June - July 2019

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 320632:  The trial court committed reversible error in admitting, over a defense hearsay objection, evidence of a witness’s out-of-court prior consistent statement, as that statement did not fall within any of the recognized exceptions to the general rule barring the admission of prior consistent statements.

BB 320639:  The trial court, sitting as finder of fact, failed to consider the lesser included offense of manslaughter and denied defendant a fair trial by basing its verdict on mere speculation.

BB 320625:  Defendant was denied a fair trial by the prosecutor’s comments and the deputy warden’s testimony that inmates who are assaulted will not cooperate as a matter of survival, insinuating, before knowing whether the inmate would cooperate, that defendant had threatened the inmate witness; the warden’s testimony was irrelevant and also inadmissible because he was not qualified as an expert.

BB 320642:  Defendant was denied due process and a fair trial by the addition - after the prosecutor rested and the defendant had presented his defense witnesses -  of charges that had been dismissed by the trial court before trial and that were based on perjury.

BB 320643:  The prosecutor vouched for the credibility of the complainant in his rebuttal closing. In doing so, he deprived the defendant of his state and federal constitutional due process right to a fair trial.

BB 320653:  The trial judge denied the defendant his state and federal constitutional right to counsel by failing to ensure that his asserted waiver of counsel was voluntary, knowing, and intelligent.

BB 320659:  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 320672:  The trial court plainly erred in admitting unhelpful, unreliable and prejudicial testimony regarding the frequency at which children lie about sexual abuse and that children usually recant false allegations before it gets too far.  This amounted to vouching, and defendant was denied his right to a fair trial.  In the alternative, defendant received ineffective assistance of counsel where his attorney failed to object to such testimony.

BB 320679:  The prosecution did not challenge the sentence imposed through the filing of a timely motion to correct invalid sentence to achieve its goal of changing the date that the defendant’s sentence began from February 15 to August 17, 2018. Absent such a motion, there was no authority to amend the judgment of sentence substantively, as the prosecution sought to do in seeking leave to appeal in the Court of Appeals. The Court of Appeals thus violated People v Comer and People v Lee in allowing such a challenge from the prosecutor, and in ordering the substantive change to the judgment of sentence. The judgment of sentence must therefore be enforced as written and as the sentencing judge intended by making defendant’s sentence begin on February 15, 2018.

BB 320687:  Defendant is entitled to plea withdrawal because the trial court abused its discretion in denying his request, which was made before sentencing; defendant’s plea was the result of fear; it was not, therefore, freely given and voluntary. US Const, Ams V, XIV; Const 1963, art 1, § 17.

BB 320688:  Defendant is entitled to resentencing where the judge relied on inaccurate information, i.e., that defendant had not taken advantage of offered mental health treatment and/or that there is no record that defendant had completed any psychological treatment.

BB 320697:  The trial court did not obtain a valid waiver of defendant’s state and federal constitutional rights to counsel prior to allowing him to represent himself at trial.  Defendant is entitled to a new trial.

BB 320702:  Defendant’s no contest plea must be vacated where he was incompetent to enter it and/or where his plea was otherwise not knowing, voluntary and intelligent in violation of his state and federal due process rights. The circuit court should have at least held an evidentiary hearing where it was presented with the defense expert’s report opining that defendant was incompetent at the time that he entered the no contest plea as an offer of proof. Remand before a different circuit court judge is appropriate.

by John Zevalking
Associate Editor