Preview:

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ARTHUR GEDER BROWN, Defendant-Appellant.

UNPUBLISHED March 13, 2012

No. 302086 Kent Circuit Court LC No. 10-005354-FH

Before: METER, P.J., and FITZGERALD and MARKEY, JJ. PER CURIAM. Defendant appeals by right his jury convictions of possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv); possession of less than 25 grams of cocaine, MCL 333.7401(2)(a)(v); maintaining a drug house, MCL 333.7405(1)(d); and possession of a firearm by a felon, MCL 750.224f. The trial court sentenced defendant as an habitual offender, fourth offense, MCL 769.12, and as a controlled substance second offender, MCL 333.7413(2), to 6 to 40 years' imprisonment; 3 to 15 years' imprisonment for the possession of a controlled substance conviction; 3 to 15 years' imprisonment for the maintaining a drug house conviction; and 3 to 15 years' imprisonment for the possession of a firearm by a felon conviction. We affirm. On April 30, 2010, defendant was the target of a police investigation into the sale of narcotics from an apartment located at 35 Palmer Street in Grand Rapids. During this investigation, police established surveillance of the apartment and sent an undercover agent using marked bills to execute a controlled drug buy at the apartment. Later that day, the police arrested defendant after he left the apartment. Meanwhile, other police officers entered the apartment and found defendant's brother, Michael Vinson, as well as various narcotics, including cocaine and heroin. The police also found mail addressed to defendant at the apartment's address. Vinson and defendant were both charged, but Vinson pleaded guilty before trial. At trial, Vinson testified that the apartment belonged to defendant and that defendant sold drugs from it. Detectives Maureen O'Brien and Todd Butler testified regarding their knowledge of drug transactions and characteristics that are generally consistent with drug trafficking. The detectives also testified about their personal observations regarding this case.

-1-

Defendant argues that he was denied the effective assistance of counsel because defense counsel failed to object to Detective O'Brien's testimony regarding information that she received from neighbors and an informant, which defendant argues violated the rule against hearsay and also defendant's right to confront an adverse witness. Defendant alternatively argues that allowing this testimony was plain error that affected his substantial rights. We disagree. Defendant preserved his ineffective assistance of counsel claim by moving for a Ginther hearing. 1 People v Horn, 279 Mich App 31, 38; 755 NW2d 212 (2008). Because we denied defendant's motion, however, our review of defendant's ineffective assistance of counsel claim is limited to plain errors apparent in the record. Id. Defendant's alternative claim that the trial court erred by admitting the testimony in violation of Michigan's evidentiary rule against hearsay, and defendant's right of confrontation is unpreserved because he did not object to the witness' testimony on these bases at trial. People v Bauder, 269 Mich App 174, 177-178; 712 NW2d 506 (2005). Thus, we review defendant's alternative claim for plain error affecting defendant's substantial rights. People v Payne, 285 Mich App 181, 199; 774 NW2d 714 (2009). Under the plain error rule, defendant must show that the trial court committed a plain error that "affected the outcome of lower court proceedings." Id. "The right to counsel guaranteed by the United States and Michigan Constitutions, US Const, Am VI; Const 1963, art 1,

Download PEOPLE OF MI V ARTHUR GEDER BROWN.pdf

Michigan Law