People v. Collier

¶1(dissenting). I respectfully dissent *41because I believe that there are compelling reasons to apply People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), to cases involving prearrest silence, and because I am not convinced that it would have been "entirely natural” for this defendant to present himself to the police with his version of the facts.

¶2i

¶3The majority states that this case "is not controlled by Bobo,” ante, p 31, and that Bobois "inapplicable to the present situation,” ante, p 31, n 1. Nonetheless, the majority uses this case to limit Boboto situations which impinge upon a person’s right to silence "at the time of arrest in the face of accusation.” Ante, p 39.

¶4The majority places limited emphasis on statements made in Bobowhich indicate that a defendant’s right to remain silent is constant and attaches regardless of whether the silence occurred prior to or at the time of arrest. For example, the BoboCourt stated:

What concerned the parties and what prompted our grant of leave was the propriety of using the fact of defendant’s silence either as evidence of guilt or for the purpose of impeachment.

Whether his silence was prior to or at the time of arrest makes little difference — the defendant’s Fifth Amendment right to remain silent is constant. [390 Mich 360.]

¶5I do not believe that this language would have been used if Bobowas only meant to apply to silence maintained after initiation of police contact.

¶6Several Court of Appeals panels have recognized that Boboapplies to prearrest silence. People v

¶7*42Ray, 119 Mich App 724; 326 NW2d 622 (1982); People v Hoshowski, 108 Mich App 321, 323-324; 310 NW2d 228 (1981); People v Wade, 93 Mich App 735; 287 NW2d 368 (1979). The panel’s opinion in this case was consistent with these decisions, and I continue to agree with them as a matter of state constitutional law.

¶8Although the federal constitution does not prohibit impeaching a defendant with his prearrest silence, this Court is free to develop evidentiary rules prohibiting its use. Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980).1 Of course, we are also free to interpret Const 1963, art 1, § 17 in a manner which affords greater rights when there is a compelling reason to do so. See People v Nash, 418 Mich 196, 214-215; 341 NW2d 439 (1983); People v Beavers, 393 Mich 554; 227 NW2d 511 (1975).

¶9I find compelling reasons to apply Boboto prearrest silence. In effect, the majority opinion requires citizens, who may or may not have been involved in questionable conduct, to present themselves to the police with an explanation, or else *43face the possibility of having their failure to do so used against them in later proceedings. This is contrary to Boboand repugnant to the notion that the right to silence remains constant. This is more than a "satisfactory argument,” ante, p 38; it is a compelling reason to afford greater rights under our own constitution. -I would hold that Boboprevents the use of defendant’s prearrest silence for impeachment purposes as a matter of state constitutional law. Const 1963, art 1, § 17; Bobo, supra.

¶10n

¶11I am thus not convinced that this case can be viewed solely as an evidentiary matter. However, even if the test of Commonwealth v Nickerson, 386 Mass 54; 434 NE2d 992 (1982), were appropriate, I still disagree with the majority’s conclusion that it would have been "entirely natural and expected that one who has been robbed under the circumstances related by the defendant would report the crime to the police.” Ante, pp 34-35. The majority acknowledges (indeed, it directs the trial judge to consider) several factors set forth in People v Conyers, 52 NY2d 454; 438 NYS2d 741; 420 NE2d 933 (1981). These factors include one’s awareness that there is no obligation to speak or to report a crime, one’s belief that any effort to do so or to exonerate one’s self would be futile, and the "lamentable but undeniable fact of modern society” that the distrust that some harbor for authority leads them to shun all contact with the police, even when such avoidance is against their interests. Conyers, supra, p 458. In light of these factors, I cannot conclude that it would have been natural for this defendant to initiate contact with the police.

¶12*44The majority states that "defendant testified that he was in fact the victim of an armed robbery rather than a perpetrator of an assault.” (Ante, p 34.) However, the defendant admitted stabbing Dean. Defendant also testified that he did not realize that Dean was seriously hurt, since he got up and ran after the stabbing. The blade was no longer than one and one-half inches in length, and defendant heard Dean say "that little knife you got wasn’t gonna hurt nobody.” Defendant also explained that he did not go directly to the police since he thought that he would be hearing from them anyway. In fact, the police contacted him the next day.

¶13Given these facts, it was not entirely natural2 or expected for the defendant to contact the police. The lamentable but undeniable facts of modern society show that one may be afraid of retaliation for reporting a crime. This fear may outweigh one’s desire to perform a "civic duty” or obtain restitution. It is also true, unfortunately, that some citizens distrust the police and take it upon themselves to resolve disputes. The use of such silence, even for impeachment purposes, impinges on a defendant’s constitutional rights while adding little probative benefit. For these reasons, I would affirm the Court of Appeals opinion.