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Defendant's Silence Not Constitutionally Protected


Case: People v. Alexander

Court: Michigan Court of Appeals ( Unpublished Opinion )

Judges: Per Curiam – Jansen, Cavanagh, and Gadola


Whether defendant was denied a fair trial when the prosecution introduced evidence that she refused to be interviewed by an agent from the Michigan Inspector General’s Office without an attorney present; People v. Shafier; U.S. Const. amend. V; Const. 1963, art. 1, § 17; Miranda v. Arizona; People v. McReavy; People v. Solmonson; Ineffective assistance of counsel; Failure to raise a meritless objection; People v. Darden; Prosecutorial error; People v. Bennett; People v. Brown; People v. Dobek; Whether defendant was denied a fair trial when the prosecution compared her to a notorious criminal; People v. Kelley; People v. Sharbnow; People v. Bahoda; Presumption that the jury followed its instructions; People v. Abraham; Sufficiency of the evidence to sustain her convictions of larceny by false pretenses & embezzlement; People v. Lueth; Distinguishing People v. Schrauben


The court held that defendant’s silence was not constitutionally protected and her constitutional rights were not violated when an agent from the Michigan Inspector General’s Office referenced her five-day silence during trial. Also, she was not denied the effective assistance of counsel, and the court rejected her prosecutorial error claim. Further, there was sufficient evidence to sustain her convictions of larceny by false pretenses and embezzlement. It affirmed her convictions and sentences, but remanded for the ministerial task of correcting the error in her judgment of sentence. She was convicted of using false pretenses to obtain money in an amount of $1,000 or more, but less than $20,000 (larceny by false pretenses), and embezzlement by an agent or trustee of over $1,000, but less than $20,000. She was sentenced to two years’ probation with three months to be served in jail. The case arose from her employment with Michigan Rehabilitation Services (MRS) as a vocational counselor. On appeal, defendant argued that she was denied a fair trial when the prosecutor introduced evidence that she had refused to be interviewed by Agent M without an attorney present. She argued that this line of questioning and M’s “reference to her five-day silence violated her Fifth Amendment right to remain silent and not have her silence used as substantive evidence against her.” The record did not indicate that M gave her “Miranda warnings before defendant requested that their interview be delayed until her attorney could be present.” When M visited the MRS office, defendant was not in custody. There was no indication that she was “restrained in any manner, and she was free to leave once she requested that the interview be delayed.” There was nothing in the record indicating that she was subjected to questioning while at the office or that she “invoked her right to silence in response to Miranda warnings.” Further, while M “made passing reference to the fact that defendant was not initially willing to speak with her about the investigation, the prosecutor did not use [M’s] response in a follow-up question or in closing argument, and never attempted to use defendant’s delay in speaking with [M] against defendant.”

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