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No. 134967
| The People of the State of Michigan, |
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Mark G. Sands |
Plaintiff-Appellant, |
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(Appeal from Ct of Appeals) |
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(Wayne - Hathaway, C.) |
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| Michael J. Borgne, |
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Jacqueline J. McCann |
| Defendant-Appellee. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellant's Brief on Appeal>>
Defendant-Appellee's Brief on Appeal>>
Prosecuting Attorneys Association of Michigan's Amicus Curiae Brief>>
Background
A woman was robbed at gunpoint at a gas station in Detroit. Michael J. Borgne was found hiding in a nearby abandoned building, but the victim’s purse and the gun used to commit the crime were not recovered. At his trial, Borgne claimed that he was in the building because he was being shot at. A jury found him guilty of armed robbery and felony-firearm. But in an unpublished per curiam opinion, the Court of Appeals reversed Borgne’s convictions by a 2-1 vote and remanded the case to the trial court for a new trial. The Court of Appeals majority noted that the prosecutor extensively cross-examined Borgne, at trial, about his post-Miranda-warningssilence; the prosecutor also suggested in closing argument that the jury should infer from Borgne’s exercise of his right to remain silent that he fabricated his trial testimony. The prosecutor’s actions violated Borgne’s constitutional rights, the majority said, citing Doyle v Ohio, 426 US 610, 619 (1976). In Doyle, the U.S. Supreme Court held that using a defendant’s post-Miranda silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. The Court of Appeals majority concluded that the prosecutor’s use of Borgne’s silence was extensive and repetitive, amounting to a clear violation of Borgne’s due process rights as interpreted in Doyle. The majority could not “conclude, given the facts of this case, that the flagrant and repeated violation did not affect the outcome of the lower court proceedings.” The dissenting Court of Appeals judge found no violation of Doyle, stressing the context in which the prosecutor’s questioning took place. He noted the aspects of Borgne’s direct testimony that justified the challenged prosecutorial cross-examination and argument. The dissenting judge also concluded that any error was harmless beyond a reasonable doubt, saying that there was substantial evidence of Borgne’s guilt; any revelation that Borgne did not make a statement to police had a negligible effect on the verdict, the dissenting judge said. The prosecutor appeals.
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