The opinion
J. H. Gillis, J.
(dissenting). Once again Judge Levin and I are on opposite ends of the judicial spectrum. Broadly stated, the question presented in Part II of this case is the same as that which divided us in People v. Russell (1970), 27 Mich App 654 .
Although Judge Levin purports to distinguish Russell in footnote 7 of his opinion, I find the suggested distinctions of no decisional significance. With all deference, I must dissent.
In Russell , we held that where a defendant voluntarily takes the witness stand, he waives his right against self-incrimination and may thereafter be questioned as to all other relevant facts, including his silence on a prior occasion. We reasoned that to hold otherwise would allow a defendant to fabricate his testimony on the stand without fear of impeachment under cross-examination. That a defendant remained silent on an earlier occasion, where such silence undermines the credibility of defendant’s testimony at trial, is both relevant and legally admissible. See People v. Russell, supra, p 662 ; accord, People v. McCrea (1942), 303 Mich 213 ; People v. Graham (1971), 29 Mich App 528 .
In the present case, defendant voluntarily took the stand on his own behalf and related the same exculpatory story which had been given to the police by his lawyer on February 24. The February 8 transcript was offered to show that on an earlier occasion, one closer to the time of defendant’s arrest, Rolston, although given the opportunity to do so in the presence of his counsel, had nothing to say. The situation is thus comparable to that presented in People v. Graham, supra, where a unanimous panel of this Court held (p 538):
*213 “The people, after the defendant had rested, called the detective who had talked with the defendant less than six hours after his arrest and gave him an opportunity to tell his story and at that time he told the officer that he had nothing to say. The defendant by placing himself on the witness stand voluntarily placed in issue his credibility. The rebuttal testimony rebutted his claim that he had tried to tell his claimed, true account of the incident but was not permitted to do so. * * * Following the last ruling by our Michigan Supreme Court as set forth in the McCrea case, supra, we must rule until otherwise mandated that the rebuttal testimony was admissible.”
The result in the present case should be the same. And this is true notwithstanding the fact that the February 8 transcript was read into the record as part of the people’s case. 1
More fundamentally, there is an additional reason why I regard admission of the February 8 transcript as not requiring reversal of defendant Rolston’s conviction.
It has always seemed to me to be the law — constitutional or otherwise — that we should reverse a criminal conviction only where it fairly appears that defendant’s rights have been prejudiced. In short, I am prepared to reverse but only when satisfied that defendant did not receive a fair trial. The words of Mr. Justice Cardozo, recently reiterated in Dutton v. Evans (1970), 400 US 74, 89, 90 ( 91 S Ct 210, 220 , 27 L Ed 2d 213, 227 ), are appropriate in the- present context :
*214 “ ‘There is danger that the criminal law will be brought into contempt — that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obédience to local law, and set the guilty free.’ ”
The majority reverse defendant Rolston’s conviction on the theory that reference to his refusal to answer questions on February 8 impermissibly suggested to the jury that defendant was guilty of the crime charged. In People v. John Willie Williams (1970), 26 Mich App 218, 229 , the Court, per Judge Levin, quoting People v. Hicks (1970), 22 Mich App 446, 452 , stated the rationale for reversal as follows:
“ ‘Juries composed of ordinary laymen not trained in the law tend to associate the exercise of the Fifth Amendment privilege with guilt rather than possible innocence and exposure to ambiguous compromising situations.’ ”
The Court continued (Williams, p 230):
“The tacit admission argument is a legally impermissible argument. It is just as impermissible to argue to the jury that it may infer guilt from silence as it would be to argue that it may infer guilt from a failure to take the stand.
# # #
“Howsoever the impermissible innuendo is injected it penalizes the defendant for exercising his constitutional right to remain silent and, therefore, chills exercise of that right.”
In this case I find nothing in the record warranting any suggestion that the jury was asked to draw an inference of guilt from defendant Rolston’s refusal to answer questions on February 8. In my *215 view, the possibility of the jury drawing the “impermissible innuendo” was gossamer at best. But for the one permissible reading of the February 8 transcript (reproduced in full in Appendix A), defendant’s silence was never mentioned again, eithei in cross-examination of the defendant by the people or in the people’s closing argument. When read as a whole, the transcript expressly indicates that defendant Eolston was silent on the 8th on account of the advice of counsel, not because of any innuendo of guilt. Under these circumstances, a panel of this Court, including my Brother Levin, has held that there is no violation of defendant’s right to remain silent. See People v. Shugar (1970), 29 Mich App 139 . Again, the result in the instant case should be the same.
Finally, we should not so lightly disregard the trial judge’s immediate charge to the jury informing it of defendant’s right to remain silent. See Appendix A. Apparently defendant’s counsel, who had requested the charge, was satisfied. No motion for a mistrial was ever filed.
As to other issues raised by defendant on appeal, I am of the opinion that they are likewise without merit. This includes the question discussed, but left unanswered, in Part III of the majority opinion.
The trial judge specifically found that Brome was not acting as an agent for the police, that he neither expected, nor was he offered any consideration for reporting post-February 16 conversations. I do not believe, as do the majority, that the record is unclear on this point. Moreover, the trial court’s conclusion is supported by record testimony and not clearly erroneous.
I would affirm defendant’s conviction.
*216 APPENDIX A
During the colloquy between the trial court and counsel on the question of the admissibility of the February 8 transcript, the trial judge made these comments:
“The Court: Let the record indicate that the witness, Inspector Schattler, was about to testify relative to a statement allegedly given to Assistant Prosecutor Mowatt. I may say that this statement is only as to the defendant Rolston. Counsel for defendant Rolston, Mr. Otis, is objecting thereto and asked for a conference with the court at the bench before we adjourned to chambers. This objection is that the statement is not admissible. Also, that he had not received notice of such a statement. The record will show that the statement of defendant Rolston has already been introduced, which was taken by Mr. Otis and presented to the prosecutor’s office.
“I agree with you, Mr. Otis, that he has a right not to make a statement and he is informed of that at the time. However, in this particular instance, but had he not made a statement at all, I’ll tell you right now, I would not have allowed this type of procedure; but in view of the fact that the defendant has made a statement subsequent to this date, a self-serving statement — even counsel for the defendant indicated it was self-serving — but in view of the fact that he did make a statement in his counsel’s office, which was presented to the police department and the prosecuting attorney’s office, I’m going to allow the statement that he made if his constitutional rights were protected.
# * #
“Mr. Otis: I’m going to ask the court to instruct the jury that Mr. Rolston was under no obligation whatsoever to make a statement.
*217 “The Court (interposing): Let me point something out. Your strategy in this cause has been evidence of the defendant and with this you’re going to show how your fine client cooperated with the police, gave them a statement that he’s an innocent lad.
* # #
“The Court: I’m going to allow it in, but I’ll instruct the jury he had the right to remain silent.”
Thereafter, Inspector Schattler resumed the stand and testified as follows:
“By Mr. Eggleton [assistant prosecutor]:
“Q. Mr. Schattler, at the time that Mr. Rolston [sic] was brought before the prosecuting attorney, Mr. John A. Mowatt, was he advised of his constitutional rights?
“A. Yes, sir, he was. His attorney was present.
“Mr. Otis: That would go to conclusion. If there’s a statement, may the statement be read.
“The Court: Counsel’s position is well taken.
“Mr. Eggleton: Thank you, your Honor.
“Q. Would you read that portion of that statement regarding the constitutional rights, sir?
“A. Should I read it?
“Q. Begin reading it and I’ll tell you when to stop.
“A. ‘Statement of Robert Lee Rolston, in the presence of Sheldon Otis, attorney, taken in the office of the prosecuting attorney for the County of Wayne, out-county branch at Westland, Michigan, on Wednesday, February 8, 1967, at about 2:40 p.m., by Mr. John A. Mowatt, assistant prosecuting attorney, in the presence of Inspector Raymond Schattler and Detective Gene Barnes, River Rouge Police Department, Elizabeth J. Ponczek, criminal testimony stenographer.
“ ‘By Mr. Mowatt:
“ ‘Q. And your full name, Mr. Rolston?
“‘A. Robert Lee Rolston.
*218 ‘“Q. Is that R-o-l-s-t-o-n? And your age?
‘“A. 30.
“ ‘Q. And your address?
“ ‘A. Box 117, Versailles, Indiana.
“ ‘Q. My name is John Mowatt. I am one of the assistant prosecuting attorneys of Wayne County. I want to talk to you regarding your conduct and behavior on the evening of January 23 of this year. Do you understand, Mr. Rolston, anything you tell us this afternoon can be used against you on a trial?
“ ‘A. Yes, sir.
“ ‘Q. You understand that. And your attorney, Mr. Sheldon Otis, is with you?
“ ‘A. Yes, sir.
“ ‘Q. And you understand, Mr. Rolston, that you don’t have to make any answers to my questions until you have consulted with your attorney?
‘“A. Yes.
“‘Q. You understand that?
‘“A. Yes.
“ ‘Q. And you also understand that if you are unable to afford an attorney, the County of Wayne will supply you with one ?
‘“A. Yes.
“ ‘Q. And has anyone promised you anything to make this statement? I mean to make a statement, to answer my questions?
‘“A. No.
“ ‘Q. Has anyone threatened you in any way to make this statement?
‘“A. No.
“ ‘Q. Do you know a Larry Markham?’
“Mr. Eggleton: Thank you, stop right there. I submit this adequately covers the area of advice concerning the constitutional rights of the defendant.
“Mr. Otis: I’ll object to the speech by the prosecutor, your Honor, and ask that this statement be finished.
*219 “The Court: Do you. wish to proceed with this statement?
“A. Yes.
“Mr. Eggleton: Continue on.
“A. The last question was:
“ ‘Q. Do you know a Larry Markham?
“ ‘Sheldon Otis {interjecting): Mr. Mowatt, I think I should interject at this point. I advised Mr. Rolston not to make any statement concerning anything other than to give you information concerning his name and address, et cetera, and I would appreciate if you would respect that instruction. I have also asked the River Rouge Police, as well as the FBI agents who have participated in this, not to question, interrogate, interview or in any way investigate the person of Mr. Rolston without my presence and so far they have all cooperated in respecting that wish, and I would appreciate the same from the Wayne County prosecutor’s office.
“ ‘Q. Well, you do not desire Mr. Rolston to answer any of my questions, except what he has already answered, is that it?
“‘Sheldon Otis: That is correct, unless if you choose to ask questions and we would see whether on individual questions I would advise him to answer, that’s up to you.
“‘Q. {to Robert Lee Rolston): Do you know a Larry Markham?
“‘Sheldon Otis: (No response.)
“ ‘A. {by Robert Lee Rolston): (No response.)
“ ‘Q. You don’t want — ■
“ ‘Sheldon Otis {interrupting): Let me put it this way. If I, if I advise Mr. Rolston, I will do so orally, and my silence means that he does not choose to answer any questions.
“‘Q. {to Robert Lee Rolston): Do you know a Larry Markham?
“‘A. {by Robert Lee Rolston): (No response.)
“ ‘Sheldon Otis: (No response.)
*220 “‘A. (by Robert Lee Rolston)-. I don’t care to answer that.
“ ‘Q. Did you see a Larry Markham on that particular night, January 23?
“‘A. I don’t care to answer that.
“‘Q. Were you at the bar, Great Lakes Bar in River Rouge that evening?
“‘A. I don’t care to answer that.
“ ‘Q. Do you own an automobile ?
“ ‘A. Can’t answer that.
“ ‘Q. You do not want to answer my questions, is that right? Where have you been since January 23 of this year?
‘“A. I can’t answer that.
“ ‘Q. You understand that you are being charged with the crime of kidnapping?
“ ‘A. Yes.
“ ‘Q. You want to make any statement regarding that particular charge ?
“ ‘Q. Did you know a barmaid who was employed at the Great Lakes Bar?
‘“A. I can’t answer that.
“‘(Stenographer to Robert Lee Rolston: “I can’t” or “I don’t care to answer that?”)
“‘A. I ain’t, no.
“ ‘Q. Were you employed for—
“ ‘A. (interrupting): Can’t answer that.
“ ‘Mr. Moioatt: Might as well — okay.’
“That’s it. That’s the end of the statement.
“Mr. Eggleton: Thank you. Now, it’s your testimony this statement was taken two weeks before the other statement was brought in by Mr. Otis. Is that correct?
“A. Yes, sir, that’s correct.
“Q. Now, sir, as to the additional clothing taken from Mr. Markham, did you bring those officers in today?
“A. Yes, sir, I have them here.
*221 “Q. Thank you, sir, you may cross-examine.
“Mr. Otis: Your Honor, before proceeding with any questions, I would ask the court to appropriate instructions concerning this matter at this time.
“The Court: Ladies and gentlemen of the jury, under the United States Constitution, anyone who is in custody charged with an offense or investigation of an offense, has the constitutional right to remain silent and it’s not to be used in any manner whatsoever. So, if a person remains silent and doesn’t wish to answer any questions, they have the constitutional right to take that position, and I am instructing you regarding this at this time because of the statement that was just made into the record.
“Mr. Otis: Thank you, your Honor.”
The February 8 transcript was read at trial after the people had introduced into evidence Bolston’s exculpatory statement given to the police on February 24. There was no objection from the defense to a reading of the exculpatory statement. The trial court was of the view that fair play to both sides then required giving the people a chance to show that, on an earlier occasion, defendant remained silent although the natural inclination would have been to relate the same exculpatory story. I share the trial court’s view.