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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

November 27, 2018

v No. 337796

Washtenaw Circuit Court

DERRYL WADE SHELTON, LC No. 15-000590-FC

Defendant-Appellant.

Before: MURPHY, P.J., and GLEICHER and LETICA, JJ.

GLEICHER, J. (concurring).

I concur with the result reached by the majority, albeit reluctantly. In my view, the 

prosecution’s prolonged cross-examination centering on defendant Derryl Shelton’s failure to 

proactively proclaim his innocence should have been prohibited on relevance and policy 

grounds.

Shelton, a retired Detroit police officer, elected not to speak to the police after the 

complainant, PW, accused him of sexual assault. The prosecutor extensively interrogated 

Shelton about his failure to contact the police after PW made her allegations. Shelton explained 

that he had refrained from contacting the investigating officer on the advice of counsel. For the 

same reason, he declined the officer’s invitation for an interview.

It makes perfect sense that a police department veteran would be aware of his Fifth 

Amendment right to remain silent, and would understand that trying to convince an investigating 

officer of his innocence was a fool’s errand. Given PW’s age, the specificity of her allegations, 

and that the investigation continued after her forensic interview, it was unlikely that Shelton’s 

protestations of innocence would have derailed his prosecution. Lawyers representing clients in 

Shelton’s situation almost always advise silence, and for good reasons. The risks that a client’s 

words might be misunderstood or misquoted far outweigh the minimal chance that an 

interviewing officer would declare an accused actually innocent and close the file.

In Doyle v Ohio, 426 US 610, 617; 96 S Ct 2240; 49 L Ed 2d 91 (1976), the United States 

Supreme Court acknowledged that “every post-arrest silence is insolubly ambiguous[.]” In my

view, the same is true for prearrest silence. There are many good reasons for silence other than 

guilt. The Alabama Supreme Court identified several in Ex Parte Marek, 556 So2d 375, 381 

(Ala, 1989): “Confronted with an accusation of a crime, the accused might well remain silent 

because he is angry, or frightened, or because he thinks he has the right to remain silent that the 
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mass media have so well publicized.” The Massachusetts Supreme Court aptly summarized: 

“[A]n individual’s failure to speak may be the result of his awareness that he has no obligation to 

speak, his caution arising from knowledge that anything he says may be used against him and his 

belief that efforts to exonerate himself would be futile.” Commonwealth v Nickerson, 386 Mass 

54, 61 n 6; 434 NE2d 992 (2015).

In Nickerson, the Massachusetts Supreme Court set forth an evidentiary principle 

applicable to cross-examination focused on a defendant’s pre-arrest silence. The Supreme Court 

held that “[i]n general, impeachment of a defendant with the fact of his pre-arrest silence should 

be approached with caution, and, wherever it is undertaken, it should be prefaced by a proper 

demonstration that it was ‘natural’ to expect the defendant to speak in the circumstances.” Id. at 

61. It would not be “natural,” the Court explained, for a defendant to come forward and produce 

incriminating evidence against himself. Id. Nor does a defendant have a duty to report a crime, 

or “to offer exculpatory information to the authorities.” Id. at 60. Therefore, allowing crossexamination focusing on prearrest silence “says little about the truth of . . . trial testimony.” Id. 

If a Massachusetts trial judge allows impeachment with prearrest silence, “the judge should, on 

request, instruct the jury to consider that silence for the purposes of impeachment only if they 

find that the witness naturally should have spoken up in the circumstances.” Id. at 62.

The Michigan Supreme Court approved Nickerson’s evidentiary “approach” in People v 

Collier, 426 Mich 23, 34; 393 NW2d 346 (1986), and subsequently reasserted that “[t]he issue of 

prearrest silence is one of relevance.” People v Hackett, 460 Mich 202, 214; 596 NW2d 107 

(1999). See also People v Cetlinski (After Remand), 435 Mich 742, 760; 460 NW2d 534 (1990) 

(“[A] failure to come forward[] is relevant and probative for impeachment purposes when the 

court determines that it would have been ‘natural’ for the person to have come forward with the 

exculpatory information under the circumstances.”).

It is possible that Shelton’s trial counsel objected to the cross-examination on relevancy 

rather than constitutional grounds; as the majority opinion explains, counsel failed to preserve 

the basis for the objection in the record. Appellate counsel did not raise an argument regarding 

the relevancy of cross-examination regarding Shelton’s failure to contact the police, perhaps

based on knowledge that trial counsel had not objected on this ground. In my view, had it been 

made, a relevancy objection should have been sustained. For the reasons I have stated, it would 

not have been “natural” for Shelton to have contacted the police to advocate his innocence, and 

he had no duty to do so. Rather, it would have been natural for Shelton to believe he had a right 

to remain silent and that his silence could not be used against him at a trial. Even an experienced 

police officer is unlikely to appreciate the difference between the substantive use of silence and 

its availability as impeachment fodder.

Had the issue been preserved and presented, I would hold that Shelton’s silence was not 

probative of anything, including his credibility, and should have been off-limits during the trial. 

Shelton’s failure to contact the police with his denials did not make it more likely that he was 

lying at trial. He was under no obligation to contact the investigating authorities, and would 

have gained nothing by doing so. Furthermore, his silence carried a substantial potential for 

prejudice as the jurors likely did not understand the difference between impeachment and 

substantive evidence, either. It is far more “natural” for a lay person to reason that “if he was 

innocent he would have contacted the police” than to understand that such an assumption is 
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forbidden, and that the pages of cross-examination devoted to Shelton’s silence could actually be 

used only to determine whether he was telling the truth. The distinction is simply too fine for 

non-lawyers to parse.

And a final point. Because an accused’s invocation of his right to silence is “insolubly 

ambiguous,” it should not be the subject of cross-examination unless the court finds that the 

defendant had a duty to speak under the circumstances, or some other reason strongly supports 

that it would have been truly “natural” for the accused to voluntarily speak to the police. Such 

circumstances are exceedingly rare. Absent a duty or some good reason for speaking to the 

police, use of silence as impeachment is fraught with the potential for jury confusion and 

prejudice, and should be prohibited.

/s/ Elizabeth L. Gleicher