SADO and MAACS Roster Attorneys to Argue in Michigan Supreme Court October Session

Arguments set for October 12 & 13, 2022
SADO's Douglas Baker and MAACS roster attorneys Susan Gabarra and Derek Linkous will argue before the Michigan Supreme on issues including the application of OV’s 1 & 2 when defendant did not possess a firearm, exclusion of evidence of the defendant’s state of mind at the time of the offense, and whether transferred intent was properly applied in a conspiracy case.

Susan Gabbara, Roberto Marcello Dupree, MSC No. 161589

•    OV’s 1 & 2/No Firearm

Supreme Court Summary: The defendant was convicted of aiding and abetting two co-offenders in committing an armed robbery. It is undisputed that the defendant did not possess a firearm, but there was evidence that one of the co-offenders did, but the co-offenders were never apprehended. The trial court sentenced the defendant as a fourth-offense habitual offender to 30 to 60 years. At sentencing, the trial court assigned 15 points for Offense Variable (OV) 1 (aggravated use of a weapon) and 5 points for OV 2 (lethal potential of a weapon possessed or used), even though the defendant did not possess a firearm. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the defendant was properly assigned 15 points for OV 1 and 5 points for OV 2.

The case is set for argument on October 12, 2022, at 10:50 a.m.

Derek Linkous, People v Theresa Marie Gafkin, MSC No. 161835

•    Exclusion of Evidence of Defendant’s Mental State at Time of Offense

Supreme Court Summary: The defendant was convicted by a jury of second-degree murder in a death that resulted from a car crash. She was sentenced to 20 to 30 years in prison.  The Court of Appeals affirmed in an unpublished opinion. The Court of Appeals held that the trial court erred by reading a second-degree murder jury instruction that set forth the element of malice differently than the standard jury instruction, but determined that the error was harmless. The Supreme Court has ordered oral argument on the application to address: (1) whether the trial court erred in excluding evidence that the defendant was threatened and of the defendant’s mental state at the time of the offense; (2) whether the trial court erred in its instruction to the jury as to the intent element of second-degree murder; and (3) whether any error was harmless.

The Case is set for argument on October 13, 2022, at 10:00 a.m.


Douglas Baker, People v Alexis Christine Welsh, MSC No. 162777

•    Transferred Intent/Conspiracy

 Supreme Court Summary: The defendant was convicted by a jury of two counts of conspiracy to commit assault with intent to murder and three counts of felony-firearm in relation to a drive-by shooting in which shots were fired at several individuals on the front porch of a house. The trial court sentenced the defendant to 20 to 40 years in prison for the conspiracy convictions, plus 2 years for each felony-firearm conviction. On appeal, the defendant argued that the trial court erred by instructing the jury that the defendant’s conspiracy with regard to an intent to murder one individual could be transferred to a charge of conspiracy with intent to murder others. The Court of Appeals, in an unpublished opinion, affirmed the defendant’s convictions, but remanded the case to the trial court for resentencing. The Court of Appeals concluded that the trial court erred by instructing the jury that transferred intent could apply to a conspiracy charge, but determined that the instructional error did not undermine the reliability of the verdict. On remand, the trial court resentenced the defendant to a reduced term of 13? to 40 years for the conspiracy convictions, plus 2 years for each felony-firearm conviction. The Court of Appeals affirmed the defendant’s sentences in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the trial court reversibly erred by instructing the jury that the doctrine of transferred intent may apply to a conspiracy charge; and (2) whether the trial court considered acquitted conduct in determining the defendant’s sentence in violation of People v Beck, 504 Mich 605 (2019).

The case is set for argument on October 13, 2022, at 11:00 a.m.

Find the case information and parties briefs here.

Watch live streaming arguments here.