February-March, 2018

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 are some of the issues presented in briefs added to our brief bank in the last few weeks. For confidentiality purposes, names of clients and witnesses have been removed.

BB 303149:  Defendant was denied a fair trial by the admission, over objection, of an entire investigative subpoena as substantive evidence; he was denied a fair trial by the introduction of allegations that he had abused the mother of his children repeatedly, that he was violent and aggressive, and that he had been in jail previously.

BB 303482:  The trial court reversibly erred, over a defense objection, in holding that a witness was unavailable to testify in person at this trial, and that the prosecution thus could read his prior recorded testimony from the preliminary examination to the jury, as the prosecution failed to present a sufficient demonstration of an exercise of due diligence to insure the witness’s appearance, thus denying defendant’s constitutional right to confront his accuser.

BB 303720:  Defendant is entitled to resentencing where the trial judge improperly departed based on factors already considered in the scoring of the guidelines and on her subjective belief that defendant lacked remorse, which is unsupported by the factual record. He is also entitled to resentencing because the above guidelines range sentence that the judge imposed is disproportionate and unreasonable. Finally, the sentence of a 60 year minimum term violated defendant’s right to jury trial as it nullifies the jury’s verdict of not guilty on the 1st degree murder charge.

BB 303915:  The trial court lacked the statutory authority to require defendant to pay a $60 DNA testing fee.

BB 303968:  Defendant’s Fourth Amendment right to privacy was violated by the prosecution’s admission of evidence of the approximate location of his cell phone during the hours surrounding the homicide incident where the prosecution did not obtain a warrant, under a showing of probable cause, to obtain cell tower records from the provider for that cell phone account.

BB 304158:  Structural error mandating reversal occurred when the trial court failed to administer an oath to the jury.

BB 304165:  The consideration of a risk assessment at sentencing violated defendant’s state and federal due process rights. This is because the assessment is not proper sentencing information, and it was not provided to the defendant before sentencing. The results must be deleted from the presentence investigation report.

BB 304297:  The trial court abused its discretion by spurning defendant’s offer to concede that he was a sex offender subject to registry requirements, and instead permitting the prosecution to admit the full judgment record of the prior convictions, thus allowing the jury to learn that defendant had a sex-offense conviction that involved child pornography.

BB 304299:  Defendant was denied a fair trial when the trial court failed to declare a mistrial and, instead, gave a limiting instruction that the jury could not reasonably follow as to the prosecution’s references to a witness’s anticipated testimony in its opening statement.

BB 304370:  Defendant’s conviction must be vacated because the trial court did not have jurisdiction to try and convict him while his timely application for leave to appeal was pending in the Michigan Supreme Court.

BB 304379:  Defendant’s convictions and sentences should be vacated, and the charges ordered dismissed with prejudice, as defendant was denied his constitutional speedy trial right.

BB 304295:  Defendant did not effectively waive his right to counsel and was thereby deprived of his Sixth Amendment rights at his guilty plea. Accordingly, his plea was involuntary and must be withdrawn.

BB 304433:  Defendant’s convictions should be reversed where the prosecution’s case relied upon inadmissible and prejudicial evidence of threatening phone calls and previous gang affiliations.

BB 304434:  MCL 777.49 was improperly applied to increase defendant’s sentence because it is void for vagueness. The sentence must be vacated, and the case must be remanded for resentencing.

BB 304472:  Defendant must be retried because the prosecution improperly relied on “drug profile” testimony as substantive evidence of guilt. The error in admitting such testimony was plain. In the alternative, counsel was ineffective for not objecting.

BB 304560:  Defendant was denied due process of law by an unduly suggestive identification procedure, which tainted an in-court identification that had no independent basis; trial counsel was ineffective in failing to move to suppress the in-court identification.

BB 304618:  Prosecutorial misconduct deprived defendant of his constitutional right to a fair trial and counsel was ineffective for failing to object.

BB 304706:  The Court must remand for resentencing. The trial judge did not point to any sentencing reasons not already adequately accounted for by the guidelines or even attempt to justify the departure.

BB 304753:  The trial court reversibly erred in denying the defense’s request that the jury be instructed that to be guilty of first-degree child abuse the defendant had to have intended the act and intended to cause serious physical harm or have known that serious physical harm would result, from People v Maynor, and/or the trial court reversibly erred in its response to the jury’s question during deliberations, again declining to give guidance in this regard as requested by the defense.

BB 304857:  The trial court reversibly erred in failing to consider defendant’s income, in accord with the plain language of the statute, at the time it imposed probation oversight fees.

BB 303872:  Defendant was deprived of due process and the right to compulsory process when the prosecution failed to notify the defense of the res gestae witnesses who were present during the incident; trial counsel was ineffective in failing to investigate and produce the witnesses.

BB 304912:  Defendant was denied her due process right to an impartial jury by the massive pretrial publicity and the trial court’s denial of her motion for change of venue.

BB 304939:  Trial counsel erred in failing to advise defendant of the mandatory 25-year minimum sentence applicable to the charges, thus causing defendant to reject a very favorable plea offer.

BB 305103:  The trial court violated defendant’s due process rights by failing to consider an updated presentence report.