December, 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 321131:  The search of defendant’s phone violated his constitutional right to be free from unreasonable searches and seizures. This evidence should have been suppressed because the search warrant affidavit failed to establish probable cause to search the phone, and trial counsel was ineffective for failing to file a motion to suppress.

BB 321133:  The plain language of MCL 769.13 requires that notice must be filed and served after the case has been bound over to the circuit court. Failure to file and serve it within 21 days is not subject to the harmless error statute. Because there is no evidence of timely service on defendant, he cannot be sentenced as an habitual offender.

BB 321134:  Defendant’s conviction for first degree murder under a felony murder theory cannot stand. The Legislature did not intend to elevate to felony murder those instances of first-degree child abuse in which the only act of abuse is the child’s murder. Rather, the felony murder statute requires a murder to be committed in the perpetration of or attempted perpetration of an enumerated offense with conduct distinct from the act of murder itself.

BB 321137:  The trial court violated defendant’s right to confrontation and his right to a fair trial where it allowed a witness to write out her testimony and admitted the writing into evidence making it virtually impossible for defense counsel to effectively cross-examine her about the allegations.

BB 321143:  The trial court abused its discretion in denying a mistrial after an expert testified he believed the complainant had been sexually abused based solely on her statements.

BB 321146:  Defendant was denied his due process right to a fair trial by the admission of the complainants’ on-site and in-courtroom identifications of him since both were the result of an unduly suggestive identification procedure.

BB 321147:  Defendant is entitled to a new trial and was denied his Sixth Amendment right to counsel of his choice when the trial court denied his request for an adjournment to have retained counsel prepare and be available for trial.

BB 321149:  The prosecutor committed misconduct by intentionally eliciting irrelevant and highly prejudicial testimony by defendant’s father that he believed the complainant’s accusations against his son. Defense counsel objected to the testimony, which the trial court should have stricken and instructed the jury not to consider. Defendant was deprived of his right to a fair trial, and a new trial is warranted.

BB 321150:  The trial court erred when it convicted defendant of first-degree criminal sexual conduct because the corpus delicti rule prohibits convictions without any independent evidence and the only evidence came from defendant’s previous statements, which were contradictory.

BB 321152:  The evidence was insufficient to support defendant’s felony firearm convictions where the recovered firearms were hidden in an upstairs closet and the illegal drugs were found on the ground floor.

BB 321153:  The trial court violated defendant’s right to confrontation and to present a defense when it precluded him from eliciting and cross examining the complainant about her probation status.

BB 321155:  Expert testimony did nothing more than bolster the prosecution’s witnesses. The trial court abused its discretion in letting the expert testify.

BB 321157:  Defendant’s trial counsel provided ineffective assistance during plea negotiations. Defendant is entitled to a remand with instructions to reoffer the plea or a remand for a Ginther hearing.

BB 321160:  People v Carpenter was wrongly decided. Defendant has a due process right to present a defense. Carpenter unfairly infringes upon that right.

BB 321162:  The sentencing court erred in relying on the COMPAS needs assessment of highly probable criminal personality in part in imposing consecutive sentences. Overall, the sentencing court abused its discretion in imposing consecutive sentences. Resentencing should be before a different judge.

BB 321163:  Where the case against defendant hinged on the complainant’s credibility, defendant received ineffective assistance of counsel when defense counsel failed to properly lay the foundation to impeach the complainant with her prior inconsistent statement.  As a result, the jury never heard the complainant’s prior inconsistent statement that someone other than defendant strangled her.

BB 321165:  Defendant is entitled to a new trial because his right to equal protection of the law was violated when the prosecution peremptorily struck two qualified jurors, the only two seated African Americans, because of their race.

BB 321166:  The prosecution’s use of defendant’s post-arrest, post-Miranda, pre-trial silence to impeach his trial testimony violated his right to due process and Fifth Amendment right to silence.

BB 321167:  By instructing the jury that consent was not a defense to any aspect of the charges, the trial judge denied defendant his Fourteenth Amendment right to a jury’s determination of his guilt and his Fourteenth Amendment right to present a defense.

BB 321168:  The trial court violated defendant’s constitutional rights to present a defense, to a fair trial, and against unreasonable searches and seizures when it denied trial counsel’s motion to suppress the search of defendant’s backpack and when it denied even holding an evidentiary hearing.

BB 321169:  Defendant was denied his state and federal constitutional due process rights where his conviction for second-degree murder is not supported by evidence sufficient to establish his guilt beyond a reasonable doubt. The prosecutor failed to disprove beyond a reasonable doubt that the killing was justified by self-defense.

BB 321174:  The trial court acted within its discretion when it allowed defendant to withdraw his plea and dismissed the possession charge.

BB 321176:  The trial court erred by re-imposing the same sentence and failing to properly consider the reduction in the guideline range or other mitigating evidence. This Court should remand for resentencing.

BB 321177:  The trial court abused its discretion when it allowed police officer lay opinion testimony regarding the operation of cell phone towers and that defendant’s cell phone was “definitely” in the area at the time the shooting occurred when the officer was not qualified as an expert.

BB 321181: Defendant received ineffective assistance of counsel where his attorney elicited—and opened the door to—unhelpful, unreliable, and prejudicial testimony regarding the frequency at which children lie about sexual abuse and that the children who are most likely to lie are those who recant.

by John Zevalking
Associate Editor