Articles Posted in Criminal Appeals

Last month, the Sixth Circuit U.S. Court of Appeals determined that a jury should decide if two Sturgis police officers, Damon Knapp and Mark Stoneburner, used excessive force against a young man and his mother when entering their home following an alleged shoplifting incident without a warrant.

Charles Smith, 20, was a suspect in an alleged shoplifting incident at a Sturgis Walgreens; he was suspected of stealing a $14.99 phone charger, a misdemeanor theft. In 2010, the Walgreens store reported to police that a phone charger had been stolen. According to a news article at the Detroit News, someone found a package in the store with a portion of the charger cut off. When confronted by the store manager, Charles Smith walked home and did not remain at the store until police arrived.

Later when Knapp and Stoneburner arrived at Smith’s home, Stoneburner allegedly entered without a warrant, pulling the suspect onto a deck where it is alleged by Smith that officers slammed his head against a railing while handcuffing him. A 12-page opinion issued by the Sixth Circuit U.S. Court of Appeals stated that “Shoplifting of this sort offers no reason by itself for banging a suspect’s head against a wall.” The panel also affirmed a ruling made by a district court judge that the officers involved are not immune to litigation.

Knapp and Stoneburner’s attorney maintained that the suspect was resisting arrest; the federal appeals court found that the decision as to whether the officers or Smith are giving a true account of the incident should be left up to a jury.

The opinion ultimately found that if Smith did not resist arrest, the officers may have used excessive force. Smith’s mother also claimed that she was injured while trying to intervene during the incident at the home.

As all seasoned Michigan criminal appeals attorneys know, police officers are not beyond making errors in judgment. Mistakes can be made at nearly any point in the course of an arrest, or even at trial.

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In March of 2006, Ronald Wenman was convicted of felony murder in a case involving Walgreens clerk Patti Jo Morris. Wenman allegedly slashed Morris’ throat while holding up the Walgreens pharmacy in August of 2005.

Wenman was sentenced to life in prison, and has had his appeals for relief denied by the Michigan Court of Appeals. Now, U.S. District Judge Sean F. Cox has denied Wenman’s relief motion.

Habeas corpus is the right of detained Americans to challenge their imprisonment. Wenman petitioned the federal court in Detroit for habeas corpus following his failed state appeals, claiming ineffective counsel, an “impermissibly suggestive” photo line-up, and that he is innocent of the crime. According to Wenman, a witness was shown a photo line-up in which he was the only individual wearing an orange jail uniform. A news article at Mlive.com states that Wenman is a parolee and career criminal.

Wenman also submitted a copy of a police report in his efforts to argue his claim that he is innocent of the murder. The police report indicated that investigators were told by a parolee that a prostitute and two other men committed the robberies which included Walgreens and a grocery store that was robbed hours prior to the murder of the clerk, another robbery Wenman was accused of. The federal judge’s ruling said that Wenman’s innocence is not demonstrated because of the fact police considered other suspects.

Wenman was incarcerated in the Lakeland Correctional Facility in Coldwater, where he remains.

Michigan criminal appeals attorneys are very familiar with a “2255 petition,” or petition for writ of habeas corpus. Essentially, this is a request on behalf of a prisoner (may also be a judge or individual held in detention) to be brought to court by prison officials in order to determine whether that individual may have been imprisoned unlawfully.

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In October of 2011 Dallas A. McDade Jr. was convicted of first-degree murder after allegedly shooting and killing 38-year-old Eric Lamont Jenkins in July of 2010, when McDade was just 17 years old. He was sentenced to mandatory life without parole. On Friday June 28, the Michigan Court of Appeals ruled that McDade be re-sentenced.

Originally sentenced by Kalamazoo County Circuit Judge Alexander C. Lipsey after being found guilty of first-degree murder, felony use of a firearm, carrying a concealed weapon and attempted murder, the Court of Appeals found that McDade’s sentence was a form of cruel and unusual punishment according to an opinion issued by the Supreme Court in June of 2012.

On June 25 of 2012, the Supreme Court issued a ruling in Miller v. Alabama that made juvenile lifer sentences invalid, stating that these sentencing schemes are “a form of cruel and unusual punishment that fail to consider the potential for cognitive and character development in young people.” Donald Sappanos, McDade’s attorney, filed an appeal in his client’s case just 11 days prior to the Supreme Court issuing its ruling.

According to a news article at Mlive.com, evidence at his 2011 trial indicated that McDade shot Jenkins and another man when he became angry with a third man who disappeared with his marijuana and money in the 1100 block of Washington Avenue.

Kalamazoo County Chief Assistant Prosecutor Carrie Klein said that the question is not to whether McDade is guilty, but what his sentence will be. She stated that the Court of Appeals affirmed McDade’s conviction in very way. A new hearing had not been scheduled as of Friday.

Michigan criminal appeals lawyers understand that all people make mistakes, however in the case of juveniles sentencing can be particularly troubling. Although McDade was found guilty of first-degree murder, it is tough to put an individual who is so young and who has his entire life ahead of him behind bars for life.

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In January of 2012, Richard Frank Thomas was convicted of the murder of Elijah Todd Butler, a crime that took place in October of 1971. Butler was a Marine who had married Geraldine Butler just four days earlier. According to a news article at Mlive.com, the man’s dying words, “Gerry, he did it” spoken in the arms of his wife were what helped convict Thomas more than 40 years later.

Geraldine Butler told authorities that Thomas had said that if she gave him her virginity, he would leave the couple alone. She alleged that Thomas had made death threats against herself and her husband. Butler was killed when he was shot at the doorstep of his home. Thomas allegedly threatened anyone who may know what he had done to keep quiet after the murder.

It was only after another murder that Thomas’s threats became more credible. In 1976, Thomas was convicted of murdering Robert Groothuis, a gas station owner. Thomas allegedly shot Groothuis, and was sentenced to life in prison. Still, it was 40 years later before the Metro Kent Cold Case Team would arrest Thomas for the murder of Butler.

Just this week, the Michigan Court of Appeals disagreed with Thomas’s claim that he had been denied his constitutional rights to a speedy trial. Thomas had also claimed that the delay damaged the credibility of witnesses, as the lapse of time since the shooting must have compromised witnesses’ memories.

Because Thomas was not arrested for the offense at the time it occurred, the appeals court found that his constitutional right to a speedy trial had not been violated. According to the court, “Mere delay between the time of the commission of an offense and arrest is not a denial of due process. There is no constitutional right to be arrested.” The appeals court also determined that Thomas’s claim that witnesses’ memories had deteriorated could not be shown to have affected the defense in his case, because the defendant could not show that any individual was capable of providing substantial proof of an alibi for Thomas at the time the crime was committed.

Experienced Michigan criminal appeals lawyers understand the difficulties individuals who have been convicted of a crime face. There are occasions on which an innocent person is convicted. At other times, sentencing may seem extremely harsh, and out of line with the state’s sentencing guidelines.

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On Tuesday June 18, the Michigan Supreme Court issued a decision in a case involving a 25-year-old Bay City man convicted for sexual assault of a 4-year-old girl. David B. Burns’ conviction was overturned in a unanimous 7-0 decision, the justices agreeing with a ruling made by the Michigan Court of Appeals in June of 2012 regarding hearsay statements which were allowed and admitted as evidence by the judge in Burns’ trial.

In his April 2011 trial, Burns was found guilty of first-degree criminal sexual conduct involving a person younger than 13 after the jury deliberated only an hour and a half. Burns was then sentenced by Bay County Chief Circuit Judge Kenneth W. Schmidt to 25 to 41 years in prison.

During Burns’ trial, an associate minister of the church the 4-year-old girl attended, Viola Gonzales, testified that the little girl told her that the defendant was abusing her; Gonzales said that the girl went into “graphic” detail about the sexual assault. A news article at Mlive.com states that prosecutors in the case attempted on four occasions to get the girl to testify, but each time she refused to speak. The jury was allowed by Judge Schmidt to use Gonzales’ testimony not as corroborating evidence, but as evidence of proof. Schmidt said that this was allowed because of an exception to the hearsay rule due to the alleged 4-year-old victim’s unwillingness to testify, perhaps due to Burns telling her not to speak of the alleged sexual assault.

Additionally, a Sexual Assault Nurse Examiner testified to the fact that she performed a physical examination on the girl after being told she was abused, however conclusive evidence could not be obtained to substantiate the child’s allegations.

Ultimately the Supreme Court admonished Schmidt for permitting Gonzales to testify on behalf of the alleged victim; the justices also agreed that it was not proven by prosecutors that the girl would not testify because the defendant had instructed her to keep quiet or intimidated her. The Supreme Court affirmed the judgment of the Court of Appeals, and has remanded Burns’ case for a new trial.

Bay City attorney Edward M. Czuprynski who defended Burns said that his client is innocent, and that the entire case was a prosecution “built on a house of cards, on assumptions and hearsay.”

Michigan criminal appeals attorneys would agree that the evidence in this case is questionable, and that the evidence allowed by the judge was hearsay. Every individual deserves the right to a fair trial.

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In January of 2012, Donald Martin Zuder was convicted on a charge of second-degree criminal sexual conduct with a weapon used in connection with an incident at his home that allegedly occurred with a female acquaintance in 2006. Zuder, who is now 79 years old, will serve out his sentence after a Michigan Court of Appeals panel ruled unanimously this week that the conviction was valid.

Zuder was sentenced to prison time of between 3 1/2 and 15 years by former Muskegon County Circuit Judge James M. Graves Jr.

The alleged victim, who was not identified in a news article at Mlive.com, said that the sexual assault took place in the summer of 2006, when Zuder (who was an acquaintance) asked if she would like to clean his home to earn extra money. She agreed, and after touring the house with Zuder the two had a drink. While she was sitting at the kitchen counter, Zuder left the room and returned with a long gun. Initially, Zuder pointed the gun toward a window and mentioned how he could kill a deer with it. She claims that he then pointed the gun at her, calling her a “tease” and saying that she would have to be nicer to him. She requested that Zuder take her home at that point, but he refused.

Instead, the victim alleges, Zuder retrieved a bag containing women’s undergarments after laying the gun on the kitchen table. He requested to see the woman’s body, at which point she said her second request that he take her home was denied. She then removed her clothes and dressed in the undergarments, at which point she alleges Zuder put his hands all over her body. The two played pool at Zuder’s request; she then dressed and the defendant drove her home. The alleged victim said that she felt she had no choice but to comply with Zuder’s demands because she was fearful of the gun laying on the kitchen table.

Appeals judges Joel P. Hoesktra, William B. Murphy, and E. Thomas Fitzgerald signed the opinion affirming Zuder’s conviction.

As all capable and experienced Michigan criminal appeals attorneys are aware, having a conviction overturned is not easy, and requires exceptional skill.

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In April of 2008, Miguel and David Vidana allegedly raped a 20-year-old woman at the York Creek Apartment Complex. Both men were convicted of rape in 2011 and sentenced in separate trials to 23 to 45 years in prison by Kent County Circuit Court Judge George Buth.

Now, both men have had their appeals claims denied by the Michigan Court of Appeals. Miguel and David Vidana each filed separate claims on the grounds that jurors had been unfairly excused from the brothers’ trials due to their race. They also challenged the admission of hearsay evidence, and claimed ineffective counsel.

The Vidana brothers allegedly raped the woman at the apartment after incapacitating a male who was at the apartment. News reports at Mlive.com also state that the brothers allegedly brandished a knife, and that Miguel raped the victim in a bedroom while his brother waited outside the door. David Vidana told the victim that she would not be harmed if she did what Miguel told her to do. Ironically, the Vidana brothers’ sister is said to be the one who rescued the woman from the apartment, taking her to call police. DNA samples were then taken from the woman, and used to prosecute the brothers.

The brothers were given separate trials, and would not testify against one another.

In their appeals, the Vidana brothers claimed that three African-American jurors were dismissed by Assistant Prosecutor Kevin Bramble because of their race. In the opinion released by the Michigan Court of Appeals, the panel said that Bramble provided explanations for excluding the jurors which were race-neutral. One of the excused jurors allegedly had a prior criminal conviction, one juror’s father was in prison on a conviction for conspiracy to commit murder, and another employed as a social worker. The appeals court found that the explanations for excluding the three jurors were race neutral, therefore they denied the challenges made by the Vidana brothers.

Miguel Vidana is in prison at the St. Louis (Michigan) Correctional Facility, while his brother is incarcerated in Manistee County.

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In a case that is somewhat bizarre, a man believed he was legally married to his wife, and that therefore he had the right to have sexual relations with her regardless of whether it was consensual. Calvin Ford Martz was convicted on charges of first-degree criminal sexual conduct, unlawful imprisonment, and other offenses. The complainant, Stephanie, was 32 years younger than Martz, and was allegedly 14 years old when the relationship began with then 46-year-old Martz.

In the state of Michigan, common law marriage contracts have not been recognized since 1957. Therefore, Martz and his alleged victim were not involved in a “common law” marriage as he believed. Martz was sentenced as a second habitual offender, given 15 to 40 years in prison for first-degree criminal sexual conduct, 10 to 15 years for resisting and obstructing a police officer causing serious impairment, 15 to 22 1/2 years for unlawful imprisonment, and 16 months to 2 years for resisting and obstructing a police officer, all to be served concurrently.

At trial, Martz had a document which he claimed to be a marriage contract between himself and the defendant, who claimed that the signature on the document which was supposedly hers was forged. Eventually, Stephanie moved into an apartment and left Martz’s residence, although as strange as it seems the defendant’s mother continued to live at the residence.

Ultimately, Martz appealed his conviction on the grounds that he was married to Stephanie and therefore the “victim” was his wife, and he could not be convicted of first-degree criminal sexual conduct. Martz also alleged that Stephanie took medication which caused her to hallucinate and fabricate stories.

In the end the Michigan appeals court did not agree, and upheld Martz’s convictions on all charges. The COA found that even if there had been a legitimate marriage, it does not give a spouse the right to have nonconsensual sex with a partner. The appeals court also noted that documents presented indicated that the relationship was controlled and coercive, and that Martz’s notion that a spouse cannot be raped was “barbaric.”

Certainly this story is a bit outside the norm, however there are many instances in which defendants are wrongly convicted, or sentenced outside of the normal sentencing guidelines.

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The convictions of Bryce Sherwood and Michael Heshelman, two men convicted in a $7 million Ponzi scheme in 2009, have been reversed by a federal appeals court after it was determined that the defendants’ “speedy trial” rights were violated when prosecutors took too long to bring the cases to trial.

The two men, along with a third, Dennis Mickelson, were indicted in February of 2006 for allegations of wire fraud, conspiracy, and money laundering according to a news article at Mlive.com. Following the indictments, it was nearly three years before the cases went to trial. It was requested by the government that the indictments be sealed as the investigation into the scheme continued and the three men could be arrested.

While federal prosecutors were aware of where Mickelson and Sherwood lived, Heshelman apparently resided in Switzerland according to information on his passport application, a fact that federal prosecutors soon discovered according to the appeals court. Ultimately, prosecutors wanted to extradite Heshelman from Switzerland back to the U.S., but were concerned that the Swiss would refuse their request based on the fact that the suspect was wanted on money laundering charges.

The FBI was notified by the Swiss government that they had possible address for Heshelman in 2007, however they would not proceed to extradite him without a provisional arrest warrant. Heshelman was arrested a few months later by the Swiss government for fraud, which the U.S. was notified of. It was February of 2009 before Heshelman was finally extradited from Switzerland after the U.S. government provided an arrest warrant.

While Sherwood claimed that his case was delayed for too long due to authorities not wanting to proceed prior to the arrest of Heshelman, Heshelman argued that his arrest and subsequent trial was intentionally delayed by the U.S. government. In the end, the federal appeals court agreed, finding that the government failed to be reasonably diligent in locating Heshelman, and that there was no evidence indicating that the arrest of Heshelman was made difficult by the Swiss government.

Michigan trial and appellate attorneys know that it is often the case that errors are made in the legal justice system, whether at the state or federal level.

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In June of 1997, Marvin Gabrion allegedly abducted and killed Rachel Timmerman and her infant daughter, Shannon Verhage. Gabrion is alleged to have killed three others as well. In 2002, he was convicted of the murders in federal court and sentenced to death. Capital punishment was abolished in the state of Michigan in 1846. Gabrion appealed his sentence on the grounds that he would not have been sentenced to death if he had been tried by the state, and that his attorneys should have been permitted to reveal this information to jurors. He also argued the point that the murder of the victim did not occur on federal property.

Gabrion is accused of murdering Rachel Timmerman two days prior to his rape trial, in which he stood accused of raping Timmerman; she was to testify against him in connection with the August 1996 rape. Court records revealed that Gabrion threatened to kill Timmerman and her baby if she told anyone about the rape, which she reported to Newaygo County Sheriff’s deputies. At the time of her death, the victim was 19 years old. Gabrion reportedly abducted Timmerman and killed her by weighing her down with a concrete block, then tossing her into a remote lake in the Manistee National Forest after she was bound and gagged.

According to a news article at Mlive.com, an appeals panel had overturned Gabrion’s death penalty sentence earlier. On Tuesday, May 28, a federal appeals court upheld the death penalty, saying that the fact that Michigan lacks a death penalty has nothing to with Gabrion’s character, or the fact that he chose to kill the victim. In their decision, the Court of Appeals went on to say that it had nothing to do with the defendant’s culpability, or the manner in which the victim was murdered.

Michigan appellate law attorneys realize that whether at the state or federal level, appealing a conviction or sentencing is never easy; in fact, it is a complex process that requires the skill and ability of a seasoned lawyer with extensive hands-on experience in this specialized area of the law.

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