“[Sjince Brown did not merely fail to object at trial to questioning and testimony regarding his criminal history, but expressly consented to it, he has waived his right to assert error on appeal.”
How later courts described this case
- “[Sjince Brown did not merely fail to object at trial to questioning and testimony regarding his criminal history, but expressly consented to it, he has waived his right to assert error on appeal.”
Written by the judges who cited it.
The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0317n.06
Filed: May 5, 2006
No. 05-3430
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiffs-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
BRYAN K. BROWN, )
) OPINION
Defendant-Appellant. )
)
BEFORE: BOGGS and SUTTON, Circuit Judges, and SCHWARZER,* Senior District
Judge
WILLIAM W SCHWARZER, Senior District Judge. Defendant-Appellant Bryan K.
Brown appeals his conviction, following a jury trial, for unlawful possession of a firearm by a felon.
18 U.S.C. §§ 922(g)(1), 924(a)(2). We affirm, finding Brown’s arguments to lack merit. Because
the parties are familiar with the facts, we need not recite them.
In reviewing the denial of a motion to suppress, we must “consider the evidence in the light
most favorable to the government” and accept the factual findings supporting the district court’s
decision “unless they are clearly erroneous.” United States v. Harris, 255 F.3d 288, 291-92 (6th Cir.
2001). Brown argues that the district court erred in denying his suppression motion because it did
*
The Honorable William W Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
No. 05-3430
United States of America v. Brown
not determine and preserve in the record the actual words used by Officer Sala to Mirandize Brown.
Uncertainty as to the form of Sala’s Miranda warning, however, does not render clearly erroneous
the court’s decision to credit Sala’s testimony that Brown was notified of and understood his
Miranda rights. The Supreme Court has held that the sufficiency of a Miranda warning depends
upon the warning’s substance, rather than the specific language used. See Missouri v. Seibert, 542
U.S. 600, 611 (2004).
Evidentiary rulings are reviewed for abuse of discretion. United States v. Carney, 387 F.3d
436, 452 (6th Cir. 2004). However, since Brown did not merely fail to object at trial to questioning
and testimony regarding his criminal history, but expressly consented to it, he has waived his right
to assert error on appeal. United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990) (“An attorney
cannot agree in open court with a judge’s proposed course of conduct and then charge the court with
error in following that course.”); see also United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993).
Even if Brown had not consented to the admission of criminal history evidence, his evidentiary
challenges lack merit.1
We review de novo allegations of prosecutorial misconduct. United States v. Tarwater, 308
F.3d 494, 510-11 (6th Cir. 2002). Although Brown alleges three instances of misconduct in the
1
First, Brown argues that Sala’s testimony contained inadmissible hearsay. The Sixth
Circuit, however, treats such explanatory testimony as nonhearsay. See United States v. Gholston,
10 F.3d 384, 388 (6th Cir. 1993) (“The detectives were simply asked to explain the background of
the case and the reasons for their various actions. Accordingly, we detect no hearsay problem.”).
Second, Brown argues that the court erred in allowing Sala to read his felony-arrest report on
redirect examination. Sala’s reading, however, was permissible as rehabilitation of his testimony
following efforts to impeach his credibility. See United States v. Denton, 246 F.3d 784, 789 (6th
Cir. 2001).
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No. 05-3430
United States of America v. Brown
government’s closing arguments, he fails to demonstrate the impropriety of the government’s
statements. See United States v. Forrest, 402 F.3d 678, 686 (6th Cir. 2005). The government had
properly introduced into evidence the matters it summarized during closing argument, United
States v. Drake, 885 F.2d 323, 324 (6th Cir. 1989), and did not violate Brown’s Fifth Amendment
rights by asking the jury to consider hypothetically whether his postarrest statements were those of
an innocent party, United States v. Green, 305 F.3d 422, 430 (6th Cir. 2002).
Brown argues that the court lacked authority to ask a jury that had returned a verdict to
answer additional, sentence-related interrogatories. Any error in the request was harmless since the
jury had already convicted Brown. Cf. United States v. Thomas, 167 F.3d 299, 305 (6th Cir. 1999)
(finding no prejudice from postverdict delay in resentencing).
Although not raised as an independent issue, Brown argues at numerous points in his brief
that his trial counsel provided him with ineffective assistance. The Sixth Circuit, however, generally
does not accept ineffective assistance claims on direct review. United States v. Frazier, 423 F.3d
526, 539 (6th Cir. 2005). An insufficient record exists in the present case since only a trial transcript
has been provided. See United States v. Goodlett, 3 F.3d 976, 980 (6th Cir. 1993); see also
Strickland v. Washington, 466 U.S. 668, 681 (1984).
For the reasons stated, we AFFIRM the judgment.
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