Articles Posted in Criminal Appeals

In March of 2011, Shawn D. Gardner was convicted by a jury of second-degree murder in the 2009 shooting death of 20-year-old Lennon Johnson Jr. outside a Flint nightclub. Gardner was also found guilty on charges of felony firearms and felon in possession of firearms. On April 17, Gardner’s conviction was reversed by the Michigan Court of Appeals on grounds that Gardner had ineffective counsel in his 2011 trial.

Gardner, who is believed to be a member of an alleged gang known as the “Howard Boys,” was serving 80 to 120 years in prison for Johnson’s murder. The gang, according to a news article at Mlive.com, had been formed in 2002; members allegedly used violence to control a territorial drug operation.

In January of this year Gardner was charged with two other murders related to incidents from 2004 and 2009. He was also charged with three counts of assault with intent to murder in connection with three shootings that occurred in 2004 and 2009.

In the murder of Lennon Johnson Jr., Gardner allegedly fired an assault rifle during a car chase involving the victim, who was struck in the head while inside his vehicle. His car then entered an intersection and was struck by oncoming traffic.

The appeals court found that Mark Clement, Gardner’s attorney in the 2011 trial, failed to object to polygraph evidence taken from a witness who pinned Ricco Holmes for the murder. Holmes was with Gardner at the nightclub the night of the murder, and the two men followed the victim out of the club.

Clement said there was nothing he could have done, and that had he requested a mistrial it would have either forced a new trial, or shone attention on the significance of the polygraph. Clement blames the error on prosecutors for asking about the results of the polygraph. Genesee County Prosecutor David Leyton told reporters that he intends to retry the case.

Michigan criminal appeals attorneys know that while it is not true in every case, there are times when mistakes are made in the legal justice system, or innocent people find themselves in a prison cell. The appellate court makes it possible in some cases for individuals to have a second chance in presenting their case, whether you feel you have been sentenced unfairly, or even wrongfully convicted.

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In March of 2010, then 14-year-old Dakotah Eliason allegedly shot his grandfather while he was asleep on the couch. Eliason was said to have emotional issues due to the loss of a family dog, his cousin’s death in a car accident, and the recent suicide of a close friend according to a news report at CBS News. He shot his grandfather, 69-year-old Jesse Miles, using Miles’ handgun. Eliason reportedly struggled with whether to shoot himself or his grandfather before firing the fatal shot. He was charged as an adult with first-degree murder, and found guilty by jurors in August 2010. Eliason was sentenced in Barrien County Court to life in prison without parole.

The U.S. Supreme Court ruled in June of 2012 that sentencing juveniles to life without the possibility of parole is unconstitutional; in February of this year, U.S. District Court Judge John Corbett O’Meara agreed, saying that the Supreme Court’s ruling would be applied retroactively. This essentially means that Eliason may be eligible for parole at some point, however the Michigan Court of Appeals did not agree.

On April 5, Eliason’s conviction was upheld by the Michigan Court of Appeals, however the court sent the case back to the trial court for resentencing. The U.S. Supreme Court ruling does not prevent individual judges from sentencing teens to life in prison without parole, however states cannot mandate this sentence for juvenile defenders.

Jonathon Sacks, Eliason’s defense attorney, plans to appeal the court of appeals ruling to the Michigan Supreme Court according to a new article at MyFoxChicago.com.

Michigan criminal appeal attorneys understand that while a young teen may commit a heinous crime, individuals who are this young deserve a second chance. In this situation, unless things change a now 16 or 17-year-old boy will face the rest of his life behind bars for making a terrible mistake, one that he no doubt regrets.

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In November of 2011, Julie M. Maliszewski was convicted of larceny from a person. The conviction stemmed from an incident in July of 2010 when Maliszewski was at a friend’s home in Birch Run Township and allegedly stole jewelry worth thousands of dollars, although Maliszewski was deemed “mentally impaired” by appellate judges according to a news article at Mlive.com.

Maliszewski was initially sentenced to 18 months probation, however Saginaw County Circuit Judge Fred L. Borchard extended the probation to five years in September of 2012 due to Maliszewski’s non-payment of restitution.

Maliszewski argued several points in her appeal, including that Borchard erred in not allowing hearsay testimony from the alleged victim’s son, insufficient evidence for a conviction, and failure to grant a mistrial when a juror researched Wikipedia regarding corroborating evidence and reasonable doubt, then shared the findings with other jury members.

Appellate judges Joel Hoekstra, Henry Saad, and Mark Boonstra determined that the reading of the Wikipedia research results to the jury members did not warrant a reversal of Maliszewski’s larceny conviction.

After being informed of the Wikipedia search results, Borchard asked jurors whether they were capable of relying solely on the jury instructions that had been given them, and if they could disregard the search results. Borchard denied the motion for a mistrial after jurors said they could disregard the Wikipedia search results.

The appellate judges disagreed with all of the defendant’s arguments, and ruled that the judge’s decision to deny a mistrial did not impact the defendant’s ability to get a fair trial. The judges also found that jurors were properly instructed by Borchard both prior to and following the trial.

News reports state that Maliszewski will remain on probation until January 2017.

Michigan criminal appeals attorneys know that it is extremely difficult to have a conviction overturned, however the most important factor is having a capable lawyer who is thoroughly familiar and experienced with the process.

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On Monday, the Michigan Court of Appeals upheld the convictions of a 23-year-old Saginaw man for his role in a shooting that occurred on Christmas day in 2010. Simmion Brown will continue to serve his 30-plus year sentence after the December 2011 verdict against Brown was upheld by appellate judges Christopher Murray, Jane Markey, and William Whitbeck.

According to news reports at Mlive.com, Brown shot 44-year-old Bobby J. Johnson Jr. on Christmas day in 2010 after he was offended because the intended victim would not give him a cigarette. Johnson survived after being shot in the arm and chest. Brown was convicted of assault with intent to murder. The incident occurred in Saginaw at Bridgton Place Townhomes.

In his appeal, Brown focused on his alibi defense, and the prosecution’s response to it; he also argued that the admission of three hearsay statements allowed by Circuit Judge Janet M. Boes was in err. During his trial, Brown’s cousin testified that when the shooting occurred, the defendant was at a family gathering. The prosecution then called Brown’s aunt to testify in response to the cousin’s allegations, and a police detective who rebutted the aunt’s testimony. Judges found that under the circumstances the prosecution could not impeach its own witness.

Regarding the hearsay statements, judges ruled that they were admitted properly under the “excited utterance” hearsay rule exemption. The statements included the victim himself telling his then-girlfriend that Brown shot him, telling his daughter while in the hospital that the defendant shot him, and a 911 recording in which Johnson is heard naming Brown as the shooter.

Brown was convicted on other charges as well, including three counts of possessing a firearm during the commission of a felony, possessing a firearm as a felon, and carrying a dangerous weapon with unlawful intent. He was ordered pay restitution to Johnson in the amount of $20,748.75 and sentenced to 32 to 52 years in prison.

As all Michigan criminal appeals attorneys know, having a conviction overturned is a challenge that is never easy. It is critical that the lawyer an individual chooses to represent him or her is thoroughly knowledgeable and experienced in the appeals process in order to obtain positive results.

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Brittany R. Falconer, a 22-year-old former New Mexico woman convicted on 30 charges related to a South Side Saginaw murder plot in 2010, will continue to serve out her sentence of 22 to 47 years in prison after the Michigan Court of Appeals determined that a jury did not err in deciding that Falconer was not acting under duress during the incident.

Some of the charges prosecutors brought against Falconer include two counts of armed robbery, conspiring to commit armed robbery, torture, and carjacking. Falconer was also charged with conspiring to commit first-degree murder, however she was acquitted by a jury on that charge and three others.

In the 2010 plot, Dion Smith was apparently a victim of mistaken identity; two others who were involved with Falconer, Glenn Jett Jr. and Donald Anderson, burst from the back of a home where Falconer and Smith were; Falconer had allegedly invited Smith over for breakfast, which was a code to let Smith know to come over to see Falconer, who he had met the day before when he was outside his home with a 1975 burnt orange Chevrolet Impala. Falconer told Smith of her love for cars, and the two reportedly went for a ride and drank champagne.

After Anderson and Jett appeared from the back of the home to where Falconer had taken her shirt off, Smith was ordered into the bathroom where he was beaten and bound with zip ties, then threatened. The two men realized then that Smith was not the man they were looking for. They then decided to take his car, so he gave them the keys, according to Smith’s testimony.

Asa Smith, Dion Smith’s wife, and their two teen sons were assaulted and their home ransacked in the incident. Falconer testified that Glenn Jett Jr., who was her boyfriend at the time, threatened her to participate in Jett’s and Anderson’s plot, with Dion Smith as the intended victim.

The Michigan appeals court judges found that the evidence presented to the jury which led to Falconer being found guilty of voluntarily participating in the plot was sufficient. Dion Smith and his wife both testified in court that they believed Falconer was a willing participant in the plot.

In essence, Falconer’s role in the plot was one of seduction, and getting Smith to the home so that the two men could kill him; they then realized they had the wrong man.

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On Wednesday April 3, Macomb County prosecutors were successful in winning a technical legal ruling with the state Court of Appeals regarding a fatal accident in which the driver of the vehicle allegedly had THC (tetrahydrocannabinol) in his body. Prosecutors hope this will help strengthen their case against 21-year-old Timothy Wilds, who is charged with operating a vehicle while under the influence of a controlled substance or while under the influence of any amount of a controlled substance, two theories which are considered 15-year felonies.

Brittany Nowicki, an 18-year-old Macomb Township woman, died when Wilds lost control of his Jeep while attempting to pass a vehicle on Plumbrook Road in snowy weather conditions. The Sterling Heights accident took place on December 10 of 2010 at approximate 6 a.m.. According to a news article at the Oakland Press, Nowicki was not wearing a seat belt; she died later at an area hospital after being ejected through the windshield of the Jeep during the crash.

Blood tests revealed that Wilds had two nanograms per milliliter, a minute amount, of THC in his system. THC is the primary ingredient in marijuana.

Prosecutors wanted the Michigan Court of Appeals to change the language used by the judge in instructing the jurors. Instead of the jury being told that prosecutors must only prove that the defendant “voluntarily decided to drive knowing that he had any amount of THC in his body,” the appeals court agreed that the judge would instruct that it must be proven that Wilds “voluntarily decided to drive after knowingly ingesting marijuana.”

While prosecutors won this technical legal ruling, the appeals court disagreed with another request by prosecutors, which was to add the language “The prosecution does not have the burden of proving that the defendant knew or should have known that he had the presence of THC within his body.” However, the Court of Appeals ruling does note that should the defense try to argue that the defendant did not believe his ability to drive would be affected by the marijuana, the language could be used.

Wilds’ defense attorney, James Maceroni, objected to Macomb Circuit Judge Edward Servitto’s refusal to allow a one-year misdemeanor option, moving violation causing death, to the jury. He attempted to appeal the judge’s decision in this matter, but the COA refused to address it.

Seasoned Michigan criminal appeals lawyers know that as in this case, it is sometimes necessary to appeal certain language used or other aspects of a criminal case in the process of trying to protect the client. Legal jargon is often difficult for the average person to understand; however an experienced attorney knows that these seemingly minor changes can make a huge difference in the outcome.

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In July of 2011, Juan Guajardo Jr. was convicted of second-degree murder in the December 2010 death of Kevin Powell. Guajardo has maintained that he was acting in self-defense and protecting his family when the deadly shooting occurred. Guajardo’s attorneys appealed his conviction, which has now been upheld by the Michigan Court of Appeals.

Guajardo and Powell were living in the same home along with a 14-year-old boy, who allegedly became involved in an argument with Powell after accusing him of stealing his watch. After being accused, Powell allegedly began choking the boy. According to news reports, Powell weighed more than 300 pounds and was 6′ 6″ tall. When the altercation between Powell and the boy continued, Guajardo said in his testimony that Powell threatened to grab a gun from his room and kill everyone, however the boy said during his testimony that he did not hear Powell make the threat.

Testimony during the trial revealed that Powell went to his room and closed the door following the altercation with the boy. A short time later, Guajardo allegedly knocked on Powell’s door after grabbing his rifle, and fired the gun when Powell moved his hand. It was not clear whether Guajardo fired the gun before or after Powell opened the door. Guajardo testified that he did not aim for Powell, and that he did not remember pulling the trigger, that it all happened very fast.

There were several reasons the appellate judges upheld Guajardo’s conviction, one being that he testified that the shooting was accidental, because he did not believe his rifle was loaded when he retrieved it to go to Powell’s room. The judges wrote that, “Had Guajardo possessed a reasonable and honest belief that his life was in danger, he would not have brought what he thought was an unloaded rifle to Powell’s room to confront him.”

The judges also felt that sufficient time had passed between the altercation and Powell going to his room that Guajardo would not felt the need to grab a rifle for self-defense purposes.

Guajardo was sentenced to 27 to 42 years in prison by Saginaw County Circuit Judge Robert L. Kaczmarek; the earliest he may be released from prison is in December of 2037.

Michigan post-conviction defense lawyers know that there are circumstances in which innocent people are convicted of murder after protecting themselves in self-defense. Winning an appeal is not easy, but it does happen. Errors can be made in the criminal justice system, and because you have been convicted does not mean it is the end of the road.

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William McCleese, a 57-year-old Roseville man, was charged with maintaining a drug house and manufacturing between 5 and 45 kilograms of marijuana in 2010, along with his wife. Now, following rulings made by the Michigan Court of Appeals recently, the charges against McCleese may be reduced or dismissed.

In June of 2010, Roseville police searched McCleese’s home on Secretariat Street after obtaining a search warrant, allegedly obtained when an officer presented misleading information to a Macomb County judge. Upon searching the home, police located 55 marijuana plants growing in the basement under special lights. After McCleese and his wife, Sharon, presented patient and caregiver cards through the Michigan Medical Marijuana Act, both were arrested. According to police and prosecutors, the number of plants growing in the home exceeded the 12 plants per patient allowed under the Medical Marijuana Act.

The charges against Sharon McCleese were dismissed, and on Friday, March 22, the court of appeals claimed the search warrant used by police to search the home was “faulty” due to the affidavit consisting of self-serving assertions and conclusory statements which were based on the use of rumors or reputations that drug activity was going on in the home. The appeals court said that the search warrant should have been denied, and that the 39th District Court magistrate should have disregarded the claims.

The appeals court panel consisted of three jurists, who said that no timely evidence existed which suggested that narcotics or the proceeds of narcotics were present at the McCleese home. The panel called this a “critical” omission, saying that the affidavit lacked evidence such as a controlled buy, a confidential informant, or otherwise.

McCleese had $115,000 in Comerica Bank accounts, money which authorities claimed had been garnered from activities involving narcotic trafficking or legitimate money co-mingled with drug proceeds, a claim that the appeals court called a “bald accusation.”

At his trial in a Macomb County Circuit Court, Judge Diane Druzinski agreed with prosecutors and did not allow McCleese’s defense to use the MMA as an affirmative defense based on the claim that he had too many plants and did not keep the marijuana plants in a closed, locked facility according to MMA requirements. However, the appeals court said that McCleese can seek that the charges against him be dismissed based on the decision in People v. King in May of 2012 made by the state Supreme court, claiming that the marijuana is being properly grown under the MMA, regardless of whether he meets all of the requirements in regards to number of plants and storage.

If McCleese does have the charges against him dismissed it will mean he does not have to forfeit his two homes, five vehicles, $115,000 in cash and other property prosecutors initiated forfeiture proceedings against in 2011.

Michigan criminal appeals attorneys know that frequently errors are made in the legal system; as is evident in this case, police make mistakes as well. Because an individual is arrested and convicted of a criminal offense does not necessarily mean that it is the “end of the road,” and that no further action can be taken.

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Ihab Masalmani was 17 years old when he was convicted of kidnapping and killing Matt Landry in 2010. The crime took place during a 2009 crime spree; Masalmani was convicted of first-degree murder, carjacking, and four other charges. He maintained throughout that he did not commit murder.

It all began with a bank hold-up and ended with the victim, 21-year-old Matt Landry, being discovered in a burned-out house in Detroit where he had been shot to death. Landry was abducted in an Eastpointe sub shop parking lot; his kidnapping was a random act according to authorities. Masalmani’s defense attorney, Joseph Kosmala, argued that there was no evidence tying his client to the murder, but that Masalmani did admit to stealing a car and robbing the bank.

Masalmani did not act alone in the crime spree; another man, Robert Taylor, was also charged in the bank robbery and murder. Taylor was convicted and sentenced to life in prison as well.

Masalmani’s mandatory life in prison without parole term was recently overturned by the Michigan Court of Appeals. In their decision, the appeals panel cited a decision made by the U.S. Supreme Court last June which called mandatory life-in-prison terms for juveniles unconstitutional, saying such sentencing is cruel and unusual punishment. Attorneys in Masalmani’s case had anticipated the ruling by the state Court of Appeals due to the Supreme Court’s decision last year in Miller vs. Alabama.

Ultimately, Masalmani may now be sentenced to a few years in prison, or life behind bars. The decision by the appeals court gives Judge Diane Druzinski of Macomb County Circuit Court the discretion to sentence Masalmani to the same prison term she did originally, or to any number of years she so chooses. Eric Smith, County Prosecutor, said he will seek the same sentence for Masalmani as he had before, and that there were many factors in the prosecution’s favor.

Michigan post-conviction attorneys understand that even though the appeals court overturned Masalmani’s sentence, there is no guarantee that he will not receive the same exact sentence again. When the appeals court overturns a mandatory sentence, it simply means that the decision is once again back in the hands of the judge/courts. Judge Druzinski may have compassion because of Masalmani’s young age at the time of the crime, or she may determine to keep him behind bars for life.

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