People v. Love





December 9, 2004
v No. 249214
St. Joseph Circuit Court

LC No. 02-011207-FH

Before: Markey, P.J., and Fitzgerald and Owens, JJ.

Defendant appeals as of right from jury convictions of possession of methamphetamines,
MCL 333.7403(2)(b)(i), and possession of marijuana, MCL 333.7403(2)(d), for which he was
sentenced as an habitual offender, second offense, MCL 769.10, to two years? probation with the
first nine months in jail. We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Defendant first contends that the trial court erred in admitting the methamphetamines into
evidence because the prosecutor failed to establish a proper chain of custody. To preserve an
evidentiary ruling for appeal, the defendant must raise a timely and specific objection in the trial
court. MRE 103(a)(1); People v Parker, 230 Mich App 677, 687; 584 NW2d 753 (1998). Not
only did defendant fail to raise a timely objection when the prosecutor moved for the admission
of the drug into evidence, he waived any claim of error by stating that he had no objection to its
admission. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002); People v Tate, 244
Mich App 553, 559; 624 NW2d 524 (2001).
Defendant next contends that he is entitled to a new trial because Judge Noecker may not
have been fair and impartial and should have been disqualified. Defendant failed to preserve this
issue by moving for disqualification below. People v Mixon, 170 Mich App 508, 514; 429
NW2d 197 (1988), rev?d in part on other grounds 433 Mich 852 (1989). Because defendant
failed to preserve this issue, review is precluded unless the defendant demonstrates plain error
that affected the outcome of the lower court proceedings. People v Carines, 460 Mich 750, 763-
764; 597 NW2d 130 (1999).
Defendant has not shown any bases for disqualification under the applicable court rule,
MCR 2.003(B), or on due process grounds. See Cain v Dep?t of Corrections, 451 Mich 470,
497-498; 548 NW2d 210 (1996). He contends that the trial judge may have been drunk at the

time he presided over the trial or while working on the opinion on defendant?s motion to dismiss.
There is nothing in the record to suggest that such is the case and the evidence on which
defendant relies is not part of the lower court record and cannot be considered here. Appeals are
heard on the original record, MCR 7.210(A)(1), and it is impermissible to expand the record on
appeal. People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999). That aside,
defendant has not identified any intemperate remarks or other misconduct of the judge during the
trial itself and, regardless of the judge?s alleged drinking habits, it is clear from his ruling on the
motion to dismiss, as stated on the record and in his subsequent written opinion, that he was
aware of the issue to be determined and correctly applied the law in deciding the issue.
Therefore, defendant has not shown a right to relief. Carines, supra.
/s/ Jane E. Markey
/s/ E. Thomas Fitzgerald
/s/ Donald S. Owens

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