal. 4** 

3 **Unpublished opinion per curiam, issued September 15, 2000 (Docket No. 214097).** 

4 **467 Mich 920 (2002).**

5**II. STANDARD OF REVIEW**  **This case requires us to determine whether a defendant must testify in order to preserve for appellate review a**  **challenge to a ruling in limine allowing admission of his exercise of his silence. We review de novo this question**  **of law.** People v Mendoza **, 468 Mich 527, 531; 664 NW2d 685 (2003).** 

**III. ANALYSIS** 
**A.** Luce **and** Finley **In circumstances analogous to the instant factual scenario, the United States Supreme Court held that a**  **defendant must testify to preserve for appeal the issue of improper impeachment by prior convictions.**  Luce, supra **at 43.**  **In** Luce **, the petitioner sought to preclude the use of a prior conviction to impeach his testimony. The trial**  **court ruled that the prior conviction was admissible under FRE 609(a). The petitioner did not testify and was**  **convicted.** Luce, supra **at 39-40. The Supreme Court upheld the convictions, citing**  **numerous reasons for requiring the petitioner to testify to preserve his challenge to the pretrial evidentiary ruling.**  **First, the Court reasoned that if the petitioner had testified and been impeached with the prior conviction, the**  **trial court’s decision admitting the evidence would have** 

6**been reviewable on appeal.** Id **. at 41. The Court recognized the difficulty inherent in reviewing an**  **evidentiary ruling outside a factual context, particularly because FRE 609(a)(1) required a reviewing court to weigh**  **the probative value of a prior conviction against its prejudicial effect. To perform this balancing test, the**  **Court opined, a reviewing court must know the precise nature of the defendant’s testimony, which is unknown**  **unless he testifies.** Luce, supra **at 41. The Court rejected the notion that an offer of proof would be**  **sufficient because a defendant’s trial testimony could differ from the proffer.**  Id **. at n 5. Second, the Court recognized that**  **any possible harm from a trial court’s ruling in limine allowing impeachment**  **with prior convictions is wholly speculative in the absence of the defendant’s testimony. The Court opined that such a**  **ruling is subject to change depending on how the case unfolds at trial and that a court, exercising sound**  **judicial discretion, could modify a previous ruling in limine. The Court also stated that without a defendant’s**  **testimony, a reviewing court has no way of knowing whether the prosecutor would have sought to introduce the prior**  **conviction for impeachment. For example, if the prosecutor’s case is strong and other means of impeachment** 

7**are available, the prosecutor may choose not to use an arguably inadmissible prior conviction.**  Id **. at 41-42. Third, the Court reasoned that appellate courts cannot**  **assume that an adverse pretrial ruling motivated a defendant’s decision not to testify. The Court rejected**  **the notion that a defendant could commit to testifying if his motion is granted because such a commitment is**  **relatively risk-free and difficult to enforce.** Id **. at 42. In addition, the Court acknowledged the problem**  **involving application of a harmless error analysis because “the appellate court could not logically term ‘harmless’ an**  **error that presumptively kept the defendant from testifying.”**  Id **. Thus, nearly every error would automatically require reversal. Finally, the Court opined**  **that requiring defendants to testify enables reviewing courts to assess the effect of any erroneous impeachment in**  **light of the entire record and tends to discourage gamesmanship whereby a defendant’s motion operates solely**  **to “plant” error requiring reversal on appeal.** Id **. In**  Finley, **a majority of this Court adopted the** Luce **rule. We observed that the purpose of the rule is to provide for meaningful appellate review of a ruling in**  **limine allowing impeachment by prior convictions.** Finley,

supra **at 512 (opinion of R ILEY**  **, C.J.). The lead opinion**

8**stated that “error does not occur until error occurs; that is, until the evidence is admitted.”**  Id **. It further stated that even if an offer of proof is made and evidence**  **is erroneously deemed admissible, error requiring reversal does not arise until the evidence is actually introduced.**  **The lead opinion then reiterated the reasons stated in** Luce **favoring the rule requiring a defendant’s testimony to preserve the issue for appellate review.**  Id **. at 512-513.**

**B. Extension of the**  Luce **and** Finley **Rule Many courts have extended the rule announced in**  Luce **and adopted in** Finley **to contexts other than those involving impeachment by prior convictions.**  **5 In**  United

5 **Many of these cases involve federal rules of evidence other than FRE 609(a), the**  **rule at issue in** Luce **. See, e.g.,**  United States v Sanderson **, 966 F2d 184, 190 (CA 6, 1992) (“[A]n appeal of a Rule 608(b) ruling is precluded**  **where the defendant did not testify at trial.”);** United States v Ortiz **, 857 F2d 900, 906 (CA 2, 1988) (the defendant waived his challenge to the trial court’s adverse**  **ruling in limine on Rule 404(b) motion by failing to insist on right to fully present “personal use” argument at**  **trial);** United States v Griffin **, 818 F2d 97, 103-105 (CA 1, 1987) (“[T]o raise and preserve for review the claim of**  **improperly constructing the Rule 403 balance, a party must obtain the order admitting or excluding the controversial**  **evidence in the actual setting of the trial” and may not rely on a trial court’s mere ruling in limine.);**  United States v Weichert **, 783 F2d 23, 25 (CA 2, 1986) (By failing to testify at trial, challenge to the trial court’s ruling**  **in limine under Rule 608(b) was not preserved for review.);** United States v Johnson **, 767 F2d 1259, 1270 (CA 8, 1985) (“Although**  Luce **was decided under Fed. R. Evid. 609(a)(1),** Footnotes continued on following page.

9**its logic applies with equal force to motions under Rule 404.”).**  **In addition, the dissent cites Professor Duane for the proposition that the United States Supreme Court has been**  **“reluctant to give** Luce **any precedential value,”** post **at 11.**  **To the contrary, the Court has rather recently accorded such value to**  Luce **in** Ohler v United States **, 529 US 753, 759; 120 S Ct 1851; 146 L Ed 2d 826 (2000), a case**  **in which the Court held that once a defendant ―**  **not the government**  **― introduces evidence of a prior conviction, the**  **defendant waives any right to appeal the trial court’s ruling in limine permitting the government to admit that**  **conviction for purposes of impeachment. Moreover, although four justices dissented, concluding that**  Luce **was inapplicable because the defendant had testified and thus**  **the harm was not “wholly speculative,”** Luce, supra **at 41, those justices also appeared implic**  **itly to recognize the importance of**  Luce **: An appellate court can neither determine why**  **a defendant refused to testify, nor compare the actual trial with the one that would have**  **occurred if the accused had taken the stand. With unavoidable uncertainty about whether and**  **how much the** in limine **ruling harmed the defendant, and whether it affected the trial at**  **all, a rule allowing a silent defendant to appeal would require courts either to attempt wholly**  **speculative harmless-error analysis, or to grant new trials to some defendants who were not harmed**  **by the ruling, and to some who never even intended to testify.**  Ohler, supra **at 760-761. (Souter, J., dissenting).**  **Although the dissent states that the United States Supreme Court in**  Ohler **“begrudgingly” cited** Luce **,** post **at 14, nothing in**  Ohler **’s majority or dissenting opinion supports that assertion. Further, our reliance on**  Ohler **is not “misplaced.”**  Post **at 14. Neither the majority nor the dissent in**  Ohler **questioned** Luce **’s continuing validity. Rather, the Court decided that**  Luce **was inapplicable.** Ohler **simply does not state that the United States Supreme Court has been reluctant to accord**  Luce **precedential effect.** 

10States v Wilson **, 307 F3d 596, 598 (CA 7, 2002), the defendant moved in limine to preclude the prosecutor from**  **introducing evidence of his postarrest “selective silence.” After waiving his**  Miranda **rights, the defendant answered a series of questions, but expressly refused to provide the**  **name of his associate.** Id. **The trial court granted the motion in part, ruling that the prosecution could not use**  **the defendant’s silence against him in its case-in-chief. During trial, the defendant sought to admit evidence**  **regarding the associate, but the court ruled that if defendant raised the matter, the prosecutor would be**  **permitted to introduce evidence of the defendant’s refusal to name the associate during questioning. The defendant**  **opted not to raise the issue.** Id **. at 598-600. On appeal, the defendant argued that the trial court’s**  **ruling allowing the prosecutor to introduce evidence of his “selective silence” violated his Fifth Amendment privilege**  **against self-incrimination.** Id **. at 599. Relying on** Luce **and the line of cases extending the** Luce **holding beyond FRE 609, the court declined to review the defendant’s claim on**  **the merits. The court stated that because the defendant exercised his right to refrain from introducing certain**  **evidence at trial, he “cannot now attack a potential**

11**introduction of evidence by the government in response to his potential testimony.”**  Id **. at 601.** United States v Bond **, 87 F3d 695 (CA 5, 1996), also involved a defendant’s Fifth Amendment privilege against**  **self-incrimination. In that case, the defendant challenged the magistrate’s ruling that if he testified regarding the**  **terms of a plea bargain, he would waive his privilege against self-incrimination regarding all grounds asserted**  **in his motion to withdraw his guilty plea. The appellate court determined that the same practical considerations as**  **in** Luce **were present, including the difficulty inherent in determining whether the defendant’s testimony could be**  **limited in accordance with his motion without actually hearing the testimony. The court recognized that other**  **courts have refused to limit the** Luce **rule to Rule 609(a) situations and have instead applied the**  Luce **rule in analogous contexts.**  Id **. at 700-701.**
**C. Application of the**  Luce **Rule to the Facts in this Case**  **As in** Wilson **and** Bond **, we must determine here whether to extend the**  Luce **rule to defendant’s invocation of his** Miranda **right to remain silent. Defendant and the dissent contend that the logic of**  Luce **and** Finley **does not apply because the alleged error has constitutional implications.** 

12**The alleged errors in** Wilson **and** Bond **, however, also had constitutional implications. In fact, the purported errors**  **in those cases involved the same constitutional right at issue in this case, i.e., the Fifth Amendment privilege**  **against self-incrimination. The dissent and defendant further fail to appreciate**  **the constitutional implications present in** Luce **,** Finley **, and every case in which a defendant alleges that a trial**  **court’s ruling effectively prevented him from testifying. A defendant’s right to testify in his own defense stems**  **from the Fifth, Sixth, and Fourteenth amendments of the United States Constitution.**  Rock v Arkansas **, 483 US 44, 51-52; 107 S Ct 2704; 97 L Ed 2d 37 (1987). Thus, a trial**  **court’s ruling affecting a defendant’s right to testify necessarily has constitutional implications.**  **6 The lead**  **opinion in** Finley **correctly stated, “A ruling in limine on impeachment by prior convictions does not present**  **constitutional implications.”** Finley, supra **at 514. The effect of such a ruling on a defendant’s right to testify,**  **however, does present constitutional implications.**

6 **While the United States Supreme Court did not decide** Rock **until after it decided** Luce **, its decision in** Rock **made clear that a defendant’s challenge involving his right to**  **testify in his own defense is one of constitutional magnitude.** 

13**Therefore, the distinction that the dissent attempts to draw between this case and**  Finley **is illusory. Any ruling, even if on a mere evidentiary issue, necessarily affects a**  **defendant’s constitutional rights if it has a chilling effect on the exercise of the right to testify.**  **Defendant further asserts that, because his invocation of his**  Miranda **right to remain silent could** never **be admitted at trial, the trial court’s ruling in limine that**  **his statement was admissible constituted error that could never be harmless. Defendant’s argument is premised on the**  **erroneous assumption that his invocation of his privilege against self-incrimination could**  never **be admissible. Under**  Doyle v Ohio, **426 US 610, 619; 96 S Ct 2240; 49 L Ed 2d 91 (1976), and**  People v Bobo **, 390 Mich 355, 359; 212 NW2d 190 (1973), however,**  **defendant’s “taking the fifth” statement would have been properly admissible in one**  **context. The United States Supreme Court held in** Doyle,

supra **at 619, “that the use for impeachment purposes of petitioners’ silence at the time of arrest and after**  **receiving** Miranda **warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” The Court recognized,**  **however, that “the fact of post-arrest silence could be used by the prosecution to contradict a defendant who**  **testifies to an exculpatory version of events and claims to**

14**have told the police the same version upon arrest.”** Id **. at 619 n 11.**  **Similarly, in** Bobo **, this Court held that the prosecution could not introduce a defendant’s postarrest**  **silence to impeach his exculpatory testimony at trial.** Bobo, supra **at 359. We cautioned, however, that this rule was not an absolute ban on the use of post-**  Miranda **silence and stated that “[t]he fact that a witness did not make a**  **statement may be shown only to contradict his assertion that he did.”**  **7** Id.; **see also** People v Dennis **, 464 Mich 567, 573 n 5; 628 NW2d 502 (2001), citing**  Doyle, supra **at 619 n 11.**  **If defendant had offered exculpatory testimony at trial and claimed to have told his exculpatory story to the**  **police in response to questioning, his silence would have been admissible for impeachment purposes. As this Court**  **recently stated in** Dennis, Doyle **does not apply where “a defendant testifies to having earlier provided an**  **exculpatory version of events to the police and the prosecution offers evidence of defendant’s silence to rebut** 

7 **In** People v Collier **, 426 Mich 23, 39; 393 NW2d 346 (1986), this Court confined**  Bobo **“to impeachment for and comment on silence at the time**  **of arrest in the face of accusation.” See also**  People v Hackett **, 460 Mich 202, 215 n 6; 596 NW2d 107 (1999).** 

15**such a claim.”** Dennis, supra **at 573 n 5. 8**  **Thus, defendant’s contention that his “taking the fifth”**  **statement would** never **have been admissible is incorrect. 9**  **Rather, the statement’s admissibility would depend on the context in which the prosecutor had sought to admit it.**  **10 Because the admissibility of post-**  Miranda **silence depends on the factual setting in which the prosecutor**  **seeks to admit it, we are faced with the same problem encountered in**  Luce **and** Finley **, i.e., that defendant’s**

**8 See also**  People v Sutton (After Remand) **, 436 Mich 575, 579; 464 NW2d 276 (1990) (“Where a defendant claims**  **that he gave an exculpatory statement to the police after arrest and warnings, neither**  Bobo **nor any federal constitutional authority would preclude impeachment with**  **prior inconsistent conduct, including silence.”).**

9 **We are not presented with a situation in which defendant’s statement would**  never **have been admissible, and we express no opinion regarding whether a claim of error**  **would be reviewable in that instance absent a defendant’s testimony at trial.** 

10 **For this reason, the dissent’s contention that our holding “requires the defendant to choose which**  **constitutional right to give up, his Fifth Amendment right to post-**  Miranda **silence or his Fifth Amendment right not to testify,” is misleading.**  Post **at 16-17. Because a defendant may, in a certain circumstance, testify and**  **properly be impeached with his post-** Miranda **silence without offending constitutional protections, he is not necessarily**  **forced to give up either his Fifth Amendment privilege against self-incrimination or his**  Miranda **right to remain silent. In fact, this argument supports the notion that a**  **defendant must testify in order to determine whether any error occurred at all.** 

16**claim of error is wholly speculative. Not only could the statement have been admitted to contradict a defendant who**  **testified about an exculpatory version of events and claims to have told the police that version upon his arrest, but,** 

**as** Luce **suggests, it might not have been admitted at all, even if defendant had testified. As the**  Luce **Court recognized, the trial court could have ultimately concluded**  **that the statement was inadmissible, or the prosecution could have changed its trial strategy and not sought to**  **admit the statement. In addition, as**  Luce **recognized, we cannot assume that the possible introduction of the “taking the fifth”**  **statement motivated defendant’s decision not to testify. The**  Luce **Court rejected the notion that appellate courts can properly discern the effect of a ruling in limine on a**  **defendant’s trial strategy.** Luce, supra **at 42. Thus, it is equally possible that defendant simply chose to present**  **his defense through his brother’s testimony, which contradicted the complainant’s allegations, rather than to**  **testify himself and be subject to cross-examination. Because numerous factors undoubtedly influence a**  **defendant’s decision whether to testify, we refuse to speculate regarding what effect, if any, a ruling in limine**  **may have had on this decision.**

17**Defendant cites** State v Lamb, **84 NC App 569, 580-581; 353 SE2d 857 (1987), quoting**  United States v Lipscomb **, 226 US App DC 312, 332; 702 F2d 1049 (1983), for the**  **proposition that “when a defendant seeks an advance ruling on admission of a prior conviction, it is reasonable to**  **presume that the ruling will be an important factor in his decision whether to testify.” The**  Lamb **court, however, failed to acknowledge that a rule allowing appeals based on**  **evidence contested in limine but never introduced at trial is subject to abuse. For example, a defendant could move**  **in limine to exclude a number of prior statements, all the while never intending to testify. The**  Luce **Court recognized this potential for abuse, stating that its rule**  **“will also tend to discourage making [motions] solely to ‘plant’ [error requiring reversal] in the event of**  **conviction.”** Luce, supra **at 42. Thus, we find defendant’s reliance on**  Lamb **unpersuasive. Further, unlike the dissent, we appreciate the**  **difficulty inherent in evaluating a trial court’s ruling on a motion in limine when the evidence is never actually**  **admitted. The dissent would have us review defendant’s claim of error in a vacuum and engage in speculation**  **regarding whether the statement would have been properly**  **admissible. The speculative exercise that the dissent**

18**offers,** post **at 23-24, is exactly what we are seeking to avoid. Often, a factual record is necessary to determine**  **the soundness of the trial court’s ruling if for no other reason than to conduct a ha**  **rmless error analysis. Extension of the**  Luce **and** Finley **rule to the instant circumstance ensures that appellate courts are not forced**  **to entertain abstract allegations of error. Because the practical considerations extant in**  Luce **and** Finley **of evaluating theoretical error in the absence of a defendant’s testimony are also present in this case,**  **we follow the lead of** Wilson **and** Bond **and extend the** Luce **rule to encompass alleged error implicating a defendant’s Fifth Amendment privilege against self-incrimination.**  **Thus, to preserve for appellate review a challenge to a trial court’s ruling in limine allowing into evidence a**  **defendant’s exercise of his Fifth Amendment privilege, the defendant must testify at trial. Because the statement at**  **issue in this case would have been properly admissible in one context, it is impossible to determine whether the**  **trial court’s ruling was erroneous. 11**  **Accordingly, we are unable to review defendant’s allegation of error.** 

11 **Although we review claims of error under the standard announced in**  People v Carines **, 460 Mich 750, 763;** Footnotes continued on following page.

19**IV. CONCLUSION**  **We conclude that defendant was required to testify to preserve for review his challenge to the trial court’s**  **ruling in limine allowing the prosecutor to admit evidence of defendant’s exercise of his**  Miranda **right to remain silent. Because the statement at issue in this case would**  **have been properly admissible in one context, defendant’s failure to testify precludes us from being able to**  **determine whether the trial c ourt’s ruling was erroneous**  **and, if so, whether the error requires reversal. Accordingly, we affirm the judgment of the Court of**  **Appeals. 12**  **Maura D. Corrigan Elizabeth A. Weaver**  **Clifford W. Taylor Robert P. Young, Jr.**  **Stephen J. Markman**

**597 NW2d 130 (1999 ), that standard applies only when an**  **error exists. Because defendant’s decision not to testify prevents us from being able to determine whether the trial**  **court’s ruling was erroneous, the** Carines **plain error standard is inapplicable.** 

**12 The dissent criticizes our opinion for declining to**  **review the sentencing issue that defendant raised in his application for leave to appeal.**  Post **at 26-27. Defendant has abandoned that issue by failing to address it in his**  **brief on appeal in this Court.** Steward v Panek **, 251 Mich App 546, 558; 652 NW2d 232 (2002).** 

20**_______________________________ v**  **S T A T E O F M I C H I G A N**
**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,** 

**No. 118021**  **ERIC BOYD, Defendant-Appellant.** 

**KELLY, J. (** dissenting **). I would not extend the ruling in**  Luce v United States 1
**and** People v Finley **2 to this case. I find that the trial**  **court's error here was plain enough to require reversal, despite defendant's decision not to testify. Therefore, I**  **would reverse the Court of Appeals decision and remand this case for a new trial.**  **The Majority Mischaracterizes** Finley Finley **does not stand for anything more than a specific application of**  Luce **. It holds that, to preserve a claim of error concerning improper impeachment by prior** 

1 Luce v United States, **469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984).** 

2 People v Finley, **431 Mich 506; 431 NW2d 19 (1988). convictions under MRE 609, a defendant must testify.**  **Although Justices Boyle and G riffin joined Chief Justice**  **Riley's lead opinion, Justice Brickley joined only part of it.**  Finley **,** supra **at 526-531. He concurred with the adoption of the rule as defined in**  Luce. **However, he disagreed with certain elements of the opinion.**  Finley **,** supra **at 526. One of his spec ific concerns was that it**  **used overly broad language in obiter dictum.** Id **. at 530. He wrote that the lead opinion had no authority for its**  **statement that “the straightforward logic of**  Luce **. . . is that as to evidentiary rulings, error does not occur**  **until error occurs; that is, until the evidence is admitted. Obviously, in other contexts, if an**  **offer of proof is made and the court erroneously permits the introduction of hearsay, character**  **evidence, similar acts, or the myriad of evidence objectionable under the MRE, there is no error**  **requiring reversal unless the evidence actually is introduced.” [**  Id **., quoting lead opinion at 512.]**  **He also noted that “the notion that reviewable error does not occur until admission of the challenged evidence**  **does not square with actual practice.”** Id **. at 531. Interlocutory appeals are regularly taken on**  **evidentiary questions and pretrial rulings are often deemed erroneous in spite of the fact that**  **their effect has not yet been felt at trial. [**  Id **.] He cautioned that “[e]rror can also occur at**  **trial in varying forms, and the Court should not be so quick to define a universal principle,** 

**2 particularly since the specific grounds for the**  **adoption of the** Luce **requirement are so clearly explained by the Chief Justice.”**  Id **. Thus, although Justice Brickley supported the adoption**  **of** Luce **, he agreed to only a limited adoption of its principle. He left no doubt that he would not apply**  Finley **beyond its specific grounds. Justice Cavanagh concurred in the result, but**  **dissented from the rationale of the lead opinion with one exception noted below.**  Id **. at 531-544. Justices Levin and Archer concurred in Justice Brickley's opinion, "except for**  **the language of his opinion concurring in the language of the plurality opinion that fails to recognize that a**  **defendant who wishes to preserve for appeal an adverse ruling on the admission of a prior conviction record may do**  **so by testifying outside the presence of the jury."** Id **. at 557-558 (Levin, J.).**  **Therefore, the majority in this case incorrectly cites the**  Finley **lead opinion for the proposition that "’error does not occur until . . . the evidence is admitted.’"** 

Ante **at 9 quoting** id. **, p 512 (Riley, C.J.).** Finley **does not hold that if an offer of proof is made and the evidence**  **is erroneously deemed admissible, there is no error requiring reversal unless the evidence is actually**  **introduced.** Ante **at 8.**

**3 Contrary to the majority's citation here, four**  Finley **justices rejected the lead opinion's sweeping premise. See** id **. at 530-531 (Brickley, J.); 537-538 (Cavanagh, J.); 557 -**  **558 (Levin, J.). The "majority" of the** Finley **Court was composed of only three justices who in obiter dictum saw**  **an application of** Luce **beyond MRE 609. Hence, the rationale in the lead opinion in**  Finley **giving an expanded view of**  Luce **is erroneously based.**

Luce **and** Finley **are Inapplicable Defendant seeks review of an incorrect ruling**  **involving his right to remain silent after receiving** Miranda **warnings.** Miranda v Arizona **, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). The majority “extends” the**  **holding of** Luce **to this case. This extension ignores language in both**  Luce **and** Finley **specifically limiting their holdings to cases involving a subtle evidentiary**  **balancing test of nonconstitutional dimensions concerning impeachment with prior convictions.**  Luce **, 469 US 43;** Finley **, 431 Mich 514 (Riley, C.J.), 553-554 (Levin, J.). Indeed, Chief Justice Burger's opinion for the Court**  **in** Luce **carefully distinguished** Luce **from** Brooks v

Tennessee **and** New Jersey v Portash. Brooks v Tennessee, **406 US 605; 92 S Ct 1891; 32 L Ed 2d 358 (1972);** New Jersey v Portash, **440 US 450; 99 S Ct 1292; 59 L Ed 2d 501 (1979).**

**4**Brooks **and** Portash **involved “Fifth Amendment challenges to state court rulings that operated to dissuade defendants**  **from testifying.” Justice Burger wrote that they did not involve “a federal court's preliminary ruling on a question**  **that did not reach constitutional dimensions, such as a decision under [FRE 609(a)]."**  Luce **, 469 US 42-43. The**  Luce **Court was primarily concerned about the practical problem of trial courts being forced to make FRE**  **609 evidentiary rulings in a factual vacuum: A reviewing court is handicapped in any**  **effort to rule on subtle evidentiary questions outside a factual context. This is particularly**  **true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior**  **conviction against the prejudicial effect to the defendant. To perform this balancing, the court**  **must know the precise nature of the defendant's testimony, which is unknowable when, as here, the**  **defendant does not testify. [** Luce **, 469 US 41.] I agree with the dissent in**  Finley **that the above rationale from**  Luce **is unpersuasive even in the limited context of a ruling in limine on an FRE 609 motion.**  Finley **, 431 Mich 537 (Cavanagh, J.). In any event, the review of**  **prior conviction evidence under FRE 609(a) involves both a nonconstitutional question and a subtle balancing test.**  **The test is heavily dependent on the precise scope of the defendant’s testimony. However, the claimed error in this**  **case involves solely a legal question and is one of constitutional dimensions.** 

**5 The majority presents case l**  **aw from federal circuit courts of appeals that have expanded**  Luce **to claims other than those involving FRE 609 determinations. Included are**  **opinions from two jurisdictions that have extended the** Luce **rule to questions involving constitutional claims of error. However, the majority places too much reliance on the warm**  **reception of these courts to the unwarranted expansion of**

Luce **by federal circuit courts. "It is only understandable that our extremely overworked judges will display a natural**  **fondness for any strict preservation of error rule, which necessarily lightens the often crushing case load of both**  **trial and appeals court judges." Duane,** Appellate review of in limine rulings **, 182 FRD 666, 682 (1999). Various federal and state court opinions have**  **recognized the inapplicability of** Luce **to Fifth Amendment and Sixth Amendment violations, as well as other similar**  **questions of constitutional error. 3**  **I find these opinions persuasive.** 

3 **See, e.g.,** United States ex rel Adkins v Greer **, 791 F2d 590, 593-594 (CA 7, 1986)(a confession elicited in**  **violation of the defendant’s Fifth Amendment rights can be reviewed despite the defendant’s election not to testify);**  United States v Chischilly **, 30 F3d 1144, 1150-1151 (CA 9, 1994) (a defendant was permitted to challenge the**  **admissibility of a confession, despite the fact that it was not introduced, because the trial court's ruling that the**  **confession could be used prevented the defendant from** Footnotes continued on following page.

**6 There are a number of important reasons for the**  **differentiation they recognize. First, as aptly noted by Justice Cavanagh in**  Finley **,** Luce **'s requirement that a defendant testify to preserve the impeachment issue was**  **“inconsistent with the spirit, if not the precise holding,” of two of the United States Supreme Court's own decisions,**  Brooks **and** Potash **. Both specifically dealt with questions of Fifth Amendment challenges to state court rulings.**  Finley **, 431 Mich 535-536 (Cavanagh, J.). Justice Brennan in his**  Luce **concurrence specifically recognized the factual differences of such a claim. He noted, also, that a**  **different “calculus of interests” sets the types of claims**

**raising an insanity defense);**  Biller v Lopes **, 834 F2d 41, 43-45 (CA 2, 1987) (a habeas corpus petitioner was**  **permitted to raise a claim that the denial of a motion in limine unfairly kept him from testifying, when the motion**  **was based on the unconstitutionality of a prior conviction);**  United States v Jenkins, **785 F2d 1387 (CA 9, 1986) (the use of grand jury testimony for impeachment was**  **moot because the government did not introduce it at trial);** Pillotti v Superintendent **, 759 F Supp 1031 (SD NY, 1991) (a challenge to impeachment evidence obtained with a**  **fraudulently obtained guilty plea in a prior case). See also**  State v Greve, **67 Wash App 166; 834 P2d 656 (1992);** State v Brings Plenty, **459 NW2d 390 (SD, 1990);** State v Brunelle **148 Vt 347; 534 A2d 198 (1987);** People v Henderson, **745 P2d 265 (Colo App, 1987);** State v Lamb **, 84 NC App 569, 580-581; 353 SE2d 857 (1983);**  People v Brown **, 42 Cal App 4th 461; 49 Cal Rptr 2d 652 (1996).**  **Interestingly, the court in** United States v Wilson **, 307 F3d 596 (CA 7, 2002), failed to address the precedent of its**  **own circuit in reaching its decision.**

**7 of error apart from one another.**  Luce **, 469 US 44 (Brennan, J., concurring).**  **I agree with Justice Brennan that a different “calculus of interests” is present when the alleged claim**  **of error is a constitutional one. I find that, even more than in a review of an FRE 609 ruling, the calculus of**  **interests involved where the alleged error is constitutional in nature requires appellate court review.**  **This is true even if the defendant does not testify at trial and the evidence is not provided to the jury. As**  **Justice Cavanagh so eloquently stated in his dissent in** Finley **: Let us start with the language of the Fifth**  **Amendment itself, which states in part: No person . . . shall be compelled in any**  **criminal case to be a witness against himself . . . . [US Const, Am V.]**  **Implicit in this constitutional guarantee is that no penalty, no sanction, no disadvantage to**  **the defendant shall flow from his decision not to testify at trial.**  Griffin v California **, 380 US 609; 85 S Ct 1229; 14 L Ed 2d 106 (1965), reh den 381 US 957**  **(1965), held unconstitutional a statute permitting the prosecution to comment on the**  **failure of the defendant to testify at his criminal trial.**  Carter v Kentucky **, 450 US 288; 101 S Ct 1112; 67 L Ed 2d 241 (1981), held that**  **the Fifth Amendment required the court, upon the request of a nontestifying defendant, to instruct**  **the jury not to draw an adverse inference from the failure of the defendant to testify. The**  **central theme of both cases was "** that a defendant must pay no court-imposed price for the exercise

**8**of his constitutional privilege not to testify **." 450 US 301. (Emphasis added.)**  **Similarly, the Court in** Lefkowitz v Cunningham **, 431 US 801, 805; 97 S Ct 2132; 53 L Ed 2d 1 (1977), observed:**  **“[Our] cases have established that a State may not impose substantial penalties because a**  **witness elects to exercise his Fifth Amendment right not to give incriminating testimony against**  **himself.” The**  Luce **rule exacts a heavy price from the defendant for electing not to testify at his**  **trial. He is denied the right on appeal to raise what may be a substantial issue. [**  Finley **, 431 Mich 533-534 (Cavanagh, J.).]**  **Here, the majority's decision exacts an even heavier price on defendant’s decision not to testify at trial. An**  **accused in the position of the defendant in** Finley **must testify or give up the right to raise a substantial issue.**  **In this case, however, the claim of error surrendered is a constitutional one, not simply an evidentiary one.** 

Luce **Did Not Invoke Constitutional Questions In an attempt to justify why retroactive application**  **is unwarranted in this case, the majority chooses to find constitutional implications present in**  Luce **and** Finley. **However, both the majority and the concurrence in** Luce **and the lead opinion in**  Finley **took pains to distinguish Rule 609 questions from those involving constitutional claims of**  **error. In direct response to Justice Cavanagh's dissent in Finley, the lead opinion stated:** 

**9 [D]espite the suggestions in Justice**  **Cavanagh's opinion, it cannot be seriously claimed that the Fifth Amendment bars adoption of**  Luce **. Whatever one's views of the philosophy of particular justices, in Luce, all eight justices**  **agreed that the issue did not involve a Fifth Amendment challenge. The issue presented is what**  **procedural steps are necessary to preserve an issue for appeal, a matter that no more levies a**  **"court-imposed price" for the exercise of a constitutional privilege than procedural rules**  **requiring the timely assertion of other constitutional rights. [**  Finley **, 431 Mich 520 (Riley, J.).]**  **The majority’s recognition that "[a] defendant's right to testify in his own defense stems from the Fifth, Sixth,**  **and Fourteenth amendments of the United States Constitution",**  ante **at 12, arises from its reading of** Rock v Arkansas **, 483 US 44, 46-47; 107 S Ct 2704; 97 L Ed 37 (1987). However,**  Rock **was not published until after** Luce **had been decided and was not mentioned in** Finley **, which was released soon after**  Rock **. As noted by Professor Duane, there is no indication that the defendant in**  Luce **raised, or that the**  Luce **Court saw itself as deciding, any constitutional claim whatsoever. At the time**  Luce **was decided:**  **Chief Justice Burger and a majority of the Court still regarded it as an open question**  **whether a criminal accused had a constitutional right to testify in his own trial. Two years**  **after** Luce **, Chief Justice Burger wrote for the**  **majority in** Nix v Whiteside **that "this Court has never explicitly held that a criminal defendant**  **has a due process right to testify in his own**

**10 behalf . . . ." [**  Nix v Whiteside **, 475 US 157, 164; 106 S Ct 988; 89 L Ed 2d 123 (1986)]. This**  **comment provoked a response by a minority of four justices who were "puzzled by the Court's**  **implicit suggestion that whether a defendant has a constitutional right to testify in his own**  **defense remains an open question." [** Id **. at 186 n 5 (Blackmun, J., concurring).]**  **Since the time Burger wrote for the Court in** Luce **and** Nix **, however, the Supreme Court has formally settled that an accused has a**  **constitutional right to testify at his trial [e.g.,**  Rock, supra **at 49-51]. That being the case, there is now a plausible basis for a**  **criminal appellant to claim—unlike the appellant in**  Luce **—that an erroneous ruling to allow impeachment amounted to an impermissible burden**  **on the exercise of his constitutional rights. [Duane,**  supra **at 686.] Professor Duane used this observation to show why**  Luce **was out of step with previous Supreme Court decisions. He theorized that this was the reason that the Supreme Court**  **apparently has been highly reluctant to give** Luce **any precedential value in the years since it was issued. Also,**  **he believes that the Supreme Court would not rule as it did in**  Luce **were it again presented with the same issue. The Majority’s Reliance on**  Ohler **is Misplaced The majority reads too much into the decision in**  Ohler v United States **, 529 US 753; 120 SCt 1851; 146 L Ed 2d 826 (2000). There, defendant was confronted with the potential**  **introduction of evidence of a prior conviction. The defendant sought in limine to preclude the evidence under** 

**11 FRE 609, and the trial court denied the motion. The**  **defendant then elected to testify and explain the earlier conviction before he could be impeached with it. After**  **being convicted, he asserted on appeal that the trial court’s ruling infringed his right to testify. The United**  **States Supreme Court, in a five-to-four decision, affirmed the conviction.**  **The majority, in an opin ion by Chief Justice**  **Rehnquist, found that the defendant “runs into the position taken by the Court in a similar, but not identical,**  **situation in** Luce **” that any possible harm from the decision whether to testify is wholly speculative.**  Ohler **, 529 US 759.**  **This is the only mention of** Luce **in the majority opinion. The Court’s holding was based primarily on a**  **waiver analysis: “We conclude that a defendant who preemptively introduces evidence of a prior conviction on**  **direct examination may not on appeal claim that the admission of such evidence was error.”**  Id **. at 760. The dissent, authored by Justice Souter, disagreed**  **with the waiver analysis. It discussed** Luce **in three paragraphs. The majority here has quoted the second**  **paragraph, yet conveniently omitted the first and third.**  **The relevant text,** id. **at 760-761, is as follows:**

**12 The only case of this Court that the**  **majority claims as even tangential support for its waiver rule is**  Luce v United States **, 469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984).**  Ante **at [759]. We held there that a criminal defendant**  **who remained off the stand could not appeal an** in limine **ruling to admit prior convictions as impeachment evidence under Federal Rule of**  **Evidence 609(a). Since the defendant had not testified, he had never suffered the impeachment,**  **and the question was whether he should be allowed to appeal the**  in limine **ruling anyway, on the rationale that the threatened impeachment had**  **discouraged the exercise of his right to defend by his own testimony. The answer turned on the**  **practical realities of appellate review. An appellate court can neither determine why**  **a defendant refused to testify, nor compare the actual trial with the one that would have**  **occurred if the accused had taken the stand. With unavoidable uncertainty about whether and how**  **much the** in limine **ruling harmed the defendant, and whether it affected the trial at all, a rule**  **allowing a silent defendant to appeal would require courts either to attempt wholly**  **speculative harmless-error analysis, or to grant new trials to some defendants who were not harmed**  **by the ruling, and to some who never even intended to testify. In requiring testimony and**  **actual impeachment before a defendant could appeal an**  in limine **ruling to admit prior convictions, therefore,**  Luce **did not derive a waiver rule from some general notion of fairness;**  **it merely acknowledged the incapacity of an appellate court to assess the significance of the**  **ruling for a defendant who remains silent. This case is different, there being a**  **factual record on which Ohler's claim can be reviewed. She testified, and there is no question**  **that the** in limine **ruling controlled her counsel's decision to enquire about the earlier**  **conviction; defense lawyers do not set out to impeach their own witnesses, much less their**  **clients. Since analysis for harmless error is made no more difficult by the fact that the**  **convictions came out on direct examination, not**

**13 __________________________________________________________________________** 

**_________________________________________________ cross-examination, the case raises none of the**  **practical difficulties on which** Luce **turned, and** Luce **does not dictate today's result. 1** 

**1 The**  Luce **Court anticipated as much: “It is clear, of course, that had petitioner testified**  **and been impeached by evidence of a prior conviction, the District Court's decision to**  **admit the impeachment evidence would have been reviewable on appeal along with any other claims**  **of error. The Court of Appeals would then have had a complete record detailing the nature of**  **petitioner's testimony, the scope of the cross**   ** examination, and the possible impact of** **impeachment on the jury's verdict." 469 US at 41.**  **There are, of course, practical issues that may arise in these cases; for example, the trial**  **court may feel unable to render a final and definitive**  in limine **ruling. The majority does not focus on these potential difficulties, and**  **neither do I, though some lower courts have addressed them. See, e.g.,**  Wilson v Williams **, 182 F.3d 562 (CA 7, 1999) (en banc). For the**  **purposes of this case, we need consider only the circumstance in which a distr**  **ict court makes a ruling that is plainly final.** 

**It is manifest that the majority's reliance on** Ohler **in the instant case is misplaced. The United States Supreme Court only begrudgingly cited**  Luce **in** Ohler **. Additionally,**  Ohler **is the only United States Supreme Court decision to even mention**  Luce **in passing. Finally,** Ohler **and** Luce **, unlike the instant case, involved alleged error stemming from the introduction of prior conviction evidence**  **under FRE 609. For all practical matters,** Ohler **is yet another decision indicating that**  Luce **should be confined to**

**14 prior conviction evidence and should not be extended to**  **claims of constitutional error. The Holding in**  Luce **Should Not Be Extended The majority has found no case law holding that**  Luce **involved a constitutional claim of error. I have discovered none. Most certainly, the lead opinion in**  Finley **did not do so. In my view, the majority's acknowledgment today of the**  **implication of an FRE 609 ruling on a defendant's Fifth Amendment right to testify proves the correctness of**  **Justice Cavanagh's position in** Finley. **Such an acknowledgment also strengthens, rather than detracts from,**  **the arguments against extending** Finley **to claims outside its narrow holding.**  **Even if** Luce **can be read to distinguish evidentiary "questions not reaching constitutional dimensions" from**  **claims of error that involve direct constitutional error, the**  Luce **holding presents little support for expansion beyond its borders. The trial court’s decision in this**  **case fully implicates both a defendant’s Fifth Amendment**  **right to testify and his Fifth Amendment right to remain silent in the face of post-**  Miranda **accusations. These rights come into play even when the trial court's ruling**  **restricts the admission of evidence of a prior conviction**

**15 to rebuttal, in contrast to the trial court’s more**  **expansive ruling here. The magnitude of the choice that the ruling places on**  **the defendant far outweighs that to be made under an FRE or MRE 609 ruling. In a rule 609 question, the defendant must**  **choose between testifying and not testifying. If he does not testify, he relinquishes his opportunity to present his**  **account of the incident. If he does testify, the prosecution may use improperly admitted prior convictions**  **to impeach his credibility. In this case, by contrast, if the defendant chooses**  **not to testify, he will forgo the opportunity to present his account of the incident and lose all chance to appeal.**  **If he testifies, he risks being impeached with improperly admitted substantive statements that the jury is certain to**  **use as evidence of his guilt of the instant offense. The risk that this damaging impeachment evidence will**  **destroy defendant’s credibility in the jury’s eyes produces a chilling effect on defendant’s exercise of the right to**  **testify. That risk acts as an impermissible "penalty imposed by courts for exercising a constitutional**  **privilege."** Griffin **, 380 US 614. In essence, the majority’s holding here requires**  **the defendant to choose which constitutional right to give up, his Fifth Amendment** 

**16 right to post-Miranda silence or his Fifth Amendment right**  **not to testify. 4**  **Even if one believes that** Luce **gave due deference to the chilling effect on a defendant's right to testify, the**  **instant case brings into sharp focus the observation by Justice Brennan: the "calculus of interests” may be much**  **different in a matter involving a simple evidentiary ruling than in one involving a claimed error of constitutional**  **magnitude. No Weighing of Evidence Is Appropriate**  **As noted by Justice Brennan, 5**  **concerns about ruling in a factual vacuum are not present to the same extent when**  **the court’s ruling turns on legal, rather than factual, considerations. See, e.g.,**  United States ex rel Adkins v

Greer **, 791 F2d 590, 594 (CA 7, 1986). The majority implies**

4 **The majority calls this statement "misleading." When attempting to substantiate its dismissive characterization**  **of the statement, it ignores the fact that defendant in this case was confronted with an erroneous trial court**  **ruling. It ignores, in addition, that no facts suggest that, had he taken the stand, defendant would have claimed**  **to have made an exculpatory statement to the police. Hence, the impeachment he faced would have had to be**  **improper and, contrary to the majority's reasoning, defendant could not properly have been impeached with his**  **post-** Miranda **silence.**

**5** Luce **, 469 US 43-44 (Brennan, J.).**

**17 that the question presented here involves a factual, rather**  **than legal, question. It is incorrect. The prosecution's threatened use**  **as a confession of defendant's post-**  Miranda **affirmative assertion of his right to remain silent would violate the Constitution in all but**  **extremely limited circumstances.** Doyle v Ohio **, 426 US 610, 619 n 11; 96 S Ct 2240; 49 L Ed 2d 91 (1976). It is**  **important to realize that the exception in** Doyle **is not as broad as the majority's quotation implies. Postarrest**  **silence can be used to contradict a defendant who testifies that he made an exculpatory statement to the police. It**  **cannot be used to impeach the substance of a defendant's testimony.**  Doyle, **426 US 619 n 11. See also** People v Dennis **, 464 Mich 567, 573 n 5; 628 NW2d 502 (2001). As recognized in**  People v Bobo **, 6**  **the** only**use of post** Miranda **silence is to contradict a specific assertion that a defendant provided a statement to the police.**  Id. **at 359.**  **Any remaining validity for the rationale of** Luce **and later evidentiary decisions examining evidentiary rulings,**  **such as those involving MRE 403 and MRE 404(b), does not apply here.** 

**6** People v Bobo, **390 Mich 355; 212 NW2d 190 (1973).**

**18 The**  Luce **Court opined that a reviewing court's weighing of the probative value and prejudicial effect of a**  **prior conviction under Rule 609 depends on the nature of the defendant’s testimony. No such weighing was necessary**  **in this case. At the time of the ruling in limine, the trial court was not required to determine the extent of**  **defendant’s actual testimony. It was required merely to conclude that the invocation of silence could not be used**  **as substantive evidence in the prosecution’s case-in-chief or to rebut the substance of defendant’s testimony.**  **Moreover, the trial court should have held that defendant’s statement was admissible only if defendant took**  **the stand and asserted that he made an exculpatory statement to the police when arrested. Appellate review**  **does not depend on knowledge of the exact extent of defendant's later trial testimony or a weighing of factors**  **such as those present in a Rule 609 analysis. Defendant’s Claim of Error is Not Speculative**  **Nor do I agree with the majority's determination that defendant's claim of error is "speculative" because**  **defendant did not testify and his earlier statement was not given to the jury. That determination ignores the plain**  **error present in this case. It disregards the chilling effect on defendant's decision not to testify and the** 

**19 important distinction Michigan recognizes between reviewing**  **constitutional error and nonconstitutional evidentiary**

**error. The majority's assertion that "it is impossible to**  **determine whether the trial court's ruling was erroneous," 7**  **overlooks the content of the ruling that it is reviewing. The majority places much emphasis on the fact that the**  **admissibility of a defendant's post-** Miranda **silence depends on the context in which the prosecutor sought to admit it.** 

Ante **at 13. The context here, judging from the substance of the prosecutor's arguments and the trial court's actual**  **ruling, confirms that the trial court admitted the statement for any and all purposes. The ruling was based**  **on an entirely flawed view of the scope of the Fifth Amendment. It was premised on the erroneous conclusion that**  **the challenged statement was not protected by the Fifth Amendment:**  **[Defendant] agrees that he's going to give a statement and he starts. The law says that you**  **can't stop in the middle and say, well, now I want to assert my Fifth Amendment rights. You**  **don’t have any further Fifth Amendment rights once you start to give a statement. You can’t**  **say what you want said and not say anything else.**

7 Ante **at 18.**

**20 As previously recognized by our Court, in a situation**  **where "a defendant answered several questions and then invoked his right to remain silent,**  Doyle **,** supra **at 618 -**  **619, would prevent the prosecutor from commenting on this silence."**  People v McReavy **, 436 Mich 197, 219 n 23; 462 NW2d 1 (1990). See also 218-219. Such silence includes**  **"not only 'muteness; [but] includes the statement of [the defendant's] desire to remain silent, as well as of a**  **desire to remain silent until an attorney has been consulted,'"**  Id **., 218 n 21, citing** Wainwright v Greenfield **, 474 US 284, 295, n 13; 106 S Ct 634; 88 L Ed 2d 623 (1986).**  **Despite this basic principle, the trial court here did not limit in any way the use of defendant's statement. It**  **did not recognize the specific limitations in** Doyle v Ohio **, 8**  **or this Court's majority opinion in** People v Dennis **, 464 Mich 567, 573 n 5; 628 NW2d 508 (2001). In**  Dennis **, the erroneously admitted evidence involved inadvertently**  **elicited trial testimony about the defendant's refusal to submit to a police interview.**  Id **. at 578. This Court recognized the error in the introduction of the evidence,**  **but found the evidence harmless. It relied in large part on the fact that, because the trial court specifically** 

8 Supra **at 619 n 11.**

**21 found error in the admission, it gave a "forceful curative**  **instruction" to the jury that the evidence "'cannot be used by you in any way and is not an indication of anything.'"**  Id **. The trial court’s ruling here placed no restriction on**  **the prosecution's use of the statement, either during direct testimony or in rebuttal. The court found simply**  **that the Fifth Amendment did not apply at all. Not only was the trial court's ruling erroneous, the error was**  **plain. The problems of “ruling in a vacuum” are simply not applicable here.**  **The Error is Not Harmless The majority's analysis of the error also fails to**  **note that the trial court’s ruling was clearly erroneous. Moreover, it fails to recognize the important distinction**  **between the error in** Luce **and the error in the instant case. The ruling in**  Luce **, upon which the defendant's claim of error was predicated, involved a**  nonconstitutional **evidentiary issue. In Michigan today, it is the defendant who bears the**  **burden of demonstrating that a nonconstitutional error harmed him by causing him not to testify.**  People v Lukity **, 460 Mich 484, 495-496; 596 NW2d 607 (1999). If, instead,**  **the error were a preserved constitutional one, the burden**

**22 would be on the prosecution to "prove beyond a reasonable**  **doubt that the error complained of did not contribute to the verdict obtained."**  People v Anderson **(** After Remand **), 446 Mich 392, 406 n 36; 521 NW2d 538 (1994), quoting**  Chapman v California **, 386 US 18, 23; 87 S Ct 824; 17 L Ed 2d 705 (1967).**  **Thus, concerns about the "speculative" effect of an erroneous FRE or MRE 609 ruling on a defendant's decision**  **not to testify are not present in the instant case. The effect is presumed to be prejudicial. Indeed, given the**  **clear error in the trial court's broad ruling of admissibility, I question the truth of the majority's**  **assertion that it cannot determine whether the ruling was erroneous. In addition, I would find that the**  **prosecution's choice not to elicit defendant's statement on direct examination did not remove from the flawed ruling**  **its chilling effect. The majority's assertion that the evidence "might not**  **have been admitted at all" even if defendant had testified 9**  **ignores the realities of the trial court's misunderstanding about the limited admissibility of the statement.**  **Statements made at the hearing in limine demonstrate that**

9 Ante **at 17.**

**23 the prosecution intended to introduce defendant’s statement**  **if he testified about having provided an exculpatory statement to the police. However, even if he had not, the**  **prosecution would have introduced th e statement to rebut**  **other parts of his testimony. The trial court's ruling made clear that it would have admitted the statement for an**  **improper purpose, because the court was under the mistaken impression that the Fifth Amendment did not apply.**  **At the time of the decision to testify, defendant was faced with an erroneous ruling involving substantive**  **evidence of guilt. Unlike the majority, I would not expect defendant to forecast that the court would have a**  **revelation about the impropriety of its ruling, especially because it immediately predated the trial. Nothing in the**  **record suggests that such a revelation would occur and, given the rationale used by the trial court in making the**  **ruling, I find such a result highly unlikely. Whatever validity that argument may have in different circumstances,**  **it is inapplicable here. The Challenge In Limine was Appropriate**  **Nor do I find persuasive the majority's assertion that a reversal based on the admission of evidence contested in**  **limine, but never introduced at trial, will invite abuse. This argument fails to recognize that appellate courts will** 

**24 review claims of error, even when they are not preserved**  at all. People v Carines **, 460 Mich 750, 763; 597 NW2d 130 (1999). Moreover it has little merit in the setting where**  **claims of constitutional error are raised, and none in the instant case.**  **A defendant does not abuse the system by seeking before trial to suppress evidence obtained in violation of**  **his constitutional rights and directly bearing on the analysis of guilt. To the contrary, as this Court has**  **noted, a contemporaneous objection provides the trial court "'an opportunity to correct the error, which could thereby**  **obviate the necessity of further legal proceedings and would be by far the best time to address a defendant's**  **constitutional and nonconstitutional rights.'"** Carines,

supra **at 764-765 (citations omitted). As recognized by a majority of the justices in**  Finley **, preliminary evidentiary rulings are valid, important, and logical ways to review**  **questions of evidentiary error.** Finley **,** supra **at 531 (Brickley, J.), at 537 (Cavanagh, J.), and at 557-558**  **(Levin, J.). Conclusion**  **The error in this case was preserved by timely objection. Also, the trial court's specific ruling on the**  **motion in limine was erroneous. Therefore, defendant's**

**25 conviction must be reversed unless the prosecution can**  **prove beyond a reasonable doubt that the error did not contribute to the verdict.**  Anderson **(** After Remand **),** supra **. The prosecution has failed to do this.**  **The conviction in this case was dependent almost entirely on the testimony of the twelve-year-old**  **complainant, about whose honesty the jury obviously had doubts. Had defendant testified, the case would have been**  **a credibility contest. But, because of the trial court’s erroneous ruling, defendant did not testify. Hence, the**  **verdict was influenced by the trial court's error. The prosecution has not shown that the evidence at trial so**  **overwhelmingly proved defendant’s guilt that his testimony would not have made a difference.**  **Therefore, the trial court erred and the prosecution cannot show that the error was harmless beyond a reasonable**  **doubt. I would reverse defendant's conviction and remand this case for a new trial. Because of this conclusion, I**  **need not review defendant’s additional claim that the trial court improperly exceeded the sentencing guidelines for his**  **conviction. However, I note that the sentence seems to have been influenced by the trial court’s view that**  **defendant committed first-degree criminal sexual conduct, notwithstanding his acquittal of that charge. The issue is** 

**26 hardly frivolous, yet the majority makes no mention of it,**  **merely alluding to the lower court’s decisions to justify not reaching the matter.**  **Marilyn Kelly Michael F. Cavanagh** 

**27**