PEOPLE OF MI V DEMAREO JAMAINE ALLEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 16, 2010
Plaintiff-Appellee,
v
No. 294474
Berrien Circuit Court
LC No. 09-000846-FH
DEMAREO JAMAINE ALLEN,
Defendant-Appellant.
Before: WHITBECK, P.J., and ZAHRA and FORT HOOD, JJ.
PER CURIAM.
A
jury
convicted
defendant
of
three
counts
of
delivering
methylenedioxymethamphetamine, or ecstasy, MCL 333.7401(2)(b)(i), and one count of
possession of ecstasy, MCL 333.7403(2)(b)(i). The trila court sentenced him to three terms of
180 to 480 months’ imprisonment for the delivery convictions and one term of 76 to 240 months’
imprisonment for the possession conviction, all sentences to be served concurrently. He appeals
as of right. We affirm. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
On January 18, 2009, defendant was arrested for an alleged armed robbery of 300 ecstasy
pills from another man on January 1, 2009. Defendant was held in the Berrien Township Police
Department for approximately four hours before being transported to the receiving area of the
Berrien County jail. He was then in the holding area for about two-and-a-half days before
moving upstairs to a different dormitory.
Shortly after defendant was booked into the upstairs dormitory, another inmate wrote to a
deputy stating that he had information about ecstasy pills in the jail. The officer questioned that
inmate and then questioned many other inmates, including defendant, about the ecstasy pills.
At trial, many inmates testified that defendant brought the ecstasy pills into jail in his
underwear, which avoided detection during the pat-down searches. They also testified that
defendant either gave them pills or directed some of them to give pills to other inmates. Multiple
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pills were collected by the deputies from inmates and from a medical cabinet, and were admitted
into evidence at trial.
During the prosecutor’s direct examination of a deputy sheriff who worked at the jail,
testimony was given that that deputy had read defendant his Miranda1 rights prior to questioning
him about the substances found in the jail. The officer went on to state that defendant told the
officer he had no knowledge of what was going on and did not want to talk to the officer until his
lawyer was present. The prosecutor followed up by getting the officer to agree that defendant
basically did not tell him what was going on.
Following testimony of multiple officers and numerous inmates as well as physical
evidence of pills and substances that were taken from the jail due to this incident, the jury
convicted defendant of three counts of delivery of ecstasy and one count of possessing the same.
On appeal, defendant claims that his constitutional right of silence was violated and used
against him when the prosecutor questioned the deputy sheriff who testified that defendant did
not want to talk until his lawyer was present. During the trial, there was no objection made to
the prosecutor’s questioning of the deputy sheriff.
The issue on appeal is therefore an unpreserved claim of constitutional error. An
unpreserved constitutional issue is reviewed for plain error. People v Borgne, 483 Mich 178,
196; 768 NW2d 290 (2009), reh granted in part 485 Mich 868; 771 NW2d 745 (2009). For an
unpreserved constitutional error to warrant reversal there must have been an error that was clear
or obvious that affected the outcome of the proceedings. Id. Additionally, that error must have
resulted in the conviction of an actually innocent person, or it must have seriously affected the
fairness, integrity, or reputation of the judicial proceedings. Id.
“As a general rule, if a person remains silent after being arrested and given Miranda
warnings, that silence may not be used as evidence against that person.” People v Shafier, 483
Mich 205, 212; 768 NW2d 305 (2009). While any reference to a defendant’s post-arrest, postMiranda silence is generally prohibited; there are some circumstances where a single reference
to a defendant’s silence may not amount to a constitutional violation “if the reference is so
minimal that silence was not submitted to the jury as evidence from which it was allowed to
draw any permissible inference. . . .” Id. at 214-215 (internal citations omitted).
In the present case, the prosecutor’s examination of the deputy established that defendant
was silent after being read his rights including his right to remain silent. The deputy’s testimony
included a brief exchange during the prosecutor’s direct examination basically stating that
defendant told the deputy nothing. It also included a similarly brief exchange on crossexamination stating that defendant knew of and exercised his right to remain silent.
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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The issue of defendant’s silence during the deputy’s initial investigation was not
mentioned in the prosecutor’s opening or closing statements. The prosecutor did not refer to
defendant’s silence nor did the prosecutor imply that the jury should use defendant’s silence as
an inference or evidence of guilt. The one brief exchange between the prosecutor and the deputy
concerning defendant’s silence did not amount to a constitutional violation given that it was not
repeated or referenced to the jury as substantive evidence of guilt.
Accordingly, this unpreserved constitutional error did not rise to the level of
constitutional error and therefore does not satisfy the plain-error standard of review to warrant
reversal.
Affirmed.
/s/ William C. Whitbeck
/s/ Brian K. Zahra
/s/ Karen M. Fort Hood
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