Whether reckless driving causing death (MCL 750.626(2) & (4)) is a necessarily included lesser offense of second-degree murder; Comment on defendant’s silence; People v McGhee; People v Collier; Harmless error; Cumulative error; Ineffective assistance of counsel

The court held that the trial court did not err in denying defendant’s request for a jury instruction on reckless driving causing death because it is not a necessarily included lesser offense of second-degree murder. Further, the prosecution did not violate his rights to due process and a fair trial by commenting on either his pre-arrest or his post-arrest, post-Miranda silence. Finally, defense counsel was not ineffective for failing to make futile objections. Thus, the court affirmed defendant’s first-degree premeditated murder conviction. It concluded that the “elements of reckless driving causing death are clearly not subsumed by the greater offense of second-degree murder. It is entirely possible to commit the greater offense of second-degree murder without committing the lesser offense of reckless driving causing death. Second-degree murder does not require driving a vehicle in a public space or using a motor vehicle as the instrument of the killing.” As a result, the trial court did not err in refusing to instruct the jury on the cognate offense. As to the prosecution’s use of defendant’s pre-arrest silence, most of the references were about his “pre-arrest conduct of evading police and not reporting [the victim’s] injuries to the 911 dispatcher.” Thus, his silence did not implicate “his Fifth Amendment right or reliance on Miranda warnings. Defendant’s pre-arrest and pre-Miranda silence was not constitutionally protected,” and the prosecution’s discussion of his silence as substantive evidence of his intent did not violate his constitutional rights. In addition, the prosecution’s arguments about his silence were “permissible to impeach defendant’s testimony.” The court further found that the only statement “that could be considered as a reference to defendant’s post-arrest, post-Miranda statements would be that ‘the first time defendant made any statements about this case at all’ was during the trial. Although the prosecutor later stated that defendant’s avoidance of police was evidence of his selfishness, this comment does not imply defendant’s guilt. The prosecutor was referencing the fact that police were not able to establish who the front passenger was during the crash.” Thus, the prosecution did not improperly use evidence of his “post-arrest, post-Miranda silence as direct evidence of his guilt.” The court added that any error would have been harmless.