                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 27, 2018
               Plaintiff-Appellee,

v                                                                   No. 337796
                                                                    Washtenaw Circuit Court
DERRYL WADE SHELTON,                                                LC No. 15-000590-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and GLEICHER and LETICA, JJ.

GLEICHER, J. (concurring).

       I concur with the result reached by the majority, albeit reluctantly. In my view, the
prosecution’s prolonged cross-examination centering on defendant Derryl Shelton’s failure to
proactively proclaim his innocence should have been prohibited on relevance and policy
grounds.

        Shelton, a retired Detroit police officer, elected not to speak to the police after the
complainant, PW, accused him of sexual assault. The prosecutor extensively interrogated
Shelton about his failure to contact the police after PW made her allegations. Shelton explained
that he had refrained from contacting the investigating officer on the advice of counsel. For the
same reason, he declined the officer’s invitation for an interview.

        It makes perfect sense that a police department veteran would be aware of his Fifth
Amendment right to remain silent, and would understand that trying to convince an investigating
officer of his innocence was a fool’s errand. Given PW’s age, the specificity of her allegations,
and that the investigation continued after her forensic interview, it was unlikely that Shelton’s
protestations of innocence would have derailed his prosecution. Lawyers representing clients in
Shelton’s situation almost always advise silence, and for good reasons. The risks that a client’s
words might be misunderstood or misquoted far outweigh the minimal chance that an
interviewing officer would declare an accused actually innocent and close the file.

       In Doyle v Ohio, 426 US 610, 617; 96 S Ct 2240; 49 L Ed 2d 91 (1976), the United States
Supreme Court acknowledged that “every post-arrest silence is insolubly ambiguous[.]” In my
view, the same is true for prearrest silence. There are many good reasons for silence other than
guilt. The Alabama Supreme Court identified several in Ex Parte Marek, 556 So2d 375, 381
(Ala, 1989): “Confronted with an accusation of a crime, the accused might well remain silent
because he is angry, or frightened, or because he thinks he has the right to remain silent that the
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mass media have so well publicized.” The Massachusetts Supreme Court aptly summarized:
“[A]n individual’s failure to speak may be the result of his awareness that he has no obligation to
speak, his caution arising from knowledge that anything he says may be used against him and his
belief that efforts to exonerate himself would be futile.” Commonwealth v Nickerson, 386 Mass
54, 61 n 6; 434 NE2d 992 (2015).

        In Nickerson, the Massachusetts Supreme Court set forth an evidentiary principle
applicable to cross-examination focused on a defendant’s pre-arrest silence. The Supreme Court
held that “[i]n general, impeachment of a defendant with the fact of his pre-arrest silence should
be approached with caution, and, wherever it is undertaken, it should be prefaced by a proper
demonstration that it was ‘natural’ to expect the defendant to speak in the circumstances.” Id. at
61. It would not be “natural,” the Court explained, for a defendant to come forward and produce
incriminating evidence against himself. Id. Nor does a defendant have a duty to report a crime,
or “to offer exculpatory information to the authorities.” Id. at 60. Therefore, allowing cross-
examination focusing on prearrest silence “says little about the truth of . . . trial testimony.” Id.
If a Massachusetts trial judge allows impeachment with prearrest silence, “the judge should, on
request, instruct the jury to consider that silence for the purposes of impeachment only if they
find that the witness naturally should have spoken up in the circumstances.” Id. at 62.

        The Michigan Supreme Court approved Nickerson’s evidentiary “approach” in People v
Collier, 426 Mich 23, 34; 393 NW2d 346 (1986), and subsequently reasserted that “[t]he issue of
prearrest silence is one of relevance.” People v Hackett, 460 Mich 202, 214; 596 NW2d 107
(1999). See also People v Cetlinski (After Remand), 435 Mich 742, 760; 460 NW2d 534 (1990)
(“[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.”).

         It is possible that Shelton’s trial counsel objected to the cross-examination on relevancy
rather than constitutional grounds; as the majority opinion explains, counsel failed to preserve
the basis for the objection in the record. Appellate counsel did not raise an argument regarding
the relevancy of cross-examination regarding Shelton’s failure to contact the police, perhaps
based on knowledge that trial counsel had not objected on this ground. In my view, had it been
made, a relevancy objection should have been sustained. For the reasons I have stated, it would
not have been “natural” for Shelton to have contacted the police to advocate his innocence, and
he had no duty to do so. Rather, it would have been natural for Shelton to believe he had a right
to remain silent and that his silence could not be used against him at a trial. Even an experienced
police officer is unlikely to appreciate the difference between the substantive use of silence and
its availability as impeachment fodder.

       Had the issue been preserved and presented, I would hold that Shelton’s silence was not
probative of anything, including his credibility, and should have been off-limits during the trial.
Shelton’s failure to contact the police with his denials did not make it more likely that he was
lying at trial. He was under no obligation to contact the investigating authorities, and would
have gained nothing by doing so. Furthermore, his silence carried a substantial potential for
prejudice as the jurors likely did not understand the difference between impeachment and
substantive evidence, either. It is far more “natural” for a lay person to reason that “if he was
innocent he would have contacted the police” than to understand that such an assumption is

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forbidden, and that the pages of cross-examination devoted to Shelton’s silence could actually be
used only to determine whether he was telling the truth. The distinction is simply too fine for
non-lawyers to parse.

        And a final point. Because an accused’s invocation of his right to silence is “insolubly
ambiguous,” it should not be the subject of cross-examination unless the court finds that the
defendant had a duty to speak under the circumstances, or some other reason strongly supports
that it would have been truly “natural” for the accused to voluntarily speak to the police. Such
circumstances are exceedingly rare. Absent a duty or some good reason for speaking to the
police, use of silence as impeachment is fraught with the potential for jury confusion and
prejudice, and should be prohibited.




                                                           /s/ Elizabeth L. Gleicher




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