People v. Dunn , 46 Mich. App. 226 ( 1973 )

McGregor, J.

This case arose out of the killing of one Donald Jarvis on the evening of August 10, 1969. The defendant was charged with second-degree murder, contrary to MCLA 750.317; MSA 28.549.

On June 9, 1970, after a jury trial, the defendant was found guilty of the crime of manslaughter, MCLA 750.329; MSA 28.561. On July 2, 1970, defendant was sentenced to a term of 3 to 15 years in prison. He has appealed to this Court as of right.

On appeal, defendant raises numerous allegations of error. Due to our disposition of this matter, the only question we need consider is whether it was prejudicial error for the prosecutor to elicit on direct examination the fact that defendant had exercised his right to remain silent.

While examining a police officer on direct examination, the prosecutor asked:

”Q. What did you do after that, officer, after you talked to the people inside?

'A. I went and informed Mr. Dunn of his rights. I read him the Miranda warning act at which time he stated he would remain silent.”

Again, a second time, while examining a police detective, the prosecutor asked:

"Q. Did you advise him of any constitutional rights then?

’A. I asked him if he had been so advised and he said he had been, and he knew what they were.

”Q. Did you receive any type of a statement from him at that point?

'A. No.

”Q. He exercised his constitutional rights?

”A. He did.”

In People v Jablonski, 38 Mich App 33, 37, 38, 39 (1972), this Court stated:

"Long before Miranda [v Arizona, 384 US 436, 468; 86 S Ct 1602, 1624; 16 L Ed 2d 694, 720; 10 ALR3d 974, 1008 (1966)], the rule in Michigan was that the prosecutor could not comment on the failure of a defendant to make a statement in the face of an accusation. See People v Bigge, 288 Mich 417, 425 (1939). This Court, in People v Gisondi, 9 Mich App 289 (1967), held that statements of a person in custody may be used in evidence against him, but his silence may not. * * *

"The admission of such testimony obviously was error. The only question is whether or not it was harmless error. For the reasons set forth in State v Stuart, supra, [456 SW 2d 19 (Mo, 1970)] it would not appear that it could be said that it was harmless error. * * * It would appear that the better rule is that there is absolutely no probative value in eliciting that the defendants were informed of their rights unless the prosecutor intends to offer a confession or statement made by the defendants. Since there is a potential prejudicial effect even from the mere mention of the rights statement, even in the absence of testimony that the defendant wished to exercise those rights, such statements should be excluded. * * '*

’’Continued expansion of the harmless error rule will merely encourage prosecutors to attempt to get such testimony in, since they know that, if they have a strong case, such testimony will not be considered to be reversible error, yet if they have a weak case, they will use such testimony to buttress the case to gain a conviction and then hope that the issue is not raised on appeal.” (Emphasis added.)

Here, as in Jablonski, we cannot say that this is harmless error. There is a great probability that the jury could infer guilt on the basis of defendant’s silence. Here, as in Jablonski, the prosecutor elicited the testimony that Dunn exercised his constitutional right to remain silent, not to impeach Dunn’s credibility, but as substantive evidence of defendant’s guilt.

This situation is clearly distinguishable from the impeachment exception to Jablonski, as stated in People v Graham, 386 Mich 452 (1971), and People v Bobo, 41 Mich App 362 (1972). In People v Graham, the Court stated:

"In our holding today, we stress that the defendant’s refusal to speak during interrogation is admissible only to impeach his own inconsistent statements at trial.” 386 Mich at 458.

Similarly, in People v Bobo, supra, this Court stated that:

"[W]here defendant’s prior refusal to make a statement is inconsistent with his affirmative allegations at the time of trial, the prosecution may question the defendant on this matter, so as to impeach his credibility. People v Graham, supra. ”41 Mich App at 368.

Bobo was then distinguished from Jablonski, as follows:

"[I]n Jablonski the defendant did not take the stand and the prosecution elicited the fact that defendant had refused to make a statement after being informed of his right to remain silent, not for the purpose of impeachment, but for the purpose of establishing in evidence that defendant had refused to make any statement. We reiterate, the prosecution may not use defendant’s failure to make a statement as evidence of defendant’s guilt. ’’(Emphasis added.) 41 Mich App at 368-369.

The two elicitations as to defendant’s silence in the instant case were brought out on direct examination and not for the purpose of impeaching defendant’s credibility, as defendant had not yet testified. Consequently, it was error, even in the absence of objection, to allow the prosecutor to bring this out. In People v Severance, 43 Mich App 394 (1972), this Court held:

"The rule is now firmly established that the prosecution may not use at trial the fact that a defendant exercised his privilege of silence in face of accusation, for such would penalize the defendant for exercising the privilege. People v Jablonski, 38 Mich App 33 (1972). The people assert that inasmuch as defendant failed to object at trial he has not preserved the issue for appeal. This is generally true, however, such failure to object does not preclude review of an alleged violation of a constitutional right. People v Cotton, 38 Mich App 763 (1972).”

As we are convinced that it is highly probable that the jury may have considered the prosecution’s testimony, that defendant chose to exercise his constitutional right to remain silent as evidence of defendant’s guilt, we cannot say that this was mere harmless error.

Although People v Fredericks, 36 Mich App 632 (1971), may be cited as standing for the proposition that the defendant’s subsequent testimony will render the error "harmless,” we can no longer consent to extending the harmless error doctrine to the deliberate prosecutorial elicitation of the fact that the defendant chose to exercise his right to remain silent. While this writer concurred in People v Fredericks, supra (such concurrence was prior to the decisions in People v Jablonski, supra, and People v Bobo, supra), it does not seem correct to extend the harmless error doctrine to the instant situation unless the prosecution can establish that the constitutional error was harmless beyond a reasonable doubt.

Chapman v California, 386 US 18, 22-24; 87 S Ct 824, 827-828; 17 L Ed 2d 705, 710-711 (1967), reh den 386 US 987; 87 S Ct 1283; 18 L Ed 2d 241 (1967), holds that the prosecution has the burden of proving that the constitutional error was harmless beyond a reasonable doubt. Here, the prosecution has not met that burden.

Reversed and remanded.

Bronson, P. J., concurred.