Summary
In People v Dailey, 36 Mich. App. 312; 193 N.W.2d 344 (1971), a case similar to the instant one, the prosecutor questioned the defendant regarding his pre-arrest failure to inform police as to why he was hiding in the bushes.
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Docket No. 9783.
Decided October 7, 1971. Leave to appeal denied, 387 Mich. 754.
Appeal from Recorder's Court of Detroit, Joseph E. Maher, J. Submitted Division 1 October 5, 1971, at Detroit. (Docket No. 9783.) Decided October 7, 1971. Leave to appeal denied, 387 Mich. 754.
Patrick James Dailey was convicted of unlawfully driving away a motor vehicle. Defendant appeals. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerald A. Poehlman, Assistant Prosecuting Attorney, for the people.
William R. Kray, for defendant on appeal.
Defendant Patrick James Dailey was convicted by a jury of the crime of unlawfully driving away a motor vehicle, MCLA § 750.413 (Stat Ann 1954 Rev § 28.645). He appeals as of right.
The defendant charges that the prosecutor, in cross-examination of the defendant who took the stand during his trial, and in final argument to the jury, denied defendant due process and a fair trial by improperly commenting on defendant's exercise of his constitutional right to remain silent. Defendant objects to the following questions by the prosecutor:
"Q. Did you see Patrolman Moses Dunn ask you why you were hiding in the bushes?
"A. No, No.
"Q. Did you tell him why you were hiding in the bushes?
"A. No.
"Q. Why didn't you tell him why you were hiding in the bushes?
* * *
"Q. Why didn't you tell them at that time what you were doing?
* * *
"Q. At no time did you tell the police what you were doing in that backyard, did you?
"A. Nobody asked me.
"Q. But you didn't tell anybody either, did you?
* * *
"Q. Even before the examination, you had an opportunity to explain your actions to the police, did you not?
"A. What actions?
[ Prosecutor's summation]:
" * * * He said he was in there to defecate. Now, this is the first time that story was told. He said he never said that to the police officers."
The prosecutor on final argument stated: "It is reasonable to assume that if a person accused of a crime that he didn't commit communicates with the person who accuses him of it, he would sometime, somehow, say to him, `I didn't do it.' Mr. Dailey didn't say in that letter, `I didn't do it.'"
In People v. Hicks (1970), 22 Mich. App. 446, this Court held in a similar factual context that it was error for the prosecutor to cross-examine the defendant concerning his previous exercise of his constitutional right to remain silent. In People v. Rolston (1971), 31 Mich. App. 200, we held that when the right to remain silent embodied in the Fifth Amendment privilege against self-incrimination is exercised at any time by the accused, it is impermissible for the people to use the exercise of this right to impeach the accused should he elect to testify in his own behalf at the trial.
The statements made by the prosecutor in the case at bar do not differ from those made by the prosecutor in the Hicks and Rolston cases which were held to violate defendant's constitutional right to remain silent.
Judge BRENNAN, who joins in this opinion, notes that he participated in cases in which the Fifth Amendment privilege against self-incrimination was raised and he stood for affirmance. See People v. Bell (1971), 32 Mich. App. 375, and People v. Timmons (1971), 34 Mich. App. 643. See, also, People v. Calhoun (1971), 33 Mich. App. 141. However, the facts in this case are distinguishable. In the case before us the line of questioning by the prosecutor and the totality of the circumstances of this case denied the defendant a fair trial.
Reversed and remanded.
I regret that I cannot agree with the result reached by the Chief Judge. My view expressed in People v. Calhoun (1971), 33 Mich. App. 141, mandates the contrary result.
I would affirm.