Opinion
Docket No. 43405.
Decided June 4, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Kay F. Pearson, Assistant Appellate Prosecuting Attorney, for the people.
John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
Before: D.C. RILEY, P.J., and R.B. BURNS and N.J. KAUFMAN, JJ.
Defendant was convicted of conspiracy to commit the crime of delivery of a controlled substance — heroin, contrary to MCL 750.157a(a); MSA 28.354(1)(a), and MCL 335.341(1)(a); MSA 18.1070(41)(1)(a). He was sentenced to imprisonment for 8 to 20 years, with credit given for 211 days served. From this conviction and sentence, defendant appeals as of right under GCR 1963, 806.1.
Defendant raises four allegations of error in this appeal, only two of which warrant our consideration. First, defendant contends that the prosecutor violated the proscription of People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973), by impeaching defendant with respect to his post-arrest silence. We agree.
On direct examination, defendant denied knowledge or complicity in the illegal sale and delivery of drugs with which he was charged. The prosecutor discredited defendant's denials during cross-examination by questioning him regarding his failure to advise the police of any such exculpatory information immediately after his arrest.
In People v Bobo, supra, the Court invalidated prosecutorial questioning which directly or indirectly restricted the exercise of the constitutional right to remain silent. The Court stated:
"We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. `Nonutterances' are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did." Bobo, supra, 359.
In People v Norris, 74 Mich. App. 361; 253 N.W.2d 767 (1977), this Court applied the Bobo doctrine in a situation much like the instant one. In that case, the defendant testified that he had an alibi for the night of the robbery. On cross-examination, the prosecutor queried whether defendant had told the police of this alibi at the time of his arrest. This Court reversed, holding that an accused may not be impeached by evidence of his silence at the time of arrest or during custody and that to allow the prosecution to use the silence of an accused against him would place an impermissible penalty upon the exercise of his privilege against self-incrimination. Again, in People v Hoye, 80 Mich. App. 258; 263 N.W.2d 343 (1977), this Court reversed the conviction of a defendant after the prosecutor had attempted to impeach the defendant during cross-examination by inquiring why the defendant did not claim innocent bystander status at the time of his arrest as he did during his direct examination.
In the instant case, defendant, at the time of his arrest, did not voice to the police any denial of complicity in the crime, nor did defendant claim to have done so during his direct examination. The prosecutor's cross-examination into these questions, then, clearly violated the proscription announced in Bobo and interpreted in Norris and Hoye. We find this violation offensive to the maintenance of a sound judicial process. People v Sain, 407 Mich. 412; 285 N.W.2d 772 (1979), People v Robinson, 386 Mich. 551; 194 N.W.2d 709 (1972), People v Hoye, supra, 262. Accordingly, we reverse and remand for a new trial upon this ground.
The second claim of error we find warranting address is defendant's allegation that the prosecutor questioned him improperly with respect to notes defendant made documenting the events that led to his arrest. This improper inquiry necessitated defense counsel's assertion of the attorney-client privilege in front of the jury, to defendant's ultimate prejudice.
The prosecutor asked the defendant on cross-examination whether he had made any notes documenting the events that led to his arrest. Defendant replied affirmatively. The prosecutor then inquired whether defendant reviewed these notes prior to testifying. Defendant indicated that he had not. The prosecutor continued his inquiry regarding defendant's notes, whereupon, defense counsel objected on the basis of the attorney-client privilege. This objection was overruled and the prosecutor was allowed to continue. Later, on redirect, defense counsel attempted to dispel any adverse inferences by establishing that the notes were the product of the attorney-client relationship and that they were consistent with defendant's trial testimony. However, the prosecutor insisted upon his right to inspect the notes. At this juncture, the court suggested that the prosecutor should be allowed to see the notes if defendant was using them. This matter did not reach resolution, however, until the jury was excused for the day. After the jury was excused, the parties agreed that the notes were privileged, that defendant did not review them prior to trial, and that therefore the prosecutor was not entitled to inspect them.
We find that the prosecutor's pursuit of the issue concerning defendant's notes before the jury was improper once defendant had denied reviewing them prior to trial. See People v Rodgers, 388 Mich. 513; 201 N.W.2d 621 (1972), People v Turner, 59 Mich. App. 589, 595; 229 N.W.2d 861 (1975). This improper pursuit forced the defendant to claim an attorney-client privilege before the jury. And, as stated in People v Brocato, 17 Mich. App. 277, 303; 169 N.W.2d 483 (1969):
"The attorney-client privilege is fundamental to our system of jurisprudence. The privilege is destroyed if improper inference can be drawn from its exercise." In reversing and remanding for a new trial due to the aforementioned Bobo violation, we find it necessary to include a caveat to the prosecutor to refrain from further inquiry in this area.
Reversed and remanded for a new trial in conformity with this opinion.