PEOPLE OF MI V DAVID ANTHONY GUERRA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
April 8, 2003
9:10 a.m.
Plaintiff-Appellee,
v
No. 223401
Genesee Circuit Court
LC No. 99-004399-FH
ISRAEL J. GONZALEZ,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 223402
Genesee Circuit Court
LC No. 99-004416-FH
DAVID ANTHONY GUERRA,
Defendant-Appellant.
Updated Copy
May 23, 2003
Before: White, P.J., and Kelly and R.S. Gribbs*, JJ.
WHITE, P.J. (concurring).
While I agree with the result reached by the majority, I write separately because my
reasoning differs on several issues.
Regarding evidence of the criminal activities of others, I agree that evidence concerning
the album seized from Jose Diaz's home was relevant and admissible. I find no error requiring
reversal in the admission of the other evidence challenged on appeal because I conclude that the
admission of evidence of guns found in the search was harmless, and that witness Theresa
Goodman provided adequate foundation for testimony concerning the drug transactions with
Diaz and Mary Parrish.
I agree that any error in admitting Lt. Gary Hagler's testimony regarding various
individuals' membership in the gang did not affect the outcome of the trial. People v Lukity, 460
Mich 484, 495; 596 NW2d 607 (1999).
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I conclude that the trial court erred in refusing to allow defendant Guerra to question
Parrish regarding her plea agreement. However, the error did not affect the outcome of the trial.
Id.
Regarding the similar-acts evidence and the jury's consideration of the evidence in
relation to the count of possession with intent to deliver, I find no error requiring reversal under
the circumstances because defendant Guerra did not request a limiting instruction when the
evidence was admitted, and objects to the evidence only on the basis of failure to give the notice
required by MRE 404(b).
Lastly, with regard to defendant Guerra's motion to suppress, I conclude that the initial
search was far more expansive than is permissible as a protective sweep. Maryland v Buie, 494
US 325, 337; 110 S Ct 1093; 108 L Ed 2d 276 (1990); People v Shaw, 188 Mich App 520, 524525; 470 NW2d 90 (1991). However, because the marijuana that formed the basis for the search
warrant was observed in plain view while the officers were engaged in permissible, protective
activity, I agree that the denial of the motion to suppress should be affirmed.
/s/ Helene N. White
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