August, 2020

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 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 321052:  The trial court pierced the veil of judicial impartiality, depriving defendant a fair trial. The judge’s questioning of witnesses and comments improperly influenced the jury by creating an appearance of advocacy or partiality against defendant.

BB 321054:  Defendant’s confrontation and due process rights were violated when the trial court erroneously admitted non-testifying witnesses’ testimonial statements contained within Discover card records.

BB 321060:  A new probation violation sentencing hearing is required where the trial court failed to follow proper procedures for making a reasoned determination with regard to the proper remedy for the probation violation and where it appears the trial court improperly predetermined the appropriate sanction for any probation violation long before they were committed.

BB 321062:  Defendant’s convictions for felonious assault and domestic violence violate double jeopardy because they are based on the same alleged assault.

BB 321064:  The trial court committed plain error where it failed to provide a jury instruction that would have required the jury to presume that defendant had an honest and reasonable belief that he would have suffered imminent death or great bodily harm had he not used deadly force, and trial counsel was ineffective in failing to object to the jury instructions provided.

BB 321068:  Defendant was denied his right to a fair trial where the trial court erred in joining three separate cases that were not part of a common scheme or plan and involved different officers, locations, and circumstances.

BB 321070:  Where separate and distinct acts could support a guilty verdict, the trial court violated defendant’s right to a unanimous verdict in failing to give a specific unanimity instruction.

BB 321075:  The trial court plainly erred in failing to instruct the jury on how to determine what constitutes a lawful arrest or act where a significant part of defendant’s defense was the illegality of the arrest. In the alternative, defense counsel was ineffective in failing to request such an instruction.

BB 321074:  Defendant’s plea was not knowing or voluntary where she could not legally be convicted as a “third felony offender,” even absent her plea bargain.

BB 321081:  Defendant is entitled to withdraw his plea and have his conviction for delivery of a controlled substance causing death vacated because Barry County was not the proper venue to bring the charges. The delivery allegedly occurred in Kent County, and the decedent ingested the drugs in Kent County.

BB 321082:  The trial court plainly erred by neglecting its duty to instruct the jury that to convict defendant of fleeing and eluding-3rd, it must unanimously agree on the act found to support the charges. In the alternative, trial counsel was ineffective for not requesting such a charge.

BB 321089:  Defendant has a due process right to plea withdrawal because he was not advised of his duties as a lifetime SORA registrant, nor was SORA registration advised as part of the maximum penalty for the offense.

BB 321092:  Defendant was deprived of her constitutional right to effective assistance of counsel where her attorney unreasonably failed to request that the jury be instructed on non-deadly use of force in the defense of others and failed to impeach the prosecution witnesses with information critical to their credibility and the resolution of the case.

BB 321093:  The trial judge reversibly erred by refusing to grant the defense mistrial motion after the officer in charge of the investigation deliberately injected a forbidden topic into the trial when, while trying to justify a certain investigative decision, he testified that he and SWAT team members “went over . . . Some of [defendant’s] criminal history.”

BB 321094:  The juror pool here, which contained one person of color, did not represent a fair cross-section of defendant’s community, in violation of his Sixth Amendment rights. Moreover, this Court should overrule existing case law requiring a showing of systematic exclusion.

BB 321095:  The prosecutor’s cross-examination of a witness as well as his comments made during closing argument impermissibly shifted the burden of proof to the defense and violated defendant’s due process right to a fair trial. In the alternative, defense counsel was ineffective in failing object in the above instances.

BB 321096:  Because the first jury effectively acquitted defendant of resisting-causing-injury, a second trial on that charge violated his constitutional right not to be placed twice in jeopardy for the same offense. Moreover, its presence among the several resisting charges presented at a second trial prejudiced him by making it more likely the jury would convict him, as it did, of two of those other charges.

BB 321098:  The prosecutor’s failure to disclose the extraction report from witnesses’ phones deprived defendant of a fair trial. As a result, the trial court erred when it denied defendant’s motion for mistrial.

BB 321099:  Defense counsel was ineffective in failing to object to an expert’s qualification in 

forensic toxicology and in failing to provide the proper notice of the defense expert’s testimony. As a result, the defense was unable to effectively rebut the toxicology expert’s improperly admitted testimony.

BB 321100:  The MSP Crime Lab found male DNA in the victim’s rape kit. It has not been compared to

defendant’s DNA. This Court should either order the MSP to do the comparison that should have been completed before trial or remand to the trial court to allow defendant to move for the appointment of an expert and access to the unredacted crime lab documents and to move for a new trial.

BB 321103:  The trial court abused its discretion by denying defendant’s motion for mistrial when a witness’s repeated inadmissible testimony that an individual obtained drugs from defendant was responsive to the prosecution’s questions and should have been anticipated.

BB 321110:  The trial court abused its discretion and committed reversible error in its consideration of the Miller factors by treating them as aggravators.

BB 321111:  Defendant’s verdict form improperly foreclosed a general verdict of “not guilty” to the murder charge, and the trial court’s instructions compounded that error. Therefore, defendant was deprived of his due process right to a jury trial and a properly instructed jury.

by John Zevalking

Associate Editor