January, 2021

            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 321187: The trial court reversibly erred by neglecting its duty to properly instruct the jury that to convict defendant of felon in possession of a firearm and felon in possession of ammunition, it must find that defendant unlawfully possessed a firearm and ammunition within the meaning of constructive possession for felon-in-possession purposes. In the alternative, trial counsel was ineffective for not requesting such an instruction.

BB 321189: Defendant was deprived of his state and federal rights to due process and a fair trial where the prosecution suppressed critical evidence that could have been used to contradict and impeach the complainant’s testimony and put him on notice of other relevant witnesses he could have called to support his defense. The trial court therefore erred when it denied his motions for mistrial and a new trial.

BB 321194: This Court must reverse and vacate the convictions for felon in possession of a firearm and felony firearm because the prosecution failed to prove beyond a reasonable doubt that defendant actually or constructively possessed a firearm.

BB 321196: Defendant was denied his state and federal due process rights where the prosecution did not present sufficient evidence to establish an essential element of the crime, that the complainant was “mentally incapable, mentally incapacitated or physically helpless.”

BB 321199: The trial judge denied defendant his constitutional right to present a defense by preemptively forbidding character-witness testimony. To the extent counsel conceded the issue, he was ineffective.

BB 321202: Defendant was denied a fair trial by the inflammatory outburst by the decedent’s cousin in front of the jury where the trial court took no steps to cure the error. Trial counsel was ineffective for failing to ask for a mistrial, failing to ask that the jury be questioned, and failing to ask for a curative instruction.

BB 321203: The trial court abused its discretion when it admitted the complainant’s statements to law enforcement under MCL 768.27c where such statements were translated by individuals who were not certified or qualified interpreters and the statements were not made at or near the time of the alleged assaults.

BB 321204: MCL 750.224f is not a lifetime ban on the possession of firearms by anyone convicted of a felony. Defendant was deprived of his Sixth Amendment right to the effective assistance of counsel where his attorney stipulated that he was ineligible to possess a firearm.

BB 321206: The trial court did not have authority under Michigan law to order defendant’s sentence to be served consecutively to his sentence in his federal case. This court must remand the case to the trial court for correction of the judgement of sentence to reflect concurrent sentencing between the Michigan and federal sentences and to add the additional credit for time served since the sentence was imposed in this case. In the alternative, defense counsel was ineffective in failing to object to the imposition of consecutive sentencing.

BB 321209: Where the prosecution seeks to argue for the first time in this Court that a parolee is not entitled to sentence credit regardless of whether or not a parole detainer or warrant has been issued, the argument is waived by the prosecution.

BB 321211: The trial court erred by failing to sever unrelated charges against defendant when the allegations were from entirely separate dates and from two separate complainants.

BB 321213: The circuit court erred in refusing to grant in full defendant’s request for funds to retain two expert witnesses in connection with his resentencing hearing.

BB 321215: Defendant was denied due process of law by an in-court identification that had no independent basis. Trial counsel was ineffective for failing to object to or suppress the in-court identification of defendant by a witness. Additionally, counsel was ineffective for failing to call an eyewitness or memory expert to impeach both key prosecutor witnesses.

BB 321216: The trial court violated the principles of proportionality and due process by sentencing defendant to 72 to 120 months in prison, which is more than triple the high end of the guideline range and only eight months less than the maximum punishment permitted under People v Tanner. The factors relied on to exceed the guidelines were inaccurate, they did not support departure, and they were already accounted for by the elements of the offense and the standard guideline range. Moreover, the sentence was unreasonably long and entirely inconsistent with the purpose and goals of the Swift and Sure sentencing scheme.

BB 321219: Defendant is entitled to a new trial where defense counsel provided ineffective assistance of counsel by failing to call an expert witness (or witnesses) to contextualize and explain defendant’s behavior following the decedent’s death and the threat that the decedent posed to defendant.

BB 321225: The trial court acted within its discretion when it allowed defendant to withdraw his plea and dismissed the possession charge.

BB 321226: The trial court erred where it failed to instruct the jury not to consider religion in reaching its verdict. Trial counsel was ineffective for failing to object to the instructions as read. This was plain error and defendant is entitled to a new trial.

BB 321229: Defendant is entitled to resentencing because his minimum term was an unreasonable and disproportionate upward departure more than four times the top of the recommended minimum guidelines range. The trial court also violated defendant’s constitutional right to due process by considering acquitted conduct and previously dismissed charges in imposing sentence.

BB 321231: Defendant was denied her state and federal due process rights where she was convicted based on insufficient evidence as the prosecutor failed to establish defendant resisted a lawful order from an officer.

by John Zevalking

Associate Editor