People v. Hackett

¶1The evidentiary question posed by this case is whether the trial court’s admission of testimony regarding defendant’s silence was proper.1 Defendant was convicted of delivery of 50 grams or more but less than 225 grams of cocaine.2 The Court of Appeals reversed defendant’s conviction, concluding that, although the admission of the testimony was not constitutional error, it was error under People v Bigge, 288 Mich 417; 285 NW 5 (1939). The Court of Appeals further concluded that failure to address what it found to be error under Biggewould result in manifest injustice. The Court of Appeals reversed defendant’s conviction and remanded for a new trial.

¶2For the reasons that follow, we agree with the Court of Appeals that there was no constitutional error in the use of defendant’s silence. We further hold that the reference to defendant’s silence did not implicate the rule of Bigge, because the silence did not occur in the face of an accusation. Rather, the *205prosecutor’s reference to defendant’s failure to confront Logue is conduct evidence, admissible to impeach defendant’s testimony that he was an innocent bystander on the evening in question.

¶3We reverse the decision of the Court of Appeals and reinstate defendant’s conviction.

¶4i

¶5FACTS

¶6In the early morning hours of August 13, 1991, undercover State Police Detective Richard Gilbert purchased cocaine from Patrick Logue. Logue later testified that defendant, William P. Hackett, was his supplier. Defendant was nearby when the August 13 sale occurred. Defendant claims that he was framed.

¶7Defendant and Logue were high school friends who renewed their friendship in 1991. In July 1991, Logue house-sat for defendant. Items were apparently missing from the defendant’s home afterwards, and, when confronted by defendant, Logue admitted taking certain items. Logue returned the items taken, except, contends defendant, a Godiva chocolate box that ultimately reappeared on August 13, 1991, containing the cocaine sold to Detective Gilbert.

¶8Logue also met Detective Gilbert in 1991. Detective Gilbert was participating in an undercover investigation of Logue’s employer, Erotic Image, a company that provided strippers for parties. Logue worked for Erotic Image as a stripper, an escort for female strippers, and as a sales representative. Logue took the job at Erotic Image to be near women and drugs. He smoked marijuana on a daily basis.

¶9*206Logue testified that defendant supplied cocaine for each of the sales Logue transacted with Detective Gilbert, although the cocaine Logue first sold to Detective Gilbert was actually intended for Logue’s boss. Following the first sale, Logue made several drug sales to Detective Gilbert, through and including the sale on August 13. For that sale, Logue had initially agreed to exchange four ounces of cocaine and $1,500 for five pounds of marijuana in a parking lot. Logue testified that defendant modified the deal at the last minute to be an exchange of five ounces of cocaine for five pounds of marijuana and that defendant suggested changing the location of the transaction to a hotel room.

¶10Logue testified that late in the evening on August 12, he went to defendant’s house, where defendant asked for his keys. The prosecutor theorized that defendant placed the cocaine in Logue’s trunk at that time. Logue then went to Kevin Hall’s home where he again met with defendant. Logue then drove to a Knight’s Inn in Sterling Heights where he was to meet Detective Gilbert. Following close behind Logue was defendant, riding in a car driven by Mark Boyle. A police officer testified that the car in which defendant was riding mimicked the lane changes of Logue’s car and that defendant appeared to be checking behind Boyle’s car periodically. The officer testified that he followed Boyle’s car at distances varying from thirty to one-hundred yards. When Logue pulled into the motel, Boyle picked up coffee at a nearby drive through and parked at a restaurant near the motel. Police testified that defendant waited outside the car, looked under the hood with Boyle, and appeared nervous. He walked toward the *207motel a couple times, before stopping and remaining at Boyle’s car. Defendant testified that Boyle’s car was having trouble and he was helping Boyle look under the hood.

¶11At the motel, Logue took a bag from the trunk and placed it in a garbage can. He met with Detective Gilbert, tested the marijuana, and then retrieved the cocaine. The cocaine was in a plastic cellophane bag, inside the Godiva chocolate box, and inside a brown bag. Logue’s fingerprint was later discovered on the brown bag and defendant’s fingerprint on the foil interior of the Godiva box. Logue, Boyle, and defendant were arrested. A search of Boyle’s car produced a gun.

¶12Logue, defendant, and Boyle were arraigned on August 14, 1991. The three posted bond on August 15, 1991, and were released. At the preliminary examination in October 1991, defendant claimed that the case against him should be dismissed because of the lack of a basis for his arrest. On May 29, 1992, the district judge agreed, dismissing all charges against defendant and Boyle. Logue, however, was bound over on one count of delivering 50 to 225 grams of cocaine. The circuit court affirmed the district court’s dismissal of charges against defendant, and the Court of Appeals denied the prosecutor’s application for leave to appeal.

¶13In May 1993, Logue pleaded guilty to the August 13, 1991, drug sale, in exchange for dismissal of other cases. In September 1993, he pleaded guilty to a July 1991 drug sale to Detective Gilbert. After pleading guilty and before his sentencing, Logue agreed to testify against defendant. Consequently, another complaint was filed against defendant and a *208warrant issued for his arrest. Defendant, with his attorney, surrendered to the police on November 8, 1993. On August 12, 1994, defendant was bound over on two counts of delivery. The defendant was ultimately tried on one count of delivering 50 to 225 grams of cocaine and one count of delivering less than 50 grams of cocaine.

¶14The April 1995 trial of defendant lasted five days. During the prosecutor’s cross-examination of defendant, the following exchange occurred:

Q. So, sir, there came a point in time when you must have found out you were you being implicated in this, is that right?

A. Yes, sir.

Q. And I’ll bet you were just stark raving mad to find out you, the innocent man, had nothing to do with this, was being implicated in this; is that right?

A. I was quite concerned and upset, yes.

Q. Well, I would hope so. You’re an innocent man, been accused of a very serious offense?

A. That’s correct.

Q. And the first opportunity you got to tell Patrick to set the record straight, you did that, didn’t you?

A. I don’t understand the question.

Q. The first chance that you got to tell Mr. Logue to clear up any notion of your involvement in this case you did that, didn’t you?

A. I haven’t had any contact with Patrick Logue since we were locked up after the arraignment.

Q. And, Sir, the first words out of your mouth to Mr. Logue were, tell them I didn’t have anything to do with this; isn’t that right?

A. I don’t recall ever saying that to Mr. Logue.

Q. That’s because you never said it; isn’t that true?

A. That’s probably true. I don’t even recall anything like that.

¶15*209Defense counsel did not object to this testimony. Nor did defense counsel object when, during closing arguments, the prosecutor harkened back to this testimony as follows:

[There] wouldn’t be bars strong enough to keep persons falsely accused from trying to just get at the person that made that accusation. Tell him, tell the police, you tell those police I had nothing to do with this, and you know why it didn’t happen? You know why it didn’t happen? Because at the time they were arrested it could not, have been foreseen Mr. Logue would be giving testimony against Mr. Hackett. And another reason it didn’t happen is because it is not true. Mr. Logue is not falsely accusing Mr. Hackett. He’s truthfully accusing Mr. Hackett. Mr Hackett is involved. Mr. Hackett involved [sic] the cocaine and Mr. Hackett is guilty, and that’s why Mr. Hackett did not act like a person falsely accused because he was not.

¶16The jury acquitted defendant of the lesser charge related to a July sale of cocaine by Logue to Detective Gilbert, but convicted defendant of delivering between 50 and 225 grams of cocaine in the early morning hours of August 13, 1991. Defendant was sentenced below the presumptive mandatory ten- to twenty-year sentence for a term of four to twelve years. Defendant’s motion for a new trial was ultimately denied. On defendant’s appeal of right, the Court of Appeals reversed. We granted the prosecutor leave to appeal and denied defendant’s cross-application. 459 Mich 895 (1998).

¶17n

¶18We address whether the prosecutor’s use of defendant’s silence was error. As a preliminary matter, the parties have never agreed on when the silence refer*210enced by the prosecutor occurred. Indeed, up to and through oral argument before this Court, this question remained hotly contested. The timing of the referenced silence is critical to determining whether the prosecutor’s references to defendant’s silence constituted error.

¶19A

¶20The prosecutor first referred to defendant’s silence during cross-examination of defendant. As the prosecutor’s cross-examination progressed, it focused specifically on the period after the 1991 arrest and after defendant’s 1991 arraignment, when Logue and defendant were incarcerated together. This is clear from the following excerpt of the cross-examination:

Q. And the first opportunity you got to tell Patrick to set the record straight, you did that didn’t you?

A. I don’t understand the question.

Q. The first chance that you got to tell Mr. Logue to clear up any notion of your involvement in this case you did that, didn’t you?

A. I haven’t had any contact with Patrick Logue since we were locked up after the arraignment.

Q. And, Sir, the first words out of your mouth to Mr. Logue were, tell them I didn’t have anything to do with this; isn’t that right? [Emphasis added.]

¶21While the prosecutor may not have initiated this line of questioning in reference to the time defendant and Logue were incarcerated together, he continued to pursue that moment in time after the defendant stated that he had not seen Logue since then. Indeed, appellate defense counsel acknowledged twice during oral argument that the prosecutor’s cross-examination *211of defendant referenced the time in 1991 when Logue and defendant were incarcerated together.

¶22The prosecutor’s second reference to defendant’s silence appears similarly directed to the time during defendant’s incarceration with Logue. The prosecutor argued in closing that there

wouldn’t be bars strong enough to keep persons falsely accused from trying to just get at the person that made that accusation. Tell him, tell the police, you tell those police I had nothing to do with this .... You know why it didn’t happen? Because at the time they were arrested it could not have been foreseen Mr. Logue would be giving testimony against Mr. Hackett.

¶23We acknowledge that the timing of the referenced silence in the prosecutor’s closing is somewhat ambiguous. The statement seems to presume that defendant knew that Logue was his accuser in 1991 when they were arrested together, although it is clear from the record that defendant could not have foreseen that Logue would testify against him at that time. Despite this initial ambiguity, we find that the prosecutor’s closing, like the cross-examination, ultimately focuses on the time “when they were arrested.” The only time that defendant could have confronted Logue was when he and Logue were arrested and incarcerated together in 1991.

¶24B

¶25Defendant continues to argue that the prosecutor’s reference to his silence implicates constitutional *212issues.3 His constitutional claims assume that the silence at issue occurred in 1993, rather than 1991. First, defendant argues that speaking to Logue would have violated a condition of his bond and, therefore, that use of his silence violated due process. However, in 1991, defendant’s bond did not include the condition that he not contact Logue. Second, defendant argues that Logue was an agent of the police, and, therefore, that comment on his silence in Logue’s presence violated both due process and his Fifth Amendment privilege against compelled self-incrimination. While it may be arguable that Logue was an agent of the police in 1993, there is no indication that Logue was an agent of the police in 1991 when he was incarcerated with defendant. Because the predicates of defendant’s constitutional claims were not fulfilled during the relevant period, we need not address these claims here.

¶26m

¶27After concluding correctly that the defendant’s constitutional rights were not violated by the prosecutor’s reference to defendant’s silence, the Court of Appeals held that the prosecutor violated the rule of People v Bigge, supra. Bigge concerns adoptive or tacit admissions and

precludes admissibility of a defendant’s failure to say anything in the face of an accusation as an adoptive or tacit admission under MRE 801(d)(2)(B) unless the defendant *213“manifested his adoption or belief in its truth . ” [People v McReavy, 436 Mich 197, 213; 462 NW2d 1 (1990).][4]

¶28Applying the rule of Bigge, the Court of Appeals reasoned:

In this case, the evidence at trial did not indicate that defendant either adopted or believed the accusation. Therefore, the evidence should not have been admitted, and the prosecution should not have been permitted to base its argument on that evidence. [Unpublished opinion per curiam, issued February 24, 1998 (Docket No. 195698).]

¶29We disagree with the Court of Appeals application of the Biggerule in this case.

¶30We take this opportunity to clarify the role of People v Bigge in ascertaining the admissibility of evidence regarding a defendant’s silence. Although Biggepreceded the enactment of the Michigan Rules of Evidence, the rule of Bigge, like MRE 801(d)(2)(B), concerns tacit admissions. “The Biggerule denies admissibility [of tacit admissions] because the inference of relevancy rests solely on the defendant’s failure to deny.” McReavy at 213. Biggeprecludes the admission of a defendant’s silence in the face of accusation as substantive evidence of his guilt. This Court has clarified that a defendant’s prearrest silence is admissible for impeachment purposes. People v Cetlinski (After *214Remand), 435 Mich 742, 757; 460 NW2d 534 (1990). Cetlinski held:

*213“Silence, when the assertion of another person would naturally call for a dissent if it were untrue, may be equivalent to an assent to the assertion. This, however, fixes the party, by adoption, with the other person’s assertion, and thus it ceases to be a question of conduct evidence, and involves a genuine admission in express words. [2 Wigmore, Evidence (Chadboum rev), § 292, pp 229-230.]” [Id]

*214[NJonverbal conduct by a defendant, a failure to come forward, is relevant and probative for impeachment purposes when the court determines that it would have been “natural” for the person to have come forward with the exculpatory information under the circumstances. [Id. at 760.]

¶31The issue of prearrest silence is one of relevance. Id. at 757.

¶32Biggeinvolved a prosecution for embezzlement. The silence referenced by the prosecutor in Biggeoccurred when the defendant in Biggefailed to respond during a business conference to his brother-in-law’s comment, “What’s the use of going over this matter again. Charles [defendant Bigge] is guilty as heh.” Id. at 419.

¶33Biggeheld:

The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. [Id. at 420.]

¶34The Court in Biggeconcluded that the admission of the brother-in-law’s statement and the defendant’s silence in response to it as evidence of defendant Bigge’s guilt was error.5 Bigge’s application is limited to tacit admissions, in the form of a defendant’s failure to deny an accusation. Tacit admissions under the *215Biggerale may not be used as substantive evidence of a defendant’s guilt. A criminal defendant’s failure to respond to an accusation is not probative evidence of the truth of the accusation. 6

¶35We conclude that Biggeis inapplicable to the resolution of this case. The silence referenced by the prosecutor did not occur in the face of an accusation. There is simply no statement that defendant’s silence can be construed as tacitly adopting. Thus, the rule of Biggeis not violated by the admission of the evidence.

¶36Further, we agree with the prosecutor’s argument that defendant’s failure to confront Logue while they were incarcerated together in 1991 is conduct evidence that impeaches defendant’s testimony that he was merely following Logue to a party and was an *216innocent bystander to the drug transaction. It would have been natural for defendant, under such circumstances, to confront Logue regarding the reason for his arrest when they were incarcerated together in 1991. Therefore, we hold that the evidence was relevant and admissible.

¶37IV

¶38Finally, while there is some merit to defendant’s suggestion that the prosecutor’s closing argument strayed from use of defendant’s silence as impeachment to substantive evidence of his guilt,7 the silence referenced, as discussed above, was neither constitutionally protected nor in violation of the rule of Bigge.

¶39If any error arose from the prosecutor’s closing reference, we would find it harmless under any standard. The prosecutor convincingly demonstrated ample direct evidence to convince the jury of defendant’s guilt. The direct evidence includes: Logue’s testimony, defendant’s fingerprint on the interior of the Godiva chocolate box, his incriminating conduct as observed by surveillance police, and his proximity to the drug transaction on August 13, 1991.

¶40*217The silence referenced was also of limited probative value, as demonstrated by the defense’s strategic decision during re-direct examination and closing, to demonstrate that it would not have been normal and natural for defendant to confront Logue. On re-direct examination of defendant, the defense attorney queried, “After you ended up getting arrested on the evening of August 12, 13, 1991, did you want to say anything or hear anything at all from Patrick Logue period?” The defendant responded, “Not particularly. I was, you know, looking at, I’m starting law school in a week and this guy has practically destroyed my life.” During closing argument, the defense again sought to explain defendant’s failure to confront Logue, again in a parallel format to that offered by the prosecution. The defense argued:

[The prosecutor] said gee, if [defendant] was falsely accused there wouldn’t be bars strong enough at getting at Pat Logue, saying tell them I didn’t do it. Well, he is missing the point completely in that respect. Frankly, you put yourself in [defendant’s] shoes; you’re on your way to a party; you’re about to start law school, worked hard presently, been planning, got everything in order, and all of [a] sudden you find yourself arrested because it turns out Pat Logue was involved in a drug deal. What is to talk to him about? He’s the last thing in the world you want anything to do with, period. Not only that, if you’re a person with respect for law and order, you end up in this horrible situation, you having to defend yourself, you don’t go and do something— you don’t go and have contact with him individually, you have respect for the process of law; you have respect for trust for the judgment of juries. This is all frightening, and I’m scared, and it’s very weird, but I’m going to trust and *218I’m going to respect the process of law. [Defendant’s] response was exactly the response you want from somebody who had lived their life right and has respect for the law ....

¶41Because the prosecution presented ample direct evidence against the defendant, the references to defendant’s silence were minimal, and because the defense used the same silence in a rehabilitative way, we conclude that any error was harmless under any standard.

¶42v

¶43We denied by order entered November 3, 1998, defendant’s cross-application for leave to appeal, and, therefore, our review has been limited to the admission of testimony regarding defendant’s silence. We reverse the decision of the Court of Appeals and reinstate the defendant’s conviction.