PEOPLE OF MI V STEPHEN J MCNALLY
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Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice
Maura D. Corrigan
Opinion
Justices
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 4, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 120021
STEPHEN J. MCNALLY,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
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
defendant
1
was
convictions.
convicted
of
Following
a
second-degree
jury
trial,
murder,
MCL
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed
2d 694 (1966).
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
contending
that
the
testimony
regarding
appealed
these
prosecutor
his
convictions,
improperly
elicited
silence.
However,
pre-Miranda
pursuant to its decision in People v Schollaert, 194 Mich
App 158, 164-165; 486 NW2d 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
Miranda
questions
silence.
regarding
Accordingly,
we
defendant’s
affirm
pre-
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.
10:00
P.M.,
fast-food
both men were intoxicated.
restaurant
destination,
exchanged
the
punches,
two
and
which
After visiting a
before
men
reaching
had
disagreement.
a
prompted
By
VanDorn
their
to
leave
next
They
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.
defendant
reached
VanDorn,
the
2
truck
was
By the time
traveling
at
approximately forty-five miles an hour.
defendant
steered
across
striking and killing him.
the
At that point,
centerline
at
VanDorn,
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.
prosecutor
called
To rebut these explanations, the
several
mechanics
who
examined
truck’s brakes and concluded they were not defective.
the
To
further rebut these explanations, the prosecutor, during
his case-in-chief, elicited the following testimony of the
arresting officer, Officer Cacicedo:1
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.
1
No.
The prosecutor elicited similar testimony from
Officers Hillman and Siladke, both of whom assisted in the
stop of defendant’s vehicle.
Q. Did he ever indicate
blacked out that evening?
A.
to
you
that
he
No.
Q.
couldn’t
evening?
Did he ever indicate to you that he
remember things that happened that
A.
No.
Defendant never objected to this testimony, nor did
the prosecutor make any further comment at trial concerning
this testimony.
murder
and
Defendant was convicted of second-degree
leaving
serious injury.
the
scene
of
an
accident
involving
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
165,2 the Court of Appeals affirmed defendant’s convictions
and
stated,
silence
reliance
“The
during
on
challenged
custodial
Miranda
testimony
interrogation
warnings.
2
did
or
Therefore,
not
concern
silence
in
defendant’s
We have no occasion to consider the decision reached
by the Court of Appeals in Schollaert in light of our
disposition of this case under Carines.
2
silence was not constitutionally protected.”
opinion
per
223059).
curium,
issued
July
20,
Unpublished
2001
(Docket
No.
This Court granted defendant’s application for
leave to appeal.
467 Mich 896 (2002).
II. STANDARD OF REVIEW
Unpreserved
claims
of
constitutional
reviewed for “plain error.”
error
are
People v Carines, 460 Mich
750, 764; 597 NW2d 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:
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
3
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.
if
he
just
gunned
it.”
According
to
It was like
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.
lights
come
on
before
Nor did he see any brake
defendant
struck
the
victim.
According to Dalling, defendant did not make any attempt to
swerve away from the victim.
4
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,
witnesses
the
who
mechanically
concluded
worn,
testified
in
the
introduced
that
defendant’s
Specifically,
sound.
that
but
prosecutor
one
steering
working
and
braking
condition.
two
expert
truck
expert
was
witness
mechanisms
Neither
of
were
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 preMiranda silence, even if error, did not affect the outcome
of the lower court proceedings.
5
In other words, defendant
would
have
prosecutor’s
silence.
been
found
questions
Therefore,
guilty
regarding
because
independent
defendant’s
defendant
has
of
the
pre-Miranda
not
met
his
burden of establishing that the alleged error affected the
outcome of the lower court proceedings, he is unable to
avoid forfeiture.3
He has forfeited his claim of error by
not objecting to the prosecutor’s questions regarding his
pre-Miranda silence.4
3
Because we conclude that the prosecutor’s questions
did not affect the outcome of the lower court proceedings,
it is unnecessary to determine if the prosecutor’s
questions were permissible and “it is an undisputed
principle
of
judicial
review
that
questions
of
constitutionality should not be decided if the case may be
disposed of on other grounds.”
J & J Construction Co v
Bricklayers and Allied Craftsmen, 468 Mich 722, 734; 664
NW2d 728 (2003).
In response to the partial concurrence and partial
dissent, we can only state that it is not to "evade" a
constitutional
issue
for
this
Court,
after
full
consideration of the arguments, to reach the conclusion
that a matter may adequately be resolved by means other
than constitutional analysis. Indeed, it is incumbent on a
court of law to do exactly this.
While it would be
convenient if the decisions of this Court were always
defined by the terms of our grant orders, in the real
world, in which arguments are sometimes unanticipated and
in which briefs and oral arguments often shed new light
upon the issues presented by a case, no responsible court
can decide cases in such a constricted manner.
No such
court can be oblivious to the fact that its initial
estimation of the issues presented by a case may have been
imperfect.
4
Because
the
admission
of
evidence
regarding
defendant’s pre-Miranda silence did not affect the outcome
of the lower court proceedings, i.e., defendant was not
6
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
error.
proceedings,
defendant
has
forfeited
his
claim
of
Accordingly, we affirm defendant’s convictions.
Stephen J. Markman
Maura D. Corrigan
Michael F. Cavanagh
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
prejudiced, defendant’s claim of ineffective assistance of
counsel is also without merit. People v Pickens, 446 Mich
298, 338; 521 NW2d 797 (1994).
7
S T A T E
M I C H I G A N
O F
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 120021
STEPHEN J. MCNALLY,
Defendant-Appellant.
_______________________________
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-Miranda1 silence is
admissible in a prosecutor’s case-in-chief.
I
write
majority’s
separately
choice
to
because
evade
and
I
disagree
fail
to
with
the
decide
the
substantive issue that this Court specifically ordered to
be briefed and argued in this case.
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed
2d 694 (1966).
In October 2002, this Court granted leave to appeal,
specifically
limiting
the
grant
to
whether
defendant’s
postarrest, pre-Miranda silence was admissible and whether
defendant was denied the effective assistance of counsel
because trial counsel failed to object to the admission of
testimony relating to defendant’s silence.2
In April of
2003 this Court heard oral argument in the case.
The Court
failed to issue a decision by July 31, 2003, and ordered
that the case be set for reargument and resubmission.3
The
parties again argued this case in October 2003, addressing
the same questions—whether it was error for the prosecutor
to
have
silence
introduced
and
whether
defendant’s
defendant
postarrest,
was
denied
pre-Miranda
the
effective
2
The October 30, 2003, order granting leave read: “On
order of the Court, the delayed application for leave to
appeal from the July 20, 2001 decision of the Court of
Appeals is considered, and it is GRANTED, limited to Issue
I in the defendant’s application.”
654 NW2d 328 (2002).
Defendant’s Issue I on his application for leave to appeal
read:
Defendant was denied his state and federal
constitutional rights to due process and a fair
trial, where the prosecutor elicited evidence in
his case-in-chief of defendant’s post-arrest
silence; defendant was also denied his state and
federal constitutional right to the effective
assistance of counsel, where defense counsel
failed to object.
3
469 Mich 864 (2003).
2
assistance
of
counsel
because
trial
counsel
failed
to
object to the evidence of defendant’s silence.
The
majority
now
chooses
to
dodge
the
substantive
issue—whether the defendant’s silence was admissible in the
prosecutor’s case-in-chief—by skipping over the first two
factors in People v Carines, 460 Mich 750, 763; 597 NW2d
130 (1999), whether error occurred and whether the error
was plain, and moving directly to whether any hypothetical
error would be harmless.4
In declining to address whether
error occurred, the majority leaves unanswered the question
whether a defendant’s postarrest, pre-Miranda
silence is
admissible in the prosecutor’s case-in-chief.
The
majority
justifies
its
refusal
to
decide
the
substantive issue by referencing a principle of judicial
review that “questions of constitutionality should not be
decided if the case may be disposed of on other grounds.”
J & J Constr Co v Bricklayers and Allied Craftsmen, 468
Mich 722, 734; 664 NW2d 728 (2003).
But that general principle does not apply here.
The
phrase used by the majority is a convenient and often-used
4
The three requirements to avoid forfeiture of an
issue under the plain error rule are “1) error must have
occurred, 2) the error was plain, i.e., clear or obvious,
3) and the plain error affected substantial rights.”
Carines, supra at 763.
3
shorthand
for
the
principle
propriety,
as
well
as
that
“[c]onsiderations
long-established
practice,
of
demand
that we refrain from passing upon the constitutionality of
an act of Congress [or the Legislature] unless obliged to
do so in the proper performance of our judicial function,
when the question is raised by a party whose interests
entitle him to raise it.”
Ashwander v Tennessee Valley
Authority, 297 US 288, 341; 56 S Ct 466; 80 L Ed 688 (1936)
(Brandeis, J., concurring).
One
of
Michigan
the
was
earliest
in
consideration
of
applications
1874,
the
when
this
constitutional
of
this
Court
rule
in
said
might
question
“any
have
been waived, upon the ground that a legislative act should
not
be
declared
presented
in
unconstitutional
such
a
imperative . . . .”
form
as
to
unless
the
render
Weimer v Bunbury,
point
its
is
decision
30 Mich 201, 218
(1874).
The reasons behind such judicial restraint include the
delicacy
and
finality
of
judicial
review
of
legislative
acts, separation of powers concerns raised by ruling on the
acts of the other two branches of government, and the need
to show respect for the other two branches of government.
See Rescue Army v Municipal Court of Los Angeles, 331 US
549,
571;
Kloppenberg,
67
S
Ct
Avoiding
1409;
91
serious
4
L
Ed
1666
constitutional
(1947),
and
doubts:
The
supreme
court’s
construction
of
statutes
raising
free
speech concerns, 30 UC Davis L R 1, 13-14 (Fall, 1996).
These concerns are not implicated here, because the
constitutionality
of
Governor
at
is
not
an
act
of
issue.
the
In
Legislature
the
whether
deciding
or
the
defendant’s postarrest, pre-Miranda silence was admissible
in the prosecutor’s case-in-chief, the Court would not be
ruling
on
the
validity
of
a
legislative
or
executive
decree, but on a lower court’s decision whether to admit
certain
testimony.
See
Kloppenberg,
Avoiding
constitutional questions, 35 B C L R 1003, 1054 (1994).
Evading the twice-argued question, and not resolving
this
substantive
issue,
leaves
guidance from this Court.
the
lower
courts
without
That drawback is illustrated by
the fact that in May 2003 this Court ordered that People v
Maxon be held in abeyance for this case.
662 NW2d 753 (2003).
People v Maxon,
In Maxon the question is whether
defendant’s prearrest, pre-Miranda silence was admissible
during
the
prosecutor’s
case-in-chief.
By
refusing
to
decide the issue now, the Court merely postpones the issue
until another term.
This case has been in this Court for 1 ½ years.
Court
granted
argument,
and
leave
to
appeal
held
the
case
5
in
over
the
case,
for
heard
reargument
The
oral
and
resubmission.
The majority now affirms the decision of the
Court of Appeals on the ground of harmless error.
The
majority could have simply denied leave in October 2003.
By avoiding the substantive issue the majority has wasted
the time and resources of the parties and this Court.
The
issue
whether
the
defendant’s postarrest, pre-Miranda
squarely before the Court.
argued, and reargued.
prosecutor’s
use
of
silence was error is
This case has been briefed,
The parties and the people deserve a
clear answer.
Elizabeth A. Weaver
6
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