June, 2022

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 321511: The trial court abused its discretion when it admitted 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 321519: Defendant has the due process right to a fair proceeding before an impartial judge. A judge who has heard facts and told the parties how he will rule on those facts has prejudged the matter. The judge must be disqualified from resentencing defendant because he cannot be impartial when he has already prejudged the case.

BB 321520: The circuit court incorrectly applied “law of the case” doctrine and in so doing deprived defendant of a meaningful review of the district court’s decision on his motion to suppress.

BB 321525: The trial court violated defendant’s right to confrontation and his right to a fair trial where it allowed the complainant to write out her testimony and admitted the writing into the evidence making it virtually impossible for defense counsel to effectively cross-examine her about the allegations.

BB 321527: The trial judge erred by refusing to suppress evidence obtained as a result of the illegal search. Neither the good-faith nor the inevitable-discovery exceptions to the exclusionary rule apply.

BB 321532: The evidence was insufficient to convict defendant of the charged crimes. No reasonable factfinder could find beyond a reasonable doubt that defendant constructively possessed firearms found in the nightstand drawer, of the upstairs bedroom, of the house where his former partner and some of his children lived. Defendant had not lived at that home for nearly a year at the time, he could not enter the house without permission, and he was not seen anywhere near the house during the period the weapons were discovered.

BB 321534: The circuit court erred when it ruled that knowledge is not required to convict a prisoner under MCL 800.281(4) and concluded that People v Ramsdell compelled it to find that MCL 800.281(4) is a strict liability crime.

BB 321538: 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 321548: The prosecutor committed error in her cross-examination of defendant and in closing argument by shifting the burden of proof, commenting on facts not in evidence, and vouching for the credibility of the complainant, all of which violated defendant’s due process rights to a fair trial. To the extent trial counsel failed to object during closing argument, trial counsel was ineffective.

BB 321550: 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. The sentence is disproportionate to defendant and the offenses.

BB 321552: Defendant was denied his due process and Fifth Amendment right to remain silent by the prosecutor’s repeated questions, and closing argument, concerning his post-arrest and post-Miranda silence.

BB 321553: Defendant was denied his due process right to a fair trial when the court allowed inadmissible hearsay, offered as an admission by a party-opponent and/or statement of identification, where the witness testifying as to the statement opined defendant was not the declarant.

BB 321554: Defendant was denied his right to trial by an impartial jury when the trial court failed to strike a juror who expressed bias and doubts regarding the presumption of innocence and the right not to testify. In the alternative, defendant received ineffective assistance of counsel when defense counsel failed to request the trial court strike the juror in question for cause.

BB 321556: Requiring defendant to register as a sex offender even though he did not commit a sex offense is cruel and/or unusual punishment in violation of the federal and state constitutions.

BB 321557: Defendant’s trial counsel rendered ineffective assistance when she asked a question that led to the admission of highly prejudicial other-acts evidence.

BB 321575: The trial court reversibly erred by instructing the jury that the doctrine of transferred intent may apply to a conspiracy charge.

BB 321577: 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.

BB 321579: Defendant was deprived of his Fourth Amendment right to be free of unreasonable searches and seizures where he was stopped and arrested based on an officer’s hunch rather than reasonable suspicion or probable cause. Trial counsel was ineffective for failing to challenge the stop and arrest and move to suppress all derivative evidence.

BB 321582: Defendant’s Fourth Amendment rights were violated because the affidavit in support of the search warrant for his cell phone failed to establish probable cause that evidence of a crime would be found on the phone. Trial counsel was ineffective when he failed to file a motion to suppress the results of the forensic examination of that device.

BB 321584: Due process entitles defendant to records that, although privileged, contain material information necessary to the defense. The trial court erred when it provided defendant with just 10 one-sentence quotations from the complainant’s mental health records.

BB 321586: Defendant was deprived of his constitutional right to due process where he was convicted of fleeing and eluding based on insufficient evidence. 
BB 321590: Defendant was denied her state and federal due process rights where she was convicted based on insufficient evidence as the prosecutor failed to establish that defendant resisted a lawful order from the police chief.

BB 321596: The trial court erred in denying defendant’s motion for new trial where the prosecution’s failure to disclose that a witness had been implicated in a sexual assault denied defendant a fair trial because such evidence was impeaching to the testimony of the witness, the only witness who testified that defendant shot the decedent.

BB 321597: The trial court violated defendant’s right to a fair trial and present a defense when it prohibited him from arguing the allegations against him merely amounted to a civil contract dispute and the complainant had a monetary motive to make a criminal complaint.

BB 321598: Defendant’s right to due process and a fair trial was violated by the prosecution through its repeated mischaracterization of the conclusions and testimony by defense experts on the issue of legal insanity, disparaging remarks concerning both experts, including an allegation that they withheld information from the court and the jury, and misrepresenting the law regarding legal insanity. Alternatively, to the extent he failed to object to the challenged questioning and argument, trial counsel was ineffective.

by John Zevalking
Associate Editor