New and Interesting in the Brief Bank - April 2016

BB 269345:  Defendant was incorrectly and unconstitutionally prosecuted under the inapplicable first-degree child abuse statute because under Michigan law, a fetus is not a child, violating her right to due process under the law; US Const, Ams V, XIV; Const 1963, art 1, § 17.

BB 267569:  The order of restitution granting compensation is invalid where there is insufficient support in the record to establish the actual loss.

BB 267874:  Defense counsel was ineffective and Defendant was prejudiced when counsel failed to investigate and present evidence to impeach and contradict the two key eyewitnesses at trial, including the fact that: 1) a witness identified a different suspect from a live lineup conducted within hours of the robbery and 2) that a second witness failed to tell 911 operators that the robber was Defendant, or even that he knew who the robber was.  The trial court erred by ruling that these errors did not constitute ineffective assistance.

BB 267874:  Defense counsel was ineffective and Defendant was prejudiced when counsel failed to consult with and introduce an expert to testify that the perpetrator’s limp seen in the video of the robbery was inconsistent with that of Defendant’s right leg amputation. The trial court erred by ruling that this error did not constitute ineffective assistance.

BB 267920:  The trial court violated appellant’s due process rights by denying defense counsel’s motion to discover the complainant’s mental health records where the complainant made the triggering disclosure at a mental hospital; and counsel represented that the complainant had been admitted at least three times to the hospital, had been diagnosed with oppositional defiant disorder, bipolar disorder or depression, and the diagnosis related to the complainant’s perception and memory.

BB 268270:   The stop and seizure of defendant were not based on reasonable suspicion and the evidence should have been suppressed; the error was plain or, in the alternative, counsel was ineffective for failing to move to suppress the evidence.

BB 268449:  Mandatory lifetime electronic monitoring does not apply to convictions of first-degree criminal sexual conduct where the victim is 13 or older.

BB 268828:  Defendant was denied his right to a fair trial and his right to a defense by the trial court’s refusal to allow evidence of defendant’s PTSD. The introduction, over objection, of a recording not provided to the defense until mid-trial and the failure to preserve the cell phone denied defendant a fair trial; the requested mistrial should have been granted.

BB 269595:  The police violated appellant’s due process rights by failing to immediately stop custodial interrogation and scrupulously honor appellant’s demand for a lawyer after receiving Miranda warnings; furthermore, defense trial counsel was constitutionally ineffective in failing to argue for suppression of appellant’s confession on that ground.

BB 270297:  The admission of hearsay from a confidential informant and an anonymous source denied defendant his right of confrontation and his right to a fair trial; counsel was ineffective for failing to object.

BB 270315:  Due process requires plea withdrawal where defendant did not know his guilty plea waived his right to appeal the denial of the pre-trial motion to suppress defendant’s statement to a detective; and where defendant was frightened into pleading guilty by defense trial counsel’s failure to ask the questions defendant wanted put to the potential jurors during selection, and defendant felt defense trial counsel had lost interest in the case.

BB 270609:  The trial court violated appellant’s due process rights by denying appellant’s motion for new trial as abandoned, where appellate counsel submitted documents establishing that, in order to effectively represent appellant, appellate counsel had to file a freedom of information act lawsuit to obtain part of the discovery and defense trial counsel ignored repeated requests to explain the failure to impeach the complainant with a recorded interview.

BB 270873:  The circuit court abused its discretion when it denied Defendant’s pre-sentence motion for plea withdrawal where Defendant asserted she had misunderstood the sentence agreement and where the court did not require the prosecutor to establish that substantial prejudice would result from plea withdrawal.  Her plea was not knowing, voluntary and intelligent.  This court should remand for plea withdrawal or, at least, remand to require the prosecutor to establish that substantial prejudice would result from plea withdrawal.

BB 271126:  An expert may not opine that the complainant is a victim of “probable pediatric sexual abuse” based solely on the expert’s own assessment of the complainant’s version of events, no matter the criteria for assessment.

BB 271228:  Due process requires plea withdrawal or at least an evidentiary hearing where defense counsel misled appellant into pleading guilty by informing appellant that the trial court would sentence him to six months in jail, time served; but the trial court actually sentenced appellant to 30-180 months in prison.