Santonyo Brown was shot outside a house on Wyoming Street in Detroit by a drive-by shooter, whom Brown later identified as the defendant, Rayfield Clary. According to Brown, he and Clary met earlier in the day and, through a series of phone calls, agreed to meet at the house where the two would smoke marijuana together. Clary was arrested and charged with the shooting.
Clary was tried twice, with his first trial ending in a hung jury; Brown testified at both trials. Before the first trial, Clary filed an alibi notice, but he ultimately withdrew this defense, did not present any witnesses, and did not testify; his defense was that Brown had misidentified him.
At his second trial, Clary did testify. While he agreed with most of Brown’s testimony, Clary denied being the shooter, asserting that he arrived on foot after the shooting and was with other people when Brown was shot. But under cross-examination by the prosecutor, Clary admitted that, after his arrest, he did not give the police this alibi. The prosecutor also questioned Clary about his silence during his first trial and his failure to assert the alibi then, including the fact that he did not call witnesses to testify that he was elsewhere during the shooting. During Brown’s testimony, the prosecutor also introduced portions of Brown’s testimony from his first trial.
In closing arguments, the prosecutor emphasized Clary’s failure to raise this alibi before the second trial: “He [Clary] doesn’t come forward to anybody and say, ‘Hey, wait a minute, you got the wrong guy and here’s why.’ He doesn’t even tell his other jury.” The prosecutor also referred to Clary’s failure to proclaim his innocence before he was arrested. At this second trial, Clary was convicted of assault with intent to murder, MCL 750.83, and possession of a firearm during the commission of a felony, MCL 750.227b. Clary was sentenced to 23 to 50 years for the assault with intent to commit murder conviction and two years with credit for 172 days served for the felony-firearm conviction.
Clary appealed, arguing that the prosecutor had violated his due process rights under the 14th Amendment of the U.S. Constitution by repeated references to Clary’s post-arrest silence and failure to testify in the first trial. He also argued that the introduction of Brown’s prior statements constituted reversible error. In an unpublished per curiam opinion, the Court of Appeals reversed Clary’s convictions and remanded the case to the trial court for a new trial.
In general, a prosecutor may not comment on a defendant’s failure to testify because doing so may lead the jury to infer that the defendant was guilty or hiding something, the Court of Appeals explained.
“The United States Constitution guarantees that no person shall be compelled in any criminal case to be a witness against himself,” the Court of Appeals noted. “Pursuant to Miranda v Arizona, 384 US 436, 444-445; 86 S Ct 1602; 16 L Ed 2d 694 (1966), every person subject to interrogation while in police custody must be warned that the person may choose to remain silent in response to police questioning, and, if that person chooses to remain silent after being arrested and given Miranda warnings, that silence may not be used as evidence against that person …. More specifically, the United States Supreme Court has held that a prosecutor cannot impeach an
exculpatory story by cross-examining the defendant about his failure to have told the exculpatory
story to the police after being arrested and receiving Miranda warnings. Doyle v Ohio, 426 US
610, 611; 96 S Ct 2240; 49 L Ed 2d 91 (1976).”
But in later cases, the U. S. Supreme Court has held that a defendant’s silence before being arrested or receiving a Miranda warning may be used to impeach his exculpatory testimony, the Michigan Court of Appeals observed. “This is because, under the United States Constitution, use of a defendant’s silence only deprives a defendant of due process when the government has given the defendant a reason to believe both that he has a right to remain silent and that his invocation of that right will not be used against him, which typically only occurs post-arrest and post-Miranda,” the Court of Appeals explained.
The record did not reveal whether Clary received a Miranda warning before his arraignment, the Court of Appeals said. Citing the U.S. Supreme Court’s decision in Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982), the Court of Appeals said that the prosecutor’s impeachment of Clary using his post-arrest silence did not violate his due process rights. “[W]ithout evidence that defendant received the Miranda warnings, defendant did not have a reason to believe that he had the right to remain silent and that his silence would not be used against him,” the appellate panel said.
But the prosecutor did violate Clary’s due process rights by referring to his failure to take the stand in the first trial, the Court of Appeals said. “[I]n this case, because defendant merely offered an exculpatory story at his second trial and his failure to testify at the first trial was not inconsistent with his exculpatory story, it was error for the prosecutor to impeach defendant with his silence,” the appellate panel stated. This error was not harmless, the Court of Appeals said.
“In this case, because there was no physical evidence, the strength of the prosecutor’s overall case against defendant hinged on the jury’s assessment of the witnesses’ credibility,” the panel said. “Although Brown identified defendant as the shooter to his siblings after the shooting, Brown was the only eyewitness to the shooting. As such, the trial was a credibility contest between Brown and defendant and the references to defendant’s silence could have undermined defendant’s credibility. The prosecution cannot demonstrate that there was no reasonable possibility that the challenged evidence and comments by the prosecutor might have contributed to the conviction.”
The Court of Appeals also agreed with Clary that the trial court committed reversible error by allowing the prosecution to introduce at the second trial statements Brown made at and before the first trial, in which he identified Clary as the shooter. At the second trial, Clary’s attorney sought to undermine Brown’s testimony, including his identification of Clary as the shooter, by using Brown’s earlier inconsistent statements – for example, that Brown had testified at the preliminary examination that he was going to the house to visit his brother and not to meet Clary. After Clary’s counsel impeached Brown’s trial testimony, the prosecution read into the record portions of Brown’s written statement and testimony from the first trial that was allegedly consistent with his testimony in the second trial. Clary’s attorney objected to the prosecution’s line of questioning as inadmissible hearsay, but the trial court overruled the objections. The Court of Appeals held that the trial court erred in this regard.
“It is well established that ‘hearsay’ (a statement, other than the one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted) is inadmissible,” the Court of Appeals said, citing Michigan Rules of Evidence 801 and 802. “Moreover, as a general rule, neither party in a criminal trial is permitted to bolster a witness’s testimony by seeking admission of a prior consistent statement made by that witness.”
Prior consistent statements may be admitted into evidence under MRE 801(d)(1)(B) only if the moving party meets four requirements, the Court of Appeals said: “(1) [T]he declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant’s testimony; (3) the proponent must offer a prior consistent statement that is consistent with the declarant’s challenged in-court testimony; and, (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose.” The prosecution had not satisfied the second and fourth element, because there was no claim that Brown had an “improper influence or motive” or fabricated his testimony at the second trial; accordingly, the trial court erred in allowing Brown’s prior statements into evidence. Moreover, it was “more probable than not” that the trial court’s error affected the outcome of the trial, the Court of Appeals said.
The prosecutor appealed. In an order dated June 6, 2012, the Supreme Court granted the prosecutor’s application for leave to appeal, directing the parties to “include among the issues to be briefed: (1) whether the prosecutor’s impeachment of the defendant’s testimony on the basis of the defendant’s failure to testify at his earlier trial violated the defendant’s Fifth Amendment right against self-incrimination; and (2) whether the prior consistent statements by the complainant were admissible under MRE 801(d)(1)(B).” After Clary provided a transcript to show that he was advised of his Miranda rights at his arraignment, the Supreme Court granted his motion to expand the grounds for review to include the issue of whether the trial court erred by permitting the prosecutor to introduce evidence of Clary’s post-arrest silence.