Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  May 6, 2011                                                                        Robert P. Young, Jr.,
                                                                                               Chief Justice

  141983                                                                             Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                       Brian K. Zahra,
            Plaintiff-Appellee,                                                                     Justices


  v                                                       SC: 141983
                                                          COA: 292734
                                                          Macomb CC: 2008-001876-FC
  GREGORY RYAN TERRY,
           Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the October 12, 2010
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals
  holding that the prosecutor’s introduction of polygraph evidence was harmless error, we
  VACATE the defendant’s convictions and sentences, and we REMAND this case to the
  Macomb Circuit Court for a new trial. The Court of Appeals erred in relying on the
  invited response rule applied in People v Kahley, 277 Mich App 182, 183-184 (2007), in
  which the polygraph testimony was volunteered by a police witness, rather than, as in this
  case, intentionally introduced by the prosecution by posing a clearly improper question
  for the sole purpose of eliciting inadmissible polygraph evidence that conveyed to the
  jury the implication that codefendant Blair Lindsay’s testimony against the defendant was
  truthful. See People v Jones, 468 Mich 345 (2003), and the proper application of the
  invited response doctrine explicated therein. In light of the extensive impeachment of the
  prosecution witnesses, all of whom acknowledged having initially implicated Lindsay as
  the shooter, the curative instruction was insufficient to prevent prejudice to the defendant
  from the inference of truthfulness that the prosecutor sought to suggest by the improper,
  uninvited question concerning the polygraph test administered to Lindsay before he was
  allowed to plead guilty under the plea bargain.

          In all other respects, leave to appeal is DENIED, because we are not persuaded
  that the remaining questions presented should be reviewed by this Court.

         MARILYN KELLY, J. (concurring).
                                                                                            2

       I concur fully with the order reversing the judgment of the Court of Appeals,
vacating defendant’s convictions and sentences, and remanding to the trial court for a
new trial. I write separately only because I would reverse on another issue as well. I
would hold that the prosecutor’s questions regarding defendant’s failure to report the
crime and proclaim his innocence before his arrest were improperly admitted.

        The Court of Appeals relied on People v Goodin.1 One element of the offense in
that case was a failure to report. Notably, no such element is contained in assault with
intent to commit murder, the offense charged in this case.

        Moreover, the facts of this case would not have prompted an innocent person to
proclaim his innocence to the police preemptively.2 For example, there is no evidence
that defendant was aware before his arrest that the police considered him a suspect.
Lindsay, the key prosecution witness at trial, was the prime suspect, and all the witnesses
initially identified Lindsay as the perpetrator. The prosecutor laid no foundation to
impeach defendant with his silence by showing that the police had any information that
would give rise to the charges ultimately filed against him. Nor is there evidence that
defendant was aware that Lindsay had implicated him.

       Under these circumstances, it was “natural” for the defendant not to go to the
police unbidden and inform on his friend Lindsay. More importantly, it was also natural
for him not to spontaneously profess his own innocence to police before he was accused
of anything. Thus, defendant’s pre-arrest silence was inadmissible. The trial court’s
ruling allowing the prosecutor to question defendant about his failure to do so prejudiced
his right to remain silent.3 Finally, the jury never received a limiting instruction that such
evidence could be considered only for impeachment purposes, further compounding the
error.

       I concur in the order reversing the judgment of the Court of Appeals because the
prosecutor’s introduction of polygraph evidence was not harmless error. However,
because the issue involving defendant’s failure to profess his innocence will likely arise
on retrial, I would also reverse the Court of Appeals holding that allowed the use of his
pre-arrest silence.


1
    257 Mich App 425, 433 (2003).
2
  See People v Collier, 426 Mich 23, 34 (1986) (“[I]mpeachment with prearrest 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.’”), quoting Commonwealth v Nickerson, 386 Mass 54, 61-62 (1982).
3
    Collier, 426 Mich at 34.
                                                                                                        3


ZAHRA, J., did not participate because he was on the Court of Appeals panel.




                  I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
            foregoing is a true and complete copy of the order entered at the direction of the Court.
                  May 6, 2011                         _________________________________________
p0503                                                                 Clerk
