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No. 120021
| People
of the State of Michigan, |
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John
S. Pallas (248) 858-0681 |
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Plaintiff-Appellee,
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| vs (Appeal
from Ct of Appeals) |
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(Oakland
-- Nichols, R.)
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| Stephen J. McNally, |
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Marla R. McCowan (313) 256-9833 |
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Defendant-Appellant.
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Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
Background
Late one night, Stephen McNally was driving in his truck with Harold
VanDorn. The two men had met in a bar earlier that evening and both
were intoxicated. An altercation developed and they exchanged punches.
VanDorn got out of the truck and started walking. McNally drove a short
distance away from VanDorn, made a U-turn, and then accelerated in VanDorn's
direction. At a speed of approximately 45 mph, McNally drove the truck
over the centerline and ran over VanDorn killing him. McNally was arrested
and prosecuted for murder. At a trial before Oakland County Circuit
Judge Rudy J. Nichols, McNally claimed that the homicide was unintentional
and was caused by a mechanical failure which caused him to lose control
of the truck. The prosecutor, in questioning the arresting officer,
elicited testimony that, at the time of arrest, McNally did not volunteer
that the homicide was an accident caused by a mechanical failure of
the truck. The prosecutor argued that an ordinary citizen normally would
have spoken out at the time of arrest if the homicide truly was an accident.
The jury found McNally guilty of second-degree murder and failure to
stop at the scene of a serious injury accident. He was sentenced to
concurrent prison terms of 20 to 50 years for murder and 2 to 5 years
for failure to stop. McNally appealed. He argued in part that his constitutional
rights to a fair trial and due process were violated. By bringing out
McNally's failure to speak when he was arrested, the prosecutor violated
McNally's privilege against self-incrimination, McNally contended. The
Court of Appeals affirmed the conviction in an unpublished per curiam
opinion. McNally appeals.
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