May 2020

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 320936: This Court should grant defendant a new trial because the photo lineup was unduly suggestive and unreliable. The in-court identification should also have been suppressed. To the extent that counsel did not move to suppress the in-court identification, defendant was denied the effective assistance of counsel.

BB 320887: Prison officials refused to feed defendant for more than a week until he wrote apology letters to the corrections officers he allegedly assaulted. He was denied his right to the effective assistance of counsel and due process where these apology letters were introduced at trial without objection.

BB 320890: Though the record here shows two bank employees were frightened by defendant’s behavior, it falls short of establishing the sort of continuing psychological trauma needed to justify a 10-point OV-4 score.

BB 320896: Resentencing counsel was ineffective. He failed to retain a mitigation specialist and failed to investigate and present readily available mitigating evidence on behalf of defendant. Counsel relied upon defendant to act as his own quasi-expert witness and provided an inaccurate picture of defendant’s Michigan Department of Corrections record.

BB 320900: Defendant’s trial was delayed for nearly 23 months from the date of his arrest, depriving him of his Sixth Amendment right to a speedy trial. Defendant’s convictions must be vacated.

BB 320920: A witness’s testimony identifying defendant in the interior surveillance video invaded the province of the jury as the witness was in no better position to make the identification than a juror. It was thus plainly inadmissible under MRE 701.

BB 320926: Defendant is entitled to retrial because the physical evidence used to convict him—a 9 mm gun and ammunition—should have been excluded as the fruits of an illegal police search. Trial counsel was ineffective for not moving to suppress.

BB 320932: Defendant’s right to a fair trial was violated where the prosecutor elicited inadmissible, irrelevant, and highly prejudicial evidence of defendant’s physical abuse of others and of his use of methamphetamine. Defendant’s defense counsel was ineffective in failing to object to the evidence of physical abuse at all, and in failing to timely object to the evidence of methamphetamine use. In addition, defense counsel was ineffective in further eliciting evidence of the physical abuse from multiple witnesses.

BB 320937: The trial court erred in denying defendant’s request for a mistrial where the jury was exposed to a photograph of defendant in jail, thereby depriving him of his right to due process and the presumption of innocence.

BB 320939: The Court of Appeals erred in holding that due process does not require resentencing where the prosecution improperly exposed the sentencing court to polygraph information prior to sentencing. To the extent the issue may have been waived, trial counsel was ineffective for failing to object to the improper introduction of such evidence into the sentencing proceedings. Resentencing must be held before a different judge.

BB 320970: Defendant was denied his due process right to a fair trial where the prosecutor who represented the state in the case against defendant had previously represented defendant’s co-defendant and alleged co conspirator in the same matter and failed to disclose the conflict of interest.

BB 320969: Defendant is entitled to a new trial where trial counsel provided constitutionally ineffective assistance by failing to request the court read an instruction for misdemeanor assault and battery, a lesser included offense of assault by strangulation.

BB 320967: Defendant was acquitted of carjacking. The trial court violated defendant’s right to due process by considering acquitted conduct in imposing sentence and scoring OVs 3, 4 and 10. To the extent trial counsel failed to object to the scoring of the OVs on this basis, defendant was deprived of the effective assistance of counsel.

BB 320966: Defendant was denied a fair trial in violation of the due process clauses of the United States and Michigan constitutions where an expert witness repeated the complainant’s hearsay accusations, thus unfairly bolstering the complainant’s credibility. Alternatively, trial counsel’s failure to object to the improper testimony amounted to ineffective assistance of counsel.

BB 320955: Defendant is entitled to resentencing where the trial court abused its discretion in ordering that the sentence for using a computer to commit a crime be served consecutively to the sentence for accosting a minor for immoral purposes.

BB 320953: Defendant is entitled to resentencing where the trial court abused its discretion in sentencing him consecutively to his prior case for which he was on bond at the time of the instant offenses.

BB 320951: Defendant’s defense attorney was ineffective for both failing to record the terms of the polygraph agreement and failing to subsequently testify regarding the terms of the agreement in order to enforce it. Even if there was no agreement, then defense counsel was ineffective for sending defendant to be polygraphed without the conditions he sought. Defendant is entitled to a new trial.

BB 320948: The trial court did not substantially comply with the self-representation procedures in MCR 6.005 and People v Anderson. Defendant is entitled to a new trial.

BB 320946: Defendant testified at the preliminary examination that the complainant was a prostitute who had sex with another man while he was there. The trial court erred by finding the rape-shield act precluded defendant from testifying to this effect at trial and from introducing evidence that the complainant’s rape kit showed DNA from at least two male contributors. This ruling misinterpreted the rape-shield act and violated defendant’s constitutional rights of confrontation and to present a defense, depriving him of a fair trial. He is entitled to a new trial.

BB 321011: The prosecutor committed plain error in closing argument by commenting on facts not in evidence. This violated defendant’s due process rights to a fair trial. Alternatively, trial counsel was ineffective for failure to object to the improper remarks.

BB 321008: Trial counsel was ineffective for failing to request a manslaughter instruction, which denied defendant her right to a fair trial, her right to present a defense, and her right to a properly instructed jury.

BB 321005: Defendant’s 25-year mandatory minimum sentence is disproportionate and constitutes cruel and/or unusual punishment.

BB 321003: The trial court got it right. The jurors considered extrinsic evidence and the extrinsic influence affected the verdict.

BB 320999: It was error for the trial court to read the jury the aiding and abetting instructions when the prosecutor did not present any evidence that defendant was an aider and abettor and instead argued that she was principal offender.

BB 320996: Trial counsel was ineffective for not seeking an instruction that would have explained to the jury that her client had the right to resist excessive force.

BB 320995: 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. Additionally, counsel was ineffective for failing to call an eyewitness or memory expert to impeach both key prosecutor witnesses.

BB 320993: The jury instructions were fundamentally incorrect, misstating the legal duty a property owner owes, omitting the instructions explaining the element of gross negligence and causation. This failure was plain error by the court and ineffective assistance of counsel. A new trial must be granted.

BB 320991: The trial judge erred by allowing the prosecutor, in this prosecution for home invasion and robbery, to cross-examine defendant-appellant about his prior breaking-and-entering convictions without first conducting  the  balancing test specified by MRE 609. The judge compounded her mistake by then allowing the prosecutor to argue the prior convictions as proof of a “pattern of behavior”—in  other words, as proof of defendant’s propensity to commit such crimes.

BB 320982: The trial court erred by denying defendant’s motion to dismiss under the double jeopardy clauses of the state and federal constitutions after it declared a mistrial over defendant’s objection when there was no manifest necessity for doing so. Thus, retrial is barred.

BB 320973: The prosecutor committed error in closing argument by commenting on facts not in evidence and vouching for the credibility of the complainant. This violated defendant’s due process rights to a fair trial.

BB 321016: Trial counsel was ineffective for failing to call an expert witness to rebut the prosecution’s expert witness regarding the cause and origin of the fire, for failing to object to the use of hearsay evidence to conclude that the fire was intentionally set, and for conceding during closing argument that the fire was intentionally set.

BB 321018: Defendant’s convictions for resisting and obstructing a police officer must be vacated because she had a common law right to resist her unlawful arrest. Likewise, her conviction for drunk and disorderly was not supported by sufficient evidence. The trial court erred when it denied defendant’s motion for directed verdict.

BB 321020: Defendant is entitled to resentencing where the circuit court failed to consider rehabilitation and other mitigating factors or did so only during a motion to resentence defendant where he was not present.

BB 321021: Defendant is entitled to a new trial where trial counsel provided constitutionally ineffective assistance by failing to call an expert witness to contextualize and explain his conduct after the victim’s death. Trial counsel was also ineffective for failing to object to prosecutorial error and misstatement of law.

BB 321023: Defendant’s trial counsel was ineffective for failing to request an instruction for the lesser included offense of possession of a controlled substance. Defendant is entitled to a new trial.

BB 321028: Defendant was denied his state and federal constitutional right to due process where he was visibly shackled and in jail clothing for his trial.

BB 321029: The COVID-19 pandemic created unprecedented health risks for medically vulnerable prisoners and indefinite delay in our courts. While incarcerated, defendant is at grave risk due to his age and medical condition. The trial court violated due process by denying his emergency motion seeking an appeal bond.

BB 320883: Defendant was denied his right to due process by the late endorsement, without good cause, of a special ATF agent who had interrogated defendant.

BB 320902: Defendant was denied his due process right to a fair trial when an officer told the jury he had talked with defendant on an unrelated matter at a police station and then referenced an old “booking photograph” of defendant. Counsel timely objected and moved for a mistrial, which the trial court improperly denied despite the prejudice to defendant. This Court should grant defendant a new trial.

BB 320909: MCL 750.81a and MCL 750.84 contain contradictory and mutually exclusive provisions such that the Legislature did not intend a defendant to be convicted of both crimes for the same conduct.  Defendant’s convictions for both thus violate the state and federal constitutional prohibitions on double jeopardy. People v Doss does not preclude this Court from granting relief.

BB 320933: 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. As there is no evidence of timely service on defendant, he cannot be sentenced as a habitual offender. As this issue goes to the very authority of the people to proceed, it is not waived by a plea.

BB 320945: The improper admission of a witness’s testimony from defendant’s preliminary examination violated defendant’s Confrontation Clause right and was also contrary to MRE 804(b)(1).

BB 320950: The PPO violation and sentence should be vacated as they violate due process where the PPO was not properly served.

BB 320956: 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 320957: Defendant was denied his right to due process, to present a defense, and to a properly instructed jury where the trial court refused to provide the requested mitigation instruction, thereby preventing the primary factual issue at trial from being decided by the jury.


BB 321002: The appellee’s suggestions for the proper remedy, should this Court find that SORA is punishment, are not functional and are not based on relevant law.

BB 321015: Defendant’s conviction for carrying a concealed weapon violated his state and federal rights to bear arms and equal protection of law.

by John Zevalking
Associate Editor