Use of a redacted portion of defendant’s police interview; Fifth Amendment right to remain silent; Prosecutorial misconduct; Admission of a defendant’s unresponsiveness to questioning after a waiver of Miranda rights; People v Rice (On Remand); Ineffective assistance of counsel; Failure to move to suppress defendant’s police statements or to object; Voluntariness; People v Shipley; Motion for a new trial

The court held that defendant did not show “plain error occurred when the jury viewed portions of his police interview where he declined to answer questions.” It also rejected his claim that defense counsel was ineffective for failing to move to suppress his police statements, concluding the relevant factors supported that they were voluntary. Thus, it affirmed his AWIGBH and firearm-related convictions. A redacted portion of his police interview “was played for the jury. At no point in the interview did defendant invoke his” Miranda rights—he did not tell “police that he no longer wanted to speak with them or that he wanted to consult with counsel. He explained during the interview that he did not know if he should give the police any information because it would hurt his right to a fair trial, and he also feared how much time he faced if convicted. Ultimately, defendant gave incriminating statements to the officers.” He argued on appeal “that, because the prosecutor did not redact parts of the interview where he was unresponsive to questions, the jury was able to use the long pauses as evidence, contrary to” his Fifth Amendment right remain silent. He conceded that “the prosecutor never argued for the jury to consider defendant’s silence as evidence of his guilt[.]” Rather, he focused “on the showing of the recording without redacting any long pauses by defendant after he was asked questions.” The court noted that “a trial court can properly admit a defendant’s unresponsiveness to questioning during an interview after he waived his rights under Miranda.” While defendant was subject to custodial interrogation when police interviewed him, “he waived his rights under Miranda and the Fifth Amendment and agreed to speak with the police. At no point did he assert his right to remain silent. While he did not respond to some questions or paused for long periods, he never invoked his right to remain silent by telling the police that he wished to end the interview.” Thus, he could not show the prosecution “improperly used his right to remain silent even though the jury was shown the recording of defendant’s interview, which included periods where [he] was unresponsive.” As to his ineffective assistance claim, “even if defense counsel had raised an objection” to the admission of his statements, “the outcome would have been the same” – they would have been admitted.