Cross-examination; Fifth Amendment right to be free from self-incrimination; Use of prearrest silence to impeach a defendant’s credibility; Jenkins v. Anderson; Principle that impeachment based on prearrest silence does not violate the Fourteenth Amendment right to due process; Doyle v. Ohio; People v. Weir; Sixth Amendment right to counsel; Post-Miranda “silence” as encompassing a defendant’s insistence of remaining mute until obtaining the advice of an attorney; Wainwright v. Greenfield; Prosecution’s closing argument reference to defendant’s silence; Whether the use of prearrest silence as substantive evidence of guilt violates the Fifth Amendment; Combs v. Coyle (6th Cir.); People v. Schollaert; Harmless error; Vouching; People v. Dobek; People v. Bahoda; Ineffective assistance of counsel; People v. Swain; Trial strategy; People v. Hoag; People v. Kevorkian; People v. Petri; Decisions whether to call witnesses; People v. Rockey; People v. Dixon; A substantial defense; People v. Chapo; Decisions about cross-examination; People v. McFadden; Impeaching the prosecution’s witnesses; People v. Lane; Failure to raise a meritless objection; People v. Riley

Holding that the prosecution’s cross-examination of defendant did not violate his constitutional rights, that any error in its closing argument was harmless beyond a reasonable doubt, and that he was not denied the effective assistance of counsel, the court affirmed his CSC I and II convictions. He argued that the prosecution violated his constitutional rights “by repeatedly questioning him about his decision not to speak to the police during the investigation.” The court found that his Fifth Amendment challenge to the cross-examination failed “because ‘the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant’s credibility.’” Impeachment based on prearrest silence also does not violate the Fourteenth Amendment’s Due Process Clause. Also, while he “repeatedly explained that he had not contacted the police or made any effort to exculpate himself on the advice of” counsel, the court “found no case law supporting that the prosecutor’s questions denied defendant his right to counsel,” and he failed to cite any. It also noted that he was represented by retained counsel throughout. Further, the U.S. Supreme Court “has portrayed post-Miranda ‘silence’ as encompassing a defendant’s insistence on remaining mute until” an attorney’s advice has been obtained. Thus, the court concluded that his “references to reliance on his attorney’s advice as the reason for his silence arise solely under the Fifth Amendment and the Due Process Clause, rather than constituting a potential violation of Sixth Amendment rights.” Unlike the cross-examination, the prosecution’s closing argument “reference to defendant’s silence did not merely seek to impeach defendant’s testimonial claim of innocence; it invited the jury to infer” his guilt based only on his silence. The court was bound by the holding in Schollaert that “the use of a defendant’s prearrest silence as substantive evidence does not contravene the Constitution.” Further, the closing argument was harmless beyond a reasonable doubt because the “potentially inappropriate use of defendant’s silence was limited to a brief portion of” closing argument and the trial court immediately “informed the jury that it could not use the silence as proof of” his guilt.