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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 3, 2001
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant,
 

v	 No. 116852
 

ERIC SHERROD DENNIS,
 

Defendant-Appellee.
 

BEFORE THE ENTIRE BENCH 


TAYLOR, J.
 

Defendant was convicted by a jury of (1) possession with
 

intent to deliver more than 50, but less than 225, grams of
 

cocaine, MCL 333.7401(2)(a)(iii); (2) possession of marijuana,
 

MCL 333.7403(2)(d); (3) carrying a concealed weapon in a
 

vehicle, MCL 750.227; (4) malicious destruction of police
 

property, MCL 750.377b; (5) possession of a firearm during the
 
commission of a felony, MCL 750.227b; and (6) felon in
 

possession of a firearm, MCL 750.224f. The Court of Appeals
 

reversed defendant’s convictions because of testimony from a
 

police detective that referenced defendant’s refusal to submit
 

to police questioning. While the testimony was inappropriate,
 

we conclude that it did not amount to a violation of
 

defendant’s constitutional right to due process and that the
 

trial court did not abuse its discretion by denying
 

defendant’s motion for a mistrial. Accordingly, we reverse
 

the judgment of the Court of Appeals and reinstate
 

defendant’s convictions.
 

I
 

On the afternoon of August 23, 1997, defendant was a
 

passenger in a van that was stopped by the police. A police
 

officer observed that defendant was sitting with an object
 

that turned out to be a safe between his legs. Eventually,
 

the police called for a drug sniffing dog to be brought to the
 

scene. At that point, defendant became “extremely enraged”
 

and was placed in the back of a police car. After being
 

placed in the police car, defendant kicked out its rear
 

window, completely shattering the window. Eventually, the dog
 

was brought inside the van, and it alerted to the safe.
 

Later, the police opened the safe and found several packets of
 

2
 
 

cocaine, a small amount of marijuana, a loaded “Tech Nine”
 

handgun, and over $2,000 in cash.1 This led to the present
 

charges and convictions against defendant.
 

At issue now is the following testimony from defendant’s
 

trial that transpired during the direct examination of police
 

detective Kent Cooper by the prosecutor after eliciting
 

testimony that defendant had been arrested:
 

Q. What type of investigation follow-up did


you do with regard to this?
 

A. I went out and attempted to interview


[defendant], and at that time it was refused. He
 

wished to speak to an attorney prior to me asking


him any questions.
 

We note that the trial record does not include any express
 

mention that defendant had been advised of his Miranda2 rights
 

to remain silent and to have an attorney present during
 

custodial interrogation. However, the prosecution has
 

effectively stipulated that defendant was in police custody
 

following his arrest at the time of the attempted questioning
 

1 Notably, defendant had also been a passenger in another


vehicle that was stopped earlier that day. Defendant
 

consented to a search of his person during that earlier stop.


The police found over $1,000 in cash in one of his pockets,


mostly in $20 bills, and several “corner baggies,” which are


plastic baggies with the bottoms torn off and that are tied


off with a knot. A police officer indicated that “corner


baggies” are frequently used by drug dealers. However, no


drugs were found on defendant’s person at that time and he was


released. 


2 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d
 

694 (1966).
 

3
 
and had been advised of his Miranda rights before rejecting
 

Detective Cooper’s attempt to interview him.3 Accordingly,
 

our decision presumes that defendant’s refusal to submit to
 

police questioning constituted “post-Miranda” silence.
 

Defense counsel requested a mistrial on the basis of
 

Detective Cooper’s testimony about defendant refusing to be
 

questioned before speaking with an attorney. The trial court
 

denied this request, stating that it was convinced the
 

prosecutor did not intend to elicit testimony on this point
 

and that it did not think “the jury picked it up or caught it
 

in any way.” 


In its final instructions to the jury, the trial court
 

provided the following curative instruction with regard to
 

Detective Cooper’s testimony referencing defendant’s refusal
 

to submit to a police interview:
 

Also, at one time Detective Cooper made
 

mention of the fact that when we [sic] went out to


the jail to talk to [defendant], [defendant] did


not want to talk to him and [defendant] said that


he wanted a lawyer.
 

This is an absolute right that every citizen


of this country has. In fact, if Officer Cooper


had talked to [defendant], he would have had to


tell [defendant] before he even started talking


that [defendant] had a right to refuse to talk, and


[defendant] had a right to have a lawyer present
 

3

 In its brief to this Court, the prosecution states that


it is not “arguing that the defendant’s comment was pre-


Miranda or that the defendant’s invocation of his right to


counsel should have been admissible.” 


4
 
when he was talking to the officer.
 

So the fact that [defendant] said he wanted a


lawyer and didn’t want to talk to the officer


cannot be used by you in any way and is not any


indication of anything. It’s a constitutional
 

right that every citizen of this country has.
 

II
 

Defendant argued before the Court of Appeals that the
 

trial court improperly denied his motion for a mistrial. The
 

Court of Appeals agreed with that conclusion. It treated the
 

improper testimony from Detective Cooper as constituting a
 

preserved claim of constitutional error that requires reversal
 

unless it was harmless beyond a reasonable doubt. The Court
 

stated that it could not conclude the error was harmless
 

beyond a reasonable doubt and, accordingly, held that the
 

trial court abused its discretion by denying defendant’s
 

motion for a mistrial. Unpublished opinion per curiam, issued
 

April 14, 2000 (Docket No. 215244).
 

In its appeal to this Court, the prosecution argues that
 

there was no constitutional violation because the prosecution
 

did not attempt to use defendant’s post-Miranda silence
 

against him and that the trial court did not abuse its
 

discretion by denying defendant’s motion for a mistrial. As
 

we will explain below, we agree.
 

5
 
III
 

We review a trial court’s decision to deny a motion for
 

a mistrial for an abuse of discretion. See, e.g., People v
 

Grove, 455 Mich 439, 475-476; 566 NW2d 547 (1997).
 

In Miranda v Arizona, 384 US 436; 865 S Ct 1602; 16 L Ed
 

2d 694 (1966), the United States Supreme Court articulated the
 

rule that the police must advise a suspect before custodial
 

interrogation that the suspect has the right to remain silent,
 

that anything the suspect says may be used against him, and
 

that the suspect has a right to the presence of retained or,
 

if indigent, appointed counsel during questioning.4 To be
 

clear, the present case does not involve any allegation of a
 

violation of Miranda itself because there is no claim that
 

defendant was interrogated by the police without being
 

afforded the warnings required by Miranda. Neither does this
 

case involve any other type of claim under the Self-


Incrimination Clause of the Fifth Amendment, inasmuch as there
 

is no claim that any involuntary statement by defendant was
 

used against him. 


Rather, properly understood, the present case involves a
 

question regarding whether the testimony at issue from
 

4

 In Dickerson v United States, 530 US 428; 120 S Ct


2326, 2336; 147 L Ed 2d 405 (2000), the Court quite recently


held that Miranda announced a binding “constitutional rule”


under the Fifth Amendment in requiring these warnings.
 

6
 
Detective Cooper violates defendant’s constitutional right to
 

due process under the Fourteenth Amendment. In Doyle v Ohio,
 

426 US 610, 619; 96 S Ct 2240; 49 L Ed 2d 91 (1976), the
 

United States Supreme Court held that the use of a criminal
 

defendant’s silence “at the time of arrest and after receiving
 

Miranda warnings” for impeachment purposes violates the Due
 

Process Clause of the Fourteenth Amendment of the United
 

States Constitution. 


The Doyle Court explained that silence in the face of
 

Miranda warnings cannot be used as evidence5 to cast doubt on
 

the defendant’s credibility for two basic reasons. First,
 

silence in the face of Miranda warnings may reflect nothing
 

more than an exercise of Miranda rights (as opposed to being
 

any implicit acknowledgment of guilt):
 

Silence in the wake of these warnings may be


nothing more than the arrestee’s exercise of these


Miranda rights. Thus, every post-arrest silence is


insolubly ambiguous because of what the State is


required to advise the person arrested. [Doyle,
 

supra at 617.]
 

Second, the Miranda warnings carry an implicit assurance that
 

silence in reliance on those warnings will not be penalized:
 

5 The only exception is a situation in which 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 such a claim. Doyle, supra at
 

619, n 11. The Court, however, declined to allow the fact of


silence to be raised by the officers in testimony even when


the defendant offers an exculpatory version of events at


trial.
 

7
 
Moreover, while it is true that the Miranda
 

warnings contain no express assurance that silence


will carry no penalty, such assurance is implicit


to any person who receives the warnings. In such
 

circumstances, it would be fundamentally unfair and


a deprivation of due process to allow the arrested


person’s silence to be used to impeach an
 

explanation subsequently offered at trial. [Doyle,
 

supra at 618.]
 

Accordingly, the Doyle Court quoted with approval the
 

statement in Justice White’s concurrence in United States v
 

Hale, 422 US 171, 183-184; 95 S Ct 2133; 45 L Ed 2d 99 (1975),
 

that “it seems to me that it does not comport with due process
 

to permit the prosecution during the trial to call attention
 

to [the defendant’s] silence at the time of arrest . . .”
 

after the defendant has received Miranda warnings. Doyle,
 

supra at 620. The Doyle Court reversed the convictions of the
 

defendants on the basis of the prosecution’s conduct in using
 

their post-Miranda silence against them. 


The circumstances of the present case differ greatly from
 

those of Doyle. In Doyle, the prosecution unabashedly used
 

the silence of each of the two defendants in the face of
 

Miranda warnings against them at their respective trials. The
 

prosecution repeatedly asked each defendant questions to
 

emphasize that he did not provide an exculpatory version of
 

events to the police after being arrested. In contrast, the
 

present case involves a single question and answer in which
 

Detective Cooper revealed in response to an open-ended
 

8
 
question that defendant had refused to be interviewed by the
 

detective before speaking with an attorney.
 

We recognize that Detective Cooper’s answer may not
 

reasonably be viewed as nonresponsive to the prosecutor’s
 

open-ended question asking about the “type of investigation
 

follow-up” pursued by the detective. Detective Cooper’s reply
 

about his attempt to interview defendant described something
 

that he did in attempting to investigate the case after
 

defendant was arrested. On the other hand, there is nothing
 

to reasonably support a conclusion that the prosecutor
 

intended for this question to elicit a reference to the
 

attempted interview. Immediately after the detective’s answer
 

referencing defendant’s refusal of the police interview, the
 

detective began testifying about his other investigative
 

efforts. In our view, it is evident that the prosecutor’s
 

question, while it may have been inartfully phrased, was aimed
 

at eliciting testimony about these investigative efforts, not
 

about the defendant’s refusal of a police interview.6
 

6 Nevertheless, this case provides an excellent
 

opportunity to underscore the prosecutor’s continuing duty to


carefully question witnesses so as to avoid improper,


unforeseen testimony that may result from open-ended


questions.
 

We respectfully disagree with the dissent’s
 

characterization of this case as involving “a series” of


questions and answers focused on defendant’s silence. Slip
 

op, pp 1, 10. As may be seen from the quotation of the


(continued...)
 

9
 
 

In considering the implication of the substantial
 

difference between this case and Doyle, we are guided by the
 

intervening decision of the United States Supreme Court in
 

Greer v Miller, 483 US 756; 107 S Ct 3102; 97 L Ed 2d 618
 

(1987). In Greer, the defendant7

 testified at his trial,
 

claiming that he was innocent of the murder and related crimes
 

charged and providing an exculpatory version of events that
 

implicated two others as the perpetrators. Id. at 758.
 

During the prosecutor’s cross-examination of the defendant, he
 

asked, “why didn’t you tell this story to anybody when you got
 

arrested?” Id. at 759. Defense counsel immediately objected,
 

and the trial court sustained the objection and instructed the
 

jury to ignore the question. Importantly, the prosecution did
 

not pursue the inquiry further or mention it during closing
 

argument. In its jury instructions, the trial court told the
 

6(...continued)


testimony set forth in the dissent, slip op, pp 6-7, the


prosecutor only asked Detective Cooper one question that
 

specifically regarded whether other people spoke with him.


The prosecutor never commented on or stated that any inference


should be drawn from the apparent willingness of certain


witnesses to speak with Detective Cooper as opposed to


defendant’s refusal to be interviewed prior to speaking to an


attorney.
 

7
 Greer was actually a federal habeas corpus action.


However, the important points of Greer involve the trial in
 

which the petitioner was a criminal defendant. To avoid
 

confusion, we will refer to the petitioner in Greer as the
 

“defendant” in that case.
 

10
 
jury to disregard questions about which objections were
 

sustained. Id.
 

The United States Supreme Court in Greer held that,
 

despite the prosecutor asking an improper question, no actual
 

violation of Doyle occurred. Greer, supra at 764-765. The
 

Court explained:
 

[T]he trial court in this case did not permit


the inquiry that Doyle forbids. Instead, the court


explicitly sustained an objection to the only


question that touched upon Miller’s postarrest


silence. No further questioning or argument with


respect to Miller’s silence occurred, and the court


specifically advised the jury that it should
 

disregard any questions to which an objection was


sustained. Unlike the prosecutor in Doyle, the
 

prosecutor in this case was not “allowed to
 

undertake impeachment on,” or “permit[ted] . . . to


call attention to,” Miller’s silence. The fact of
 

Miller’s postarrest silence was not submitted to


the jury as evidence from which it was allowed to


draw any permissible inference, and thus no Doyle


violation occurred in this case. [Id., citation
 

omitted.]
 

Thus, the Court held that the prosecutor’s improper question
 

did not require reversal of the defendant’s convictions. Id.
 

at 761. Notably, the Greer Court emphasized that “[i]t is
 

significant that in each of the cases in which this Court has
 

applied Doyle, the trial court has permitted specific inquiry
 

or argument respecting the defendant’s post-Miranda silence.”
 

Id. at 764.
 

We conclude that the circumstances of this case are
 

analogous to Greer and that no Doyle violation actually
 

11
 
occurred. Indeed, the conduct of the prosecutor in Greer was
 

far worse in that he attempted to directly inject the
 

defendant’s silence into the defendant’s trial while the
 

prosecutor in the present case inadvertently elicited
 

testimony about the present defendant’s refusal to submit to
 

a police interview. As in Greer, apart from the single
 

impropriety, the prosecution did not call attention to
 

defendant’s silence. While the dissent essentially
 

hypothesizes that the jury may have drawn some type of
 

negative inference from the willingness of other witnesses to
 

speak to Detective Cooper, the prosecution never made such an
 

argument to the jury. In our view, it would be strained to
 

believe that the prosecution intended to draw—or that the jury
 

actually drew—such an implicit “comparison” from Detective
 

Cooper’s testimony which was overwhelmingly focused on
 

presenting expert testimony about the drug trade. There was
 

no further questioning or argument regarding defendant’s
 

silence. Thus, the trial court did not allow (or have
 

occasion to allow) any specific inquiry or argument about
 

defendant’s post-Miranda silence. Further, because defendant
 

in the present case did not testify, there was obviously no
 

attempt to use his prior silence for impeachment purposes.8
 

8

 Of course, we recognize that a defendant’s post-Miranda
 

silence could be improperly used against him in violation of


(continued...)
 

12
 
Moreover, the trial court gave a forceful curative instruction
 

to the jury that defendant saying he wanted a lawyer and did
 

not wish to talk with the officer “cannot be used by you in
 

any way and is not an indication of anything.” Thus, as in
 

Greer, “[t]he fact of [the defendant’s] postarrest silence was
 

not submitted to the jury as evidence from which it was
 

allowed to draw any permissible inference . . . .” Id. At
 

764.
 

Critical to our conclusion is that Doyle prohibits “the
 

use for impeachment purposes of [a defendant’s] silence, at
 

the time of arrest and after receiving Miranda warnings
 

. . . .” Doyle, supra at 619. Because defendant did not
 

testify, the testimony at issue by Detective Cooper could not
 

possibly have been used against defendant for impeachment
 

purposes. Thus, this is not a case like Doyle in which the
 

prosecution essentially attempted to use a defendant’s post-


Miranda silence to further an argument that the defendant
 

presented a fabricated version of events on the basis of
 

hearing the evidence presented by the prosecution at trial.
 

8

(...continued)


Doyle even in cases where the defendant did not testify. We
 

merely note that the fact that the testimony at issue was


obviously not used for impeachment purposes is one factor


suggesting that there was no “use” of defendant’s post-Miranda
 

silence against him in the present case. 


13
 
This reinforces that the prosecution did not use defendant’s
 

post-Miranda silence against him in this case.
 

We note that our conclusion that no Doyle violation
 

occurred in this case is supported by the decision of the
 

United States Court of Appeals for the Eleventh Circuit in
 

United States v Stubbs, 944 F2d 828 (CA 11, 1991). That case
 

similarly involved improper testimony by a witness in response
 

to an open-ended question. The prosecutor asked a prosecution
 

witness what happened after she talked to a federal agent. In
 

her answer, the witness said that the agent told her that the
 

defendant would not “say anything.” Id. at 834. As in the
 

present case, the prosecution in Stubbs did not attempt to
 

draw out further information about the defendant’s cooperation
 

with the police and never mentioned the issue during closing
 

argument. However, the defendant argued on appeal that the
 

testimony improperly commented on her postarrest refusal to
 

talk with the police in violation of Doyle. The Eleventh
 

Circuit concluded that no Doyle violation occurred:
 

While a single comment alone may sometimes


constitute a Doyle violation,[9] the Supreme Court’s


opinion in Greer makes clear that a single mention


does not automatically suffice to violate
 

defendant’s rights when the government does not
 

9

 Accordingly, contrary to the dissent’s indication, we


do not suggest that a single comment may never constitute a


Doyle violation. Slip op, p 7, n 6. We merely conclude that


the single isolated incident at issue in the present case did


not constitute a Doyle violation.
 

14
 
 

specifically and expressly attempt to use–as was
 

attempted in Doyle and in Greer–the improper


comment to impeach the defendant. See Lindgren v
 

Lane, 925 F2d 198, 201 (CA 7, 1991) (“As explained


in Greer v Miller, . . . it is the use of an
 

accused’s silence against him at trial by way of


specific inquiry or impeachment that forms the
 

basis for a violation of the Fourteenth
 

Amendment.”) (emphasis added). As was the case in
 

Greer, the prosecutor here “was not allowed to
 

undertake impeachment on, or permitted to call


attention to [defendant’s] silence.” Greer, 483 US
 

at 764 (citation omitted). The prosecution made no


“specific inquiry or argument” about defendant’s


postarrest silence. Id. Accordingly, we conclude


there was no Doyle violation in this case.
 

[Stubbs, supra at 835 (emphasis in original).]
 

As in Stubbs, the present case involved no specific inquiry by
 

the prosecution regarding defendant’s silence or any attempt
 

to use that silence for impeachment purposes. Accordingly,
 

Stubbs reinforces our conclusion that there was no violation
 

of defendant’s constitutional right to due process under Doyle
 

in the present case.10
 

10 Our decision is also consistent with the holding of the


Indiana Supreme Court in Cook v State, 544 NE2d 1359, 1363


(Ind, 1989), that testimony by a federal agent that there was


no further contact with the defendant at a certain point


because he “had made a request to speak to an attorney” did


not constitute a Doyle violation. Similar to the present


case, the remark was an “isolated statement,” and there was no


specific inquiry or argument from the prosecution regarding


the defendant’s post-Miranda silence. Cook, supra. See also
 

Pulley v Commonwealth, 31 Va App 600, 605; 525 SE2d 51 (2000)


(holding that there was no Doyle violation from a police


officer’s nonresponsive comment that the defendant invoked his


right to counsel where the prosecution did not exploit the


issue); State v Baccam, 476 NW2d 884, 886-887 (Iowa App, 1991)


(finding no abuse of discretion in the trial court’s denial of


a mistrial on the basis of a single comment related to the


(continued...)
 

15
 
We acknowledge that, as argued by defendant, this case
 

differs from Greer in that a witness actually testified in the
 

presence of the jury that defendant refused to submit to
 

police questioning. Essentially, defendant contends that this
 

circumstance makes this case worse than Greer and involves an
 

actual Doyle violation because evidence of the defendant’s
 

silence was actually placed before the jury as opposed to a
 

question that merely insinuated such silence. However, we do
 

not accept this argument. The prosecutor in the present case
 

made no effort to use the testimony about defendant’s silence
 

against him. In contrast, the prosecutor in Greer insinuated
 

that the defendant’s testimony in that case was questionable
 

because he did not provide his story to the police at an
 

earlier point. If the prosecutor’s conduct in Greer did not
 

constitute “use” of the defendant’s silence against him, then
 

neither did the inadvertently elicited testimony in this
 

case.11
 

10(...continued)


defendant’s post-Miranda silence where trial court gave


curative instruction and the silence was not used against the


defendant).
 

11 We note that, in light of our conclusion that no


constitutional error occurred, the “harmless beyond a
 

reasonable doubt” test used by the Court of Appeals is


inapposite. Like the Eleventh Circuit in Stubbs, “[w]e do not


reach the issue of harmless error because we conclude that,


absent use by the prosecution of the comment on defendant’s


postarrest silence, there was no Doyle violation.” Stubbs,


(continued...)
 

16
 
In light of our conclusion that there was no violation of
 

defendant’s due process rights under Doyle, we hold that the
 

trial court did not abuse its discretion in denying
 

defendant’s motion for a mistrial. As the Greer Court stated,
 

“we normally presume that a jury will follow an instruction to
 

disregard inadmissible evidence inadvertently presented to it,
 

unless there is an ‘overwhelming probability’ that the jury
 

will be unable to follow the court’s instructions, and a
 

strong likelihood that the effect of the evidence would be
 

‘devastating’ to the defendant.” Id. at 767, n 8 (citations
 

omitted). The trial court in the present case emphatically
 

instructed the jury to place no weight on defendant’s
 

invocation of his Miranda rights. Thus, it was reasonable for
 

the trial court to conclude that any possible prejudice from
 

the improper testimony from Detective Cooper could be cured
 

with a cautionary instruction and that a mistrial was not
 

required.12
 

11(...continued)


supra at 835, n 10 (emphasis in original).
 

12 Indeed, this analysis is consistent with Greer. The
 

Greer Court stated that it had no reason to believe that the
 

jury was incapable of obeying curative instructions and that,


far from being “devastating,” evidence of the defendant’s


postarrest silence was at most “insolubly ambiguous.” Id. at
 

767, n 8. As a further consideration, Detective Cooper’s


testimony did not state that defendant absolutely refused to


be interviewed by the police, but rather only that he wanted


to speak to an attorney before being questioned. A desire to
 

(continued...)
 

17
 
 

For the foregoing reasons, we disagree with the Court of
 

Appeals decision to reverse defendant’s convictions.13
 

Our judgment that the circumstances of the present case
 

do not warrant reversal of defendant’s convictions should in
 

no way be taken as condoning the inappropriate injection of a
 

defendant’s exercise of the Miranda rights into a trial by
 

either prosecutors or the police. In the present case,
 

considering (1) the limited nature of the improper testimony,
 

(2) the lack of any effort by the prosecution to improperly
 

use defendant’s invocation of the Miranda rights against him,
 

(3) the strong curative instruction used by the trial court,
 

12(...continued)


involve an attorney in a police interview or interrogation


could well be understood by a juror as reflecting a concern


for being treated fairly and wishing the assistance of a


sophisticated advocate to respond to any unfair questioning


that might seek to turn the suspect’s words against himself.


A typical citizen should understand such concerns and not


regard the request for an attorney before questioning as being


“suspicious” in the same way that an absolute refusal to speak


with the police might be taken. Accordingly, the present


opinion does not address a situation in which police testimony


makes clear that a defendant has absolutely refused to be


interviewed by the police.
 

13 We also note that we are puzzled at that Court’s


decision to reverse defendant’s conviction of malicious
 

destruction of police property. From the record, and even


from the recitation of facts in the Court of Appeals opinion,


there was undisputed evidence that defendant openly kicked out


the window of a police car in the presence of police officers.


Accordingly, it is evident that any possible error was


harmless beyond a reasonable doubt with regard to the
 

malicious destruction charge in light of the overwhelming


evidence of guilt regarding that charge.
 

18
 
and (4) that defendant did not testify so there is no concern
 

of his post-Miranda silence having been used for impeachment
 

purposes, we conclude that there was no constitutional
 

violation and that the trial court did not abuse its
 

discretion by declining to order a mistrial. 


IV
 

In sum, we conclude that the inadvertent elicitation of
 

testimony that defendant exercised his Miranda right to
 

decline police questioning without the presence of counsel did
 

not constitute a violation of defendant’s constitutional right
 

to due process under Doyle. The circumstances of this case
 

did not involve use by the prosecution of defendant’s post-


Miranda silence against him within the meaning of Doyle and
 

Greer. Thus, we reverse the judgment of the Court of Appeals
 

and reinstate defendant’s convictions.
 

CORRIGAN, C.J., and WEAVER, YOUNG, and MARKMAN, JJ., concurred
 

with TAYLOR, J.
 

19
 
___________________________________ 

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-Appellant,
 

No. 116852
 

ERIC SHERROD DENNIS,
 

Defendant-Appellee.
 

KELLY, J. (dissenting).
 

I find that the prosecutor in this case used defendant's
 

post-Miranda1 silence against him. He asked a series of
 

questions that compared and contrasted defendant's refusal to
 

submit to a police interview with the acquiescent responses of
 

other witnesses in similar circumstances. By doing so, the
 

prosecutor submitted defendant's post-Miranda silence to the
 

jury as evidence from which it was allowed to draw an
 

inference of guilt, thereby violating due process. Thus, I
 

would affirm the Court of Appeals decision to reverse
 

1

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d
 

694 (1966).
 
defendant's convictions and hold that the trial court's
 

refusal to grant a mistrial was an abuse of discretion.
 

I. Doyle and its Progeny
 

In finding no due process violation below, the majority
 

takes solace in the fact that the prosecutor did not "use"
 

defendant's invocation of Miranda rights to impeach him. I
 

think that this is an overly narrow view of due process
 

protections.
 

A defendant's due process right not to have his post-


Miranda silence used against him exists in more situations
 

than where a prosecutor uses the silence to impeach. To be
 

sure, Doyle v Ohio2 held that due process is violated where a
 

prosecutor impeaches a defendant with evidence of his post-


Miranda silence. But, the point of Doyle is "that it is
 

fundamentally unfair to promise an arrested person that his
 

silence will not be used against him and thereafter . . .
 

us[e] the silence to impeach [him]" or otherwise "make use of
 

the . . . exercise of those rights in obtaining his
 

conviction." Wainright v Greenfield, 474 US 284, 292; 106 S Ct
 

634; 88 L Ed 2d 623 (1986). "What is impermissible is the
 

evidentiary use of . . . his constitutional rights after the
 

. . . assurance" of Miranda. Id. at 295. 


I believe that it is also fundamentally unfair, and
 

2426 US 610, 618; 96 S Ct 2240; 49 L Ed 2d 91 (1976).
 

2
 
therefore, a deprivation of due process, for the prosecution
 

to use a defendant's post-Miranda silence as affirmative proof
 

at trial. This conclusion is consistent with that in several
 

decisions that applied Doyle to references made to a
 

defendant's post-Miranda silence during the prosecution's case
 

in chief. See, e.g., United States v Moreno, 185 F3d 465, 473
 

(CA 5, 1999); People of Territory of Guam v Veloria, 136 F3d
 

648, 651-653 (CA 9, 1998); United States v Massuet, 851 F2d
 

111, 114 (CA 4, 1988); United States v Elkins, 774 F2d 530,
 

537 (CA 1, 1985); State v Treesh, 90 Ohio St 3d 460, 479; 739
 

NE2d 749 (2001).
 

The issue in this case is whether defendant's trial was
 

fundamentally unfair. It is whether the prosecutor used
 

defendant's post-Miranda silence against him so that it was
 

submitted to the jury as evidence from which the jury could
 

infer guilt. 


II. The Prosecution's "Use" of 


Defendant's Post-Miranda Silence
 

Although the majority acknowledges that Detective
 

Cooper's testimony was "inappropriate," it nevertheless finds
 

that there was no improper "use" of defendant's post-Miranda
 

silence against him in this case. It cites the "limited
 

nature" of the improper testimony and asserts that the
 

prosecutor neither pursued the matter further nor raised the
 

issue during oral argument. I disagree and maintain that the
 

3
 
prosecutor did impermissibly use defendant's post-Miranda
 

silence against him. 


In my view, the majority arrives at an erroneous
 

conclusion in part because it fails to consider Detective
 

Cooper's testimony in context. With this in mind, I will
 

provide a brief review of the facts surrounding this case.
 

On the afternoon of August 23, 1997, defendant telephoned
 

his grandmother and asked that she send someone to get him in
 

an automobile. She sent her daughter, Nancy Kennebrew, and
 

defendant's half-sister, Evonne Ezell, in the grandmother's
 

van.3 After defendant got into the van, Grand Rapids Police
 

Officers Beckett and Anderson saw it fail to stop at a stop
 

sign. They stopped the van and found that Ezell was driving,
 

Nancy Kennebrew was in the passenger seat, and defendant was
 

in the back seat apparently straddling a safe. 


The officers asked permission to search the occupants. 


Defendant and Nancy Kennebrew refused, while Ezell agreed.
 

Although no contraband was found on Ezell's person, the
 

officers detained her, directed Nancy Kennebrew and defendant
 

to wait inside the officers' cruiser, then searched the van.
 

Inside, they discovered a locked safe, prompting them to call
 

3Defendant's grandmother and her daughter are both named


"Nancy Kennebrew." To help avoid confusion, I will refer to


the elder Kennebrew as "the grandmother," and the junior


Kennebrew as "Nancy Kennebrew."
 

4
 
for assistance from a police dog to determine whether there
 

were prohibited substances inside the safe. Meanwhile, while
 

in the police cruiser, defendant kicked out its rear window.
 

A subsequent search of the safe revealed a handgun, cocaine,
 

marijuana, and a large amount of cash.
 

At trial, the prosecutor called Grand Rapids Detective
 

Kent Cooper as an expert witness on the subject of controlled
 

substances. After several preliminary questions, the trial
 

court qualified him as an expert. Although one would expect
 

the prosecutor then to query him regarding his expert opinion
 

on certain matters of evidence, the prosecutor opted not to do
 

so immediately. Instead, he questioned Cooper regarding his
 

investigation of the case and engaged in the following
 

colloquy:
 

Q. [The prosecutor]: Detective, you in fact


were the assigned detective for the investigation


after the arrest of [defendant], is that correct?
 

A. [Cooper]: Correct. 


Q. Can you tell the jury how you initially


came into contact with this case? 


A. I was assigned to the Vice Unit day team,


and on the day team we are assigned the cases from


the previous night of arrest or from the weekend


prior to the day that we work. 


Q. And this arrest occurred on Saturday


afternoon, actually, of the 23rd of August?
 

A. Right, and on Monday I received the case.
 

5
 
Q. What type of investigation follow-up did
 

you do with regard to this?
 

A. I went out and attempted to interview
 

[defendant], and at that time it was refused. He
 

wished to speak to an attorney prior to me asking
 

him any questions.
 

Q. Did you speak with the other persons in
 

this particular case?
 

A. I believe it was the next day that I went
 

to the Kennebrew residence and spoke with Nancy
 

Kennebrew, the younger one. I spoke with the
 

grandmother, and I spoke with Evonne Ezell. 


Q. And did they give you statements as to
 

their knowledge or lack of knowledge of this
 

incident?
 

A. Yes.
 

Q. And then you obtained warrants in this
 

particular manner?
 

A. Yes.[Emphasis added.] 


Cooper's testimony unequivocally communicated to the
 

jurors that defendant "refused" to submit to police
 

questioning after his arrest and "wished to speak to an
 

attorney" before answering any questions. Whereas the
 

majority labels this as testimony of a "limited nature," it
 

is, in fact, an explicit statement that defendant invoked his
 

Miranda rights. It enabled the jury to infer guilt from
 

defendant's silence, thereby violating his due process
 

rights.4
 

4Contrary to the majority's inherent suggestion, a single


(continued...)
 

6
 
 

Even if Cooper's reference to defendant's post-Miranda
 

silence did not constitute a "use" of post-Miranda silence by
 

itself, in subsequent questions the prosecutor did use
 

defendant's post-Miranda silence against him. Immediately
 

after Cooper told the jury of the "refusal" to speak, the
 

prosecutor asked Cooper if he spoke with "the other persons in
 

this particular case." Cooper related that he spoke with
 

defendant's grandmother, as well as Nancy Kennebrew and Evonne
 

Ezell. The prosecutor then asked Cooper whether those
 

witnesses gave statements to him. Cooper replied that they
 

did, and then explained that those witnesses' statements led
 

to the issuance of arrest warrants.5
 

4(...continued)


improper comment about a defendant's post-Miranda silence may


rise to the level of a due process violation. See Moreno,
 

supra at 473; Veloria, supra at 651-653; Lindgren v Lane, 925


F2d 198, 203 (CA 7, 1991); United States v Stubbs, 944 F2d


828, 835 (CA 11, 1991); Booton v Hanauer, 541 F2d 296, 298-299
 

(CA 1, 1976). Greer v Miler, 483 US 756; 107 S Ct 3102; 97 L


Ed 2d 618 (1987), does not hold otherwise. See id. at 764, n


5, rebutting the dissent's contention that the Court held that


"a single comment cannot be sufficient to constitute a Doyle


violation;" id. at 770 (Brennan, Blackmun, and Marshall, JJ.,


dissenting). Indeed, the Court in Greer explained that the


lack of a violation there stemmed from the "sequence of
 

events," not the fact that there was but one comment. See id.
 

at 764-765.
 

5The majority interprets the prosecutor's follow-up


questions regarding Cooper's interview with the other
 

witnesses as constituting the real aim of the prosecutor's


question to Cooper regarding his "investigation follow-up." I


find this interpretation unpersuasive. See United States v
 

Baker, 999 F2d 412, 416 (CA 9, 1993), stating that counsel's


(continued...)
 

7
 
Viewed in context, the prosecutor's questions and
 

Detective Cooper's answers demonstrate how the prosecutor
 

compared defendant's willingness to be interviewed by police
 

with the willingness of the other witnesses directly involved.
 

The prosecutor conveyed that defendant refused to speak, but
 

that others who were in the van when it was stopped, and the
 

van's owner, agreed to speak to police. Given that the others
 

were initially implicated with the safe, questions regarding
 

the degree of cooperation by defendant and the others in
 

Cooper's investigation implied that defendant's silence
 

evidenced guilt.6
 

Everything considered, I believe it reasonable to
 

conclude that the prosecutor's line of questioning was
 

intended to call attention to defendant's post-Miranda silence
 

and use it against him. The tactics rendered the trial
 

"fundamentally unfair."7
 

5(...continued)


"subjective intent cannot save his overly broad statements."


The majority glosses over the fact that the entire series of


questions and answers contrasted defendant's and the other


witnesses' degree of cooperation in front of the jury.
 

6Apparently, Nancy Kennebrew was charged at one point


with possession of the safe's contents.
 

7See Moreno, supra at 473-474, finding error where the


prosecutor's question's "natural consequence, if not purpose,"


was to draw meaning from the defendant's post-Miranda silence;


Veloria, supra at 652, finding Doyle error after reviewing


entire context of improper testimony; Elkins, supra at 537, a


(continued...)
 

8
 
My conclusion is not altered by the cautionary
 

instruction given in the instant case. A curative instruction
 

does not always eradicate a due process violation brought
 

about by the use of a defendant's post-Miranda silence.8 The
 

instruction here did not address the prosecutor's
 

juxtaposition of defendant's response to Cooper's request for
 

an interview and the other witnesses' responses. Thus,
 

notwithstanding the instruction, the effect of the comparison
 

remained unassailed in the jury's perception. Therefore, the
 

curative instruction does not preclude a finding that the
 

prosecutor used defendant's post-Miranda silence against him.9
 

7

(...continued)


"Doyle violation occurs not only when the objectionable


comments explicitly refer to a defendant's failure to answer


questions . . . but when the reference to defendant's silence


is more oblique . . . ;" United States v Newman, 943 F2d 1155,


1158 (CA 9, 1991), finding error requiring reversal where the


effect of a police officer's statements, "intended or
 

otherwise, was to suggest to the jury that [the defendant]


must have been guilty because an innocent person would not


have remained silent"; State v DiGuilio, 491 So2d 1129, 1131


(Fla, 1986), it was constitutional error for a police officer


to give testimony that was "fairly susceptible of being


interpreted by the jury as a comment on silence."
 

8See Newman, supra at 1156-1157, finding a Doyle


violation despite two cautionary instructions.
 

9In effect, the majority's reliance on the trial court's


curative instruction merely ensures that improper testimony


like that submitted here will be admitted in other criminal
 

trials in Michigan. When it occurs, the trial court may give


the same curative instruction that was given here,
 

anticipating no error requiring reversal.
 

9
 
The impermissible use of defendant's post-Miranda silence
 

in this case makes the majority's reliance on Greer, supra,
 

inapposite. Here, unlike in Greer, there was a series of
 

questions and answers that focused on defendant's post-Miranda
 

silence.10 Thus, there was actual testimony presented here
 

that conveyed to the jury that defendant "refused" to speak to
 

an investigating officer and wanted to speak to an attorney.
 

Additionally, the trial court in Greer gave two
 

cautionary instructions; the trial court in the present case
 

gave merely one. See Greer, supra at 759. The trial court's
 

instructions in Greer did not specifically mention the earlier
 

impropriety.11 By contrast, here the trial court's instruction
 

expressly cited Cooper's improper testimony, highlighting the
 

earlier testimonial error and reminding the jury of
 

defendant's refusal to submit to a police interview.
 

10The majority explains its conclusion that there was no


"use" against defendant of his post-Miranda silence by stating


that Cooper's testimony "did not state that defendant
 

absolutely refused to be interviewed by the police, but rather


only that he wanted to speak to an attorney before
 

questioning." Slip op at 18, n 12. I find it a distinction


without a difference. Also, the majority ignores the


preceding sentence where Cooper stated that his request to


interview defendant was "refused."
 

11 In Greer, the trial court's first instruction directed


the jury to "ignore [the] question, for the time being." Id.
 

at 759. The second instruction informed the jury to "disregard


questions . . . to which objections were sustained." Id.
 

10
 
Finally, unlike in Greer, the record here supports the
 

conclusion that there was an improper use of defendant's
 

post-Miranda silence against him. Here, the prosecutor
 

highlighted for the jury the fact that defendant chose not to
 

speak to an investigating officer, whereas other persons,
 

possibly associated with the safe, did speak. Because there
 

was a far greater burdening of defendant's rights in the
 

instant case than in Greer, I believe that the majority errs
 

in finding Greer analogous. See Moreno, supra at 474, limiting
 

Greer to cases where no answer is given to an improper
 

question; Newman, supra at 1157-1158.
 

I would find the prosecutor's use of defendant's post-


Miranda silence violative of due process and the trial court's
 

refusal to grant a mistrial an abuse of its discretion.12
 

III. Conclusion
 

The prosecutor used defendant's post-Miranda silence
 

against him by calling the jury's attention to it and by
 

inferring defendant's guilt from it. This rendered defendant's
 

12The majority's reliance on Stubbs, supra, is unavailing.


Stubbs did not involve, as here, a prosecutor engaging in a


specific comparison of defendant's and other witnesses'


willingness to speak to police, or a cautionary instruction


that expressly reminded the jurors of the improper reference


to defendant's post-Miranda silence. Id. at 835. Also, the


improper testimony in Stubbs came from a civilian witness;


here, the improper testimony came from a police officer and,


thus, is subject to greater scrutiny. See People v Holly, 129


Mich App 405, 415-416; 341 NW2d 823 (1983).
 

11
 
trial "fundamentally unfair" and violated defendant's due
 

process rights. Thus, I would affirm the Court of Appeals
 

decision to reverse defendant's convictions.
 

CAVANAGH, J., concurred with KELLY, J.
 

12