Online Brief Bank - July-August, 2015

Subscribers to the Criminal Defense Resource Center’s online resources, found at, have access to more than 1,800 appellate pleadings filed by SADO Attorneys in the last five years.  The brief bank is updated regularly and is open to anyone who wants to subscribe to online access.  On our site, briefs are searchable by keyword, results can be organized by relevance or date, and the pleadings can be filtered by court of filing.  Below is a sample of some of the questions presented in briefs added to our brief bank in the last few weeks:

BB 251677:  Defendant’s constitutional rights to be free from unreasonable search and seizure were denied, and the trial court erred in denying his motion to suppress the cocaine found in his pocket. This preserved constitutional error harmed Defendant, and a new trial must be granted on all counts.

BB 251775:  The Court should vacate the fleeing and eluding conviction and sentence as the officer was in an unmarked car and not in uniform, contrary to the requirements of M.C.L. 257.602a.

BB 251997:  Where the police neglected their statutory duty to record their interrogation of Defendant, and where what he told them was both of vital importance and hotly disputed, trial counsel was ineffective for not asking the court to instruct the jury, as provided by statute, that such recordings are required by law and that the jury might consider the absence of one in evaluating the evidence relating to the statement.

BB 252281:  Defense trial counsel was constitutionally ineffective in failing to challenge two jurors for cause, where the jurors initially disclosed that they were not sure they could be fair.

BB 252281:  The trial court violated appellant’s due process rights by permitting the prosecutor to introduce photographs involving an ATV, police officer, and a doll that were posed in an attempt to re-enact the incident, but which were not substantially similar to the alleged circumstances.

BB 252363:  The trial court erred in excluding a recording of a 911 call made by a witness that described the complainant’s behavior consistently with defendant’s self-defense claim.

BB 252363:  Plain error was committed through the admission of improper expert opinion testimony that the complainant was the victim of a domestic violence assault and that Defendant was a domestic batterer.

BB 252469:  Defendant was denied the effective assistance of counsel where her trial attorney argued she acted in self-defense, but then did not request a self-defense instruction.  A new trial must be granted.

BB 252606:  The consideration of a risk assessment at sentencing violated Defendant’s state and federal due process rights; counsel’s failure to object violated Defendant’s right to the effective assistance of counsel; alternatively, if the trial court did not rely on the risk assessment in imposing sentence, the results must be deleted from the presentence investigation report.

BB 253172:  Defendant was denied his state and federal constitutional right to the effective assistance of counsel where defense trial counsel failed to move for a mistrial based on the prejudicial exchange between the audience and a prosecution witness.

BB 253201:  Due process requires vacating appellant’s convictions where there was legally insufficient evidence that appellant constructively possessed the recovered drugs and firearm, especially where appellant was not present at the time the police executed the search warrant and there were two other adults residing at the location.

BB 253464:  Defendant was denied due process when he was convicted of first-degree premeditated murder on the basis of legally insufficient evidence where the evidence established that the shooting occurred during the course of a struggle and was not premeditated.

BB 253464:  The court denied Defendant his right to a fair and impartial trial by erroneously allowing the officer’s improper and prejudicial testimony including hearsay statements of identification which denied defendant his Sixth Amendment right of confrontation and his right to due process; if counsel failed to adequately object, defendant was denied his right to effective assistance of counsel.  US Const Am VI; XIV.

BB 253627:  The trial court reversibly erred in denying the defense motion to suppress the custodial statement Defendant gave to the police, as the police impermissibly used an agent to initiate contact with Defendant after he had unambiguously asserted his Fifth Amendment right to counsel following Miranda warnings.

BB 253627:  The trial court reversibly erred by instructing the jury that their verdicts on the three homicide counts had to be consistent, and in failing to give the jury the standard instruction to consider each count separately.

BB 253684:  Due to the discovery violation, Defendant was denied his state and federal constitutional right to a fair trial when the trial court failed to mitigate the prejudicial effect of the violation by barring the admission of the photograph.

BB 253684:  The trial judge violated Defendant’s state and federal constitutional due process right to a fair trial when the judge directly questioned the sole defense witness about Sharia Law, which suggested the judge’s belief in the prosecution’s case.

BB 253666:  This Court should reverse the trial court’s decision to deny plea withdrawal because the plea was involuntarily entered in violation of the state and federal due process clauses where the defendant pleaded guilty to assault with intent to murder but did not know that intent to kill was part of the charge and specifically denied intent to kill at the time of sentencing.

BB 253748:  The trial court violated appellant’s due process rights and acted without statutory authority by permitting the complainant to testify while accompanied by an animal that the trial court referred to as “the therapy dog from the prosecutor’s office, Mr. Weeber, a little black lab”; and by failing to give a cautionary instruction to the jury; further-more, defense trial counsel was constitutionally ineffective in failing to object.

BB 253748:  The trial court violated appellant’s due process rights by permitting the prosecutor to introduce the complainant’s hearsay statements to a sexual assault nurse examiner, where the statements did not qualify for admission under the medical treatment exception to the hearsay rule; furthermore, defense trial counsel was constitutionally ineffective in failing to object.

BB 253748:  Defense trial counsel was constitutionally ineffective in failing to move to disqualify the trial judge, who had also presided at the preliminary examination and had found the complainant to be “an extremely credible witness.”

BB 253802:  Defendant’s conviction and sentence for resisting or obstructing a police officer should be vacated, and the charge dismissed with prejudice, as the prosecution presented constitutionally insufficient evidence that the officer legally entered Defendant’s residence based only on arrest warrants for her adult son, without a search warrant for Defendant’s house, as the officer did not have probable cause or a reasonable belief that her adult son lived at that house, and thus the entry violated Defendant’s Fourth Amendment rights.

BB 253783:  Mandatory lifetime electronic monitoring does not apply to convictions of first-degree criminal sexual conduct where the victim is 13 or older.

BB 253863:  Minimum state costs statute, M.C.L. 769.1j, imposes an unconstitutional tax in violation of the separation of powers principle of Const 1963, Art 3, § 2, and in violation of Const 1963, art 4, § 32.

BB 253863:  Imposing a 20% late fee pursuant to M.C.L. 600.4803(1) constitutes an impermissible means of enforcement that exposes criminal defendants who have had the assistance of appointed counsel to more severe collection practices than ordinary civil debtors.

BB 254018:  Defendant is presently serving an invalid sentence because the court failed to follow the proper probation violation sentencing proceedings by sentencing prior to the revocation of probation, and proceeding without a presentence report.

BB 254097:  Defendant’s claim of appeal should be reinstated where the lack of a direct appeal violated his constitutional rights to either equal protection, due process, or effective assistance of counsel.

BB 254097:  Defendant should be allowed to withdraw his plea due to a violation of his due process and equal protection rights, where there are no transcripts of necessary proceedings.

BB 254097:  Defendant should be allowed to withdraw his plea where he did not receive a guidelines sentence, contrary to his expectation of the plea bargain, in violation of his state and federal constitutional due process rights.

BB 254243:  Restitution for more than the conviction offense violates M.C.L. 780.766(2); M.C.L. 769.1(2) and People v McKinley, 496 Mich 410 (2014).