PEOPLE OF MI V ZACHARY ALLAN MORGAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 25, 2003
Plaintiff-Appellee,
v
No. 242136
Genesee Circuit Court
LC No. 02-009366-FC
ZACHARY ALLAN MORGAN,
Defendant-Appellant.
Before: Sawyer, P.J., and Griffin and Smolenski, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of felonious assault, MCL 750.82,
carrying a concealed weapon (CCW), MCL 750.227, fleeing and eluding a police officer, MCL
750.479(A)(3), assault with intent to commit murder, MCL 750.83, and possession of a firearm
during the commission of a felony, MCL 750.227b. He was sentenced to two years’
imprisonment for the felony-firearm conviction, to be served consecutive to concurrent prison
terms of twenty-four to forty-eight months for the felonious assault conviction, twenty-four to
sixty months for the CCW and fleeing and eluding convictions, and 180 to 360 months for the
assault with intent to commit murder conviction. He appeals as of right. We affirm.
Defendant first argues that reversal is required because there were references to the fact
that he was arrested for an unrelated matter. Because defendant failed to object to the challenged
testimony at trial, this issue is unpreserved. Therefore, we review the issue under the plain error
rule. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999):
To avoid forfeiture under the plain error rule, three requirements must be
met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3)
and the plain error affected substantial rights. The third requirement generally
requires a showing of prejudice, i.e., that the error affected the outcome of the
lower court proceedings. “It is the defendant rather than the Government who
bears the burden of persuasion with respect to prejudice.” Finally, once a
defendant satisfies these three requirements, an appellate court must exercise its
discretion in deciding whether to reverse. Reversal is warranted only when the
plain, forfeited error resulted in the conviction of an actually innocent defendant
or when the error “ ‘seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings’ independent of the defendant’s innocence.” [Citations
omitted.]
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Defendant’s reliance on People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973), is
misplaced because that case is limited to certain circumstances where evidence of a prior arrest is
used for the purpose of impeaching a witness' credibility. People v Layher, 464 Mich 756, 766768; 631 NW2d 281 (2001). Here, the references were not intended to impeach either a witness’
or defendant’s credibility. Rather, they were made to explain the circumstances under which the
police obtained the gun that was used in the charged incident.
To the extent the evidence could be considered plain error under MRE 404(b), because
evidence that the gun was obtained under circumstances involving an arrest on an unrelated
matter was not itself material and, therefore, not relevant, MRE 401; People v Crawford, 458
Mich 376, 388; 582 NW2d 785 (1998); People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114
(1993), mod 445 Mich 1205 (1994), we are satisfied that defendant’s substantial rights were not
affected. First, the nature of the matter for which defendant was arrested was not disclosed to the
jury, thereby minimizing any prejudice. Second, the trial court gave a cautionary instruction
whereby the jury was instructed that it could not consider the evidence of defendant’s unrelated
arrest for an improper purpose, i.e., that defendant was a bad person or was likely to commit
crimes. The court’s limiting instruction sufficiently protected defendant’s right to a fair trial.
People v Magyar, 250 Mich App 408, 416; 648 NW2d 215 (2002).
We also reject defendant’s claim of ineffective assistance of counsel in connection with
counsel’s failure to object to the references to defendant’s arrest. Counsel may have decided not
to object in recognition that the matter for which defendant was arrested was not disclosed and as
not to draw undue attention to the matter. Defendant has not overcome the presumption of sound
strategy. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001).
Next, defendant argues that reversal is required because the trial court failed to appoint
substitute counsel. We disagree. A trial court’s decision regarding substitution of counsel will
not be disturbed absent an abuse of discretion. People v Traylor, 245 Mich App 460, 462; 628
NW2d 120 (2001). Appointment of substitute counsel is warranted only on 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. Id.
Defendant made his request for new counsel on the third day of trial. Defendant asserts
that, instead of considering whether there was good cause to appoint another attorney, the trial
court erroneously based its ruling only on the fact that he did not have another attorney ready to
immediately take over the case. We disagree.
The trial court gave defendant an opportunity to voice his complaints with defense
counsel on the record. Defendant failed to identify a legitimate difference of opinion with
counsel concerning a fundamental trial tactic, and the trial court commented that counsel had
performed competently at trial and it saw no reason to appoint another attorney. Thus, the record
reflects that the trial court did consider the issue of good cause for substitution, but concluded
that good cause had not been shown. The trial court also inquired whether another attorney was
immediately available, which was relevant in considering whether substitution would
unreasonably disrupt the judicial process. As the trial court observed, where defendant’s request
for new counsel was made in midtrial, and where new counsel was not immediately available, a
late substitution would have required the court to declare a mistrial and unreasonably disrupt the
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judicial process. The trial court did not abuse its discretion in denying defendant’s request for
new counsel.
Affirmed.
/s/ David H. Sawyer
/s/ Richard Allen Griffin
/s/ Michael R. Smolenski
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