July, 2014

Subscribers to the Criminal Defense Resource Center’s online resources, found at www.sado.org, 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 228915:  THE TRIAL COURT REVERSIBLY ERRED IN ADMITTING EVIDENCE REGARDING THE DETECTIVE’S WATER TEMPERATURE TEST AND THE CHILD ABUSE EXPERT’S OPINION, SIGNIFICANTLY BASED ON THAT UNRELIABLE TEST, THAT THE DEFENDANT’S EXPLANATION OF EVENTS WAS NOT CONSISTENT WITH THE EVIDENCE.

BB 228567:  IN A CREDIBILITY CONTEST IN WHICH POLICE OFFICERS ACCUSED DEFENDANT-APPELLANT OF POSSESSING A GUN AND FORTY-THREE BAGS OF MARIJUANA, DEFENDANT WAS DENIED A FAIR TRIAL WHEN ONE OFFICER, ASKED ONLY IF HE HAD SPOKEN TO DEFENDANT’S NEIGHBOR, VOLUNTEERED THAT THE NEIGHBOR SAID THAT DEFENDANT WAS A DRUG DEALER.  THOUGH THE JUDGE SUSTAINED THE DEFENSE HEARSAY OBJECTION AND STRUCK THE TESTIMONY, THE HARM CAUSED BY THE OFFICER’S UNRESPONSIVE AND PATENTLY IMPROPER TESTIMONY WAS TOO MUCH FOR A JURY INSTRUCTION TO CURE.

BB 228567:  THE JUDGMENT OF SENTENCE MUST BE CORRECTED TO REFLECT THAT THE FELONY-FIREARM SENTENCE DOES NOT RUN CONSECUTIVE TO THE ONE FOR CARRYING A CONCEALED WEAPON.

BB 228576:  DEFENDANT’S MOTION TO QUASH THE CHARGES SHOULD HAVE BEEN GRANTED, AS THE POLICE OFFICER DID NOT HAVE A SUFFICIENT CONSTITUTIONAL BASIS TO STOP THE VEHICLE AND ASK DEFENDANT TO PRODUCE HIS DRIVER’S LICENSE.

BB 228620:  A DOUBLE OR NEAR TRIPLE DEPARTURE FROM THE SENTENCING GUIDELINES FOR A FAILURE TO REPORT ON ONE OCCASION AND THE OFFENDER’S DISREGARD OF PROBATION CONDITIONS AT EARLIER TIMES CONSTITUTES AN ABUSE OF DISCRETION AND AN EXCESSIVE SENTENCE THAT SHOULD BE REVERSED BY THIS COURT.

BB 229328:  THE TRIAL COURT VIOLATED DEFENDANT’S STATE AND FEDERAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS BY FORCING DEFENDANT TO INVOLUNTARILY REPRESENT HIMSELF AT TRIAL.  THIS ERROR WAS STRUCTURAL AND ENTITLES DEFENDANT TO HAVE HIS CONVICTIONS VACATED.
BB 229343:  DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN THE PROSECUTOR ENGAGED IN MISCONDUCT BY USING A POWERPOINT PRESENTATION DURING CLOSING ARGUMENT THAT USED MODIFIED PHOTOGRAPHS WHICH IMPROPER-LY EXPRESSED THE PROSECUTOR’S OPINION ON DEFENDANT’S GUILT, AND WHICH APPEALED TO THE JURY’S EMOTIONS; DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO OBJECT TO THIS MISCONDUCT.

BB 229441:  DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS TRIAL ATTORNEY DID NOT REQUEST THAT THE TRIAL  JUDGE INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER UNDER THE FELONY-MURDER ALTERNATIVE COUNT, AND/OR DID NOT OBJECT TO THE ABSENCE OF THAT LESSER INCLUDED OFFENSE UNDER THE FELONY-MURDER COUNT, WHERE THE TRIAL COURT DID INSTRUCT ON SECOND DEGREE MURDER UNDER THE PRE-MEDITATED MURDER COUNT, AND THE JURY CONVICTED HIM ON THAT LESSER OFFENSE.

BB 229676:  THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S PRE-SENTENCE MOTION FOR PLEA WITH-DRAWAL WHERE DEFENDANT ASSERTED A POSSIBLE DEFENSE, THE PRELIMINARY EXAMINATION TESTIMONY WAS LESS THAN OVERWHELMING AND THE PROSECUTOR FAILED TO ESTABLISH SUBSTANTIAL PRE-JUDICE.

BB 229775:  DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO PRESENT WITNESSES ON HIS BEHALF AFTER THE OFFICER IN CHARGE OF THE CASE, ACTING OUTSIDE HIS LEGITIMATE AUTHORITY, ORDERED THE DEFENSE WITNESSES, WHO WERE PRESENT AT THE COURTHOUSE DURING THE SELECTION OF THE JURY, TO LEAVE THE COURTHOUSE FOLLOWING A CONFRONTATION WITH PROSECUTION WITNESSES, AND TO “NEVER” RETURN TO THE COURTHOUSE.

BB 230150:  THE TRIAL JUDGE REVERSIBLY ERRED IN OVERRULING A DEFENSE OBJECTION TO THE READING OF THE PRIOR RECORDED TESTIMONY OF THE MEDICAL EXAMINER, AS THE PROSECUTION FAILED TO SUBPOENA THE WITNESS AND MADE AN INADEQUATE SHOWING THAT THIS WITNESS WAS UNAVAILABLE UNDER MRE 804(B)(1), AND THUS THE USE OF THE RECORDED TESTI-MONY VIOLATED DEFENDANT’S CONSTITU-TIONAL RIGHT TO CONFRONTATION.

BB 230198:  TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT PROOF THAT DEFENDANT HAD MOVED OUT OF THE HOUSE AND TERMINATED ITS UTILITY SERVICE TWO MONTHS BEFORE POLICE RAIDED IT AND FOUND MARIJUANA AND A GUN INSIDE.

BB 230354:  THE ASSESSMENT OF $300 IN “COURT COSTS” AND ANOTHER $250 IN “COUNTY OVERSIGHT FEE” AS PART OF DEFENDANT’S SENTENCE SHOULD BE VACATED, AS THOSE COSTS ARE NOT AUTHORIZED TO BE IMPOSED IN THIS CASE BY A SPECIFIC LEGISLATIVE ACT.

BB 230405:  THE STATE AND FEDERAL RIGHTS TO DUE PROCESS REQUIRE RESENTENCING WHERE THIS COURT SENTENCED DEFENDANT UNDER A MISCONCEPTION OF LAW REGARDING HIS STATUTORY ELIGIBILITY FOR THE SPECIAL ALTERNATIVE INCARCERATION PROGRAM.

BB 230405:  DEFENDANT IS ENTITLED TO RESENTENCING WHERE THE COURT IMPOSED A “PAY OR STAY” SENTENCE THAT VIOLATES THE STATE AND FEDERAL EQUAL PROTECTION CLAUSES.