PEOPLE OF MI V STEPHEN J MCNALLY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 20, 2001
Plaintiff-Appellee,
v
No. 223059
Oakland Circuit Court
LC No. 99-165135-FC
STEPHEN J. MCNALLY,
Defendant-Appellant.
Before: White, P.J., and Sawyer and Saad, JJ.
PER CURIAM.
The jury convicted defendant of second-degree murder, MCL 750.317, and failure to stop
at the scene of a serious injury accident, MCL 257.617. The judge sentenced defendant to
concurrent prison terms of twenty to fifty years for the murder conviction and two to five years
for the failure to stop conviction. He appeals as of right. We affirm.
Defendant argues that, during the prosecution’s case-in-chief, the prosecutor improperly
elicited evidence from three witnesses concerning his post-arrest silence and his failure to tell
police his version of the events. Defendant did not object to the challenged testimony at trial and
has not demonstrated outcome-determinative plain error on appeal. People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999). The challenged testimony did not concern silence during
custodial interrogation or silence in reliance on Miranda1 warnings. Therefore, defendant’s
silence was not constitutionally protected. People v Schollaert, 194 Mich App 158, 164-165;
486 NW2d 312 (1992); People v Stewart (On Remand), 219 Mich App 38,43; 555 NW2d 715
(1996). Defendant also argues that defense counsel’s failure to object amounted to ineffective
assistance of counsel. In light of our conclusion that the testimony was admissible, we do not
agree that defense counsel was ineffective for failing to object. Even if the evidence were
inadmissible, the outcome was not effective.
Defendant also argues that the prosecution’s comparison of the defense to a “tuna noodle
casserole” as improper. “A prosecutor may not suggest that defense counsel is intentionally
attempting to mislead the jury.” People v Watson, ___ Mich App ___; ___ NW2d ___ (Docket
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
-1-
No. 218218, issued 5/4/2001), slip op at 10. Nevertheless, because defense counsel did not
object to the argument, defendant must demonstrate outcome-determinative plain error in order
to avoid forfeiture of the issue. Carines, supra. “No error requiring reversal will be found if the
prejudicial effect of the prosecutor’s comments could have been cured by a timely instruction.”
People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000). Here, a timely instruction by
the trial judge would have dispelled any potential prejudice to defendant. Furthermore, we are
not persuaded that the comment was so inflammatory that it affected defendant’s substantial
rights. Carines, supra. Accordingly, reversal is not warranted.
Affirmed.
/s/ Helene N. White
/s/ David H. Sawyer
/s/ Henry William Saad
-2-
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