People v. McReavy , 436 Mich. 197 ( 1990 )

Boyle, J.

The issue presented in this case is whether People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), precludes the admission at trial of evidence of a defendant’s behavior and demeanor during a custodial interrogation after a valid waiver of his Fifth Amendment privilege against compelled self-incrimination.

Despite our observations in People v Collier, 426 Mich 23; 393 NW2d 346 (1986), the Court of Appeals squarely held that Bobo requires reversal. Thus, the issue cannot be avoided by holding as the dissent does that if there was error it does not require reversal of McReavy’s conviction.¹ (Post, p 223.) Instead, pursuant to a construction of Bobo as coextensive with federal constitutional law, People v Cetlinski, 435 Mich 742; 460 NW2d 534 (1990), the constitutional question is properly analyzed under the test set forth in People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), i.e., whether the trial court erred in finding that defendant waived his Fifth Amendment privilege against compelled self-incrimination until he invoked his rights on the morning following the inquiry in question. The evidentiary issue should be analyzed as a party admission under MRE 801(d)(2)(A).

Where the record indicates that a defendant’s silence is attributable to an invocation of his Fifth Amendment privilege or a reliance on Miranda warnings, use of his silence is error.² Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). There is no basis here, however, to conclude that the trial court erred in finding that defendant waived his Fifth Amendment right to remain silent and that the defendant did not invoke his Fifth Amendment privilege until the following morning. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). It follows that there is no basis to conclude that defendant’s unresponsiveness was attributable to invocation of that privilege or reliance on Miranda warnings. Thus, in this case, there is no violation of the defendant’s Fifth Amendment right not to incriminate himself.

Miranda v Arizona enunciated the obligation owed to a defendant in custody and the procedures that must be fulfilled prior to substantive use of his statements or assertive conduct. There being no question in the instant case of compliance with the procedural requirements of Miranda, anything defendant said thereafter is admissible as the statement of a party opponent, so long as it is relevant. MRE 801(d)(2)(A). What defendant did, that is, his lack of responsiveness during the interview, was not evidence of silence. Rather, it was nonverbal nonassertive conduct evidence that was admissible along with the defendant’s express statements indicating consciousness of guilt so as to allow the factfinder to more fully determine the probative significance of the defendant’s complete statement to the police.

Construing the Michigan Constitution consistently with developments in Fifth and Fourteenth Amendment jurisprudence there was no constitutional violation. The admission for substantive purposes of evidence of the defendant’s demeanor and statements made during custodial interrogation after a valid waiver of his Fifth Amendment privilege against compelled self-incrimination and prior to invoking the right to remain silent is neither error of constitutional dimension nor a violation of the Michigan Rules of Evidence. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for consideration of the remaining issues raised on appeal.* *³

i

Defendant McReavy was convicted by a jury of armed robbery,⁴ kidnapping,⁵ and possession of a firearm during the commission of a felony.⁶ He subsequently was convicted of being a third-time habitual offender⁷ and was sentenced to a term of from eight to twenty years plus a consecutive two-year term for the felony-firearm conviction.

During the trial, it was established that sometime during the night of February 21 and 22, 1985, the attendant of a gas station in Mount Pleasant was robbed. The victim testified that the defendant walked into the station at approximately 11:30 p.m. and asked to use the phone, claiming to be having car problems. The victim stated that after the defendant made several calls over the period of approximately an hour and a half, he asked for a bag and, while pointing a small silver pistol at the victim, told him to put the money from the cash register into the bag. The victim then stated that he and the defendant left in the victim’s car and that he was finally told to get out of the car and warned that if he went to the authorities the defendant would come back and get him.* *****⁸ The victim’s car and the gun used in the robbery were found the following day. The gun was registered to the defendant’s landlord, who testified at trial that he had never given defendant or anyone else permission to use his gun.

The defendant did not testify at the trial. In its case in chief, the prosecution presented testimony of the arresting officers that at the time of his arrest the defendant was twice given Miranda warnings and agreed to speak with the officers.⁹ The first officer testified that during the interview the defendant appeared very dejected, sat with his head in his hands, and told police that everything was going fine until "this happened.” The officer stated that the defendant then discussed his desire to have custody of his daughter and said that when he had seen her the past weekend she had not recognized him, a subject the robber had also discussed with his victim.

Further, in response to the prosecutor’s inquiry as to what happened next, the officer testified that the defendant did not respond to direct questions regarding the robbery or deny his involvement, but simply put his head in his hands and looked down, that he didn’t respond yes or no to those questions. At that point defense counsel objected,

Now my client’s silence is being used against him. I’d object to that question, that answer, and I’d like the court to now instruct the jury that my client’s silence may never be used against him.

The prosecutor argued that the detective was telling the jury only that the defendant answered some questions and not others, and not that the defendant invoked his right to silence. The objection was overruled.

The officer then testified that at this point they began to employ negative questions. When they asked the defendant whether he had borrowed the gun used in the robbery from his landlord, the defendant denied that his landlord had loaned him the gun. When asked whether it was safe to assume the landlord had nothing to do with the robbery, the defendant answered, "yes, he’s a real nice guy.” When asked whether he was saying he didn’t pull the robbery the defendant stated, "no.” Finally, the officer stated that the defendant said that he did not want to answer any more questions about the robbery and wanted time to think. He told the officers to contact him in the morning and he "would clear up everything.” When asked whether he meant clear up the robbery, the defendant said, "yes.”

The prime investigator, Detective Fox, testified that the defendant appeared very nervous during the interview and at times it appeared as though tears were coming into his eyes. Fox further testified that the defendant indicated that he knew about the robbery from the paper and radio reports. The detective’s testimony was consistent with that of the other detective.

On cross-examination, in response to defense counsel’s question, Detective Vincent stated that the interview with the defendant had lasted between thirty and forty minutes. Twice defense counsel asked whether the defendant had answered any direct questions, and then whether the detectives had asked the negative questions in an attempt to trip the defendant up during the interrogation. Defense counsel then asked in regard to the answers the defendant gave to the negative question:

Now you felt that to mean that he [defendant] wasn’t denying the robbery? I mean you were there. You perceived, right, what he was saying, his actions, his mannerisms?

The witness answered that "[f]rom these answers he [defendant] convinced me he was involved in the robbery . . . .” Further, defense counsel asked questions concerning the time defendant indicated he did not wish to answer any more questions and his statement that he would clear up everything in the morning, noting that at no time did the defendant ever confess to the robbery.

On cross-examination, defense counsel questioned Detective Fox regarding why the interrogation had not been recorded, suggesting that the detective’s report was inaccurate and written in a manner which indicated that defendant had essentially confessed to the robbery, when in fact he had not.

During the closing argument, the prosecutor reviewed the evidence presented, including the testimony of the detectives who interrogated the defendant, focusing on what the defendant meant by his postarrest statements. The full context of this section of the argument follows:

And look at the consistency of all the evidence as it fits together. I mean there has got to be fifteen things that tie in in this case, and it just can’t be by accident. It would cause the mind to be boggled based on the evidence you’ve heard not to believe the story of Mr. Martinez. You can pack up and go home based on this evidence. Now the last thing I’m going to say, and I’ll say it very briefly, is put all that together. Put together the fact that there was an arrest made on the night of Monday. They go back to the office with the police officers. The police officers will tell you. They’re honest. One of the major points of anytime you make an arrest is to talk to the suspect. Hopefully you can clear it up. Hopefully he’ll admit it. It’s not the most important thing. It may be one of the most important things. It’s certainly a very large factor if the person makes a confession, makes a statement, makes an admission. Look what we have here. You’re asking Mr. McReavy point blank, are you telling us you didn’t commit the robbery? No. What does he say when the conversation is over? I’ll talk to you about it tomorrow. I don’t want to talk about it any more. I’ll clear it all up tomorrow. Clear up all what? You mean clean up the robbery, clear up the robbery? Yeah, I’ll clear up the robbery for you tomorrow. Did Joel have anything to do with it? No, he’s a nice guy. He didn’t have anything to do with it. This man is talking with first-hand knowledge. If anybody can’t see it, we’re all in trouble based on this evidence. This man has first-hand knowledge. The police officers said he convinced me. Remember what Detective Vincent said? There’s no doubt in my mind about the robbery, that he was involved in it. The questioning ceased. Not one denial, not one suggestion that it wasn’t me. To the contrary, passive admissions. The man feels bad, he’s got his head down, he’s upset, doesn’t want to talk about it. What does he talk about? He talks about his problems with his little girl, the same thing that our victim talked about. He said this guy is driving along, and he’s telling me I’m not going to hurt you, I’m just doing it because I have problems with my girl. He’s not going to tell him that her name is Megan and she lives in Gladwin. Well, it’s my wife, not my woman. It’s my wife, and she’s in Lansing. He’s not going to be exactly honest with him. The guy is pouring out his heart to him. He’s kind of embarrassed about committing the robbery. You know, I’m not going to hurt you. But he did, ladies and gentlemen. He did. And there isn’t any doubt, based on the evidence that he did it. He was telling the victim about his girl just like he told the police officers.

On appeal, defendant argued that his failure to deny the armed robbery during custodial interrogation was admitted into evidence at trial in violation of People v Bobo. He argued that his silence may have been nothing more than the exercise of his right to remain silent, and thus because evidence of his refusal to answer some questions was prohibited this type of evidence is "insolubly ambiguous.” Doyle v Ohio, 426 US 610, 617; 96 S Ct 2240; 49 L Ed 2d 91 (1976). Defendant also argued that in closing argument the prosecutor called the defendant’s demeanor "passive admissions” of guilt. In sum, defendant’s argument on appeal was that the testimony and argument impermissibly infringed on the defendant’s Fifth Amendment right to remain silent.

In response, the prosecutor argued that the testimony of the defendant’s interview was properly admitted at trial. He argued that the defendant had voluntarily waived his Fifth Amendment privilege and that the defendant’s failure to answer some of the questions with either yes or no was not intended to end the interview. Nor was it an attempt by defendant to invoke his previously waived Fifth Amendment right to remain silent in light of the fact that the defendant continued to answer some questions. Further, the prosecutor noted that his remarks were consistent with the court’s earlier Walker ruling and that his closing argument was simply a summation of the description of an interview, as the detectives testified, in which the defendant did give a statement and did not remain silent.

The Court of Appeals held that it was error to admit the testimony, stating that "under Bobo, evidence of a defendant’s failure to respond to an accusation of wrongdoing is inadmissible to prove guilt even if the defendant had, prior to his silence, waived his right to remain silent.”¹⁰ The panel found that on the basis of the circumstances surrounding defendant’s statement to the detective it was not clear that defendant’s failure to respond to direct questions regarding the armed robbery reflected an admission of wrongdoing.* ¹¹

The panel concluded that the evidence of defendant’s failure to answer some questions was not properly admitted and constituted impermissible comment on the defendant’s Fifth Amendment right to remain silent. Further, it found that the error was not harmless and, on the basis of that conclusion, reversed the defendant’s conviction and remanded for a new trial. This Court granted leave to appeal, and we now determine whether the admission of the testimony and the prosecutor’s statements during closing argument constituted a violation of the defendant’s constitutional rights under federal or Michigan law.¹²

ii

The Court of Appeals relied on this Court’s holding in People v Bobo to conclude that the Fifth Amendment precluded the admission of testimony by the interrogating detective relaying the defendant’s waiver of his Fifth Amendment right to remain silent and the subsequent interrogation during which the defendant answered some questions but was not directly responsive on the crucial question of the robbery.¹³ We disagree.

The instant case presents the constitutional issue addressed in Miranda, that is, the substantive use of a defendant’s statements and comments on a defendant’s behavior, demeanor, and nonresponsive conduct after a valid waiver of his Fifth Amendment privilege against compelled self-incrimination. The constitutional question is resolved by asking first whether the trial judge correctly found a waiver, and second whether Bobo is to be read to provide any additional constitutional limitations on the substantive use of such evidence.

We can hypothesize situations in which a defendant’s continued failure to respond might constitute an invocation of rights previously waived. We need not reach that question here. We are convinced that in the totality of these circumstances, the trial court correctly concluded that defendant did not invoke his Fifth Amendment right to remain silent until the morning following his arrest. This is not a case of a mute defendant whose silence is "insolubly ambiguous” because it may be "nothing more than the arrestee’s exercise of these Miranda rights.” Doyle, supra at 617. Nor is it a case of a defendant who answers some questions and then asks for counsel, or even a case where a defendant expressly refuses to answer questions. This is a case of a defendant who did not respond to some questions while responding to others during the period of time in which the trial court found that the state had carried the heavy burden of proving that defendant had waived his rights.

Thus, while it remained open to defendant to contend that the reason for answering neither yes nor no to certain questions was fear or confusion or other reasons consistent with innocence, the trial court did not err in holding that the defendant’s conduct did not constitute an invocation of his Fifth Amendment right against compelled self-incrimination. The record supports the trial court’s finding that the defendant did not invoke his Fifth Amendment privilege until the morning following the interrogation in issue. Not until then could the defendant again reasonably believe that the state was assuring him his conduct during the course of making a statement would not be used against him. United States v Hale, 422 US 171, 182-183; 95 S Ct 2133; 45 L Ed 2d 99 (1975) (White, J., concurring).¹⁴

The prosecutor’s comment in his closing argument and the testimony in his case in chief referring to McReavy’s failure to respond was not violative of People v Bigge, 288 Mich 417; 285 NW 5 (1939). The prosecutor’s theory of relevancy in McReavy was that although the defendant did not directly admit his involvement in the case, his responsive answers to some questions, i.e., that his landlord was not involved, that he was not saying that he was not involved, and that he would "clear it all up tomorrow,” were tacit indications of guilty knowledge. These are the statements of a party opponent under MRE 801(d)(2)(A), which are admissible if relevant. Bigge, on the other hand, precludes admissibility of a defendant’s failure to say anything in the face of an accusation as an adoptive or tacit admission under MRE 801(d)(2)(B) unless the defendant "manifested his adoption or belief in its truth . . . .”¹⁵ The Bigge rule denies admissibility because the inference of relevancy rests solely on the defendant’s failure to deny. As Wigmore states:

Silence, when the assertion of another person would naturally call for a dissent if it were untrue, may be equivalent to an assent to the assertion. This, however, fixes the party, by adoption, with the other person’s assertion, and thus it ceases to be a question of conduct evidence, and involves a genuine admission in express words. [2 Wigmore, Evidence (Chadbourn rev), § 292, pp 229-230.]

In McReavy, we are addressing the admissibility of evidence of a party-opponent’s demeanor and nonresponsive conduct. Unlike the Bigge adoptive admission preclusion, the relevancy of defendant’s behavior in the instant case in neither denying nor admitting the direct inquiry rests not on a third party’s assertion but on the admissions defendant himself made, answers which circumstantially indicated defendant’s knowledge of and involvement in the robbery.¹⁶ Defendant’s holding of his head in his hands is nonassertive conduct which in itself might not indicate his consciousness of guilt, but which in relation to his other answers is relevant to the jury’s understanding of what defendant in fact said.¹⁷

Under the rule of completeness, all is admissible.¹⁸ The premise of the rule is that a thought or act cannot be accurately understood without considering the entire context and content in which the thought was expressed. That is what was done in McReavy. Defendant waived his Fifth Amendment right to remain silent and gave statements, and neither a constitutional issue nor the Bigge evidentiary question of the probative significance of a defendant’s failure to deny in the face of accusation is implicated.

In Rowan v Owens, 752 F2d 1186 (CA 7, 1984), cert den 476 US 1140 (1986), the United States Court of Appeals for the Seventh Circuit considered a situation similar to that presented in People v McReavy, in which police officers testified on direct examination regarding limited statements made by a defendant after arrest, concluding with the defendant’s statement that he did not want to say anything else. Distinguishing the situation in Owens, from that in Doyle, the court held that the officers’ testimony regarding the defendant’s post-Miranda admissions and his final statement that he "didn’t want to say anything else” was not error.

If Rowan had refused to say anything after being given his Miranda warnings, testimony about that refusal would have been improper under a long line of cases illustrated by Doyle v Ohio, . . . and United States v Shue [766 F2d 1122 (CA 7, 1985)], because it would have invited the jury to infer Rowan’s guilt from his refusal to incriminate himself. But since Rowan chose to waive his right of silence, the police were entitled to testify to any incriminating statements he made. [The statement] that he had not been in the [victim’s] home since 1970 . . . was an admission to which the police could testify, as they did, once Rowan had waived his Miranda rights. And it was lawful for the police to indicate (provided they did not do so with undue emphasis, and they did not) the end as well as beginning of the interrogation, so that the jury would know that the officers’ testimony was complete. [Owens, supra at 1190. Emphasis added.]

As the United States Court of Appeals for the First Circuit noted in United States v Goldman, 563 F2d 501 (CA 1, 1977), cert den 434 US 1067 (1978), in addressing a defendant’s objection to the use in the prosecution’s case in chief of two questions asked during interrogation to which the defendant did not respond:

After hearing the Miranda warnings, [the defendant] chose to make an exculpatory statement, and he answered most of the agent’s questions probing that statement. We find that these facts meet the high standards of proof of waiver that Miranda, supra, 384 US 475; 86 S Ct 1602, sets out.

"A defendant cannot have it both ways. If he talks, what he says or omits is to be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to. This was not a case where the government commented upon ... a prior exercise of rights. The government asked the jury to measure what the defendant said when he had no rights because he had voluntarily waived them.” [Goldman, supra, p 503, citing Vitali v United States, 383 F2d 121, 123 (CA 1, 1967).[¹⁹]

Thus, a description of a defendant’s behavior which serves to explain the circumstances and conduct of a defendant who has not invoked his right to remain silent will not be considered improper comment on the "defendant’s postarrest silence.” United States v Shaw, 701 F2d 367, 381 (CA 5, 1983), cert den 465 US 1067 (1984).²⁰

SÜMMARY

If the defendant had refused to say anything after being given his Miranda warnings, testimony about that refusal would have been improper. Miranda, supra at 468, n 37. The relevant inquiry is first whether the defendant has remained silent. If so, there is an irrebuttable presumption of irrelevancy, and such silence may not be used substantively or for impeachment purposes since there is no way to know after the fact whether it was due to the exercise of constitutional rights or to guilty knowledge.²¹ Where the defendant has not maintained "silence,” but has chosen to speak, the Court has refused to endorse a formalistic view of silence. Anderson, Warden v Charles, 447 US 404; 100 S Ct 2180; 65 L Ed 2d 222 (1980).

Unlike the situation in Anderson, Warden v Charles or People v Cetlinski, the instant case involves the use of defendant’s statements and demeanor as substantive evidence of guilt. In situations where a defendant voluntarily waives his Fifth Amendment right to be silent, makes some statements, and then fails to respond to other questions, the focus of the inquiry is whether the defendant is now manifesting either a total or selective revocation of his earlier waiver of Fifth Amendment rights and whether that revocation is induced by the implicit assurances contained in the Miranda warnings.²² If it is concluded that a defendant’s lack of response constituted invocation of the right to remain silent which was induced by the government, the failure to respond would again present the "insoluble” ambiguity that Doyle forbids.²³ While we have no occasion here to state what conduct short of a formal exercise of the Fifth Amendment right to remain silent or a request for counsel would constitute an invocation, wherever that line is eventually to be drawn, it is not on the facts of this case.

We have found no authority for the proposition that a defendant’s nonverbal conduct²⁴ during interrogation, after a valid waiver of the right to remain silent, is an exercise of that Fifth Amendment right to remain silent or that the "description of partial silence” in such a setting is an error of constitutional dimension.²⁵ We conclude that admission of testimony regarding defendant’s conduct during the conversation did not violate the Fifth or Fourteenth Amendment or the Michigan Rules of Evidence.²⁶

CONCLUSION

There being no constitutional barrier to admission, the defendant’s statement was admissible as the admission of a party opponent, subject to relevancy limits. The prosecutor used the defendant’s statements and nonverbal conduct to prove that the defendant had in fact admitted the robbery when he said he would clear it up in the morning.²⁷ While the Fifth Amendment right to remain silent undoubtedly may be invoked during interrogation, the facts of this case do not support a finding that defendant McReavy invoked that right.²⁸

The Fifth Amendment does not preclude substantive use of testimony concerning a defendant’s behavior and demeanor during a custodial interrogation after a valid waiver of his Fifth Amendment right against compelled self-incrimination. When a defendant speaks after receiving Miranda warnings, a momentary pause or even a failure to answer a question will not be construed as an affirmative invocation by the defendant of the right to remain silent. Moreover a defendant’s nonverbal conduct cannot be characterized as "silence” that is inadmissible per se under the Michigan Constitution. When constitutional obligations are fulfilled, use of a party opponent’s statements and conduct are to be evaluated pursuant to MRE 801.

The trial court did not err in finding that defendant’s failure to answer some questions was not an affirmative invocation of his right to remain silent. There was no impermissible comment at trial regarding the defendant’s Fifth Amendment right to remain silent. The Court of Appeals erred in reversing the defendant’s convictions on the basis that the Fifth Amendment precluded testimony at trial describing the defendant’s custodial interrogation, including a description of the defendant’s behavior and demeanor and his failure to answer some questions during the interrogation.

We remand this case to the Court of Appeals for review of the defendant’s remaining issues on appeal.

Riley, C.J., and Brickley and Griffin, JJ., concurred with Boyle, J.

1 People v McReavy, unpublished opinion per curiam of the Court of Appeals, decided January 14,1987 (Docket No. 88620).

The dissent’s position is made more problematic, given the Court of Appeals citation of People v Staley, 127 Mich App 38; 338 NW2d 414 (1983) (where the Court of Appeals held that silence in the course of a statement was inadmissible under Bobo), and that Court’s rejection of the holding in People v Karam, 106 Mich App 383, 391; 308 NW2d 220 (1981), lv den 414 Mich 870 (1982) (where another panel of the Court of Appeals held that Bobo permits the use of nonutterances where "silence is not maintained”). In Karam, the Court noted that "[rjecent decisions by the United States Supreme Court render Bobo of dubious precedential value relative to the proper construction of the Fifth Amendment” and that "it is not obvious that the Michigan Supreme Court would renounce Bobo as a matter of state constitutional law.” Id. at 388-390.

2 See United States v Ghiz, 491 F2d 599, 600 (CA 4, 1974), where the court noted:

[I]f, in declining to answer certain questions, a criminal accused invokes his fifth amendment privilege or in any other manner indicates he is relying on his understanding of the Miranda warning, evidence of his silence or of his refusal to answer specific questions is inadmissible.

See also United States v Williams, 665 F2d 107 (CA 6, 1981), where the defendant made incriminating statements during a postarrest, post-Miranda interview but refused to answer questions regarding the manner and amount of payment for a stolen truck. The Sixth Circuit found a violation of defendant’s Fifth Amendment privilege when the fbi agent was examined at trial during the prosecution’s case in chief as to the defendant’s refusal to answer these questions. That court also held that testimony during the defendant’s cross-examination that he did not answer certain questions violated his due process rights.

Similarly, in United States v Lewis, 651 F2d 1163 (CA 6, 1981), the Sixth Circuit Court of Appeals held it was improper for the prosecution to comment upon the appellant’s exercise of his constitutional right not to incriminate himself and to consult with counsel and thus required a reversal of the defendant’s conviction and a remand for a new trial. The agent had commented on the defendant’s three refusals to answer the agent’s questions and his two assertions of his right to counsel after which the interview was concluded.

Again, in Odell v State, 90 Wis 2d 149; 279 NW2d 706 (1979) (per curiam), the Wisconsin Supreme Court also held the prosecutor’s questioning and a detective’s testimony about the defendant’s refusal to answer certain questions was constitutional error "because . . . [t]he purpose of the evidence was to allow the jury to draw an inference of defendant’s guilt from his refusal to explain the presence of the money.” Id. at 152. This, the court concluded, was a violation of the defendant’s Fifth Amendment guarantee against self-incrimination. Next, the Odell court addressed the impeachment use on cross-examination of the defendant’s refusal to answer and found error under Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976), noting: "Upon rereading the record we conclude that the defendant’s silence during the custodial interrogation is consistent with his exercise of his constitutional rights. After answering some questions the defendant chose to assert his right to remain silent ... a defendant has a right to answer some questions after the Miranda warning and then to reassert the privilege and break off all questioning.” Id. at 155. (Emphasis added.)

These cases all involve factual situations where the defendant refused to speak or the Court of Appeals found that given the factual circumstances present in that case the defendant’s refusal must he considered as a matter of law to be an exercise of his Fifth Amendment right to remain silent. That is not the case here. In the instant case, we have a trial court determination that the defendant did waive his Fifth Amendment privilege against self-incrimination and that he did not invoke that privilege until the morning following the challenged interview.

Upon the basis of a review of the Walker hearing transcript, there is no factual basis for the conclusion that the defendant refused to answer questions in such a manner that he was selectively relying on his Miranda warnings. (See post, pp 233, 235). At the Walker hearing, the prosecutor presented testimony that the procedural safeguards of Miranda were complied with and thus the prosecutor carried his burden in establishing the defendant voluntarily waived his Fifth Amendment privilege. At that point, the burden of going forward shifted to the defendant. The defendant had the opportunity to take the stand and assert that his "nonutterances” were refusals and that he understood that he was relying on his Miranda warnings, but he did not do so. Thus, the dissent attempts to (1) recharacterize the facts; and (2) regardless of the record, asserts that the defendant’s "nonutterances” constitute a refusal' to answer questions. The only way to reach the result the dissent advocates is to characterize as a matter of law nonutterances as being the equivalent of an affirmative exercise of Fifth Amendment rights. There simply is no case support for that position.

3 The Court of Appeals found the Bobo issue dispositive and therefore did not address the defendant’s remaining issues:

1. The trial court committed error requiring reversal by admitting evidence of a precustodial photographic lineup conducted without presence of counsel when defendant was the clear focus of the police investigation.

2. Defendant was denied a fair trial when the prosecutor injected statements during closing argument and elicited testimony from witnesses relating to uncharged criminal offenses for which defendant was not on trial.

4 MCL 750.529; MSA 28.797.

5 MCL 750.349; MSA 28.581.

6 MCL 750.227b; MSA 28.424(2).

7 MCL 769.11; MSA.28.1083.

8 The victim testified that the defendant told him to get into his car and ordered him to drive, and that later the defendant drove for awhile before ordering the victim out of the car. The victim stated that after being let out of his car he ran to a house nearby, called police and gave them a description of the defendant and the car, and subsequently identified the defendant in a photo lineup.

9 Prior to trial, a Walker hearing was held to determine the admissibility of the defendant’s statements to the police. The trial court ruled that the defendant’s statements were voluntary and therefore admissible, but warned the prosecutor that no reference should be made regarding the defendant’s refusal to discuss the robbery, after invoking his right to remain silent, on the morning after the arrest.

10 Quoting People v Staley, n 1 supra at 41-42.

11 The panel rejected the prosecutor’s reliance on the holding in People v Karam, supra, where the panel members held a defendant’s silence to be admissible as substantive evidence where the defendant understands and unambiguously assents to the statement made by the accusing party.

12 People v McReavy, 429 Mich 857 (1987).

13 The panel concluded that the comments were impermissible comment on McReavy’s right to remain silent following his arrest in the face of accusation. Bobo, supra at 361.

Further, the panel distinguished People v Karam, supra, and found that, given that nothing in the detectives’ testimony indicated an unambiguous assent on defendant’s part to the statements made by the officers during the interrogation, the evidence was inadmissible for use as substantive evidence of defendant’s guilt.

14 The dissent acknowledges that a number of federal courts of appeal have held that "the Fifth Amendment permits the substantive use of a defendant’s failure to answer particular questions during postarrest, post-Miranda interrogation.” (Post, p 234.) It also acknowledges that there is a line of cases to the contrary and thus feels it is unnecessary for this Court to adopt one line over another. What the dissent fails to observe is that there is no case supporting the claim that a defendant’s absence of response in the course of making a statement as opposed, for example, to a statement that he refused to answer questions, or wanted counsel, constituted an invocation of a defendant’s previously waived Fifth Amendment privilege.

15 Bigge concerns adoptive or tacit admissions. So does MRE 801(d)(2)(B). The fact that the Bigge decision predates the adoption of that Rule of Evidence is of no consequence to challenges to the admissibility of tacit admissions. (See post, pp 241-242.)

16 It is arguable that the prosecutor’s use of the phrase "passive admissions” in his closing argument created an ambiguity. The jury might have understood that term either as a reference to defendant’s statements, i.e., his statement that he was not denying he was involved in the robbery, or understood that the term referred to defendant’s "silence.” However, in this case, we find that any potential prejudice from that ambiguity was mitigated not only by the standard charges regarding the presumption of innocence and the fact that the attorney’s comments are not evidence, but also by a specific charge regarding the appropriate manner of evaluating the detective’s testimony regarding his interview of the defendant. The court said: "Obviously words said to be written or spoken by a defendant should not be used against him unless he actually spoke or wrote those words. Only so much of a statement as was made by a defendant may be considered as evidence against him.”

17 One of the officers testified:

Q. Okay. What next was said?

A. Well, I started asking him questions directly about the robbery, his involvement. He would just sit and look down. He wouldn’t respond yes or no. [See post, p 224, n 7.]

18 The tortured result of the dissent’s evidentiary analysis indicates the wisdom of the completeness rule. If the dissent’s approach were adopted, the trial judge presumably would be obligated to exclude from the declarant’s description of the interview portions relating to defendant’s failure to say yes or no and the holding of his head in his hands. On cross-examination defense counsel might or might not explore the fact that defendant did not directly admit the robbery; if he did explore it, on redirect the prosecutor would inquire regarding what defendant did not say and how he reacted to the questions. While the trial judge undoubtedly retains control of the order of proofs, and in cases where relevancy is not apparent, may direct and limit lines of inquiry, no such artificial parsing of testimony is required. The reason is simple:

So with any utterance of any thought the complexity of the latter produces elaboration in the former. It follows that the thought as a whole, and as it actually existed, cannot be ascertained without taking the utterance as a whole and comparing the successive elements and their mutual relations. To look at a part alone would be to obtain a false notion of the thought. The total—that is to say, the real—meaning can be got at only by going on to the end of the utterance. One part cannot be separated and taken by itself without doing injustice, by [producing] misrepresentation. [7 Wigmore (Chadbourn rev), § 2094, p 595.]

A formalistic view of "silence,” however, was recently rejected by the United States Supreme Court in Anderson, Warden v Charles, 447 US 404, 409; 100 S Ct 2180; 65 L Ed 2d 222 (1980) (per curiam), reh den 448 US 912 (1980).

19 This counters the dissent’s argument that even when presented with a valid waiver of a defendant’s Fifth Amendment privilege against self-incrimination, his failure to respond to certain questions can be interpreted as a selective invocation of that right. (Post, pp 228-230.)

20 In Shaw, the Fifth Circuit Court of Appeals evaluated the defendant’s challenge to three alleged comments on his silence. One challenge addressed postarrest, post-Miranda silence, and the Court found Doyle error. The other two challenged commentaries were held not to constitute constitutional error. Relevant to our inquiry here is the fact that during direct testimony, an officer testified that the defendant had made some statements during an interview and that when the officer questioned him about his whereabouts and told him a little child had been shot and died and that this is what he was being questioned about the defendant also "dropped his head and covered up his face” and "didn’t say anything, . . . just sat there and looked at me.” Id. at 385. The court observed:

Shaw freely responded to questions during this interview, both before and after being apprised of the child’s condition. The lack of response to which the sheriff alluded merely expressed Shaw’s demeanor during one point of the questioning. Even if death were accidental, a few moments of speechless silence upon hearing of the death would be a normal reaction. These remarks could not have been an impermissible comment on Shaw’s exercise of his Fifth Amendment right to silence following arrest because Shaw was not, at this time, exercising such a right. There was neither silence nor a comment, but simply a description of an interview where Shaw did give a statement and did not remain silent. [Id. Emphasis added.]

21 The United States Supreme Court has indicated that a "post-Miranda warnings” silence means not only "muteness; [but] includes the statement of [the defendant’s] desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted,” Wainwright v Greenfield, 474 US 284, 295, n 13; 106 S Ct 634; 88 L Ed 2d 623 (1986).

In Doyle v Ohio, supra, the Supreme Court held that due process prohibited the introduction of a defendant’s postarrest silence where the defendant invokes his right to remain silent after Miranda warnings. The Court concluded that it would be fundamentally unfair to advise a defendant of his right to remain silent and then use the fact of silence against him at trial. Id., p 618.

22 If the selective silence view of the dissent were adopted, questioning presumably would have to cease whenever the defendant failed to respond directly to a question. Not only would such a rule limit the obtaining of confessions, but it would have a profoundly destabilizing effect on one of the purposes of Miranda, introducing regularity into postarrest procedures.

If the defendant manifested a total revocation of Ms earlier waiver, it is clear that the prosecution would not be entitled to introduce evidence of that silence at trial or to comment on it during summation. Miranda v Arizona, supra.

23 If a defendant answered several questions and then invoked Ms right to remain silent, Doyle, supra at 618-619, would prevent the prosecutor from commenting on tMs silence. However, in the present case the defendant did not invoke the right to remain silent until the morning following the interview. For a discussion of Doyle, see also Project: Seventeenth annual review of criminal procedure: United States Supreme Court and Courts of Appeals 1986-1987, II. Preliminary proceedings, 76 Geo L J 707, 1011-1013 (1988); note, Protecting Doyle rights after Anderson v Charles: The problem of partial silence, 69 Va LR 155, 166 (1983). United States v Ford, 563 F2d 1366 (CA 9, 1977), cert den 434 US 1021 (1978); United States v Lorenzo, 570 F2d 294 (CA 9, 1978); see also People v Richendollar, 85 Mich App 74; 270 NW2d 530 (1978).

24 The parties apparently assume that the challenged evidence was testimonial in the Fifth Amendment sense. See Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). See also Pennsylvania v Muniz, 496 US —; 110 S Ct 2638; 110 L Ed 2d 528 (1990), where the United States Supreme Court held that the video and audio portions of the defendant’s actions and voice taken during routine booking for driving under the influence of alcohol showing evidence of slurred speech and lack of muscular coordination were not evidence of a testimonial or communicative nature and thus were not protected by the Fifth Amendment privilege against self-incrimination. Rather it was evidence of "real” or "physical” evidence held in Schmerber not to be covered by the Fifth Amendment privilege.

25 In fact, the only guidance from the United States Supreme Court regarding nonutterances of a defendant who makes some statement is the holding in Anderson, Warden v Charles, supra, that such silence can be used to impeach the defendant’s trial testimony. As the Court observed, such questioning makes no unfair use of silence because a defendant who speaks after receiving Miranda warnings has not been induced to remain silent.

See also Wainwright, n 21 supra, in which invocation of silence after Miranda warnings was held to be inadmissible as evidence of the defendant’s sanity.

26 The defendant’s statement that he was not denying that he was involved in the robbery clearly qualifies as a passive admission. Further, properly admitted evidence presented during McReavy’s trial was sufficient to prove his guilt beyond a reasonable doubt. The victim of the kidnapping testified unequivocally that the defendant was the person who robbed the store and kidnapped him, and the victim had a lengthy amount of time to observe the defendant. See also factors listed in the dissent at p 225.

Further, such a holding is supported by this Court’s holding in People v Collier and the decisions of several panels of the Court of Appeals which hold that evidence of the defendant’s silence on certain matters may be presented to elicit the full extent of the defendant’s statement made to the arresting officer. See, for example, People v Scobey, 153 Mich App 82, 87; 395 NW2d 247 (1986), where the Court found comments on defendant’s postarrest, post-Miranda silence violated the defendant’s right to remain silent. That Court, however, went on to note that "evidence of a defendant’s silence on certain matters may be presented to elicit the full extent of a defendant’s statement made to the arresting officer.” Id. at 87. The Scobey Court then distinguished the facts of this case noting: "The arresting officer’s testimony in this case was not elicited to explain omissions in the statement eventually given by the defendant.” Id.

27 Our review of the challenged questioning and commentary shows the prosecutor clearly did not focus on the defendant’s exercise of his right to remain silent. See Brogdon v Butler, 838 F2d 776 (CA 5, 1988).

28 The dissent erroneously characterizes the testimony of the detectives in this case as comments on periods of silence which are constitutionally protected, even though silences so protected are those in which a defendant has exercised the right to remain silent. Furthermore, there was no Doyle error in McReavy because as the court noted in United States v Alvarado, 806 F2d 566, 573 (CA 5, 1986), Doyle is inapplicable to this situation in which the defendant speaks and does not invoke his right to remain silent.

See also United States v Remigio, 767 F2d 730, 734 (CA 10, 1985), cert den 474 US 1009 (1985). In Remigio, the prosecutor’s statement was blatant, i.e., " 'you were advised of your rights . . . were you not? . . . Did you make a statement or refuse to make a statement.’ ” There was no question that this was an impermissible comment on the defendant’s exercise of his right to remain silent, although in looking at the statement in the context of the entire trial, the court found the constitutional error to be harmless. Id.

If a defendant answered several questions and then invoked his right to remain silent, Doyle, supra at 618-619, would prevent the prosecutor from commenting on this silence. However, in the present case the defendant did not assert the right to remain silent until the morning following the interview. See n 23.

Recently the Ninth Circuit Court of Appeals held that an ambiguous request by a suspect for counsel during interrogation would be considered an invocation of a defendant’s Fifth Amendment right to counsel if the interrogating officers understood the meaning of that request, Smith v Endell, 860 F2d 1528 (CA 9, 1988). In that case, the suspect told the interrogating officers he wanted a lawyer if he was a suspect in the crime at issue. The officer’s knowledge that defendant was a suspect rendered that invocation effective immediately. Under analogous circumstances, a similar request regarding a desire to refuse to answer more questions could render an invocation of a defendant’s right to remain silent also effective.