PEOPLE OF MI V CYNTHIA LEE MCDONNELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 29, 2002
Plaintiff-Appellee,
v
No. 226401
Leelanau Circuit Court
LC No. 99-001061-FC
CYNTHIA LEE McDONNELL,
Defendant-Appellant.
Before: Meter, P.J., and Markey and Owens, JJ.
PER CURIAM.
Defendant appeals by right from her conviction by a jury of first-degree, premeditated
murder, MCL 750.316, for which the trial court sentenced her to life imprisonment without
parole. We affirm.
Defendant first argues that the trial court erroneously admitted testimony that defendant
had referred to the victim, her husband, by abusive and derogatory names. Defendant contends
that the testimony was irrelevant and therefore inadmissible. We review a trial court’s decision
to admit evidence for an abuse of discretion. People v Herndon, 246 Mich App 371, 406; 633
NW2d 376 (2001).
Relevant evidence is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” MRE 401; see also People v VanderVliet, 444 Mich 52, 60; 508
NW2d 114 (1993), modified on other grounds 445 Mich 1205 (1994). “Under this broad
definition, evidence is admissible if it is helpful in throwing light on any material point.” People
v Aldrich, 246 Mich App 101, 114; 631 NW2d 67 (2001).
The trial court in the instant case did not abuse its discretion by admitting the challenged
testimony. Evidence of marital discord is relevant in a murder trial involving a married couple,
either to show motive or as circumstantial evidence of premeditation and deliberation. See
People v Fisher, 449 Mich 441, 453; 537 NW2d 577 (1995). Whether the marital discord would
show a motive for murder is an issue of weight, not admissibility. Id.
Defendant also argues that the testimony should have been excluded because it was
unfairly prejudicial. However, this issue is unpreserved for appeal because defendant objected to
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the testimony below solely on relevancy grounds. See People v Griffin, 235 Mich App 27, 44;
597 NW2d 176 (1999) (“[t]o preserve an evidentiary issue for appeal, the party opposing the
admission of evidence must object at trial on the same basis that the party asserts on appeal”).
To avoid forfeiture of this unpreserved issue, defendant must demonstrate that (1) an error
occurred; (2) the error was plain, i.e., clear or obvious; and (3) the plain error likely affected the
outcome of the case. People v Wyngaard, 462 Mich 659, 668; 614 NW2d 143 (2000); People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Defendant has not satisfied these elements. Indeed, because binding and applicable
precedent supported admission of the testimony, see Fisher, supra at 451-453, no clear or
obvious error occurred. Moreover, the jury heard ample additional evidence to support its
verdict, including (1) defendant’s incredible and varied stories regarding the victim’s death; (2)
evidence regarding the unlikelihood of suicide, given that the gunshot wound was in the back of
the victim’s head; (3) defendant’s admission to police that she had tried to make the scene look
like that of a robbery/homicide for insurance and last rites purposes immediately after
discovering her husband’s dead body; (4) defendant’s mentioning on the night after the victim’s
death that she was writing a book about how to commit the perfect murder; (5) evidence that
defendant had withdrawn funds from a trust established for the benefit of the victim’s cousin;
and (6) the absence of any plausible competing explanation for the victim’s death. Under the
circumstances, the challenged evidence did not likely affect the outcome of the case. Reversal is
unwarranted. Wyngaard, supra at 668.
Defendant additionally argues that her trial attorney rendered ineffective assistance of
counsel by failing to object to the testimony on the basis of its potential for unfair prejudice. To
establish ineffective assistance of counsel, a defendant must show that his counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms, and that,
but for counsel’s error or errors, it is reasonably probable that the outcome of the proceedings
would have been different. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000).
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise. Id. at 302.
Defendant has not overcome the presumption that her counsel rendered effective
assistance. Indeed, the challenged testimony was admissible under Fisher, supra at 451-453, and
an ineffective assistance of counsel claim cannot be premised on an attorney’s failure to make a
futile objection. People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998). Moreover,
defendant has not shown a reasonable probability that the outcome of the trial would have
differed but for counsel’s alleged error, given the abundance of additional evidence supporting
the jury’s verdict. Reversal is unwarranted. Toma, supra 303.
Next, defendant argues that the trial court erred by failing to give a requested special jury
instruction. This Court reviews jury instructions as a whole. People v Davis, 199 Mich App
502, 515; 503 NW2d 457 (1993). Even if imperfect, instructions do not require reversal if “they
fairly presented the issues to be tried and sufficiently protected the defendant’s rights.” Id.
The requested instruction would have allowed the jury to infer that the top sheet and
comforter from the bed on which the victim’s body was found, because they were not produced
as evidence, could have been adverse to the prosecution. However, an adverse inference
instruction is inappropriate if the failure to produce the evidence was not a result of prosecutorial
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or police bad faith.1 See generally Davis, supra at 515. No bad faith is apparent here. Indeed,
the prosecution did not have a duty to preserve this evidence because it had no apparent
exculpatory value. People v Stoney, 157 Mich App 721, 726; 403 NW2d 212 (1987). Police are
not required to seek and find exculpatory evidence. People v Sawyer, 222 Mich App 1, 6; 564
NW2d 62 (1997). The trial court did not abuse its discretion by failing to give the requested
instruction.
Finally, defendant argues that the trial court abused its discretion by excluding evidence
of a bankruptcy petition that the victim had filed on his cousin’s behalf. Defendant contends that
the victim’s failure to report on the petition the existence of a depleted trust for which he was the
trustee might have suggested a motive to commit suicide. However, because the connection
between the bankruptcy petition and defendant’s alleged suicide was attenuated at best,2 the trial
court did not abuse its discretion in excluding the challenged evidence. Indeed, a decision on a
close evidentiary question ordinarily cannot be considered an abuse of discretion.3 People v
Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000).
Affirmed.
/s/ Patrick M. Meter
/s/ Jane E. Markey
/s/ Donald S. Owens
1
We note that defendant herself washed the top sheet and comforter.
2
In fact, it is not even clear that the trust was required to be reported on the bankruptcy petition.
3
Defendant also contends, briefly, that the exclusion of the bankruptcy petition prevented her
from proving that the victim was in control of the trust. However, the jury saw photographic and
documentary evidence that defendant had made several bank withdrawals from the trust.
Evidence that the victim was the one authorized to control the funds only proves the point,
unfavorable to defendant, that defendant’s documented withdrawals were unauthorized.
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