Michigan Criminal Lawyers Blog

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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