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A Better Partnership
December 23, 2013

Defendant waives right to appellate review of in limine ruling on admissibility of conviction when he fails to take the stand

In People v. McDonald, the defendant chose not to take the stand in his own defense because the trial court had ruled in limine that his prior conviction would be admissible if he took the stand. On appeal, the defendant argued that his conviction should be overturned because the trial court’s erroneous ruling in limine had prevented him from testifying. The Michigan Court of Appeals held that a failure to testify and preserve the issue was a waiver of his Fifth Amendment right. The Court reasoned that it would be impossible to review the error without the defendant actually testifying and the prosecution actually offering the conviction as evidence because of the lack of a record to review. The court noted that the trial court was free to reverse its decision at the time the defendant gave his testimony, and that it was not a certainty that the prosecutor would offer the evidence.
 
The defendant also objected to the fact that the trial court had denied his motion for the appointment of an expert. The defendant had wanted to bring an expert to testify that the defendant was not the major contributor of DNA on the gun, which he was accused of using in the robbery. The Court found that the trial court had not abused its discretion by failing to appoint an expert for the witness because the prosecution’s DNA expert had already testified to the fact that there were at least three DNA donors and that she could neither exclude or include the defendant as a donor. Accordingly, the court found that the additional testimony the defendant’s expert could give would not have excluded him and would not have provided more evidence then had already been provided.  Therefore, the trial court did not err by denying the defendant’s motion.
 
Additionally, the defendant made several other meritless arguments. First, he argued that he had been deprived of an impartial decision-maker because the trial court had asked the witnesses questions in a way that was favorable to the prosecution. The Court disagreed finding that the trial court had only questioned witnesses in order to clarify testimony and elicit additional responses. Second, the defendant argued that he had been prejudiced by the prosecutor’s repetitious use of the term parolee for describing the defendant. The Court found his argument without merit because he had stipulated to his prior felony conviction, and the jury had been instructed to not use that information for any other purpose then to establish the “felony” element for felon in possession. Third, the defendant argued that his confession, that he had touched the gun with his elbow, was in violation of his Miranda rights because he was in police custody and had been questioned by the officer when the confession was made. The Court also found this argument without merit, finding that the confession had been voluntarily made several minutes after questioning and that the officer’s question of “would you submit to a DNA test” was not the type of question that the officer would have or should have known was likely to elicit an incriminating response. Accordingly, the Court affirmed the lower court’s ruling.

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