Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice Justices
Opinion
Maura D. Corrigan 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 convictions. Following a jury trial,
defendant was convicted of second-degree murder, MCL
1
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 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 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 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
2
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 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. No.
1
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 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
165,2 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
2
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.” Unpublished
opinion per curium, issued July 20, 2001 (Docket No.
223059). This Court granted defendant’s application for
leave to appeal. 467 Mich 896 (2002).
II. STANDARD OF REVIEW
Unpreserved claims of constitutional error are
reviewed for “plain error.” 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 questions regarding his
3
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.
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, 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
5
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.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 proceedings, defendant has forfeited his claim of
error. 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 O F M I C H I G A N
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 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.
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 introduced defendant’s postarrest, pre-Miranda
silence and whether defendant was denied 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 that “[c]onsiderations of
propriety, as well as long-established practice, 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 the earliest applications of this rule in
Michigan was in 1874, when this Court said “any
consideration of the constitutional question might have
been waived, upon the ground that a legislative act should
not be declared unconstitutional unless the point is
presented in such a form as to render its decision
imperative . . . .” Weimer v Bunbury, 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; 67 S Ct 1409; 91 L Ed 1666 (1947), and
Kloppenberg, Avoiding serious constitutional doubts: The
4
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 an act of the Legislature or the
Governor is not at issue. In deciding whether 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 the lower courts without
guidance from this Court. 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. People v Maxon,
662 NW2d 753 (2003). 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. The
Court granted leave to appeal in the case, heard oral
argument, and held the case over for reargument and
5
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 prosecutor’s use of
defendant’s postarrest, pre-Miranda silence was error is
squarely before the Court. This case has been briefed,
argued, and reargued. The parties and the people deserve a
clear answer.
Elizabeth A. Weaver
6