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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 Robert P. Young, Jr. 

# Opinion

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, g rams 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 thecommissionof 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 no t ab use its discretion by denying defendant’s motion for a mistrial. According ly, we reverse the judgment of the Court of Appeals and reinstate defendant’s convictions.

I Onthe 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, d efen dant became “extremely enraged” and was placed in the back of a police car. After being placed in the police car, defendant kic ked 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

2cocaine, a small amou nt of marijuana, a loaded “Tech Nine” handgun, and over $2,000 in cash. 1 This l ed to t he 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 prosec utor 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 a t that time it was refused. He wished to speak to an attorney pri or to me asking him any questions. We note that the trial record does not include any express mentionthat defendant hadbeen advised of his Miranda 2 rights to remain silent and to have an attorney p res ent during custodial interrogation. However, the prosecution has effectively stipulated that defendant was in police cust ody following his arrest at the time of the attempted questioning

1 Notably, defendant had also beena passenger inanother vehicle that was stopped earlier that da y. Defendant consented to a search of his person during that earlier stop. The police found over $1,000 in cash inone 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 fr equ ently 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). 3and had been advised of his Miranda rights before r ejecti ng Detective Cooper’s attempt to interview him. 3 Accordingly,

our decision presumes that defendant ’s r efusal to submit to police questioning constituted “post- Miranda ” silence. Defe nse counsel requested a mistrial on the basis of Detective Coop er’s testimony about defendant refusing to be questioned before speaking with anattorney. The trial court deniedthis request, stating that it was convinced the prosecutor did not intend to elicit testimony on this p oint and that it did not think “the jury pickedit up or caught it in any way.” Inits final instructions to the jury, the tri al cou rt 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 tal k to h im and [defendant] said that he wanted a lawyer. This is an absol ute right that every citizen of this co unt ry has. In fact, if Officer Cooper hadtalked to [d efen dant], 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 ri ght to counsel should have been admissible.” 4when he was talking to the officer. So the fact that [defendant] said he wanted a lawyer and didn’t wan t to talk to the officer cannot be used by you in any way and is n ot any indicationof 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 preservedclaim of constitutional error that requires reversal unless it was harmless beyond a reasonable doubt. The Court statedthat it could not conclude the error was harmless beyonda reasonable doubt and, accordingly, h eld that the trial court ab us ed its discretion by denying defendant’s motionfor a mistrial. Unpublished opinionper curiam, issued April 14, 2000 (Docket No. 215244). Inits appeal to this Court, the prosecution argues that there was no constitutional violation because the prosecution didnot attempt to use defen dant’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.

5III We review a trial court’s decision to deny a motion for

a mistrial for an abuse of discreti on. 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 2d694 (1966), the United States Supreme Court articulated the rule tha t the police must advise a suspect before custodial interrogationthat 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 violationof Miranda itself because th ere is no claim that defendant was interr oga ted by the police without being afforded the warnings requiredby Miranda . Neither does this

case involve any other ty pe of claim under the Self- IncriminationClause of the Fifth Amendment, inasmuch as there is no claim that any involuntary statement by de fendant was used against him. Rather, properly understood, the present case involves a qu estionregarding whether the testimony at issue fr o m

4 In Dicker son v United States, 530 US 428; 120 S Ct 2326, 2336; 147 L Ed 2d 405 (2000), the Court quite recently heldthat Miranda announced a binding “constitutional rul e” under the Fifth Amendment in requiring these warnings. 6Detective Cooper violates defendant’s constitutional right to due process under the Fourteenth Amendment. In Doyle v Ohio, 426 US 610, 619; 96 S Ct 2 24 0; 49 L Ed 2d 91 (1976), the UnitedStates Supreme Court held that the use of a criminal defendant’s silence “at the time of arrest and after receiving Miranda warni ngs” for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Doyle Court expla ine d that silence in the face of Miranda warnings cannot be used as evidence 5 to cast doubt on the defendant’s credibility for two basic reasons. First, silence in the face of Miranda warni ngs 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 warning s ma y be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolub l y 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 exceptionis a situation in which a defendant testifies to having earlier provided an exculpatory version of events to the p olice 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. 7Moreover, while it is true that the Miranda warnings contain no express assurance that silence will c arryno penalty, such assurance is implicit to any person who rece ives t he 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 statemen t 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 thos e of Doyle. In Doyle, the prosecution unabashedly u se d the silence of each of the two defendants in the face of Miranda warnings against them at their respective trials. The prosecutionrepeatedly asked each defendant questions to emphasize that he did not p rovide an exculpatory version of events to the police after being arrested. In contrast, the present cas e invo lves a single question and answer in which Detective Cooper revealed in response to anop en-ended
8question 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 prose cutor’s open-endedquestio n as king 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 cas e after defendant was arrested. On the other hand, there is nothing to reasonably supp ort a conclusion that the prosecutor intendedfor t his 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, unforeseentestimony that may result from open-ended questions. We respectfully disagree with the dissent’s characterizationof this case as involving “a series” of que stions and answers focused on defendant’s silence. Slip op, pp 1, 10. As may be seen from the quotation of the (continued...) 9Inconsidering 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 Gree r v Miller, 483 US 756; 107 S Ct 3102; 97 L Ed 2d 61 8 (1987). In Greer, the defendant 7 testified at his trial , claiming that he was innocent of the murder and related crimes charged and providing an exculpatory version of events that implicatedtwo others as the perpetrators. Id. at 7 58 . During the prosecutor’s cross-examination of the defendant, he asked, “why didn’t youtell this story to anybody when you got arrested?” Id. at 759. Defense counsel immediately objected, andthe trial court sustained the objection and instructed the jury to ignore the question. Importantly, the prosecution did not pursue the inquir y 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 questi on that specifically regarded whether other people spoke with him. The prosecutor never commented on or statedthat 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 a ctio n. H owever , the important points of Greer involve the trial in whi ch the petitioner was a criminal defendant. To avoid confusion, we will refer to the petitioner in Greer as the “defendant” in that case. 10jury to disregard questions about which obje ctions were sustained. Id. The United States Supreme Court in Greer held that, despite the prosecutor asking animproper question, no actual violationof 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 questionthat touched upon Miller’s postarrest silence. No further questioning or argu ment with respect to Miller’s silence occurred, and the court specifically advised the jury that it should disregardany questions to which an obj ecti on was sustained. Unlike the prosecutor in Doyl e, 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 allow ed to draw a ny p ermissible inference, and thus no Doyle violationoccurred in this case. [ Id., citation omitted.] Thus, the Court held that the prosecutor’s improper question didnot 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 n o Do yle violation actually
11occurred . Indeed, the conduct of the prosecutor in Greer was far worse inthat he attempted to directly inject the defendant’s silence into t he 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 cal l a ttention 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 occasionto allow) any specific inquiry or argume nt a bout defendant’s post- Miranda silence. Further, because defendant inthe 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...) 12Moreover, 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 defendan t’s] silence, at the time of arrest an d af ter receiving Miranda warnings

. . . .” Doyle, supra at 619. Because defendant did no t testify, the testimony at issue by Detective Cooper could not poss ibly 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- M

iran da silence to further an argument that the defendant presenteda fabricated version of events o n the basis of hearing the evidence presented by the pros ecution 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 ob viously not used for impeachment purposes is one fac to r suggesting that there was no “use” of defendant’s post- Miranda silence against him in the present case. 13This 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 occurredin this case is supported by the decision of the United St ates 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 d id not attempt to draw out further information about the defendant’s cooperation with the police and never mentioned the issue during closing argumen t. Ho wever, the defendant argued on appeal that the tes timony improperly commented on her postarrest refusal t o 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 Ac cor dingly, contrary to the dissent’s indication, we do not suggest that a single comment may never constitute a Doyle violation. Slipop, p 7, n 6. We merely conclude that the single isolated incident at issue in the present case did not constitute a Doyle violation. 14specifically and expressly attempt to use –as was attempted in Doyle and in Greer –the improper comment to i mpeach 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 specificinquiry or impeachment that forms the basis for a violation of the Fourteenth Amendment.”) (emphasis added). As was the case in Greer, the prosecut or here “was not allowed to undertake impeachment on, or permitted to call attentionto [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 th is c ase. [ 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 impeachmen t pu rposes. 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 decisionis 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 defen dant a t a certain point because he “had made a request to spea k 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 ar gume nt 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) (h olding that there was no Doyle violation from a p olic e officer’s nonresponsive comment that the defendant invoked his ri ght 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 mis trial on the basis of a single comment related to th e (continued...) 15We acknowledge tha t, a s argued by defendant, this case differs from Greer in that a witness actually testified in the presence of the jury that defend ant 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 questionthat 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 n ot provid e 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 el icited 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 ou r conclu sion 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, abse nt use by the prosecution of the comment on defendan t’ s postarrest silence, there was no Doyle violation.” S tubb s, (continued...) 16Inlight of our conclusion that there was no violation of defendant’s due process rights under Doyle, we hold that the tr ial 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 disregardinadmissible evidence inadvertently presented to it, unless the re is an ‘overwhelming probability’ that the jury will be unable to follow the court’s instruction s, and a strong likelihood that the effect of the evidenc e w ould be ‘devastating’ to the defendant.” Id. at 767, n 8 (citations omitted). The trial court in the p resent case emphatically instructed the ju ry t o place no weight on defendant’s invocationof his Miranda rights. Thus, it was reasonable for the trial court to conclude that any possible prejudice from the i mpro per testimony from Detective Cooper could be cured witha 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 wit h 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 defendan t’ 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...) 17For the foregoing reasons, we disagree withthe 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 de fendant’s exercise of the Miranda rights into a trial by either prosecutors or the police. In t he 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 couldwell be understood by a juror as reflecting a concern for being treated fairly and wishing t he ass istance of a sophisticated advocat e to respond to any unfair questioning that might seek to turn the suspect’s words against himself. A

typical ci tize n 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 withthe police might be taken. Accordingly, the present opiniondoes not address a situation inwhich police testimony makes clear that a defendant has absolutely refused to be interviewed by the police.

13 We also note th at we are puzzled at that Court’s decisionto reverse defendant’s conviction of malicious destru cti onof 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 inthe presence of police officers. Accordingly, it is evident that any possible error was harmless beyond a reasonable doubt with regard to the mali cious destruction charge in light of the overwhelming evidence of guilt regarding that charge. 18and (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 cons tit utional violationand that the trial court di d not abuse its discretion by declining to order a mistrial.

IV In sum, we conclude that the inadvertent elicitation of t estimo ny 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 th e prosecution of defendant’s post- Miranda sile nce ag ainst him within the meaning of Doyle and Greer. Thus, we reverse the judgment of the Court of Appeals and reinstate defendant’s convictions. C ORRIGAN , C.J., and WEAVER , Y OUNG , and M ARKMAN , JJ., concurred with T AYLOR , 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- Miranda 1 silence ag ains t 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 wouldaffirm the Court of Appeals de cisi on 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 tr ial co urt'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 pr oce ss right not to have his post- Miranda silence used against him exists in more situations thanwhere a prosecutor uses the silence to impeach. To be sure, Doyle v Ohio 2 held that due process is violated where a prosecutor impeaches a de fendant with evidence of his post- Miranda silence. But, the point of Doyle is "that it is fundame ntal ly unfair to promise an arrested person that his sil ence 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

2 426 US 610, 618; 96 S Ct 2240; 49 L Ed 2d 91 (1976). 2therefore, 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 inchief. 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- Miran da s ilence 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 Althoughthe majority acknowledges that Detective Cooper's testimony was "inappropriate," it nevertheless finds that there was no improper "use" of defendant's post- Miranda si len ce 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 3prosecutor did impermissibly use defendant's post- Miranda silence against him. Inmy view, the majority a rriv es at an erroneous conclusionin part because it fails to consider Det ective Cooper's testimony in context. Wit h this in mind, I will provide a brief review of the facts surrounding this case. Onthe afternoon of August 23, 1997, defendant telephoned his grandmother and asked that she send someone to get him in

anautomobile. 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 An derso n 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. Althoughno contr aban d was found on Ezell's person, the officers detained her, directedNancy Kennebrew and defendant to wait inside the officers' cruiser, then searched the van. Inside, they discovered a locked safe, prompting them to call

3 Defendant's grandmother and her daughter are bothnamed "N ancyK ennebrew." To help avoid confusion, I will refer to the elder Kennebrew as "the grandmother," and the junior Kennebrew as "Nancy Kennebrew." 4for assistance from a police dog to determine whet her th ere 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 cal led 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 on e woul d expect the prosecutor then to query him regarding his expert opinion

oncertain matters of evidence, the prosecutor opted not to do

so immediately. Inste ad, he questioned Cooper regarding his investigationof 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.

5Q . What type of investigation follow-up did you do with regard to this ? A . I went out a nd attempted to interview [defendant], and at that time it was refused. He wished to speakto an attorney prior to me asking him any questions . Q . Did you speak with the oth er persons in this particular case ? A . I believe it was the next day that I went to the Kennebrew re siden ce and spoke with Nancy Kennebrew, the younger one. I spo ke with the grandmother, and I spoke with Evonne Ezell . Q . And did they give you statements as to their kn owl edge or lack of knowledge of this incident ? A . Yes . Q . And th enyou 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 arr est and "wished to speak to an attorney" before an swe ring any questions. Whereas the majority labels this as testimony of a "limited natur e," it is, in fact, an explicit statement that defendant invoked his Mir anda rights . It enabled the jury to infer guilt from defendant's silence, thereby violating his due process rights. 4

4 Contrary to the majority's inherent suggestion, a single (continued...) 6Evenif 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 di d 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 r eplied 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 viol ation. Se e Moreno , supra at 473 ; Veloria , supra at 651-653; Lindgren v Lane , 925 F2d198, 203 (CA 7, 1991); United Sta tes v Stub bs , 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 contentionthat the Court held that "a single comment cannot be sufficient to constitute a Doyle violation;" id. at 770 (Brennan, Blackmun, andMarshall, 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.

5 The majority interprets the prosecutor's follow -u p questions regarding Cooper's interview with the other witnesses as constituting the real aim of the prosecutor's questionto Cooper regarding his "investigation follow-up." I findthis interpretation unpersuasive. See United States v Baker , 999 F2d 412, 416 (CA 9, 1993), stating that counsel's (continued...) 7Viewedin context, the prosecutor's questions and Detective Cooper's answers demonstrate how the prosecutor compared defendant's willingness to be interviewed by police withthe 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 o thers in Cooper's investigation implied that defendant's silence evidenced guilt. 6 Everything considered, I believe it reasonable to

con clude that the prosecutor's line of questioning was intendedto 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.

6 Apparently, Nan cy Kennebrew was charged at one point with possession of the safe's contents.

7 See Moreno , su pra 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...) 8My conclusion is not altered by the cautionary instructiongiven in the instant case. A curative instruction does not always eradicate a due process viola tion brought about by the use of a defendant's post- Miranda si lence. 8 The instructionhere did not address the prosecutor's juxtapositionof defendant's response to Cooper's request for

aninterview and the other witnesses' res ponses. Thus, notwithstanding the instruction, the effect of the comparison remained unassailed in the jury's perception. Therefore, the curative instruction does not preclude a findin g th at the prosecutor used defendant's post- Miranda silence against him. 9

7 (...continued) " Doyle violation occur s 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 defe nda nt] must have been guilty because an innocent person woul d not have remained silent"; State v DiGuilio , 491 So2d 1129, 1131 (Fla, 1986), it was constitutional error for a police officer to give t esti mony that was "fairly susceptible of being interpreted by the jury as a comment on silence."

8 See Newma n , supra at 1156-1157, finding a Doyle violation despite two cautionary instructions.

9 Ineffect, the majority's reliance on the trial court's curative instruction merely ensures that improper testimony like t hat su bmitted here will be admitted in other criminal trials in Michigan. When it occurs, the trial court may give the same curative instruction that was giv en he re, anticipating no error requiring reversal. 9The impermissible use of defendant's post- Miranda silence inthis case makes the majority's reliance on Greer , supra , inapposite. Here, unlike in G reer , there was a series of questions and answers that focused on defendant's post- Miranda silence. 10 Thus, there wa s ac tual 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 g ave 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.

10 The majority explains its conclusionthat 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 interviewedby the police, but rather only that he wanted to speak to an attorn ey bef ore questioning." Slip op a t 18, n 12 . I find it a distinction without a difference. Al so, 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 instructioninformed the jury to "disregard questions . . . to which objections were sustained." Id. 10Finally, unlike in Gree r , the record here supports the conclusionthat there was an improper use of defendant's post- Miranda s ilence against him. Here, the prosecutor highlightedfor the jury the fact that defendant chose not to speak to an investigating officer, whereas other perso ns, possibly assoc iate d with the safe, did speak. Because there

was a far greater burdening of defendant's r ights in the instant case than in Greer , I believe that the majority errs infinding 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 wo uld 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

12 The 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 spea k 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). 11trial "fundamentally unfair" and violated defendant's due process rights. Thus, I would affirm the Court of Appeals decision to reverse defendant's convictions. C AVANAGH , J., concurred with K ELLY , J.

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