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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V BRYAN CHARLES ADAMS, Defendant-Appellant.

UNPUBLISHED January 25, 2011

No. 295027 Genesee Circuit Court LC No. 09-024587-FH

Before: O'CONNELL, P.J., and SAAD and BECKERING, JJ. PER CURIAM. Defendant appeals his jury trial conviction of operating a motor vehicle under the influence of intoxicating liquor ("OUIL"), third offense, MCL 257.625(1). The trial court sentenced defendant to 36 months of probation. For the reasons set forth below, we affirm. A. REQUEST FOR REPLACEMENT COUNSEL Defendant argues that the trial court erred when it denied his request for new counsel. We review a trial court's decision regarding the substitution of counsel for an abuse of discretion. People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). A trial court abuses its discretion when it reaches a decision resulting in an outcome that falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). As this Court explained in People v Bauder, 269 Mich App 174, 193; 712 NW2d 506 (2005): An indigent defendant is guaranteed the right to counsel; however, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced. Appointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process. Good cause exists where a legitimate difference of opinion develops between a defendant and his appointed counsel with regard to a fundamental trial tactic. Here, defendant never established good cause for substitution of counsel or that there was a difference of opinion with respect to a fundamental trial tactic. Instead, defendant merely recited a litany of reasons why he felt uncomfortable with his trial counsel, all of which are unpersuasive. Defendant complained that this was defense counsel's first trial. However, there -1-

is no requirement that a defendant receive representation by an experienced trial lawyer, only a competent one. See People v Kevorkian, 248 Mich App 373, 415; 639 NW2d 291 (2001). Defendant also asserted that he had requested discovery of evidence, witnesses, and statements, but defense counsel replied that he provided all of this discovery to defendant. Though defendant maintained that he had not received a dash cam video from the police, no such evidence exists because the Flint police vehicles involved with this traffic stop did not have dash cam video cameras. Defendant further asserted that defense counsel had not fully investigated a fingerprint technician who would testify about certain admissions attributed to defendant. However, the prosecutor stated that the fingerprint technician would be called only to testify about issues related to fingerprints, not matters involving any admissions made by defendant. Defendant claimed that counsel should have obtained his vehicle identification number, the relevancy of which is unclear, but, in any case, defense counsel did get the number from defendant's vehicle. Finally, defendant maintained that defense counsel never procured a witness, Rashonda Haines, to testify at trial. However, trial counsel and defendant admitted that this witness was in Kentucky and, after exerting due diligence, efforts to locate her and bring her to Michigan were unsuccessful. In sum, none of defendant's concerns related to any difference of opinion with respect to any fundamental trial tactic and all of his complaints were either irrelevant or properly addressed by counsel. Because defendant did not meet his burden of showing good cause, the trial court did not abuse its discretion when it denied defendant's request for substitute counsel. B. OUT-OF-COURT, SIGNED STATEMENT Defendant argues that the trial court erred when it failed to admit a notarized letter from Rashonda Haines. A trial court's decision regarding the admissibility of evidence is reviewed for an abuse of discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). We hold that the trial court correctly excluded the letter as hearsay. Hearsay is an out-ofcourt statement that is offered to prove the truth of the matter asserted. MRE 801; People v Stamper, 480 Mich 1, 4; 742 NW2d 607 (2007). Hearsay is generally not admissible unless a recognized exception applies. People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). The catchall is codified both under MRE 803(24) (availability of declarant is immaterial) and MRE 804(b)(7) (declarant is unavailable): A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of the statement makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the -2-

adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. The most important requirement is the first one, that the proffered statement have circumstantial guarantees of trustworthiness equivalent to those of the categorical hearsay exceptions. People v Katt, 468 Mich 272, 291; 662 NW2d 12 (2003). Here, the proffered statement is devoid of any guarantees of trustworthiness. Some relevant factors to consider the trustworthiness of a statement include the following: (1) the spontaneity of the statements, (2) the consistency of the statements, (3) lack of motive to fabricate or lack of bias, (4) the reason the declarant cannot testify, (5) the voluntariness of the statements, i.e., whether they were made in response to leading questions or made under undue influence, (6) personal knowledge of the declarant about the matter on which he spoke, (7) to whom the statements were made, and (8) the time from within which the statements were made. [People v Geno, 261 Mich App 624, 634; 683 NW2d 687 (2004).] Here, the proffered statement was prepared by an acquaintance of defendant for the sole purpose of this trial. It was not spontaneously made, and the motive to fabricate is self evident. Additionally, defendant cannot meet the MRE 803(24)(B) or MRE 804(b)(7)(B) requirement that the statement be more probative on the point for which it is offered than any other evidence. Defendant testified that the license plate was working when he picked up the vehicle, which is what Haines stated in her letter. Thus, the proffered statement is not more probative than what defendant already entered into evidence. Because the statement lacks any indicia of reliability and the statement is not more probative than any other evidence available to defendant, the trial court did not abuse its discretion when it failed to admit the statement. C. LEGALITY OF TRAFFIC STOP Defendant argues that the traffic stop was illegal and the trial court should have suppressed everything resulting from the stop. "To the extent a lower court's decision on a motion to suppress is based on an interpretation of law," review is de novo, but any factual findings are reviewed for clear error. People v Kaslowski, 239 Mich App 320, 323; 608 NW2d 539 (2000). In addition, a trial court's ultimate ruling with regard to a motion to suppress is reviewed de novo. People v Davis, 250 Mich App 357, 362; 649 NW2d 94 (2002). The Michigan Constitution and the United States Constitution guarantee that a person shall be free from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1,

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