Testimony & comment on defendant’s prearrest silence; People v Schollaert; Alleged vouching testimony; Prosecutorial misconduct; Plain error review; Rebuttal evidence; Constitutionality of MCL 768.27b; Due process; Case law on similar challenges to MCL 768.27a; People v Watkins; People v Muniz; Procedural safeguards; MRE 401 & 403

Concluding that defendant’s prearrest silence was not entitled to constitutional protection, the court rejected his claim that the prosecution impermissibly elicited testimony of and commented on his prearrest silence. It also held that a police witness’s (A) challenged testimony was not improper vouching, and it found no prosecutorial misconduct. Finally, it concluded there was no merit in defendant’s claim that MCL 768.27b violates the right to due process. He was convicted of first-degree premeditated murder, FIP, felony-firearm, and CCW. The prosecution’s theory was “that jealousy and anger caused defendant to kill his on-again, off-again girlfriend and her new boyfriend.” Defendant argued that the prosecution “impermissibly used his silence as substantive evidence of his guilt by creating an inference that if defendant had nothing to hide, he would have contacted the police when he knew they wanted to talk to him.” The court reviewed Schollaert, in which it held that the admission of a defendant’s silence before custodial interrogation and before the giving of Miranda warnings does not violate a defendant’s constitutional rights. The court determined that Schollaert was instructive and applied here. And it found that an argument could “be made that evidence of defendant’s prearrest conduct was relevant to his consciousness of guilt and to rebut [his] assertion that the lead investigator did not properly investigate the case.” Rather than referencing “defendant’s conduct so that the jury could conclude [he] was guilty[,]” the prosecution’s “comment was no more than a response to defendant’s suggestion that the law enforcement conducted a sloppy investigation.” As to A’s alleged vouching, nowhere in her testimony did she “offer an opinion that defendant was the perpetrator of the murders or that [witness-M] was being truthful.” The court added that defendant’s trial counsel “invited the testimony” by setting up a “sequence of questions that led to [A] eventually giving her opinion that [M’s] viewing of defendant’s picture on the television did not ‘corrupt’ the subsequent identification of defendant during the photographic lineup.” As to the prosecutorial misconduct claim, the court found that the “prosecutor was simply attempting to respond to defendant’s theory, and the elicited testimony was for a proper purpose.” Affirmed.