People v. McNally

Decision Date04 May 2004
Docket NumberDocket No. 120021, Calendar No. 1.
Citation470 Mich. 1,679 N.W.2d 301
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen J. McNALLY, Defendant-Appellant.
CourtMichigan Supreme Court

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and John S. Pallas, Assistant Prosecuting Attorney, Pontiac, for the people.

State Appellate Defender (by Susan M. Meinberg and Marla R. McCowan), Detroit, for the defendant.

Charles Sherman, President, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, Detroit, for the Prosecuting Attorneys Association of Michigan.

Opinion

MARKMAN, J.

We granted leave to appeal in this case to consider whether the admission of testimony concerning defendant's silence after his arrest, but before he was given Miranda warnings,1 i.e., pre-Miranda silence, as substantive evidence of defendant's guilt is error requiring reversal of defendant's convictions. Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317, and failure to stop at the scene of an accident in which he was involved and that resulted in serious injury, MCL 257.617. Defendant appealed these convictions, contending that the prosecutor improperly elicited testimony regarding his pre-Miranda silence. However, pursuant to its decision in People v. Schollaert, 194 Mich.App. 158, 164-165, 486 N.W.2d 312 (1992), the Court of Appeals affirmed defendant's convictions. We conclude that defendant forfeited the claim of error by not objecting to the prosecutor's questions regarding defendant's pre-Miranda silence. Accordingly, we affirm defendant's convictions.

I. BACKGROUND

On the afternoon of February 10, 1999, defendant and the victim, Harold VanDorn, met in a bar and decided to continue drinking together for the rest of the evening. By 10:00 P.M., both men were intoxicated. After visiting a fast-food restaurant and before reaching their next destination, the two men had a disagreement. They exchanged punches, which prompted VanDorn to leave the truck and start walking in the road.

Defendant drove away a short distance, but then made a U-turn and accelerated in VanDorn's direction. By the time defendant reached VanDorn, the truck was traveling at approximately forty-five miles an hour. At that point, defendant steered across the centerline at VanDorn, striking and killing him. The police arrested defendant one-half mile from the scene after a preliminary breath test indicated that defendant had a blood alcohol level of 0.207 grams per 210 liters of breath.

Defendant was prosecuted for murder. He did not testify, but his attorney offered two explanations for the accident: first, the truck's brakes and steering were defective; and second, defendant blacked out immediately before striking VanDorn. To rebut these explanations, the prosecutor called several mechanics who examined the truck's brakes and concluded they were not defective. To further rebut these explanations, the prosecutor, during his casein-chief, elicited the following testimony of the arresting officer, Officer Cacicedo:2

Q. At any point in time that evening, did the defendant indicate to you that he had lost control of the truck?

A. No.

Q. Did he ever indicate to you that there was any mechanical defect with the truck?

A. No.

Q. Did he ever indicate to you that he blacked out that evening?

A. No.

Q. Did he ever indicate to you that he couldn't remember things that happened that evening?

A. No.

Defendant never objected to this testimony, nor did the prosecutor make any further comment at trial concerning this testimony. Defendant was convicted of second-degree murder and leaving the scene of an accident involving serious injury. The court imposed concurrent prison terms of twenty to fifty years for murder and two to five years for leaving the scene of a serious accident.

Defendant appealed, contending that his convictions must be reversed because the prosecutor violated his Fifth Amendment right against compelled self-incrimination by impermissibly eliciting testimony regarding his pre-Miranda silence. However, pursuant to Schollaert, supra at 164-165, 486 N.W.2d 312,3 the Court of Appeals affirmed defendant's convictions and stated, "The challenged testimony did not concern silence during custodial interrogation or silence in reliance on Miranda warnings. Therefore, defendant's silence was not constitutionally protected." Unpublished opinion per curiam, issued July 20, 2001 (Docket No. 223059), 2001 WL 824465. This Court granted defendant's application for leave to appeal. 467 Mich. 896, 654 N.W.2d 328 (2002).

II. STANDARD OF REVIEW

Unpreserved claims of constitutional error are reviewed for "plain error." People v. Carines, 460 Mich. 750, 764, 597 N.W.2d 130 (1999).

III. ANALYSIS

A. FORFEITED ERROR

Defendant asks us to review a claim of error that he did not preserve at trial. We thus apply the principles articulated in Carines, supra at 763, 597 N.W.2d 130:

To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.... Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence. [Citations and internal quotation marks omitted.]

Accordingly, in order for defendant to avoid forfeiture, he must show that the prosecutor's questions regarding his pre-Miranda silence affected his substantial rights. That is, he must show that the prosecutor's questions affected the outcome of the lower court proceedings.

The prosecutor's evidence against defendant included two eyewitnesses. The first, John Dalling, testified that defendant slowly drove past the victim, made a sharp U-turn in the middle of the road, crossed two lanes while accelerating toward the victim, hit the victim, and then drove on. He stated, "it's like he got in position and pretty much just went straight at him, across both lanes and went into the middle turning lane and hit him head on." When asked if defendant's truck picked up speed after he made the U-turn, Dalling stated, "Yes, it did. It was like if he just gunned it." According to Dalling, after defendant hit the victim, he made another U-turn and slowly drove past the victim's body. Dalling further testified that he did not notice any problems with the truck, i.e., it was not veering in and out of lanes. He also testified that he did not hear any brakes or tires squeal before defendant struck the victim. Nor did he see any brake lights come on before defendant struck the victim. According to Dalling, defendant did not make any attempt to swerve away from the victim. A second eyewitness, Matt Walsh, was driving toward defendant's truck, in light traffic with clear visibility, when he noticed defendant's headlights veer sharply and he saw the victim go over defendant's hood. Walsh stopped his truck in front of the victim and got out to help. Walsh saw defendant's truck return to pass the victim slowly and then drive away.

Further, the prosecutor introduced two expert witnesses who testified that defendant's truck was mechanically sound. Specifically, one expert witness concluded that the steering and braking mechanisms were worn, but in working condition. Neither of the prosecutor's expert witnesses found mechanical difficulties in the truck that would have caused defendant to lose control of the vehicle or swerve uncontrollably, or that would have prevented defendant from stopping the truck. Indeed, even defendant's expert witness conceded that, when he drove the vehicle, it always stopped when the brakes were applied and it did not deviate course from one lane to another.

Given this evidence of defendant's guilt, we conclude that the prosecutor's questions regarding defendant's pre-Miranda silence, even if error, did not affect the outcome of the lower court proceedings. In other words, defendant would have been found guilty independent of the prosecutor's questions regarding defendant's pre-Miranda silence. Therefore, because defendant has not met his burden of establishing that the alleged error affected the outcome of the lower court proceedings, he is unable to avoid forfeiture.4 He has forfeited his claim of error by not objecting to the prosecutor's questions regarding his pre-Miranda silence.5

IV. CONCLUSION

Because defendant failed to object to the prosecutor's questions regarding defendant's pre-Miranda silence and these questions did not affect the outcome of the lower court proceedings, defendant has forfeited his claim of error. Accordingly, we affirm defendant's convictions.

MAUREEN D. CORRIGAN, MICHAEL F. CAVANAGH, MARILYN J. KELLY, CLIFFORD W. TAYLOR, and ROBERT P. YOUNG, JR., JJ., concur.

WEAVER, J. (concurring in part and dissenting in part).

I concur in the result because it is true that the alleged error was harmless given that other evidence establishing defendant's guilt was substantial.

However, the majority unwisely evades the question whether a defendant's postarrest, pre-Miranda6 silence is admissible in a prosecutor's case-in-chief.

I write separately because I disagree with the majority's choice to evade and fail to decide the substantive issue that this Court specifically ordered to be briefed and argued in this case.

In October 2002, this Court granted leave to appeal,...

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