PEOPLE OF MI V SETH ELISHA BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 17, 2011
Plaintiff-Appellee,
v
No. 295006
Jackson Circuit Court
LC No. 08-005177-FH
SETH ELISHA BROWN,
Defendant-Appellant.
Before: FITZGERALD, P.J., and O’CONNELL and METER, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions by a jury of arson of a dwelling house,
MCL 750.72, and second-degree home invasion, MCL 750.110a(3). The trial court sentenced
him to concurrent terms of 20 to 30 years’ imprisonment for the arson conviction and 10 to 20
years’ imprisonment for the home-invasion conviction. We affirm.
On September 3, 2008, the Concord Fire Department responded to a fire in a furnished
cabin in a remote area of Jackson County. The fire was determined to be of suspicious origin,
and a specialist fire investigator, Michigan State Police Detective Sergeant Kenneth Hersha, was
called to the scene. Hersha was near the scene because he was investigating an arson that had
occurred the previous day in nearby Pulaski Township. A suspect in that case lived within
eyesight of the burning cabin, causing Hersha concern regarding whether the fires were related.
As he approached the cabin, Hersha saw a young man walking on the road and asked him how to
access the cabin. The man told Hersha that defendant had called him on his cellular telephone
and told him that he (defendant) “did it” and that the police were chasing him.
Hersha examined the structure immediately after the fire was suppressed and identified
two separate points of origin, one on a couch that had been tipped over and burned and one on
the front porch area. Based on the fire and heat patterns that were present throughout the
structure, as well as on the absence of an identifiable accidental cause, Hersha determined that
the fire had been intentionally set.
Defendant and Gail Allen were soon identified as suspects and were apprehended at a
residence located within one-half mile of the cabin. Defendant initially denied involvement,
asserting instead that he had seen someone running from the fire, that he had fought with this
person, and that he then went to the cabin and called 911. However, defendant subsequently
admitted to Hersha that he had used a shovel to break the back window of the cabin and that he
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and Allen had entered through the window, tipped the couch over, and lit the couch and porch on
fire using bug spray and lighter fluid. Defendant also provided a written statement
acknowledging that he and Allen had broken into the cabin, flipped the couch over, and lit it on
fire. Allen was interviewed separately and also eventually confessed, providing an identical
account of the details of the arson.
Defendant first argues that he was denied a fair trial when Hersha testified about the
Pulaski Township arson, which had occurred on the day before the charged offense. Defendant
asserts that this testimony constituted improper “other-acts” evidence under MRE 404(b)(1) and
that its admission served to prejudice the defense by raising the implication that defendant was
involved in the prior incident. However, this issue is waived for appellate review. On crossexamination, defense counsel questioned Hersha at length about Allen’s involvement in the
Pulaski Township arson, eliciting testimony that Allen had confessed to committing both arsons
and had pleaded guilty in both cases, and that defendant was not implicated in the earlier arson.
Defendant relied heavily on this testimony in presenting his defense, postulating in his closing
argument that Allen was the sole perpetrator of both arsons and that defendant was privy to the
details of the instant arson only because Allen had told him or because he was present at the
scene when Allen started the fire. A party may not claim error when he contributes to the
alleged error by plan or negligence, People v Griffin, 235 Mich App 27, 46; 597 NW2d 176
(1999), overruled on other grounds by People v Thompson, 477 Mich 146; 730 NW2d 708
(2007), and he waives alleged error by making affirmative use of otherwise inadmissible
evidence, People v Riley, 465 Mich 442, 448-449; 636 NW2d 514 (2001). Therefore, appellate
relief is precluded. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000); People v
Knapp, 244 Mich App 361, 378; 624 NW2d 227 (2001); People v Fetterley, 229 Mich App 511,
520; 583 NW2d 199 (1998); People v Green, 228 Mich App 684, 691; 580 NW2d 444 (1998).
Defendant additionally contends that trial counsel was ineffective for failing to object to
the admission of the testimony concerning the Pulaski Township arson. Because defendant
failed to move for a new trial or an evidentiary hearing below, his ineffective-assistance claim is
limited to the existing record. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973);
People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). To
prevail on his claim, defendant must show that “counsel’s performance fell below an objective
standard of reasonableness under professional norms” and that but for counsel’s performance,
the outcome of the trial would have been different. People v Seals, 285 Mich App 1, 17; 776
NW2d 314 (2009). Defendant must also show that the result that did occur was fundamentally
unfair or unreliable. Id. Defendant must overcome a strong presumption that counsel’s
performance constituted sound trial strategy. People v Rice, 235 Mich App 429, 444; 597 NW2d
843 (1999).
“Decisions regarding what evidence to present and whether to call or question witnesses
are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76; 601 NW2d
887 (1999). In light of the overwhelming evidence against defendant—including his presence in
the immediate vicinity of the fire, his admission to an acquaintance that he started it, and his
written statement and detailed confession to police—he can neither establish that counsel’s
performance prejudiced his defense nor overcome the presumption that counsel’s strategy, to
portray Allen as the sole offender and defendant as the innocent bystander, was a reasonable one.
See People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002) (discussing the general
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standard for ineffective-assistance claims). That the strategy was ultimately unsuccessful does
not automatically mean that ineffective assistance of counsel occurred. People v Stewart (On
Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
Defendant next argues that he was denied a fair trial and denied his constitutional right of
confrontation by the introduction of hearsay testimony that Allen confessed his involvement in
the instant crimes and that his account of the incident was identical to that provided by
defendant. Defendant failed to object, on Confrontation-Clause grounds or otherwise, to the
admission of the hearsay evidence. Accordingly, this issue is not preserved for appellate review,
People v Payne, 285 Mich App 181, 199; 774 NW2d 714 (2009); People v Bauder, 269 Mich
App 174, 177-178; 712 NW2d 506 (2005), and is therefore reviewed for plain error affecting
defendant’s substantial rights, People v Shafier, 483 Mich 205, 219-220; 768 NW2d 305 (2009);
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). To obtain relief, defendant
must establish that a plain error affected the outcome of the lower-court proceedings;
additionally, reversal is warranted only if defendant is actually innocent or the error has seriously
affected the fairness, integrity, or public reputation of judicial proceedings independent of
defendant’s innocence. Shafier, 483 Mich at 219-220.
“The Confrontation Clause prohibits the admission of all out-of-court testimonial
statements unless the declarant was unavailable at trial and the defendant had a prior opportunity
for cross-examination.” People v Chambers, 277 Mich App 1, 10; 742 NW2d 610 (2007).
Statements made during a police interrogation are testimonial if the circumstances objectively
indicate that the investigation’s primary purpose was to establish past events potentially relevant
to a later criminal prosecution, and not to meet an ongoing emergency. People v Bryant, 483
Mich 132, 139; 768 NW2d 65 (2009), cert granted ___ US ___; 130 S Ct 1685; 176 L Ed 2d 179
(2010); see also People v McPherson, 263 Mich App 124, 132; 687 NW2d 370 (2004), quoting
Crawford v Washington, 541 US 36, 52; 124 S Ct 1354; 158 L Ed 2d 177 (2004) (“‘[s]tatements
taken by police officers in the course of interrogations are . . . testimonial under even a narrow
standard’”). Because Allen did not testify at defendant’s trial, and because there is no suggestion
that he was unavailable and that defendant had a prior opportunity to cross-examine him, the
admission of Hersha’s testimony concerning Allen’s statement violated defendant’s right of
confrontation. McPherson, 263 Mich App at 132.
Nevertheless, we find no basis for reversal. A defendant’s own statement or confession
may be examined on appeal when determining whether a Confrontation Clause violation was
harmless. People v Etheridge, 196 Mich App 43, 47; 492 NW2d 490 (1992). In light of
defendant’s confession and the other evidence against him, the error was harmless beyond a
reasonable doubt. See, e.g., id. at 51.
Finally, defendant argues that he was denied a fair trial when he appeared before the jury
venire wearing prison-issue pants. The record reveals no objection to his clothing before the
empaneling of the jury and before the jury venire viewed him in prison clothing.1 Therefore, this
1
The record indicates that, well into the voir-dire process, defense counsel pointed out that
defendant was wearing “blue pants with an orange stripe” and asked if anyone knew what this
(continued…)
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claim is not preserved for appellate review. People v Shaw, 381 Mich 467, 474-475; 164 NW2d
7 (1969); People v Turner, 144 Mich App 107, 109; 373 NW2d 255 (1985). Generally, when a
defendant makes a timely request to wear civilian clothing, rather than identifiable prison
clothing, at trial, the request must be granted. Estelle v Williams, 425 US 501, 512; 96 S Ct
1691; 48 L Ed 2d 126 (1976); People v Harris, 201 Mich App 147, 151; 505 NW2d 889 (1993).
A defendant who fails to raise such a request, however, may not claim constitutional error:
[T]he particular evil proscribed is compelling a defendant, against his will, to be
tried in jail attire. The reason for this judicial focus upon compulsion is simple;
instances frequently arise where a defendant prefers to stand trial before his peers
in prison garments. The cases show, for example, that it is not an uncommon
defense tactic to produce the defendant in jail clothes in the hope of eliciting
sympathy from the jury. [Estelle, 425 US at 507-508 (emphasis supplied).]
Accordingly, “the failure to make an objection to the court as to being tried in [prison] clothes,
for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a
constitutional violation.” Id. at 512-513.
Defendant has failed to establish that he was compelled against his will to appear before
the jury in prison clothing. Indeed, from the evidence in the record, it is possible that defendant
wished to remain in his prison-issue pants as a matter of strategy. See Estelle, 425 US at 507508. Moreover, the trial court instructed the jury that defendant’s clothing was not indicative of
his guilt, and there is no indication that defendant’s pants undermined the presumption of
innocence in his favor. People v Lewis, 160 Mich App 20, 31, 408 NW2d 94 (1987) (“[o]nly if a
defendant's clothing can be said to impair the presumption of innocence will there be a denial of
due process”). In light of the substantial evidence of defendant’s guilt, he cannot establish error
affecting the outcome of the proceedings. Carines, 460 Mich at 764.
(…continued)
meant. One of the potential jurors responded that it meant that “[t]hey’ve got him detained” and
that it was “just part of the process.” The trial court noted for the record that defendant “was
offered a chance,” that he “had a right to wear civilian clothes,” and that he was wearing one of
the trial judge’s jackets. The court further stated, “I just want it brought out for the record that
the defense attorney is the one that objected to that issue” and that defense counsel was “the one
who raised the issue.” Although defendant seems to be asserting that this exchange demonstrates
that he raised a timely objection to his clothing, this is not at all apparent from the record. In
fact, it seems from the context that the court, in stating that defense counsel was “the one who
raised the issue,” was referring not to any past objection raised by defense counsel, but to the fact
that counsel had affirmatively directed the jury’s attention to defendant’s pants.
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Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
/s/ Patrick M. Meter
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