Articles Posted in Criminal Appeals

Levon L. Bynum was convicted of first-degree premeditated murder and two counts of assault with intent to murder in connection with an incident which took place in August of 2010. Bynum allegedly fired a gun during an altercation that took place outside a party store, and was ultimately charged in the shooting death of Larry Carter, one of the people involved in the altercation. Bynum maintained that he was frightened, and carried the gun for protection; he claims that he fired twice into the air as a warning as he was trying to leave the scene.

Bynum was ultimately convicted of the 2010 Battle Creek shooting death; however in April of this year, the Michigan Court of Appeals reversed the conviction. Bynum had argued in his appeal that expert testimony provided by a police officer who was a member of the Battle Creek Police Department’s Gang Suppression Unit violated his right to a fair trial, as the jury would be left with the impression that gang membership meant that he was guilty of the crime. Bynum was allegedly a member of a street gang known as the Boardman Boys. Bynum argued that allowance of the expert testimony was improper; the appeals court agreed, and reversed Bynum’s conviction.

Now the case has gone before the Supreme Court, who will consider whether the expert testimony provided by Officer Jim Bailey regarding gang membership was more prejudicial than probative. The Supreme Court will review the facts of the case to determine if there were errors by the trial court, and if the ruling made by the Michigan Court of Appeals to turn over Bynum’s conviction and remand the case back to court for a new trial will be upheld.

Appealing a conviction is a complex process which may or may not end well for the defendant depending on several factors, including the experience and ability of the defendant’s criminal defense attorney.

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In 2011, 42-year-old Betsy Kwasny was convicted in Berrien County Trial Court of check fraud and perjury. She is serving three prison sentences for allegedly swindling a retired couple and two women in in 2008 and 2009 in by credit card fraud and check scams, according to a news article at The Herald Palladium.

Kwasny was sentenced to two 5 to 22 1/2 year terms for perjury and subornation of perjury after she was found guilty of inducing a defense witness to lie on the stand. Because of her status as a habitual offender, Kwasny was also sentenced to 3 to 21 years in prison for uttering and publishing a fraudulent check.

Kwasny appealed her convictions to the Michigan Court of Appeals, arguing that Trial Court Judge Charles LaSata erred by allowing one trial for several similar charges. She also argued that evidence was allowed regarding a prior criminal record. The appeals court panel rejected her arguments, but remanded the uttering and publishing case to Trial Court for a new order of restitution.

Appealing a conviction is no simple matter, as all Michigan criminal appeals attorneys are aware. However, mistakes are made every day in the legal system, leaving innocent people facing punishment for crimes they did not commit. In some cases, an individual may feel he or she was sentenced unfairly in accordance with state sentencing guidelines. Judges, juries, prosecutors, and members of law enforcement are required to uphold the law. Unfortunately, mistakes are made which can devastate the lives of those accused and cost them their freedom.

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In November of last year, 30-year-old Roger Stein was convicted of first-degree murder; he is serving a life sentence, and contends he had “ineffective assistance of counsel.” Stein was found guilty by a jury in the June 2012 shooting death of 22-year-old Ricky Upshaw.

Stein appealed his conviction on the grounds that his attorney did not adequately defend him at trial. In October, the Michigan Court of Appeals signed an order directing a Jackson County Circuit Court judge to conduct an evidentiary hearing so that it can be determined whether Stein’s trial lawyer, Anthony Raduazo, was ineffective. According to a news article at Mlive.com, the Court of Appeals order was signed on October 25. The circuit court is to have the evidentiary hearing within 56 days of this date.

At his January sentencing hearing, Stein told Jackson County Circuit Judge Susan Beebe that he was innocent, and mumbled that he just wanted his appeal papers as sheriff’s deputies walked him out of the courtroom. Stein claims that he did not receive a fair trial; he told the judge that prior to deliberations, the only black individual on the jury was drawn off the panel.

Upon issuance of an order in the circuit court, the Court of Appeals will continue work on the case.

Stein allegedly shot Upshaw in the back after the two men had become engaged in an argument. Witnesses testified that as Upshaw walked away from the defendant in the 1000 block of Adrian Avenue, Stein fired the gun. Prosecutors argued that Stein’s actions were premeditated and intentional.

Anyone who has been wrongly convicted of a serious criminal offense such as murder may have the opportunity to appeal their conviction. The penalties for murder in the state of Michigan are extremely harsh, as indicated in this case. Unless Stein’s appeal is successful, he will spend the rest of his life in prison without the possibility of parole.

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In June we reported that Bradford Mitchell’s second-degree murder conviction had been reversed by the Michigan Court of Appeals. Mitchell had been convicted in the 2011 beating death of Jay Kolhoff, a neighbor who lived in the same west side Saginaw apartment complex as Mitchell. Authorities claimed Mitchell beat Kolhoff to death with a baseball bat over a $5 debt.

At the original trial, the jury was not given the option to convict Mitchell of voluntary manslaughter. The appeals court ruled that the jury should have been given this option, and that Saginaw County Circuit Judge Robert L. Kaczmarek erred when telling the jury that first- and second-degree murder were their only options. The appeals court ultimately sent Mitchell’s case back for a re-trial.

On Thursday October 31, the jury deliberated for about four hours before convicting Mitchell of manslaughter. The maximum penalty is 15 years in prison, far less than the life sentence with parole Mitchell faced when convicted of second-degree murder. James Piazza, Mitchell’s defense attorney, said after the verdict that while they were disappointed the jury did not find Mitchell not guilty, they were pleased that jurors decided on manslaughter. While Mitchell is considered a habitual offender, Piazza stated in news reports that his “educated guess” is that his client will be given a minimum sentence of less than 10 years.

Mitchell alleges that when he went to Kolhoff’s apartment to collect the $5 debt, Kolhoff grabbed a baseball bat and assaulted him with it. Mitchell contends that he grabbed the bat from Kolhoff, then struck him with it once in the shoulder and once in the head, although he admitted he may have struck Kolhoff more times.

Mitchell remains in jail without bond where he will remain until sentencing; a date has not yet been set.

This is an example of what can result when a conviction is successfully appealed with the Michigan appeals court. While ideally the defendant would have preferred to have been found not guilty by the jury, a conviction for manslaughter is far better than murder in regards to criminal penalties. Now, instead of spending 30 to 50 years in prison as he was sentenced to in the original trial, Mitchell will likely spend only a third of that time or less behind bars.

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In February of 2011, 36-year-old Terrance L. Shepard and 43-year-old Patrick A. Martin were convicted of first-degree premeditated murder. The two were allegedly involved in the December 2002 suffocation death of 19-year-old Kevin Amos Jr., whose body was discovered in March of 2003 on the banks of the Cass River by fishermen in Tuscola County.

Shepard and Martin appealed their convictions, which were upheld by the Michigan Court of Appeals in September. According to a news article at Mlive.com, the two men will continue serving life sentences.

An accomplice in the murder, Tanisha R. Williams, testified at the murder trials that Martin held a gun on her and ordered her to tape the victim’s head, which ultimately suffocated him. She claimed that Martin was the main instigator of the crime, and Shepard an accomplice who “kept the momentum of the murder going.” Williams pleaded guilty to second-degree murder in December of 2010 for her role in the murder of Amos.

Appellate court judges Pat Donofrio, Kurtis Wilder, and Jane Beckering disagreed with numerous arguments raised by both Martin and Shepard. Some of these arguments included how prosecutors handled an eyewitness’ testimony, statements which were made outside of court by Martin, and the excluding of five potential jurors who were black by prosecutors.

Both victims raised issues regarding whether the prosecution’s striking of potential jurors denied their rights to equal protection, and whether Williams’ testimony was bolstered by prosecutors. Martin argued that Saginaw County Chief Circuit Judge Fred L. Borchard should have instructed jurors to use caution in considering Williams’ testimony given in exchange for her plead to second-degree murder, instructing them that there was “no guaranteed of her truthfulness.”

Ultimately, the appeals court panel found issue with all of the arguments raised by the defendants, denying their requests to have their convictions overturned.

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On October 10, former Detroit mayor Kwame Kilpatrick was sentenced to 28 years in prison for various public corruption charges including bribery, extortion, and racketeering. It has been seven months since Kilpatrick was convicted by a jury on what the government referred to as running a “money-making racket” out of City Hall.

Prosecutors in the case accused Kilpatrick of funneling millions of dollars to his family, friends, and himself while a financially crippled Detroit hobbled along. The former mayor was convicted on 24 of 30 counts against him; defense attorneys asked their client be given a 15 year sentence, however U.S. District Judge Nancy Edmunds sided with the government’s request for 28 years, saying that “I believe that is in fact what his sentence should be.”

On Wednesday October 30 it was announced that Kilpatrick will appeal the sentence, and a notice of appeal was filed in U.S. District Court by lawyer Harold Gurewitz. News reports indicate the former mayor steered a minimum of $4.6 million from city contracts for the financial gain of himself and his friends.

While the basis of the appeal was not revealed in the notice filed by Gurewitz, many believe the issues which will be argued to the appeals court panel include the fact that the 28-year sentence handed down by Judge Edmund’s was excessive, according to a news article at USA Today.

It is suspected attorneys will also argue to the appeals court that the sentence was “disparate” due to the fact that others involved received substantially less severe punishment, even probation in some instances. Kilpatrick’s lawyers may also argue that because of the massive publicity surrounding the case, the judge should have granted the request made shortly before trial for a change of venue. Other possible arguments may include insufficient evidence for a conviction, and the judge’s refusal of Kilpatrick’s request for change of counsel on the eve of trial.

Alan Gershel, professor at Cooley Law School and former assistant U.S. Attorney, commented that he felt Kilpatrick has a very small chance of successfully appealing the sentence. Gershel closely monitored the trial.

Michigan criminal appeal lawyers know how difficult it is to have a sentence or conviction overturned by the appeals court. Because Kilpatrick is such a prominent figure and former mayor of Detroit, it will be interesting to learn how the panel rules in this case.

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Thomas Philpot, a former Lake County Clerk, is currently serving an 18-month federal prison term in Milan, Michigan for allegedly diverting more than $24,000 in federal funds while in his position. He was convicted on charges of public corruption for pocketing taxpayer money as his own salary bonus. According to news reports at Highland Community, the federal funds were to be used for improvement of collection and disbursement of child support.

Philpot, who is 54 years old, allegedly violated the law knowingly; his defense attorneys argued to a federal appeals court that their client could not get a fair trial due to pre-trial publicity. According to the U.S. Department of Corrections website, Philpot is due to be released from federal prison on July 9 of next year.

News articles claim that according to state regulations, the money allegedly taken by Philpot as a bonus is to be paid to employees of the county who work full time in child support. The Lake County Council must approve any bonuses being paid out of these funds to elected officials. In court, a federal prosecutor alleged that Philpot never gained permission from the council to take the money, and that he used his authority to “write checks to himself.” Philpot was indicted in 2011; he was convicted in his 2012 trial.

In his appeal, Philpot’s attorneys argued that pretrial publicity prevented their client from getting a fair trial. The federal appeals court did not agree and said that stories in the media were factual, and that it had been more than a year prior to Philpot’s trial since those stories were run in the media. The defendant’s lawyers also claimed insufficient evidence against Philpot, however the appellate judges disagreed on that point as well.

Michigan criminal appeals attorneys realize the difficulty of having a conviction overturned by either the state or federal appeals court. An appeal is not a “re-trying” of the case, but rather an intense review of the trial proceedings so that it can be determined whether errors were made, and that all proceedings at trial were carried forth in accordance with the law.

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In August, we wrote about a 19-year-old developmentally disabled man who was convicted of killing four individuals when he was 14 years old. Davontae Sanford took his case before the Michigan Court of Appeals, claiming he was wrongly convicted of the murders. A known hit man, Vincent Smothers, claimed that he committed the murders, although he was not allowed to testify at trial. Now, the Michigan Court of Appeals has ruled that Smothers will have the opportunity to testify, possibly clearing Sanford of the Detroit drug house quadruple killing.

Sanford initially pleaded guilty to second-degree murder after five people were shot at a drug house in September of 2007. Only one of the shooting victims lived. Sanford spoke to a police officer as police were canvassing the area talking to neighbors. He denied any involvement at first, but then admitted that three other individuals and himself fired into the house. The appeals court’s opinion said that while Sanford’s account of the events corroborated with evidence found by investigators, some details were conflicting.

After pleading guilty to second-degree murder, Sanford was sentenced to 37 to 90 years in prison. At the age of 14, Sanford was interrogated by police and admitted to the murders without the presence of a parent or attorney.

Vincent Smothers is serving time for multiple drug-related killings, but said last year that the murders Sanford had been charged with were committed by himself and an accomplice. While Smothers made the statement in an AP interview and a sworn affidavit, Wayne County Prosecutor Kym Worthy refused to drop the charges against Sanford, and did not charge either Smothers or his alleged accomplice. The judge in the case denied Sanford’s request to have Smothers testify to the murders, or to allow him to withdraw his guilty plea.

Ultimately, the appeals court panel ruled that Smothers should be allowed to testify if willing. While the decision of the court does not allow Sanford to withdraw his guilty plea, the case will go back to court and the trial judge has been ordered to hear testimony from Smother’s attorney, as the hit man allegedly confided in her regarding the details of the drug house shootings.

The appeals court ruled on Sanford’s case in late September; the Wayne County prosecutor’s office was given 56 days to decide how they want to move forward with the case, according to spokeswoman Maria Miller. Kim McGinnis, attorney assigned by SADO to represent Sanford, said that “This is a big victory for Davontae.”

While this is no doubt at least a minor victory for Davontae Sanford, Michigan criminal appeals attorneys know that successfully appealing a criminal conviction or sentence is not easy. As evidenced by this case, there are often errors made in the criminal justice process, some of which impact the outcome for the accused. A young man may very well be sitting behind prison bars for a crime he did not commit.

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In January of 2012, 41-year-old Steven Wei was sentenced to up to 45 years in prison for allegedly sexually abusing a young girl repeatedly. The abuse was brought to light when a teacher was approached by the victim after listening to a school presentation regarding sexual abuse.

Wei, who was charged in 2010 with two counts of first-degree criminal sexual conduct with a victim younger than 13 and three counts of second-degree CSC with a victim younger than 13 appealed his convictions. The defendant argued that the trial judge was biased against him, and that in both his two jury trials, there was misconduct by prosecutors.

The alleged victim was Wei’s stepdaughter according to the opinion released by the appeals court. She was approximately ten years old when the abuse took place, usually on Mondays while the victim’s mother was away from the home with her son. Wei argued in his appeal that the evidence presented at trial was insufficient to convict him of first-degree CSC due to the fact that the evidence did not establish sexual penetration occurred as defined by MCL 750.520a(r).

Three appellate judges rejected Wei’s claims this week, upholding his convictions. The panel determined that the defendant’s claims of prosecutorial misconduct during closing arguments was unfounded, as Wei failed to object to each instance of misconduct. Wei argued prosecutorial misconduct on several issues, however the appeals court judges disagreed.

Michigan criminal appeals attorneys understand that 45 years behind bars is a very long time; in fact, Wei will be in his mid-80’s if he does spend that number of years in prison. In cases involving children and step parents, it is very difficult to know the truth. While the child in this case may very well have been sexually abused, children are often coerced into making up stories, or may even be exposed to television shows, news, or other media that give them ideas.

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On Tuesday, October 15, 19-year-old Connor McCowan was convicted of second-degree murder in the death of Andrew Singler, a 23-year-old MSU senior who was the boyfriend of McCowan’s sister, according to an article at the Lansing State Journal. McCowan’s family intends to appeal his conviction following his November sentencing.

When sentenced, McCowan could potentially face life in prison; at a minimum he will spend twelve years behind bars. Andrew Singler died as a result of stabbing in February of this year. Jurors found McCowan guilty in large part due to threatening text messages the defendant allegedly sent to the victim shortly before the stabbing, according to Stuart Dunnings III, Ingham County Prosecutor. Dunnings alleged that the text messages sent to the victim “clearly showed intent,” that McCowan had gone to Singler’s apartment to do something serious.

McCowan’s defense lawyer said that his client had become involved in a confrontation with the victim, and that he acted in self defense. During the trial, it became clear that the two were like brothers after Singler began dating the defendant’s sister. They apparently became involved in an argument on the telephone, when Singler called McCowan names and called Shay, McCowan’s sister whom the victim was dating, a dirty word. McCowan was punched in the face by the victim before pulling a folding knife out of his pocket in defense, according to court testimony.

Chris Bergstrom, McCowan’s defense attorney, maintains that his client was not the aggressor, and that McCowan had gone with his sister to Singler’s apartment many times during her relationship with the victim to help “calm the waters.”

In a news article at WILX 10, McCowan’s family states that they will appeal the conviction, however they will have to wait until the defendant is sentenced in early November.

It is impossible to imagine the pain both families are going through in this situation. McCowan’s attorney believed he had strong grounds to prove self defense, however the jury found otherwise. This is what the criminal appeals process is all about – providing defendants who believe they have been wrongly convicted with an opportunity to prove otherwise. While appealing a conviction or sentence is complicated, it is one more option for a defendant to attempt to regain his or her freedom when the criminal justice system has failed them.

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