Articles Posted in Criminal Appeals

On Friday August 6, Chief Circuit Judge James C. Kingsley ruled that Leo Ackley, a Battle Creek man convicted of killing a 3-year-old girl in 2012, will receive a new trial. In May, the Michigan Court of Appeals issued an order that the case go back to Calhoun County circuit court so that the defendant’s attorneys could move for a new trial.

According to a news article at Mlive.com, Judge Kingsley determined that the defendant’s counsel was ineffective, and that Ackley was denied his constitutional right to a fair trial. Ackley’s attorneys had an affidavit from Wayne County former chief medical examiner Dr. Werner Spitz claiming that the victim, Baylee Stenman, likely died after an accidental fall; this information was included to support the appeal of Ackley’s conviction.

Ackley is accused of abusing the toddler, who was his girlfriend’s daughter, while the child’s mother was working. The girl suffered injuries to the head. Ackley was found guilty in April of 2012 on charges of first-degree child abuse and felony murder.

A news release issued by the law firm representing Ackley’s appeal claimed that there were no witnesses who saw Ackley abuse any child, and that their client was convicted based primarily on the prosecution’s expert witness testimony. Lawyers for the defense believe that Ackley would not have been convicted of murdering the toddler had the jury been presented with all of the evidence.

Now that the judge has ordered a new trial, it is believed prosecutors will challenge the judge’s ruling with the court of appeals.

The above story demonstrates that even when convicted of a serious crime, there are options. Clearly, the court of appeals supported the defendant’s claim that his constitutional right to a fair trial was violated, and his counsel ineffective. If Ackley does get a new trial, the outcome may be very different.

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In 2011, a Michigan State Trooper was sentenced to 20 months in prison for allegedly engaging in inappropriate sexual conduct with a 12-year-old girl. David Morikawa was convicted on two counts of second-degree criminal sexual conduct, and was a trooper at the Iron County post. He was granted parole in March of this year.

Just last month, the Michigan Court of Appeals ordered a new trial in Morikawa’s case and overturned his conviction. During his initial trial, the jury became deadlocked after a revelation made by one of the jurors. The appeals court ruled that when the jury became deadlocked, the defendant’s attorney did not do his job.

According to a news article at The Detroit Free Press, jurors became deadlocked after deliberating the case for several hours. They were brought back the following day for further deliberation, and after just an hour, sent a note to the judge. The note indicated that one of the jurors had been investigated for sexual misconduct four to five years prior to the trial, but cleared of any wrongdoing. The juror said that he had touched a young girl during a group picture shoot at a Christmas party. Feeling that it would not affect his judgment in the case, he did not mention the investigation during juror questioning. The juror feely admitted to the court that he was one of the two holdouts, and the judge brought in an alternate after dismissing him. Morikawa’s lawyer did not object when the judge then instructed the jury to renew deliberations.

The appeals court determined that according to state law, the defendant’s attorney made an error in not pointing out to the judge that the jury should have been instructed to begin deliberations anew. The appeals court found that with the majority of jurors arguing for conviction, proper instruction and beginning deliberations anew with the fresh perspective of a new juror could have effected the outcome. The court ultimately ordered a new trial.

Mitchell Foster, Morikawa’s new lawyer, stated that it was nice to see the appeals court would uphold his client’s right to a fair trial, and that Morikawa was pleased with the ruling.

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In July of 2011, 24-year-old Justin Stephens was convicted of murdering an 80-year-old woman in 2006. Stephens, who was 17 at the time, allegedly killed a Hubbardston resident, Bernita “Billie” Cunningham, in her home. The murder went unsolved for several years, and was featured in a show called “Silent Night, Violent Night” on the Investigation Discovery network last year.

In 2006, the victim’s body was discovered dead inside her home; shattered Christmas decorations were strewn across the home, according to a news article at Mlive.com. Initially, Cunningham’s death was ruled an accident, however after family members kept insisting the death was no accident, investigators re-classified it as a homicide. She was stabbed several times after catching Stephens in the act of stealing money from her home upon returning from an errand. Stephens lived across the street from the victim.

The victim’s body was exhumed about two months following her death after family members eventually convinced police to reopen the investigation; they also hired a private investigator. Even then, coroner Stephen Cohle could not come to a conclusive determination regarding the cause of Cunningham’s death.

Eventually Michigan State Police took over the investigation, and identified Stephens as a suspect. He allegedly later confessed to both his sister and police that he committed the murder. Following his conviction for first-degree murder in 2011, Stephens was sentenced to life in prison without parole.

Stephens appealed his sentence on grounds that his confession was improperly used by police in testimony at trial. While the Court of Appeals did not agree with Stephen’s argument, they did find that the defendant’s sentence should be looked at again as he was 17 years old at the time of the murder. The U.S. Supreme Court ruled in 2012 that cases involving minors facing mandatory life sentences need special consideration.

The appeals court recommended that the circuit court take into consideration the defendant’s family and home environment, mental/emotional development, age, and other factors to determine if Stephens still deserves the sentence originally handed down by Judge David Hoort.

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In June of 2012, charges brought against a Bay City substitute teacher accused of engaging in sexual activities with students were dropped by Bay County Circuit Judge Kenneth W. Schmidt. Heidi L. Lewis, then 43 years old, had been charged with six counts of third-degree criminal sexual conduct with a student at Bay City Central High School, where Lewis taught British Literature for students who were emotionally impaired. Lewis was a substitute who taught the subject from January 2010 until the end of the school year.

Investigations began after a female student at the school informed the assistant principal that Lewis had engaged in sex with her boyfriend. Police started investigating the teacher in January of 2011. Because Lewis was a substitute teacher and not under contract with the school as other teachers are over the course of the summer, Judge Schmidt ruled that Lewis was not a substitute teacher because school was not in session when the alleged sexual acts took place.

Three 17-year-old teens claimed they had sex with Lewis on numerous occasions during the summer of 2010. In Michigan, the age of consent for sexual intercourse is 18 when the alleged activity occurs between a teacher and student. Richard Lee Jr., Lewis’ defense attorney, argued that because it was summer and Lewis was not employed by the school, it was not illegal for her to engage in sexual relations with the teenagers. Ultimately, Judge Schmidt dismissed all six counts of third-degree CSC against Lewis because she was not considered a substitute teacher as class was not in session.

The Bay County Prosecutor’s Office appealed Schmidt’s ruling; now, the Michigan Court of Appeals has ruled that the charges against Lewis will be reinstated, and Judge Schmidt’s ruling reversed. The appeals court ruled that prosecution is not foreclosed when a substitute teacher engages in sexual penetration with a student on Saturday, after the bell rings, or during summer months. Basically, if Lewis’ occupation gave her access to the student of the relevant age group, the Legislature intended to punish that conduct.

The appeals court issued an opinion on August 27 stating that Judge Schmidt erred in dismissing the charges. Third-degree CSC is a felony offense punished by a maximum of 15 years in prison.

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Tiffany Nicole Lang’s conviction and sentencing for the August 2010 torture of her infant son will stand, according to the Michigan Court of Appeals. Lang was convicted by Muskegon County 14th Circuit Chief Judge William C. Marietti of torture and first-degree child abuse. The defendant was sentenced to 13 to 25 years for torture, and 10 to 15 years for first-degree child abuse to be served concurrently.

In August of 2010, a Roosevelt Park police officer went to Lang’s home on a call that news reports say was unrelated to the torture. Upon arriving at the home, Lang began to cry and confessed to the officer that she had struck the child; she then recanted her story and claimed he had fallen on the floor. The police officer called an ambulance after seeing the injuries the 4-week-old baby had suffered.

Medical personnel testified at trial that the defendant had admitted at the emergency room that she had attempted to suffocate the baby, swung him numerous times against a closet door, and performed a sexual act on the baby. Personnel testified that at the time Lang made these comments, she did not appear to be delusional. The defendant was evaluated by mental health professionals and hospitalized for a period, as she did demonstrate symptoms of mental illness. At trial, she asserted an insanity defense; the judge determine in both charges that Lang was “guilty but mentally ill.”

In her appeal, Lange argued that her confessions at the hospital should not have been permitted at trial because they were involuntary due to the fact that she was exhausted, impaired, and mentally ill. She also held that her sentencing guidelines were improperly scored too high by the judge.

The appeals court opinion revealed numerous injuries which were based on the defendant’s trial transcript; these injuries included broken legs, potential burns in the genital area, skull fractures, and broken ribs which were partially healed, among other fractures. The appeals court disagreed with both of Lang’s arguments, ruling that her conviction and sentencing would stand.

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In July of 2010, Devon Glenn Jr. was sentenced to 15 to 30 years in prison by Jackson County Circuit Judge John McBain for his role in the August 2009 robbery of Buddy’s Mini Mart. Glenn was allegedly carrying a fake sawed-off shotgun when he and another man, Georval Pennington, robbed the mini-mart. News reports indicated that one or two customers who were in the convenience store at the time were assaulted.

The Michigan Court of Appeals vacated Glenn’s sentence in March of 2012 and ordered the case back to court for resentencing, determining that Glenn’s actions were not “designed to substantially increase the fear and anxiety of his victims,” and were not sadistic, brutal, or torturous.

Now, the Michigan Supreme Court has overturned the Court of Appeals decision. On July 29, the high court ordered that Glenn’s July 2010 sentence be reinstated after Chief Appellate Attorney Jerrold Schrotenboer appealed the appeals court’s decision to the Supreme Court.

The Supreme Court’s opinion stated that Judge McBain was correct in his original assessing of points in Glenn’s case for aggravated physical abuse, and that the defendant’s actions were intended to considerably increase the victims’ anxiety and fear. The high court determined that the defendant “went beyond that necessary to effectuate an armed robbery.” Glenn allegedly struck the clerk and the clerk’s friend in the head using the butt of his gun after ordering them behind the counter.

The Supreme Court decided that Glenn could have simply told the victims that he had a weapon to instill fear, and that instead, he chose to use what looked like a sawed-off shotgun (news reports claim it was actually an Airsoft or BB gun) to strike the men in the head and threaten them.

Devon Glenn is 22 years old; should he serve a minimum of 15 years, he will be in his mid thirties when released from prison.

Michigan criminal appeals attorneys understand the complexities of these types of cases. Had points not been assessed for aggravated physical abuse, the maximum sentence Glenn would have faced would have been 11 years, four months according to the appeals court.

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In April of 2000, Reginald Walker, a Detroit-area man who was 46 years old, allegedly shot and killed Larry John Troup inside a liquor store on the northwest side of Detroit. The incident occurred after Troup and a friend who were in the store were paying for their purchases, and the friend accidentally bumped into Walker.

The defense had a very different story of what took place inside the liquor store, claiming that Troup’s friend, Walter Gaiter, did not accidentally bump into Walker, but instead place his arm around Walker and told him, “That’s some nice jewelry you got on, man, old man.” Walker testified that he was wearing jewelry worth about $1,500 at the time, and that when Gaiter made the comment that he could get robbed while wearing all that jewelry and being in a drunken state, Gaiter had his hand in his pocket. Ultimately, Walker claimed that the two men pushed him into an aisle and showed him weapons; Walker claims he was shot in the hand by Gaiter, and that his own gun was in the hand which was shot. His gun went off, striking Larry John Troup. Walker claims he did not know that he had shot Troup.

In June of 2011, Walker filed an appeal of is conviction in the United States Court of Appeals, arguing that his attorney provided ineffective counsel when he failed to investigate and present an insanity defense. According to a news story at ABC12.com, Walker had a 30-year history of mental illness, which was significant enough that he qualified for Social Security benefits.

Now, a federal appeals court has overturned Walker’s conviction. After more than 10 years in prison, Walker has been set free and will remain free unless brought to trial within a six month time period. The appeals court agreed that the defendant’s counsel was ineffective for neglecting to bring up Walker’s long battle with mental illness at trial.

Michigan criminal appeals lawyers know that this is a very rare case, and that it is not often a defendant’s conviction is overturned. However, for an individual to have the very best chance of being successful in appealing a conviction or sentence, it is imperative to have an attorney who is skilled and knowledgeable in the criminal appeal process.

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On July 31, 68-year-old Matthew Andrew Carter was sentenced to 165 years in prison for the alleged sexual abuse of children living in a group home Carter ran for the poor. A news article at AnnArbor.com states that Carter traveled from Florida to Haiti frequently to abuse the children. He was convicted in February this year on one count of attempted child sex tourism, and five counts of traveling from the United States for the purpose of engaging in sex with minors.

Carter is a former Brighton, Michigan resident who now lives in Florida. He ran the Morning Star Center, a group home where residents could have access to shelter, clothes, food, and education. Residents of the center which was first located in Croix-des-Bouquets in Haiti and then Port-au-Prince, testified during Carter’s trial that as children, they were forced into sexual acts with the defendant in order to get clothes, shelter, school tuition, and other necessities.

Carter testified that over the past decade police had investigated numerous complaints regarding sexual misconduct at the Morning Star Center, but that he was never charged with a criminal offense by Haitian authorities. At trial, dozens of alleged victims testified against Carter, who disputes their credibility. According to U.S. authorities, Carter abused some 52 victims between 1995 and 2011, most of them males.

On Monday August 5, Carter filed an appeal of his prison sentence to the 11th U.S. Circuit Court of Appeals. In his appeal, Carter questioned the lack of physical evidence as well as the lack of credibility in alleged victims who testified at trial.

As all Michigan criminal appeals lawyers are aware, a conviction or sentence for a criminal offense is not set in stone. Errors are made in the criminal justice process, as it is a human process; no one (police, prosecutors, judges, jurors) is beyond making mistakes. There are many people in prison today who are innocent, and many who have been unfairly sentenced for the crime they have been accused of.

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In November of 2010, Ed Foster was sentenced to life in prison without the possibility of parole in the 1998 death of Deborah Boothby in Covert Township. Boothby was beaten before being run over by two cars and left on the side of the highway to die, according to a news article at Mlive.com. Foster has maintained his innocence, claiming that others beat and killed the victim.

The victim was allegedly involved in an altercation with Foster and three other individuals before being beaten in a Covert nightclub parking lot, according to court testimony. Boothby was then beat again after being taken to a nearby park; she was then returned to the nightclub and allegedly run over by two vehicles in order to make her death appear to be an accident.

Foster appealed his convicted to the Michigan Court of Appeals, arguing that his lawyer was ineffective, and that the court violated his Sixth Amendment right to a public trial. Jurors also saw Foster in leg restraints and handcuffs, a fact that he claimed violated his due process rights. He also claims that jurors heard what he referred to as “false and perjured testimony” from a witness.

Following his sentencing in November of 2010, Foster said that “The verdict of guilt is not a reflection of what happened.” He went on to say that his conviction was not justice, and that he did not and could not kill the woman. Foster, who at the time lived in Conyers, Georgia, claimed at trial that the other individuals who were with him killed Boothby, but that he had no part in it although he did nothing to stop it.

On Friday August 9, Court of Appeals judges Deborah A. Servitto, Henry William Saad, and William B. Murphy issued a 15-page opinion upholding Foster’s conviction.

Michigan criminal appeals lawyers know that appealing a conviction or sentence is a complex process, and that obtaining the desired outcome requires a competent and experienced attorney who is thoroughly familiar with the appeals process.

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Nearly one year ago Bay County Chief Circuit Judge Kenneth W. Schmidt set aside 48-year-old Rebecca J. Shimel’s guilty plea on grounds that Shimel did not appear to comprehend her actions when she pleaded guilty to the 2009 fatal shooting of her husband. Shimel pleaded guilty in February of 2011 to felony firearm charges and second-degree murder. Initially Judge Schmidt accepted the defendant’s guilty plea; he then overturned his own decision in August of 2012, setting aside the guilty plea.

According to a news article at Mlive.com, Schmidt claimed that E. Brady Denton, Shimel’s attorney, did not clearly explain to Shimel the prison sentence she would likely face if she pleaded guilty to the charges against her. He also said a possible self-defense aspect of Shimel’s case was not thoroughly investigated.

Schmidt’s finding was appealed by the Bay County Prosecutor’s Office. The Michigan Court of Appeals ruled that Shimel’s guilty plea will stand, although she may get a new sentence.

Shimel was accused of killing Rodney L. Shimel in December of 2009, allegedly shooting him nine times in an upstairs bedroom. The couple had four children, who were said to be home at the time of the murder. It was indicated by some that Shimel acted in self-defense, that she had been the victim of domestic violence for years. John S. May Jr., a former Bay City Police Detective, testified that Rodney Shimel was arrested in 2007 for domestic violence, although the couple’s adult daughters claimed they had never witnessed a physical altercation between their mother and father.

The appeals court ruled that the trial court abused its discretion by allowing Shimel to withdraw her guilty plea based on the erroneous determination by the judge that she was denied the effective assistance of counsel. The Court of Appeals went on to say that the trial court’s order granting Shimel’s motion to withdraw the plea is reversed. The case was remanded back to the court so that Shimel’s motions to correct her sentence may be addressed.

Michigan criminal appeals attorneys know how critical it is that a defendant have skilled, capable legal counsel when appealing a conviction or sentencing. Individuals considering an appeal must have an attorney who will thoroughly review every detail of the case to determine how to best approach it so that the desired outcome is reached.

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