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UPDATED: July 10, 2012

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The Appellate Division of any Prosecutor's office is generally not as visible to the public as its Trial Division. But, it is an integral component in the Prosecutor's efforts to protect the public & seek justice. Convictions gained before a jury can be lost years later before a panel of appellate judges.

The Appellate news summarized here was prepared by our staff to keep the public informed on selected cases on appeal. Every effort has been made to fairly and accurately summarize the evidence & results of cases. Some cases may return to court for possible trial, so facts that have not already been released to the public will not be included.

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Brent E. Morton
Sr. Assistant Prosecuting Attorney Appellate Specialist

 

 

 

Appellate News Index
(2008-2012)
July 10, 2012 ~   2012 Second Quarter Appellate Stats & Achievements
Apr 03, 2012 ~   2012 First Quarter Appellate Stats & Achievements
Jan 05, 2012 ~   2011 Fourth Quarter Appellate Stats & Achievements
Oct 05, 2011 ~   2011 Third Quarter Appellate Stats & Achievements
Jul 05, 2011 ~   2011 Second Quarter Appellate Stats & Achievements
Apr 05, 2011 ~   2011 First Quarter Appellate Stats & Achievements
Jan 07, 2011 ~   2010 Fourth Quarter Appellate Stats & Achievements
Oct 15, 2010 ~   2010 Third Quarter Appellate Stats & Achievements
July 12, 2010 ~   2010 Second Quarter Appellate Stats & Achievements
May 25, 2010 ~   2010 First Quarter Appellate Stats & Achievements
Feb 12, 2010 ~   2009 Fourth Quarter Appellate Stats & Achievements
Dec 31, 2009 ~   2009 Third Quarter Appellate Stats & Achievements
Sept 15, 2009 ~   2009 Second Quarter Appellate Stats & Achievements
April 03, 2009 ~   2009 First Quarter Appellate Stats & Achievements
Jan 20, 2009 ~   2008 Fourth Quarter Appellate Stats & Achievements
October 20, 2008 ~   2008 Third Quarter Appellate Stats & Achievements
August 25, 2008 ~   2008 Second Quarter Appellate Stats & Achievements
April 09, 2008 ~   2008 First Quarter Appellate Stats & Achievements
January 08, 2008 ~   2007 Fourth Quarter Appellate Stats & Achievements

 

Appellate News Archive (1998-2007)

July 10, 2012:

 

2012 Second Quarter Appellate Stats & Achievements

 

Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2012. Year-to-date totals for 2011 are listed to comparison purposes.

 

  2012
1st Quarter
2012
Yr-to-Date
Total
2011
Yr-to-Date
Total
Briefs Filed 21 36 33
Motions Filed 10 16 20
Responses to Motions Filed 14 31 30
Total Filings
(answers, briefs motions, memorandums, miscellaneous)
62 113 114

Highlights of the Second Quarter include the following:

  • In People v Matthew Lane Christian, the Court of Appeals affirmed the defendant’s conviction for assault with intent to commit great bodily harm less than murder and sentence of 40 months to 15 years. Assistant Prosecuting Attorney Sharon Park successfully argued the case before the Court of Appeals. Former Assistant Prosecutor Kristin V. Brady wrote the winning brief.
  •  

  • In People v Rodney Scott Burger, Eaton Circuit Court Judge Thomas S. Eveland issued an opinion denying the bail bondman’s motion to set aside the forfeiture of bond under MCL 765.28 because the defendant committed numerous other crimes before being caught, the defendant’s apprehension was involuntary, the defendant is in another state (Florida) out of the Court’s reach on its current bench warrant, and the Surety did not affirmatively assist in apprehending defendant. Assistant Prosecuting Attorney Deanna Natoli wrote our brief and made the winning summation during oral argument.
  •  

  • In People v Meleathe Renee Robinson, the Court of Appeals denied the defendant’s delayed application for leave to appeal for lack of merit in the grounds presented. Defendant raised two issues regarding: (1) amount of restitution; and (2) scoring of Offense Variable 12. By indicating at sentencing that he had no objection to the amount of restitution, defense counsel waived the issue. Robinson and her attorney also obtained a sentence agreement, and defendant received exactly what she bargained for during plea negotiations. The sentencing judge used properly-scored guidelines to sentence defendant Robinson to a minimum sentence of 18 months (well within the minimum range of 14 to 58 months).
  •  

  • In Larry McClain v. Nick Ludwick, U.S. District Court Judge Victoria Roberts issued an opinion and order denying McClain’s Habeas Corpus petition because the Michigan appellate court’s adjudication of petitioner’s claims was objectively reasonable. We represented the respondent warden Ludwick in this civil case in which McClain claimed he was being held in violation of his constitutional rights. An Eaton County Circuit Court jury convicted McClain of first-degree home invasion, and found him not guilty of assault with intent to murder, and felony firearm. The Circuit Court judge sentenced McClain to six to 15 years. The jury’s verdict followed a lengthy trial that included 31 prosecution witnesses and two witnesses for the defense.
  •  

    Honorable Mention: Chief Assistant Prosecutor Douglas Lloyd and assistant prosecutors Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adam Strong, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, and responses to motions. Legal Interns Andrew Hudson and Derek McKerr also helped research and write a response and two briefs.

     

     


       

      

    April 3, 2012:

     

    2012 First Quarter Appellate Stats & Achievements

     

    Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2012. Year-to-date totals for 2011 are listed to comparison purposes.

     

      2012
    1st Quarter
    2012
    Yr-to-Date
    Total
    2011
    Yr-to-Date
    Total
    Briefs Filed 15 15 21
    Motions Filed 6 6 8
    Responses to Motions Filed 17 17 10
    Total Filings
    (answers, briefs motions, memorandums, miscellaneous)
    51 51 51

    Highlights of the First Quarter include the following:

    • In People v Monique Denice James, the Michigan Court of Appeals issued an opinion affirming the defendant’s conviction for first-degree child abuse, third-degree child abuse and also her sentence of 6 to 15 years.
    •  

    • In People v Mark Shawn Morgan, the Court of Appeals issued an opinion affirming defendant’s convictions of three counts of first-degree criminal sexual conduct (victim under 13 years old) and sentence of 108 to 240 months in prison.
    •  

    • In Richard Lee Hasselbring v Debra Scutt, United States District Court Judge George Steeh issued an Opinion and Order Denying Hasselbring’s Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability (to the 6th Circuit Court of Appeals in Cincinnati). Hasselbring was convicted of two counts of sexually molesting a young child.
    •  

    • In People v Baraka Norwood, we filed People’s Memorandum of Law in Opposition to Motion for Relief from Judgment in Judge Thomas S. Eveland’s Court. The judge issued an Opinion Denying Defendant’s Motion for Relief from Judgment. The defendant’s spurious claims included: witness perjury, a traffic stop which violated the Fourth Amendment, prosecutorial misconduct involving suppression of documents, and ineffective assistance of trial and appellate counsel. Norwood was convicted of armed robbery and felony firearm.
    •  

    • In People v Benyam Habtegaber (Eaton County Circuit Court No. 98-020354-FH), we filed People’s Motion for Reconsideration of the Court’s Decision Granting the Defendant’s “Motion for Relief from Judgment Pursuant to Padilla v Kentucky.” A Michigan Court of Appeals panel recently held that because it established a new rule of law, Padilla should not be applied retroactively on collateral review. People v Gomez, Court of Appeals No. 302485, February 14, 2012. Writing “The Court must follow the Court of Appeals decision in this matter,” Eaton Circuit Judge Thomas Eveland issued an Opinion Granting the Prosecutor’s Motion for Reconsideration regarding the lack of retroactivity of Padilla v Kentucky. As a result, Habtegaber's application to set aside (i.e., expunge) his Eaton County conviction for No Account Check was denied.
    •  

      Honorable Mention: Chief Assistant Prosecutor Douglas Lloyd and assistant prosecutors Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, and responses to motions. Legal Intern Sarah Fuhrman also helped research and write a response and a brief.

       

       


         

        

      January 05, 2012:

       

      2011 Fourth Quarter Appellate Stats & Achievements

       

      Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2011. Year-to-date totals for 2010 are listed to comparison purposes.

       

        2011
      4th Quarter
      2011
      Yr-to-Date
      Total
      2010
      Yr-to-Date
      Total
      Briefs Filed 19 60 78
      Motions Filed 14 47 34
      Responses to Motions Filed 25 71 43
      Total Filings
      (answers, briefs motions, memorandums, miscellaneous)
      67 235 203

      Highlights of the Fourth Quarter include the following:

      • In 2011, we filed in the Court of Appeals a total of 8 briefs involving the Family Court's termination of parental rights. This was a 400% increase over the average filings from 2007 through 2010, during which we filed a total of 6 briefs, averaging 1.5 per year.
      •  

      • In In the Matter of McLeod Minors, Court of Appeals No. 303072; Eaton Circuit Court Family Division No. 09-017490-NA, Unpublished Per Curiam Opinion Affirming the trial court’s order terminating the respondent’s parental rights to the minor children under MCL 712A.19b(3)(c)(i), (g), and (j) because there were no errors warranting relief.
      •  

      • In People v Tracy Lynn Higelmire, Court of Appeals No. 300081; Eaton County Circuit Court Nos. 10- 020178-FH; 10-020181-FH, Per Curiam Unpublished Opinion reversing and remanding for resentencing because the sentencing court failed to articulate substantial and compelling reasons based on objective and verifiable factors to justify the downward departure.
      •  

      • In In the Matter of Morgan Minors, Court of Appeals No. 304625; Eaton Family Division No. 09-017246- NA, Court of Appeals Unpublished Per Curiam Opinion affirming the termination of respondentfather’s parental rights. Mark S. Morgan sexually abused his adopted daughter and an Eaton County jury convicted him of CSC. Respondent’s criminal appeal is pending. This opinion, signed by judges Kurtis T. Wilder, Michael J. Talbot and Deborah Servitto, says the court did not take judicial notice of respondent’s conviction where it heard the testimony of a witness and the petitioner presented a certified copy of conviction. Also, the panel wrote that Morgan could have made a collateral attack on his conviction, but he didn’t. The case is also notable because the panel wrote that Morgan did not have a right to confront his adopted daughter; that would only happen in a criminal case and TPR cases are civil, not criminal.
      •  

      • In In the Matter of Manuell-Peralez Minors, Court of Appeals No. 303938; Eaton Circuit Court Family Division No. 08-016964-NA, Unpublished Per Curiam Opinion of the Court of Appeals affirming the trial court’s order terminating the respondent-mother’s parental rights to the minor children.
      •  

        Honorable Mention: Assistant prosecutors Kristin Brady, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, responses to motions, miscellaneous filings, and an Answer Opposing Habeas Petition during the Third Quarter. Intern Paul Skreli earned an assist on a response to a defendant’s motion for DNA testing.

         

         


           

          

        October 05, 2011:

         

        2011 Third Quarter Appellate Stats & Achievements

         

        Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Third Quarter of 2011. Year-to-date totals for 2010 are listed to comparison purposes.

         

          2011
        3rd Quarter
        2011
        Yr-to-Date
        Total
        2010
        Yr-to-Date
        Total
        Briefs Filed 8 41 57
        Motions Filed 13 33 34
        Responses to Motions Filed 16 46 29
        Total Filings
        (answers, briefs motions, memorandums, miscellaneous)
        53 167 138

        Highlights of the Third Quarter include the following:

        • In People v Michael Carl Cooley, Michigan Supreme Court No. 142228, on behalf of the Prosecuting Attorneys Association of Michigan, we filed a Supreme Court Amicus Brief on the scoring of OV 19 for interfering with the administration of justice. Issue: Where the defendant threw away evidence and repeatedly denied guilt to police officers, did his conduct “interfere with or attempt to interfere with the administration of justice” supporting the scoring of 10 points under offense variable (OV) 19?
        •  

        • In People v Mark Shawn Morgan, Court of Appeals No. 302716, we filed Plaintiff-Appellee’s Brief on Appeal which included the following issues: (1) The trial court properly denied defendant/appellant’s Motion for Bill of Particulars under the considerations outlined in People v Naugle, where a child victim of ongoing sexual abuse is unable to provide specific dates of offense for the criminal sexual conduct charges; (2) The trial court properly admitted other acts evidence pursuant to MCL 768.27a; (3) The trial court properly excluded irrelevant testimony; and (4) The trial court properly instructed the jury that the testimony of the victim need not be corroborated if that testimony proves guilt beyond a reasonable doubt.
        •  

        • In In Re McLeod Minors, Eaton County Family Court No. 09-017489-NA, we filed Petitioner-Appellee's Brief on Appeal which included the following issues: I. Termination of parental rights is appropriate where petitioner proved by clear and convincing evidence at least one ground for termination. Where the Petitioner proved by clear and convincing evidence that respondents failed to progress sufficiently and failed to protect their children, Judge Byerley properly terminated their parental rights. II. If the Court finds there are grounds for termination of parental rights, it must order termination of parental rights unless the Court finds that doing so is clearly not in the children's best interests. Where Judge Byerley found that it is in the best interests of the children to terminate the Respondents’ parental rights, this Court should affirm.
        •  

        • In People Matthew Aaron Purves, Eaton District Court No. 11-0678, we filed the People’s Brief in Support of Bindover, which included the following issue: did the prosecutor present some evidence at the preliminary examination that defendant operated a motor vehicle while intoxicated causing a serious injury to the complainant where the victim lost all vision for a period of time and now suffers from a measurable brain impairment. Michigan law enumerates both of these injuries as “serious impairments of a body function?”
        •  

          Honorable Mention: Assistant prosecutors Kristin Brady, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, responses to motions, miscellaneous filings, and an Answer Opposing Habeas Petition during the Third Quarter.

           

           


           

            

          July 05, 2011:

           

          2011 Second Quarter Appellate Stats & Achievements

           

          Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2011. Year-to-date totals for 2010 are listed to comparison purposes.

           

            2011
          2nd Quarter
          2011
          Yr-to-Date
          Total
          2010
          Yr-to-Date
          Total
          Briefs Filed 13 33 35
          Motions Filed 12 20 24
          Responses to Motions Filed 20 30 22
          Total Filings
          (answers, briefs motions, memorandums, miscellaneous)
          63 114 89

          Highlights of the Second Quarter include the following:

          • In People v Ronald Carl Rose, we filed in the Michigan Supreme Court an Amicus Curiae Brief on behalf of the Prosecuting Attorneys Association of Michigan. This case involves the following issues: I. Does the use of a screen to shield a child complainant from the defendant during testimony violate the Confrontation Clause? II. Does the use of a screen to shield a child complainant from the defendant during testimony prejudice the defendant because it impinges on the presumption of innocence?
          •  

          • In People v Nicholas Allen Milbourn, the Michigan Supreme Court denied the defendant’s application for leave to appeal. We framed the issues as follows: I. Because defendant failed to object at the time restitution was imposed, and did not request an evidentiary hearing regarding the amount of restitution that was properly due, the issue is waived; and II. A judge is entitled to rely on information in the presentence investigation report, which is presumed to be accurate, unless the defendant effectively challenges the accuracy of the factual information. Because, at sentencing, defendant did not request an evidentiary hearing regarding the amount of restitution that was properly due, this was a waiver of his opportunity for an evidentiary hearing and he cannot now argue that he was denied due process.
          •  

          • In People v Rashida Morgan, the Michigan Supreme Court denied the defendant’s application for leave to appeal. Previously, the Court of Appeals had ruled that there was sufficient evidence to convict defendant of armed robbery because pepper spray does constitute a dangerous weapon within the meaning of the armed robbery statute. We framed the issue as follows: A dangerous weapon is any object used in a way that is likely to cause serious physical injury or death. While fleeing Wal-Mart after stealing a television set, defendant Morgan used a chemical/pepper spray to incapacitate a 74-year-old store employee who was treated for excruciating pain and temporary blindness. The evidence admitted at Morgan’s trial was sufficient to prove that she assaulted the victim with a dangerous weapon, an object capable of causing serious injury.
          •  

          • In People v Joshua James Whittum, the Court of Appeals granted the prosecution’s application for leave to appeal, limited to the following issue: A judge may depart from the sentencing guidelines if he gives a substantial and compelling, objective and verifiable reason. Incorporating everything he said, Eaton County Circuit Judge Calvin E. Osterhaven departed downward for 23 reasons, which are either not substantial and compelling or not objective and verifiable. Expressing uncertainty about what justice entailed, Judge Osterhaven never explained why 21 months was a more proportionate sentence than the guidelines minimum of 45 months; thus, remand for resentencing or re-articulation is necessary.
          •  

          • In People v David Armstrong Jones, Judge Osterhaven denied the defendant’s second motion for relief from judgment because the motion is not based on a retroactive change in law that occurred after his first motion for relief from judgment or new evidence that was not discovered before his first motion for relief from judgment.
          •  

            Honorable Mention: Prosecutor Jeffrey L. Sauter, Chief Assistant Prosecutor Douglas Lloyd, Assistant prosecutors Kristin Lefere, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, responses to motions, and miscellaneous filings during the Second Quarter.

             

             


             

            April 05, 2011:

             

            2011 First Quarter Appellate Stats & Achievements

             

            Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2011. Year-to-date totals for 2010 are listed to comparison purposes.

             

              2011
            1st Quarter
            2011
            Yr-to-Date
            Total
            2010
            Yr-to-Date
            Total
            Briefs Filed 21 21 18
            Motions Filed 8 8 13
            Responses to Motions Filed 10 10 12
            Total Filings
            (answers, briefs motions, memorandums, miscellaneous)
            51 51 45

            Highlights of the First Quarter include the following:

            • In People v Terrence Joseph Williams, Court of Appeals Docket No. 300089; Eaton County Circuit Court No. 08-020274-FH; in lieu of granting the application for leave to appeal, the Court of Appeals vacated the August 19, 2010 judgment of sentence (which involved a downward departure) and remanded this case for resentencing within the statutory sentencing guidelines range. In the event the sentencing court departs from such range, the judge must state on the record substantial and compelling reasons to justify its departure, see People v Babcock, 469 Mich 247; 666 NW2d 231 (2003), and explain why the sentence imposed is more proportionate than a sentence within the guidelines recommendation would have been, under People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008).
            •  

            • In In Re A.B. Edwards, Court of Appeals No. 298431; Eaton County Circuit Court Family Division No. 08-017070-NA, the Court of Appeals affirmed the termination of respondent mother’s parental rights to the minor child under MCL 712.19b(3)(c)(i), (g), and (j) because the panel concluded there were no errors warranting relief. The trial court (Judge Thomas Byerley) did not clearly err in finding that statutory grounds for termination of respondent’s parental rights were established by clear and convincing evidence. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000); MCR 3.977(K).
            •  

            • In Danny Eugene Downing v Linda Metrish, United States District Court for the Western District of Michigan Northern Division, Case No. 2:08-cv-009, the Federal District Court entered Judgment ordering that the petition for writ of habeas corpus is dismissed. It was further ordered that a certificate of appealability is DENIED as to each issue raised by the Petitioner in his application for habeas corpus relief because petitioner has failed to make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
            •  

            • In People v Juan Pablo Romero-Perea, Eaton County Circuit Court No. 10-315, Circuit Court Opinion denying defendant’s motion to suppress the apartment search claiming it was based on invalid consent.
            •  

              Honorable Mention: Assistant prosecutors Kristin Lefere, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, and responses to motions during the First Quarter.

               


               

              January 7, 2011:

               

              2010 Fourth Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2010. Year-to-date totals for 2009 are listed to comparison purposes.

               

                2010
              4th Qr
              2010
              Yr-to-Date
              Total
              2009
              Yr-to-Date
              Total
              Briefs Filed 21 78 79
              Motions Filed 10 34 33
              Responses to Motions Filed 21 43 51
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              64 203 182

              Highlights of the Fourth Quarter include the following:

              • In People v Willie Rich Chappell, Jr. (Supreme Ct. No. ____; Ct of App No. 290834) and Baraka Norwood (Supreme Ct No. _____; Ct of App No. 290852) [co-defendants tried separately], the Michigan Supreme Court denied the defendants’ applications for leave to appeal. The Michigan Court of Appeals affirmed the defendants’ convictions of two counts of armed robbery and one count of possession of a firearm while committing a felony (felony-firearm). Chappell was sentenced as a fourth habitual offender to serve 23-1/3 to 60 years in prison for the armed robbery convictions and to serve a consecutive term of 5 years in prison for the felony-firearm, second offense. Norwood was sentenced as a third habitual offender to serve concurrent prison terms of 14.58 to 40 years for the armed robbery convictions plus 2 years consecutive imprisonment for the felony-firearm conviction. Chappell and Norwood robbed a Delta Township Taco Bell at gunpoint during the early morning hours of July 23, 2008. Chappell and Norwood were taken into custody later that morning in Perry, MI and two handguns, gloves, a backpack, facial coverings, and cash totaling approximately $200 were recovered from their vehicle. The two employees working during the robbery identified Chappell and Norwood in court as the robbers. On appeal, Chappell claimed ineffective assistance of trial counsel and that his conviction was against the great weight of the evidence. After his arrest, Norwood admitted involvement in the robbery. Norwood’s sole issue on appeal involved his motion to suppress evidence, which the trial court denied. The Court of Appeals held that, contrary to Norwood’s argument, the Michigan Supreme Court made clear in People v Jenkins, 472 Mich 26, 33-34 (2005) that the Fourth Amendment is not implicated when an officer engages an individual in conversation or requests an individual’s identification. A seizure implicating the Fourth Amendment occurred only after the officer had sufficient basis to arrest defendant (no valid license) and that evidence obtained thereafter was properly acquired through a search incident to arrest. According to the MDOC web site, Chappells' earliest release date is 05/07/2037, and Norwood's earliest release date is 08/07/2025.
              •  

              • In People v Linda Sue Corr the Michigan Supreme Court denied the defendant’s application for leave to appeal. The Court of Appeals had reversed and remanded for reinstatement of the charges of resisting and obstructing a police officer, MCL 750.81d(1). After reviewing the testimony of the officers at the preliminary examination, the Court of Appeals found that the district court erred in its decision not to bind defendant over for trial because the evidence established probable cause that defendant committed the offenses. Although the Court of Appeals agreed with the circuit court that defendant’s conduct established probable cause to support her Bindover for trial, the Court of Appeals found that the circuit court erred in its determination that the officers’ testimony must be excluded as the “fruit” of defendant’s illegal detention. Defendant’s detention was not unlawful and even if it had been, the circumstances did not warrant the harsh remedy of the exclusionary rule. There was no evidence of misconduct or bad faith on the part of the officers.
              •  

              • In People v Darrin Jay Herp (Ct of App No. 291484; Eaton Co Circuit Ct No. 08-020070-FH), the the Michigan Supreme Court denied the defendant’s application for leave to appeal. Defendant raised three issues in his appeal of right: I. The evidence is insufficient to sustain defendant's convictions of felony firearm, felonious assault and unlawful restraint and therefore, defendant's convictions violate his right to due process and must be vacated; II. The trial court improperly scored offense variable 10, exploitation of a vulnerable victim at 15 points for "predatory conduct"; and III. The trial court abused its discretion in refusing to delete conjectural material from the presentence report that was not supported by the evidence at trial. The Court of Appeals wrote: "Because we conclude that there were no errors warranting relief, we affirm."
              •  

              • In People v Rashida Morgan (Ct of Appeals No. 294591), the Michigan Court of Appeals affirmed the defendant’s conviction for armed robbery. Morgan was on probation when she committed the armed robbery. The judge sentenced Morgan as a habitual offender, fourth offense, to not less than 126 months nor more than 300 months. Defendant stole a TV from Wal-Mart and used pepper spray on the store employee who followed her into the parking lot. On appeal, defendant claimed there was insufficient evidence to convict her because pepper spray does not constitute a dangerous weapon within the meaning of the armed robbery statute. The Court of Appeals rejected this argument. According to the MDOC web site, Morgan's earliest release date is 01/22/2020.
              •  

                Honorable Mention: Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Kristin Brady, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and legal intern Jared Giuffre, prepared and filed briefs, motions, and responses to motions during the Fourth Quarter.

                 


               

              October 15, 2010:

               

              2010 Third Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Third Quarter of 2010. Year-to-date totals for 2009 are listed to comparison purposes.

               

                2010
              3rd Qr
              2010
              Yr-to-Date
              Total
              2009
              Yr-to-Date
              Total
              Briefs Filed 22 57 63
              Motions Filed 10 34 24
              Responses to Motions Filed 7 29 45
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              49 138 145

              Highlights of the Third Quarter include the following:

              • In People v Willie Rich Chappell, Jr. (Ct of App No. 290834) and Baraka Norwood (Ct of App No. 290852) [co-defendants tried separately], the Michigan Court of Appeals affirmed the defendants’ convictions of two counts of armed robbery and one count of possession of a firearm while committing a felony (felony-firearm). Chappell was sentenced as a fourth habitual offender to serve 23-1/3 to 60 years in prison for the armed robbery convictions and to serve a consecutive term of 5 years in prison for the felony-firearm, second offense. Norwood was sentenced as a third habitual offender to serve concurrent prison terms of 14.58 to 40 years for the armed robbery convictions plus 2 years consecutive imprisonment for the felony-firearm conviction. Chappell and Norwood robbed a Delta Township Taco Bell at gunpoint during the early morning hours of July 23, 2008. Chappell and Norwood were taken into custody later that morning in Perry, MI and two handguns, gloves, a backpack, facial coverings, and cash totaling approximately $200 were recovered from their vehicle. The two employees working during the robbery identified Chappell and Norwood in court as the robbers. On appeal, Chappell claimed ineffective assistance of trial counsel and that his conviction was against the great weight of the evidence. After his arrest, Norwood admitted involvement in the robbery. Norwood’s sole issue on appeal involved his motion to suppress evidence, which the trial court denied. The Court of Appeals held that, contrary to Norwood’s argument, the Michigan Supreme Court made clear in People v Jenkins, 472 Mich 26, 33-34 (2005) that the Fourth Amendment is not implicated when an officer engages an individual in conversation or requests an individual’s identification. A seizure implicating the Fourth Amendment occurred only after the officer had sufficient basis to arrest defendant (no valid license) and that evidence obtained thereafter was properly acquired through a search incident to arrest. According to the MDOC web site, Chappells' earliest release date is 05/07/2037, and Norwood's earliest release date is 08/07/2025.
              • In People v Russell Percy Dunham (Ct of App No. 287584), the Michigan Court of Appeals affirmed the defendant’s second-degree murder conviction and sentence as a fourth habitual offender to prison terms of 34 to 60 years. The issues involved: (1) sufficiency of the evidence; (2) ineffective assistance of counsel regarding several sub-issues; and (3) cumulative error. The Court of Appeals held that the only real error was counsel’s failure to ensure that the jury did not see defendant’s swastika tattoo, and defendant failed to establish that this failure affected the outcome of the trial. According to the MDOC web site, Dunham's earliest release date is 07/21/2041.
              • In People v Joel Robert Dienhert (Ct of App No. 285489), the Michigan Court of Appeals affirmed the defendant’s second-degree murder conviction and sentence as a fourth habitual offender to prison terms of 34 to 60 years.affirmed the defendant’s convictions for OUIL causing death, operating a motor vehicle with a suspended license causing death, OUIL causing serious injury, and operating a motor vehicle with a suspended license causing serious injury. Defendant’s appeal involved three issues: I. the trial court denied his motion in limine and allowed the prosecution to introduce evidence pertaining to his attempts to obtain cocaine immediately preceding the crash because it went towards proving malice where defendant was charged with second-degree murder; II. The trial court denied defendant’s mistrial motion because the testimony that defendant had previously been convicted of drunk driving was inadvertent and unsolicited and the judge instructed jurors to disregard it; and III. The trial court properly excluded evidence of marijuana metabolite in the victim’s system because there was no evidence that it affected her driving and there was no evidence when she had smoked marijuana. Gross negligence would have been necessary to demonstrate an intervening, superseding cause for the crash. According to the MDOC web site, Dienhert's earliest release date is 12/25/2015.
              • In People v Terry Wayne Hall Eaton County Circuit Court Judge Thomas S. Eveland denied the defendant’s motion for relief from judgment. The Court found that the grounds raised in the motion for relief from judgment could have been raised on appeal from the conviction and sentence, defendant has not shown good cause for failure to raise those grounds on appeal, and defendant has not suffered actual prejudice from the alleged irregularities that support the claim for relief. The habitual offender sentencing procedures used by the Court were appropriate. The habitual offender statute does not violate the ex post facto clauses of the U.S. and Michigan Constitutions. Finally, although defendant claimed he was not given a competency hearing, the court record showed otherwise. While the competency hearing did not follow within the five days required by statute, this does not ipso facto entitle defendant to a new trial where no evidence of incompetency was presented to the court.
              • In People v Steven Edward Flick, Supreme Court No. 138258, and People v Brent Lazarus, Supreme Court No. 138261, Justice Corrigan joined by Justices Markman, Young and Weaver, held: In these consolidated cases, we consider the scope of the Michigan Penal Code provision that criminalizes the “knowing possession” of child sexually abusive material, MCL 750.145c(4). Defendants intentionally accessed and purposely viewed depictions of child sexually abusive material on the Internet. The only child sexually abusive material later found in their computers, however, had been automatically stored in temporary Internet files. Defendants contend that because the prosecution failed to establish that they knowingly possessed child sexually abusive material, the district courts erred by binding them over for trial. The term “possesses” as used in the statute includes both actual and constructive possession. Contrary to defendants’ arguments, the evidence presented at their preliminary examinations established that Flick and Lazarus did more than passively view child sexually abusive material on the Internet. When any depiction of child sexually abusive material was displayed on each defendant’s computer screen, he knowingly had the power and the intention to exercise dominion or control over that depiction. As a result, each defendant constructively possessed those images, which amounts to possession of child sexually abusive material. Consequently, the Supreme Court majority affirmed the Court of Appeals judgment and remanded for further proceedings consistent with the Supreme Court’s Opinion. We filed an amicus brief in this case.
              • In People v Jason M. Gursky, Supreme Court No. 137251, Justice Young, joined by Justices Weaver, Corrigan, Markman, and Hathaway, held: The complainant’s statements were not spontaneous and therefore should not have been admitted under the “tender years” hearsay exception, MRE 803A. However, because the statements were not used substantively to prove guilt, the statements were cumulative, and other evidence corroborated defendant’s guilt, the error was harmless. The Court of Appeals decision was vacated, but defendant’s conviction affirmed on other grounds. We filed an amicus brief in this case.
              • Honorable Mention: Assistant prosecutors Steve Knittel, Kristin Brady, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, and Adrianne Whitehead, prepared and filed briefs, motions, and responses to motions during the Third Quarter.

                 


               

              July 12, 2010:

               

              2010 Second Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2010. Year-to-date totals for 2009 are listed to comparison purposes.

               

                2010
              2nd Qr
              2010
              Yr-to-Date
              Total
              2009
              Yr-to-Date
              Total
              Briefs Filed 17 35 41
              Motions Filed 11 24 18
              Responses to Motions Filed 10 22 31
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              44 89 101

              Highlights of the Second Quarter include the following:

              • In People v Angelo Rochelle McMullan (Supreme Ct No. 139209; Ct of App No. 281844; Genesee Co Circuit Ct No. 01-008582-FC), we filed the Amicus Brief of the Prosecuting Attorneys Association of Michigan in Support of the State of Michigan. The evidence established that defendant McMullan wanted to scare Smith into giving him money by threatening the victim at gunpoint. McMullan shot Smith in the chest at close range then rifled his pockets for money. The issue, as framed by our State Supreme Court, is whether a rational juror could conclude that defendant acted with a “lesser mens rea of gross negligence or an intent to injure, and not malice,” People v Holtschlag, 471 Mich 1, 21-22; 684 NW2d 730 (2004), thus warranting an instruction on involuntary manslaughter. Justice Corrigan, joined by Justice Young, asked the parties to address whether, as a matter of law, defendant’s assertion that he did not actually intend to kill the victim could preclude a finding of malice. In addition to this issue and sub-issue, Amicus added a section on Harmless Error analysis. According to information on the MDOC web site, McMullan is currently serving 30-75 years for second degree murder, and 5-15 years for felon in possession of a firearm. His earliest release date is 07/05/2033.
              •  

              • In People v Darrin Jay Herp (Ct of App No. 291484; Eaton Co Circuit Ct No. 08-020070-FH), the Court of Appeals issued an Opinion affirming the Defendant’s convictions and sentences. Defendant raised three issues in his appeal of right: (1) The evidence is insufficient to sustain defendant's convictions of felony firearm, felonious assault and unlawful restraint and therefore, defendant's convictions violate his right to due process and must be vacated; (2) The trial court improperly scored offense variable 10, exploitation of a vulnerable victim at 15 points for "predatory conduct”; and (3) The trial court abused its discretion in refusing to delete conjectural material from the presentence report that was not supported by the evidence at trial. The Court of Appeals wrote: “Because we conclude that there were no errors warranting relief, we affirm.” According to information on the MDOC web site, Herp is currently serving 3-3/4 to 15 years for unlawful imprisonment, 14 months to 4 years for assault with a dangerous weapon, and 14 months to 2 years for resisting/obstructing a police officer. All of these prison terms are consecutive to and preceeding a 2-year term for possessing a firearm in the commission of a felony. His earliest release date is 03/27/2014.
              •  

              • In People v Tyler Lynn Robins (Ct of Appeals No. 290884; Eaton Circuit Ct No. 07-020305-FH), the Court of Appeals issued an Opinion affirming defendant’s conviction of manufacturing methamphetamine for which he was sentenced as a third habitual offender to five to 40 years in prison. The Court held that a cell phone conversation was in the course of and in furtherance of the conspiracy and was not inadmissible hearsay. Any error in its admission was not outcome-determinative due to other evidence regarding methamphetamine manufacture. Counsel was not ineffective for failing to object to the introduction of this evidence. According to information on the MDOC web site, Robins is serving 5-40 years for manufacturing methamphetamine, and 2-15 years to maintaining a methamphetamine lab. His earliest release date is 08/27/2012.
              •  

                Honorable Mention: Chief Assistant Prosecutor Doug Lloyd, assistant prosecutors Steve Knittel, Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Jared Giuffre, prepared briefs, motions, and responses to motions during the Second Quarter. Brent Morton took top honors with nine court filings in the second quarter.

                 


               

              May 25, 2010:

               

              2010 First Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2010. Year-to-date totals for 2009 are listed to comparison purposes.

               

                2010
              1st Qr
              2010
              Yr-to-Date
              Total
              2009
              Yr-to-Date
              Total
              Briefs Filed 18 18 19
              Motions Filed 13 13 1
              Responses to Motions Filed 12 12 14
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              45 45 35

              Highlights of the First Quarter include the following:

              • In People v Linda Sue Corr, a published Court of Appeals opinion, the panel consisting of judges Mark J. Cavanagh, E. Thomas Fitzgerald and Douglas B. Shapiro, reversed and remanded for reinstatement of the charges of resisting and obstructing a police officer, MCL 750.81d(1). After reviewing the testimony of the officers at the preliminary examination, the Court of Appeals found that the district court erred in its decision not to bind defendant over for trial because the evidence established probable cause that defendant committed the offense. Although the Court of Appeals agreed with the circuit court that defendant’s conduct established probable cause to support defendant’s bind-over for trial, the Court of Appeals found that the circuit court erred in its determination that the officers’ testimony must be excluded as the “fruit” of defendant’s illegal detention. Defendant’s detention was not unlawful and even if it had been, the circumstances did not warrant the harsh remedy of the exclusionary rule because there was no evidence of misconduct or bad faith on the part of the officers. In March 2010, the People filed a brief in the Michigan Supreme Court (docket 140750) opposing Ms. Corr's Application for Leave to Appeal.
              •  

              • In People v Jason Michael Gursky, we filed an Amicus Brief on behalf of the Prosecuting Attorneys Association of Michigan with the Michigan Supreme Court. The issues, as framed by the Supreme Court, are: (1) whether the statements made by the complainant to Stacy Morgan on or about May 4, 2006 were “shown to have been spontaneous and without indication of manufacture” within the meaning of MRE 803A(2), and (2) whether it was more probable than not that any error in this regard was outcome determinative. See People v Lukity, 460 Mich 484, 495-496 (1999). In answer to the first issue, we argued that where complainant didn’t intend to make an assertion by her spontaneous acts, testimony regarding complainant’s physical behavior doesn’t comprise hearsay. The following was nonverbal conduct not intended as an assertion: (1) the horrified look on complainant’s face; (2) her eyes welling up; (3) thumb sucking; (4) tears; (5) crying, bawling; and (6) gasping for breath. Complainant’s nonverbal conduct, volunteered statements, and answers to Stacy Morgan’s questions were mostly spontaneous and without indication of manufacture. As such, they were admissible under MRE 803A. Regarding the second issue, we argued that where the error asserted is erroneous admission of evidence, the effect is evaluated in the context of untainted evidence to determine whether it is more probable than not that a different outcome would have resulted. Since testimony of a CSC complainant alone is sufficient to establish defendant’s guilt, and complainant’s testimony was corroborated by her mother, the detective, nurse, and Gursky’s admissions, defendant cannot meet his burden of showing that Stacy Morgan’s testimony was outcome-determinative.
              •  

              • In People v Patricia Ann Roberts, Assistant Prosecutor Kristin Brady prepared and filed our Brief on Appeal with the Court of Appeals. At issue in this fourth-degree child abuse case is whether a trial court should interfere with the jury’s role of determining the weight of the evidence or the credibility of the witnesses. The district court found a conflict in the testimony of the social worker and the defendant. We argued that the district judge abused his discretion and acted as the “thirteenth juror” by setting aside the jury’s guilty verdict, based on the credibility of a witness. The Circuit Court agreed with us and defendant appealed the circuit judge’s decision reversing the district court.
              •  

                Honorable Mention: Prosecutor Jeff Sauter, Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Jared Giuffre, prepared briefs, motions, and responses to motions during the First Quarter.

                 


               

              February 12, 2010:

               

              2009 Fourth Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2009. Year-to-date totals for 2008 are listed to comparison purposes.

               

                2009
              4th Qr
              2009
              Yr-to-Date
              Total
              2008
              Yr-to-Date
              Total
              Briefs Filed 16 79 59
              Motions Filed 9 33 18
              Responses to Motions Filed 6 51 29
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              37 182 118

              Highlights of the Fourth Quarter include the following:

              • In People v Tyler Lynn Robins, we filed our brief in the Court of Appeals. This case involves two claims arising from his convictions for Manufacturing Methamphetamine and Maintaining a Methamphetamine Lab: (1) The circuit court committed plain error in allowing prejudicial hearsay evidence at trial; (2) Trial counsel was ineffective for failing to object to the prejudicial and inadmissible hearsay statements. Co-defendant Cook testified that while running through the woods, co-defendant Aspinall made a phone call to Robins. Cook was unable to hear the conversation, but claimed that he was told by Aspinall that Robins had passed Deputy Haga on the road and that Robins had his “monster” with him. Cook testified that “monster” meant methamphetamine. We argued that the statement was not hearsay because it was made "in furtherance" of the conspiracy to manufacture methamphetamine and cited People v Bushard, a Michigan Supreme Court case. Counsel is not ineffective for failing to object where objection is futile and there is a strong presumption of trial strategy where defense counsel used this evidence to impeach the witness because the State's expert had never heard of methamphetamine referred to as monster. According to the MDOc web site, Robin's earliest release date is 08/27/2012.
              •  

              • In People v Willie Rich Chappell, Jr., we filed our brief in the Court of Appeals. Defendant’s claims included: (1) whether there was an independent source for eyewitness identification is a question of credibility, and a reviewing court will not substitute its judgment on witness credibility for that of the trier of fact. Bennett and Thompson viewed robber number one for five to 10 minutes during the armed robbery, and, in court, these eyewitnesses positively identified Willie Chappell. This eyewitness, in-court identification was properly admitted. (2) No Fourth Amendment seizure occurs where there’s no restraint on the person’s liberty, e.g. where an officer seeks a citizen’s voluntary cooperation through non-coercive questioning. Casually, Officer Hernandez approached Norwood, asking, “What’s up?” Hernandez continued talking with Norwood as they walked towards the car he had driven, and when asked for his license, Norwood didn’t have one. Hernandez also saw money strewn across the car’s back seat. Hernandez’s non-coercive questioning did not amount to a seizure. (3) The record must be considered as a whole in determining whether the jury’s verdict can be said to be contrary to the great weight of the evidence. The evidence at Chappell’s trial included identification of defendant by two eyewitnesses and overwhelming circumstantial evidence of defendant’s guilt. Based on the evidence, it would not be a miscarriage of justice to allow the verdicts for felony firearm second offense and two counts of armed robbery to stand. According to the MDOC web site, Chappell's earliest relase date is 05/07/2037.
              •  

              • In People v Jonathon Emory Morgan, the Supreme Court denied the defendant’s application for leave to appeal from two convictions for car-jacking. The issues included: (1) unless there is evidence indicating an intention to return the property taken or that otherwise suggests that intent to steal did not exist, the phrase “intent to steal” is really more accurate and easily understood than the phrase that describes the mental element as the “intent to permanently deprive.” Where Morgan referred to “the car I jacked” and “the grand theft I did,” the evidence was sufficient to establish his “intent to steal”; (2) Failure to object to an instruction prior to a jury’s retiring to consider its verdict waives appellate review. Morgan’s attorney expressed approval of the circuit court’s jury instructions with the exception of the judge’s decision to forego instructing jurors on the defense of compulsion. Where trial counsel’s strategy was to argue compulsion rather than lack of specific intent, reversible error did not occur under these circumstances; (3) to justify reversal on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense. Trial defense counsel elected to argue compulsion rather than a lack of specific intent. Where counsel’s decision involved trial strategy, defendant’s attorney provided effective assistance; and in two new issues, where Morgan failed to expound on his issues and provide any authority, he has abandoned claims that his sentencing guidelines were inaccurately scored and he was unjustly sentenced as a habitual offender. According to the MDOC web site, Morgan's earliest release date is 11/17/2014.
              •  

              • In People v Patrick Damen Shorty, the Court of Appeals affirmed defendant’s convictions and sentences. Defendant was convicted of one count of first-degree criminal sexual conduct (CSC) and two counts of second-degree CSC. He was sentenced to concurrent prison terms of 140 to 360 months on the CSC I conviction, and to 50 to 180 months for each of the CSC II convictions. On appeal, defendant argued that the evidence at trial was insufficient to convict him. Specifically, defendant claimed that the victim’s testimony was compromised because of her memory, as well as language and communication disabilities, and that the evidence supporting his convictions was therefore insufficient. When determining the sufficiency of the evidence, the Court views the evidence de novo in a light most favorable to the prosecution and must consider whether a rational trier of fact could find, based on that evidence, that the essential elements of the crime were proven beyond a reasonable doubt. Questions regarding the credibility of a witness and the weight of the evidence are left to the trier of fact and are not to be resolved anew by the reviewing court. In arguing that the victim’s testimony should not be deemed sufficient to sustain his conviction, defendant impliedly challenged her competency to testify. However, the Court of Appeals has specifically held that if a child is found competent to testify under MRE 601, then “a later showing of the child’s inability to testify truthfully reflects on credibility, not competency.” The record supported the conclusion that the victim was competent to testify. The victim’s testimony was detailed and provided all the evidence from which a rational jury could determine that the elements of both CSC I and CSC II were proven beyond a reasonable doubt. According to the MDOC web site, Shorty's earliest release date is 09/21/2019.
              •  

              • In People v Patricia Roberts, we filed a brief opposing defendant’s application for leave to appeal in the Court of Appeals. The issue: the District Court substituted its view of witness credibility “for the constitutionally guaranteed jury determination”; therefore, acting as the “thirteenth juror” and abusing its discretion. Circuit Court Judge Calvin Osterhaven reversed the District Court decision and reinstated the defendant’s conviction for 4th degree child abuse.
              •  

              • PAROLE APPLICATIONS FOR LEAVE TO APPEAL FILED: People v Joseph Earl Green, II (No. 02-020049-FH): CSC 2nd - Person Under 13; People v Rezese Hammonds(No. 09-1372-AP): Kidnaping, Attempted Murder, Malicious Destruction of Property.
                • PAROLE or COMMUTATION OPPOSITIONS: People v Anna M. Bushard (No. 86-13-FC): First Degree Murder; People v Robert Carl Thompson (No. 77-1574-FC): Second Degree Murder; People v Roger Ruthruff (No. 86-51-FC): Felony Murder (First Degree Murder).
              •  

                 

                Honorable Mention: Prosecutor Jeffrey Sauter, Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Michael Eagen, Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Deanna Natoli helped prepare briefs, motions, and responses to motions during the Fourth Quarter. In October 2009, Sr. APA Neil O’Brien took charge of our parole project involving review and, when appropriate, opposing parole, commutation and pardon of prison inmates, particularly those convicted of serious crimes. We made 4 filings opposing parole or commutation/pardon.

                 


               

              December 31, 2009:

               

              2009 Third Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Third Quarter of 2009. Year-to-date totals for 2008 are listed to comparison purposes.

               

                2009
              3rd Qr
              2009
              Yr-to-Date
              Total
              2008
              Yr-to-Date
              Total
              Briefs Filed 22 63 48
              Motions Filed 6 24 13
              Responses to Motions Filed 14 45 24
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              44 145 93

              Highlights of the Third Quarter include the following:

              • In People v Larry O'Neil McClain, the Michigan Supreme Court denied the defendant’s application for leave to appeal. The issues included: sufficiency of the evidence to support defendant’s home invasion conviction; five claims of ineffective trial counsel (jury instructions - failure to object, failure to request; failure to object to prosecutorial misconduct; failure to raise an alibi defense; and failure to investigate, interview, and call jailhouse witnesses), and a claim of cumulative error. According to the MDOC web site, McClain's earliest release date is 03/29/2013.
              •  

              • In People v James Damion Moore, the Michigan Supreme Court denied the defendant’s application for leave to appeal. The defendant claimed the evidence was insufficient to support his convictions for check forgery, uttering & publishing, first-degree home invasion, and assault with intent to murder. The victim testified that defendant stole, forged and cashed two of her checks without her permission. Five days after defendant’s arrest for stealing those checks, defendant entered the victim’s apartment without her permission, threatened to kill her and stabbed her in the back before fleeing. The victim identified the defendant as her attacker. The prosecution argued that sufficient evidence was presented from which the jury could find the essential elements of the charged offenses proven beyond a reasonable doubt.
              •  

              • In People v Timothy Landin Rodriguez, the Court of Appeals denied the defendant’s delayed application for leave to appeal. Rodriguez entered “no contest” pleas to two charges of armed robbery. In a different file, Rodriguez was convicted by an Eaton County jury of conspiracy to commit murder. A defendant is entitled to be sentenced on the basis of accurate information. Rodriquez had a prior felony conviction for attempted felonious assault, and he aided and abetted an armed robbery where two victims were terrorized when co-defendants fired five shots inside a gas station. Where the defendant’s Prior Record Variable 2 (low severity felony convictions) and Offense Variable 2 (lethal potential of weapon used) and OV 6 (multiple victims) were correctly scored, he was sentenced on the basis of accurate information.
              •  

              • In People v Stephen Chieppo, Eaton District Court Judge Harvey Hoffman issued an order denying the defendant’s motion to suppress evidence based on Arizona v Gant, 129 S Ct 1710; 173 L Ed 2d 485 (2009). Judge Hoffman ruled that the good faith exception applied to a search conducted prior to April 21, 2009 when Gant took effect. Judge Hoffman declined to apply the exclusionary rule because there was no police misconduct that would be deterred by the rule’s application.
              •  

              • AMICUS BRIEF FILED IN CHILD PORNOGRAPHY CASE: In People v Steven Edward Flick and People v Brent Lazarus, we filed an amicus brief in the Michigan Supreme Court on behalf of the Prosecuting Attorneys Association of Michigan and Jackson County. The issues, as framed by the Supreme Court, are: (1) whether intentionally accessing and viewing child sexually abusive material on the Internet constitutes “knowing possession” of such material under MCL 750.145c(4); and (2) whether the presence of automatically created “temporary internet files” on a computer hard drive may amount to “knowing possession” of child sexually abusive material or may be circumstantial evidence that defendant “knowingly possessed” such material in the past.
              •  

              • ANSWERS FILED TO HABEUS CORPUS PETITIONS: In Leo Paul Carmona v Jeffrey Woods, United States District Court Judge R. Allan Edgar ordered that Carmona's petition for writ of habeas corpus was denied. Carmona objected to the magistrate's recommendation to deny his motion to hold his petition in abeyance while he attempted to exhaust additional issues in the state courts. But, Carmona failed to comply with the requirements of Rhines v. Weber, 125 S. Ct. 1528 (2005). Carmona did not have a pending state court action, and he wished to raise several claims that present no constitutional issues and simply raise matters under state evidence rules. Judge Allen also denied a certificate of appealability as to each issue raised by Carmona because he failed to make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In the Federal system, a petitioner must have a certificate of appealability to appeal to the next level, in this case the 6th Circuit Court of Appeals in Cincinnati.
              •  

              • In Larry Darryl Steed v Millicent Warren, United States District Court Judge Lawrence P. Zatkoff, denied Steed’s petition for writ of habeas corpus. Steed challenged his convictions for drug-related offenses. Steed presented a single claim in his petition: that he was denied his Sixth Amendment right to have retained counsel of choice defend against the charges. Given the “wide latitude” afforded courts in balancing the right to counsel of choice against the needs of fairness and the demands of the calendar, the last-minute nature of the request, and the fourteen previous adjournments at Petitioner’s request, the Federal Court concluded that it was not an unreasonable application of Supreme Court precedent for the state court to find that Petitioner’s right to counsel of choice was not unreasonably or erroneously denied. Steed failed to establish that he is in the State of Michigan’s custody in violation of the Constitution or laws of the United States.
              •  

                Honorable Mention: In addition to appellate prosecutor Bill Worden, Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, assistant investigator Deanna Natoli and legal intern Jared Guiffre helped prepare briefs, motions, and responses to motions or argued those motions in court during the Third Quarter.

                 

               


               

              September 15, 2009:

               

              2009 Second Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2009. Year-to-date totals for 2008 are listed to comparison purposes.

               

                2009
              2nd Qr
              2009
              Yr-to-Date
              Total
              2008
              Yr-to-Date
              Total
              Briefs Filed 22 41 39
              Motions Filed 17 18 4
              Responses to Motions Filed 17 31 17
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              66 101 66

              Highlights of the Second Quarter include the following:

              • In People v Larry O'Neil McClain, the Court of Appeals affirmed the defendant’s jury trial conviction for first-degree home invasion. The facts were sufficient to prove that defendant participated in the robbery of a drug house. Defendant was sentenced as a fourth habitual offender to 6 to 20 years in prison. The issues involved: sufficiency of the evidence, and claims of ineffective assistance of trial counsel. According to the MDOC web site, McClain's earliest release date is 03/29/2013.
              •  

              • In People v David Michael Nichols, Circuit Court Judge Calvin E. Osterhaven denied defendant’s motion for new trial. Nichols was convicted by an Eaton County jury of assault with a dangerous weapon and felony firearm. The Court of Appeals remanded for an evidentiary hearing on defendant’s claim of ineffective assistance of trial counsel. Defendant’s claims included four issues involving evidence he claimed could have bolstered the defense theory of a conspiracy to frame the defendant involving his ex-wife, her boyfriend, and their co-worker. The circuit court found that this evidence would not have been outcome-determinative. Defendant also claimed that his attorney kept him from testifying, but his arrogance, and rambling answers came across during his testimony at the evidentiary hearing. Defendant sarcastically told the prosecutor to “knock yourself out” with his cross-examination. Judge Osterhaven held that trial counsel’s decisions were based on sound trial strategy. Defendant's appeal is pending before the Court of Appeals. According to the MDOC web site, Nichols' earliest release date is 10/30/2009.
              •  

              • In People v Jonathon Emory Morgan, the Court of Appeals affirmed defendant’s jury convictions of two counts of carjacking. Defendant claimed that the evidence was insufficient to prove that he intended to permanently deprive the owners of their vehicles. Defendant asserted that he only took the vehicles out of fear for his life because he was attempting to escape thousands of bats that were appearing out of the sky, turning into vampires, and eating people alive. Defendant was found competent to stand trial. The evaluating psychologist at the Forensic Center opined that defendant was not criminally insane at the time of the offense. Sufficient evidence existed to support defendant’s convictions. Defendant also asserted that the trial court violated his right to due process by not instructing the jury on specific intent. But, defendant expressly approved the instructions, waiving appellate review of this claim. Finally, defendant claimed ineffective assistance of counsel because his attorney failed to object to the jury instruction which he alleged failed to address all of the essential elements of carjacking. Due to the substantial amount of evidence against defendant, it is highly unlikely that an objection to jury instructions would have affected the trial’s outcome. That trial counsel focused on efforts to excuse defendant’s behavior (he took the cars to escape from flesh-eating bats and vampires) rather than focus on intent was not objectively unreasonable trial strategy under the circumstances. According to the MDOC web site, Morgan's earliest release date is 11/17/2014.
              •  

                Honorable Mention: In addition to appellate prosecutor Bill Worden, Prosecutor Jeffrey Sauter, Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Deanna Natoli helped prepared briefs, motions, and responses to motions or argued those motions in court during the Second Quarter.

                 

               


               

              April 03, 2009:

               

              2009 First Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2009. Year-to-date totals for 2008 are listed to comparison purposes.

               

                2009
              1st Qr
              2009
              Yr-to-Date
              Total
              2008
              Yr-to-Date
              Total
              Briefs Filed 19 19 20
              Motions Filed 1 1 2
              Responses to Motions Filed 14 14 10
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              35 35 35

              Highlights of the First Quarter include the following:

              • In People v James Damion Moore, the Court of Appeals affirmed the defendant’s convictions of assault with intent to murder, first-degree home invasion, two counts of forgery, and two counts of uttering and publishing checks. Defendant challenged the sufficiency of the evidence on his convictions. This case involved a credibility contest between the defendant and his former girlfriend. The Court of Appeals defers to the jury’s superior position to decide the weight and credibility to be given the former girlfriend’s testimony. By finding defendant guilty of the charged crimes, the jurors demonstrated their conclusion that they found the former girlfriend’s testimony credible. Additionally, there was ample circumstantial evidence to convict defendant. Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime. Defendant was sentenced to terms of 10-20 years for home invasion, 15-30 years for assault with intent to murder, and 23 months-14 years for uttering & publishing. According to the MDOC web site, Moore's earliest release date is 09/09/2023.
              •  

              • In People v Garrett James Nemeth, the Michigan Supreme Court denied the defendant’s application for leave to appeal the 09/29/2008 order of the Court of Appeals, which denied his delayed application for leave to appeal. Defendant pled to two counts of third-degree criminal sexual conduct, and received 4¾-15 years. According to the MDOC web site, Nemeth's earliest release date is 01/02/2013.
              •  

              • In People v Gary Alva Thatcher, Defendant challenged the constitutionality of Michigan’s criminal sexual conduct statutes, MCL 750.520(a)-(l). Defendant argued that these statutes were not lawfully and constitutionally enacted by the Michigan Legislature in 1974. People v Clopton 117 Mich App 673 (1982) addressed this claim where the substitute bill was constitutional if it had the same purpose. Defendant’s Motion for a Declaratory Judgment (MCR 2.605) was treated as a motion for relief from judgment, and was denied because the defendant failed to establish “good cause” and People v Clopton, 117 Mich App at 675-676, had previously upheld the constitutionality of Michigan’s criminal sexual conduct statutes. Defendant was sentenced to terms of 13-30 years for four counts of CSC 1st Degree (victim inder 13 years old). According to the MDOC web site, Thatcher's earliest release date is 10/03/2014.
              •  

              • In People v Jose Edward Villanueva , the People opposed a ¼ sentence reduction under MCL 801.257 for defendant-appellant. The People maintain that Judge Frank DeLuca properly exercised his discretion in denying the defendant's motion and the Circuit Court should affirm that decision, which was based on the defendant's prior record and the nature of the domestic assault he committed in this case. Judge DeLuca sentenced Villanueva to 365 days in the ECJ with credit for 17 days.
              •  

                Honorable Mention: In addition to appellate prosecutor Bill Worden, Chief Assistant Prosecuting Attorney Douglas Lloyd, assistant prosecutors Michael Eagen, Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Deanna Natoli, prepared briefs, motions, and responses to motions or argued those motions in court during the First Quarter.

                 

               


               

              January 20, 2009:

               

              2008 Fourth Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2008. Year-to-date totals for 2007 are listed to comparison purposes.

               

                2008
              4th Qr
              2008
              Yr-to-Date
              Total
              2007
              Yr-to-Date
              Total
              Briefs Filed 11 59 63
              Motions Filed 5 18 51
              Responses to Motions Filed 19 29 37
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              25 118 163

              Highlights of the Fourth Quarter include the following:

              • In People v Michael Allen Miller, the Michigan Supreme Court reversed the Court of Appeals in an Ottawa Circuit Court case where the jury convicted Michael A. Miller of first-degree criminal sexual conduct. Before sentencing, the defendant learned that one of the jurors had concealed his prior convictions of offenses similar to the defendant's offense. The defendant moved for a new trial. The court held an evidentiary hearing, at which the juror testified, and denied the motion, finding no evidence that the defendant had suffered actual prejudice by the presence of a convicted felon on his jury. The Court of Appeals reversed the defendant's conviction in an unpublished opinion, and remanded the case for a new trial because of juror misconduct. The prosecution applied for leave to appeal, and we filed an amicus brief on behalf of the Prosecuting Attorneys Association of Michigan. The Supreme Court majority adopted our reasoning that a violation of MCL 600.1307a(1)(e), which prohibits a convicted felon from serving on a jury, requires a new trial only if the violation actually prejudiced the defendant. Writing for the majority, Justice Stephen J. Markman held: 1) while a criminal defendant has a constitutional right to be tried by an impartial jury, the defendant does not have a constitutional right to be tried by a jury free of convicted felons; 2) a juror's failure to disclose information that the juror should have disclosed is only prejudicial if it denied the defendant an impartial jury. The burden is on the defendant to establish that the juror was not impartial or at least that the juror's impartiality is in reasonable doubt; 3) the defendant's only complaint about the juror is that he is a convicted felon. The defendant offered no evidence that the juror was not impartial. A juror's mere status as a convicted felon is not sufficient to rebut the presumption of impartiality. The trial court did not clearly err by ruling that the defendant failed to demonstrate actual prejudice by the convicted felon's presence on his jury and did not abuse its discretion by denying the defendant's motion for a new trial; 4) the presence of a convicted felon on the defendant's jury did not constitute structural error, which is a fundamental constitutional error that defies analysis under the harmless-error standard of review.
              •  

              • In People v Lincoln Watkins, the Michigan Supreme Court voted to vacate its Order of April 23, 2008, granting leave to appeal. We had filed an Amicus Curiae Brief on behalf of the Prosecuting Attorneys Association of Michigan supporting the State of Michigan. Defendant was charged with five counts of first-degree criminal sexual conduct involving a child under the age of 13, and one count of second-degree criminal sexual conduct involving a child under the age of 13. The defendant's application for leave to appeal the judgment of the Court of Appeals was denied because the Supreme Court was no longer persuaded that it should review the question presented. Basically, the Supreme Court majority deferred to the Court of Appeals' decision upholding MCL 768.27a, which allows evidence in child molestation cases that a defendant committed another listed offense against a minor. The Court of Appeals ruled that the statute allowing admission of such evidence trumps the court rule on other act evidence, MRE 404(b). MCL 768.27a demonstrates the Michigan Legislature's intent that all other-acts evidence in criminal sexual conduct cases involving minors be admissible on any matter to which it is relevant.
              •  

              • In People v Isreal Louis Goodin, the Michigan Supreme Court denied leave to appeal where the defendant argued that the trial court abused its discretion and violated his constitutional right to due process by denying his motion to withdraw his plea where he claimed ineffective assistance of counsel, and where his plea was unknowing, unintelligent, and involuntary. Apparently, the defendant needed more than four different attorneys to tell him that he had no defense, and should take the best plea agreement offered to him where he was charged with first-degree home invasion, assault with intent to murder, felony firearm, and habitual offender second offense notice. Instead of receiving a minimum of 10 years in prison (guidelines downward departure), the defendant equivocated, and withdrew his initial plea. He later pled to the charges and received a sentence of 14 years and three months (minimum guidelines) consecutive to the mandatory two years on the felony firearm.
              •  

              •  

                mug-talison-jerry-mdoc
                Talison
                In People v Gerald (Jerry) Cornell Talison, the Circuit Court denied Defendant's motion to correct information contained in his presentence report. Defendant was sentenced 41 years ago after being convicted of the first-degree murder of Harold Peterson, a 27-year-old gas station attendant, and Eaton County Sheriff's Deputy Dean Foster on 01/01/1967. Defendant received life imprisonment. He also pled guilty to attempted unarmed robbery, which took place while he was out on bond awaiting the murder trial. Defendant argued that the pre-sentence investigation (PSI) report regarding the attempted unarmed robbery stated that he was in possession of a firearm. Defendant argued that he did not become aware of the inaccuracy until recently and he should be permitted to change the inaccuracies he believes exist. MCR 6.429(C) states that a party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for re-sentencing, or in a proper motion to remand filed in the court of appeals. No evidence was presented to support defendant's contention that he did not have an opportunity to review the PSI before or at the time of sentencing. The only evidence is defendant's own self-serving statement that he did not have the opportunity to review the pre-sentence report. The fact that defendant pled guilty to attempted unarmed robbery does not create an indisputable fact that he was not armed during the course of the robbery. Defendant failed to provide any evidence that his pre-sentence report was incorrect other than his own contention.

              • Honorable Mention: In addition to appellate prosecutor Bill Worden, assistant prosecuting attorneys Kristin Brady, Sunny Matz, Brent Morton, Neil O'Brien, and Sharon Park, and legal externs Rachael Groffsky and Noah Siegel prepared briefs, motions, and responses to motions during the Fourth Quarter.

               



              October 20, 2008:

               

              2008 Third Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Third Quarter of 2008. Year-to-date totals for 2007 are listed to comparison purposes.

               

                2008
              3rd Qr
              2008
              Yr-to-Date
              Total
              2007
              Yr-to-Date
              Total
              Briefs Filed 9 48 48
              Motions Filed 9 13 33
              Responses to Motions Filed 14 24 28
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              27 93 114

              Highlights of the Third Quarter include the following:

              • mug-lutzjeff-ecsd
                Lutz
                In People v Jeffrey Shannon Lutz, the Court of Appeals affirmed the convictions and sentences. Lutz was an Eaton County Sheriff's Sgt., who shot himself and blamed the shooting on a fictitious suspect. Lutz appealed from his jury convictions of false report of a felony, discharging a firearm at an emergency vehicle, reckless use of a firearm, and making a false report to a police radio station. Lutz was sentenced to five years' probation with 60 days in jail, community service, and restitution. Lutz argued that the prosecutor committed misconduct in opening statement by referring to "suicide messages" left by defendant as voice mails on his estranged wife's cell phone. Lutz further argued that the trial court abused its discretion by denying his motion for a mistrial based on this alleged prosecutorial misconduct. The Court of Appeals found that a good-faith effort by a prosecutor to admit evidence does not constitute misconduct. The Court of Appeals wrote: "The prosecutor reasonably could have believed that testimony from Detective Declerq relating that, within one hour of the detective having called defendant and told him that he recovered a potentially incriminating gun, defendant's wife contacted the detective and told him about getting suicidal messages from defendant would have been admissible." The evidence was not barred by spousal privilege or hearsay rules. Defendant's own statements constitute admissions of a party-opponent. The Court of Appeals further opined: "The prosecutor reasonably could have believed that evidence that defendant made suicidal statements within an hour of being informed that the police had recovered a potential item of evidence against him was relevant as evidence of defendant's consciousness of guilt." The trial court judge Thomas S. Eveland exercised his discretion to exclude the evidence, but the Court of Appeals found that "the trial court was overly generous to defendant by excluding evidence based merely on a determination that its probative value was outweighed by its prejudicial effect rather than based on a determination that its probative value was substantially outweighed by the danger of unfair prejudice", as stated in Michigan Rule of Evidence 403. The prosecutor could not have known that the trial court would exercise its discretion in this manner, the Court of Appeals wrote, "because it is reasonable to believe that evidence of defendant's expressions of a suicidal intent shortly after being confronted with the police having recovered potentially incriminating evidence was substantially probative as evidence of consciousness of guilt." The Court of Appeals concluded that the prosecutor referred to the proposed evidence at issue in his opening statement based on a good-faith belief that it was properly admissible. Finally, there was no violation of the Confrontation Clause because, viewed objectively, the circumstances indicate that the defendant's estranged wife primarily made statements to the detective to obtain police assistance with regard to an ongoing emergency, to obtain police assistance in preventing defendant from committing suicide. The Court of Appeals judges were: Henry William Saad, Karen M. Fort Hood and Stephen L. Borrello.
              •  

              • In People v Lincoln Watkins, we filed an Amicus Curiae brief on behalf of the Prosecuting Attorneys Association of Michigan supporting the State of Michigan. Defendant is charged with five counts of first-degree criminal sexual conduct involving a child under the age of 13, and one count of second-degree criminal sexual conduct involving a child under the age of 13. The Michigan Supreme Court granted leave and asked that the following issues be briefed: (1) whether MCL 768.27a conflicts with MRE 404(b) and, if it does, (2) whether the statute prevails over the court rule; (3) whether the omission of any reference to MRE 403 in MCL 768.27a (as compared to MCL 768.27b(1)), while mandating that propensity evidence "is admissible for any purpose for which it is relevant," violated defendant's due process right to a fair trial; (4) whether the Court should rule that propensity evidence described in MCL 768.27a is admissible only if it is not otherwise excluded under MRE 403; and (5) whether MCL 768.27a interferes with the judicial power to ensure that a criminal defendant receives a fair trial, a power exclusively vested in the courts of this state under Const 1963, art 6, § 1. The Supreme Court invited the Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan to file briefs amicus curiae. Supreme Court oral argument will be held in November.
              •  

              • mug-talison-jerry-mdoc
                Talison
                In People v Gerald Cornell Talison, we filed Plaintiff's Brief Opposing Motion For Relief From Judgment. Defendant filed a motion to correct the Pre-sentence Investigation Report, but we argued that it must be treated as a motion for relief from judgment, which is the exclusive remedy for post-appeal relief. Defendant claimed that inaccurate information was affecting his parole eligibility but Judge Robinson sentenced him to "natural life," a life sentence without the possibility for parole in the 1967 armed robbery of a Delta Township gas station that resulted in the death of the gas station attendant and an Eaton County deputy.

               

                 

              • mug-larrymcclain
                McClain

                mug-goodinisreal
                Goodin
                In People v Larry O'Neal McClain, we filed Plaintiff-Appellee's Brief on Appeal in the Michigan Court of Appeals. Defendant's sole issue on appeal is the sufficiency of the evidence presented at trial to convict him of first-degree home invasion. This case involved a home invasion and shootout at an Eaton County drug house. The homeowner was shot seven times and spent three months in the hospital. An Eaton County jury convicted McClain of home invasion, but acquitted him of assault with intent to murder, and felony firearm. We also filed a brief opposing co-defendant Isreal Goodin's application for leave to appeal in the Michigan Supreme Court. Goodin plead guilty to first-degree home invasion, assault with intent to murder, and felony firearm. He also testified against McClain. Goodin received a minimum sentence of 16 years and three months. He claimed ineffective assistance of counsel regarding the scoring of his sentencing guidelines minimum range. According to the MDoC web site, McClain's earliest release date is 03/29/2013, and Goodin's earliest release date is 03/20/2023.
              •  

              • In People v Linda S. Corr, Eaton County Prosecuting Attorney Jeffrey Sauter filed a Motion for Reconsideration in the Eaton County Circuit Court where the defendant (a passenger in her son's vehicle) resisted and obstructed two Grand Ledge police officers after her son was arrested for operating while intoxicated. The District Court Judge, Harvey Hoffman, had declined to bind over the defendant, opining that there was insufficient evidence of a lawful command. The officers had ordered the apparently intoxicated defendant to stay inside the vehicle while they administered PBTs to others present to determine if anyone was sober enough to drive away the vehicle, which was still in the roadway. On appeal, Judge Calvin E. Osterhaven's opinion was based on the "Fruit of the Poisonous Tree" Doctrine because the defendant's actions occurred after her son had been arrested and removed from the scene of the traffic stop, and the Court opined that the defendant was illegally seized. The defendant refused to obey the officers' commands to stay inside the vehicle (it was dark outside, cold, and the roadway was very slippery), and as she was escorted back to the vehicle, the defendant elbowed one officer in the throat and kicked another in the shin. The Prosecutor maintains that the officers were merely trying to control a difficult situation, and that they reasonably detained the defendant. The Prosecutor's motion for reconsideration, which distinguishes this case from "Fruit of the Poisonous Tree" cases, remains pending.
              •  

                Honorable Mention: Prosecutor Jeffrey L. Sauter and assistant prosecutors Hope E. Freeman, Jody E. Gilzene, Sunny Matz, Brent E. Morton, Neil F. O'Brien, and Sharon S. Park prepared briefs, memoranda, motions, and responses to motions during the Third Quarter.

               



              August 25, 2008:

               

              2008 Second Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2008. Year-to-date totals for 2007 are listed to comparison purposes.

               

                2008
              2nd Qr
              2008
              Yr-to-Date
              Total
              2007
              Yr-to-Date
              Total
              Briefs Filed 19 39 32
              Motions Filed 2 4 22
              Responses to Motions Filed 7 17 18
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              31 66 75

              Highlights of the Second Quarter include the following:

              • In People v Michael Allen Miller, we filed an amicus brief in the Michigan Supreme Court on behalf of the Prosecuting Attorneys Association of Michigan. A convicted felon who was unqualified by statute for jury duty sat on the defendant's jury, which found him guilty of criminal sexual conduct, the same crime that the juror had been convicted of in the 1990s. The trial court held a hearing and the juror testified he believed that his convictions would only remain on his record for approximately seven years. The challenged juror proclaimed that he was fair, impartial, and listened to the evidence, arguments, and instructions. The Ottawa trial court denied the defendant's motion for a new trial and the Court of Appeals reversed on the basis of juror misconduct. The Ottawa County Prosecutor filed an application for leave to appeal the Court of Appeals' judgment. The Michigan Supreme Court granted leave, invited amicus curiae briefs, and limited argument to the following issues: (1) whether the Court of Appeals erred in reversing the defendant's conviction and remanding this case to the circuit court for a new trial pursuant to People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948); (2) whether DeHaven was wrongly decided or has been superseded by MCL 600.1354(1); (3) whether a criminal defendant must establish actual prejudice pursuant to MCL 600.1354(1) where the challenged juror was excusable for cause; (4) how the "actual prejudice" standard for purposes of MCL 600.1354(1) should be defined; and (5) whether the juror's failure to disclose his status as a felon, which disqualified him from serving on the jury, constituted structural error pursuant to Neder v United States, 527 US 1; 119 S Ct 1827; 144 L Ed 2d 35 (1999). This case remains pending in the Michigan Supreme Court.
              •  

              • mug-johnsonbrandondeshawn-mdoc2006june
                B. Johnson
                In People v Brandon Deshawn Johnson (Eaton County Circuit Ct #05-020559-FH), we prevailed when the Michigan Supreme Court denied leave to appeal "because we are not persuaded that the question presented should be reviewed by this Court." On April 17, 2006, an Eaton County Circuit Court jury found Johnson guilty of Felony Murder and Felony Firearm. On appeal, defendant claims there was insufficient evidence presented at trial that he killed Antonio Weaver during the course of a larceny. Sufficient evidence was presented of the underlying larceny. Witnesses testified that Antonio Weaver had money, a cell phone, and a gun on him the morning he was killed. He also kept heroin in the freezer at the apartment he shared with his girlfriend. When found dead in the living room of the apartment, Weaver's money, heroin, cell phone and gun were missing. Within hours of Weaver's murder, defendant drove the victim's Buick Electra to Detroit and sold it to a stranger. When arrested the day after the murder, defendant had Weaver's gun (the murder weapon) and $747.00 in cash in his possession. Defendant knew Weaver kept large amounts of heroin in his freezer and had money on him the morning of his murder. Even defendant agreed that whoever killed Antonio Weaver stole his money, heroin, and cell phone. From the evidence, the jury could properly find that Antonio Weaver was killed during the course of a larceny.
              •  

              • mug-huverbrianscott
                Huver
                In People v Brian Scott Huver, the Court of Appeals affirmed the defendant's convictions and sentences for two counts of second-degree criminal sexual conduct, and possession of less than 25 grams of cocaine. Sentenced as a habitual offender, third offense, Huver received concurrent prison terms of six to 30 years for each CSC conviction and one to eight years for the drug conviction. Huver's issues included whether trial counsel was ineffective for failing to move to suppress his statements to police on the ground that he had unequivocally invoked his Fifth Amendment right to silence. The Court of Appeals found that the record did not support the defendant's claim and counsel is not required to advocate a meritless position. Huver also argued that evidence of Tennessee offenses were improperly admitted under MCL 768.27a. He argued that this conflicted with MRE 404(b) and was unconstitutional because the Michigan Supreme Court has exclusive authority to prescribe rules governing court practice and procedure. The Court of Appeals held that the statute is not merely procedural because it is a substantive rule of evidence reflecting a policy decision that in certain cases, juries should have the opportunity to weigh a defendant's behavioral history. Huver's final claim, that the evidence of his Tennessee offenses violated his right to due process and a fair trial, was rejected by the Court of Appeals because the Tennessee accusations qualified as listed offenses under SORA and are admissible under MCL 768.27a for their bearing on any matter to which they are relevant. The trial court gave a limiting instruction (limited purpose of challenging credibility of defendant's denials that he inappropriately touched the victim given initial denial in same interview that he ever was accused of inappropriately touching a child). Cautionary instruction also given (jury must not convict defendant because they think he is a bad person likely to commit such crimes). The Court of Appeals found that the trial court did not abuse its discretion in admitting the evidence, and the trial court's instruction protected D's rights to due process and a fair trial.
              •  

              • mug-bodellshirley
                Bodell
                In People v Shirley Louise Bodell, the Michigan Supreme Court denied the defendant's application for leave to appeal the January 31, 2008 judgment of the Court of Appeals "because we are not persuaded that the questions presented should be reviewed by this Court." On appeal, defendant challenged the sufficiency of the evidence solely on the ground that the evidence was not sufficient to prove defendant's identity as the robber in the Charlotte Check-N-Go robbery. Defendant also claimed that trial counsel erred in failing to include two necessary alibi witnesses by notice as required by MCL 768.21--thus, depriving her of an effective alibi defense. Late in trial, when defendant realized that crucial alibi witnesses were not going to provide the necessary alibi testimony, counsel moved to amend the alibi notice to add defendant's son and the son's long-time girlfriend to rehabilitate defendant's alibi. This was a matter of trial strategy. When counsel was not allowed by the court to amend his notice of alibi and question these additional witnesses-as a matter of trial strategy, counsel moved for a mistrial on the basis of ineffective assistance of counsel.
                According to the MDoC web site, Bodell's earliest release date is 01/08/2016.
              •  

              • mug-greggfrederick-mdoc
                Gregg
                In People v Frederick Junior Gregg, the Eaton County Circuit Court denied the defendant's motion for relief from judgment. Judge Thomas S. Eveland ruled that the defendant properly received 10 points under OV 19 for attempting to interfere with the administration of justice because he fled from police officers when they raided his meth lab. The Circuit Court also denied the defendant's motion for reconsideration under MCR 2.119(F). Defendant failed to demonstrate any palpable error, and defendant also introduced new arguments and issues which cannot be addressed in a motion for reconsideration (defendant claimed there was an ex parte communication between the prosecutor and the judge regarding the scoring of OV 19).
                According to the MDoC web site, Gregg'as earlies release date is 08/22/2010.
              • Honorable Mention: Assistant prosecutors Hope Freeman, Jody Gilzene, Doug Lloyd, Sunny Matz, Brent Morton, and Neil O'Brien, and Matt Newburg prepared briefs, motions, and responses to motions during the Second Quarter.

               



              April 09, 2008:

               

              2008 First Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2008. Year-to-date totals for 2007 are listed to comparison purposes.

               

                2008
              1st Qr
              2008
              Yr-to-Date
              Total
              2007
              Yr-to-Date
              Total
              Briefs Filed 20 20 21
              Motions Filed 2 2 11
              Responses to Motions Filed 10 10 11
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              35 35 45

              Highlights of the First Quarter include the following:

              • mug-jenkinswilliam-ecsd
                Jenkins
                In People v William Jenkins the Michigan Supreme Court denied leave to appeal. At the age of 16, Jenkins committed a carjacking that resulted in the death of 83-year-old Dr. Lewis Eugene Harrington who tried to prevent the vehicle he was gassing up at Meijers from being stolen. Dr. Harrington fell and struck his head and he died two months later in the hospital. Jenkins received 15-25 years, and his issues included: did he possess the malice necessary for a second-degree murder conviction; did the prosecutor breach the plea agreement where the prosecutor did not agree to a downward departure or to remain silent at sentencing; guidelines scoring; whether defendant's sentence violated Blakely v Washington; did the court abuse its sentencing discretion by not departing downward; ineffective assistance of counsel; whether the sentencing court should have considered an incriminating note written by defendant; and statutory interpretation of the carjacking statute and the phrase "course of conduct" being afforded broad meaning regarding restitution for a different vehicle damaged by defendant as he fled on foot from the scene of the carjacking.
              •  

              • mug-bodellshirley
                Bodell
                In People v Shirley Louise Bodell the Michigan Court of Appeals affirmed the defendant's convictions and sentences on two counts of armed robbery and her concurrent prison terms of 10 to 20 years on each conviction. Defendant challenged the sufficiency of the evidence regarding the identity of the armed robber, and the effective assistance of counsel regarding the rehabilitation of alibi witnesses. Defendant's convictions arose from the robbery of a Charlotte Check-N-Go store. This case involved similar acts evidence because the appearance of the perpetrator and the method of committing the crime were similar to robberies at two other Check-N-Go stores, one in Hastings and one in Kalamazoo. The defendant was a former Check-N-Go store employee, and the robbery victims identified her as the perpetrator.
              •  

              • steed
                Steed
                People v Larry Darryl Steed, the Supreme Court denied leave to appeal. Steed received a life sentence for cocaine delivery. While imprisoned, Steed conspired to deliver cocaine, and hired a hit man to get rid of the confidential informant. Steed's motion for relief from judgment raised seven issues including knowledge of the amount of controlled substance, a claim of altered intent, the right to counsel of his own choosing, the trial court's denial of a continuance, his sentence constituting cruel or unusual punishment, and ineffective assistance of trial and appellate counsel.
              •  

              • In People v Joseph Kendal West, the Court of Appeals denied leave where the defendant challenged the factual basis for his guilty pleas to first-degree child abuse. The defendant admitted that he was angry and frustrated, and he struck his infant son with his hand on more than one occasion, causing bone fractures.
              •  

              • In People v Peter Rusins Albertins, the Court of Appeals reversed the circuit court's order, which had reversed the district court's denial of defendant's motion to quash a warrant for blood test and suppress evidence of defendant's blood alcohol content.
              • Honorable Mention: Assistant prosecutors Hope Freeman, Jody Gilzene, Kelly Grunewald, Sunny Matz, Brent Morton and Neil O'Brien prepared briefs, motions, and responses to motions during the First Quarter.

               



              January 08, 2008:

               

              2007 Fourth Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2007. Year-to-date totals for 2006 are listed to comparison purposes.

               

                2007
              4th Qr
              2007
              Yr-to-Date
              Total
              2006
              Yr-to-Date
              Total
              Briefs Filed 15 63 75
              Motions Filed 18 51 21
              Responses to Motions Filed 9 37 22
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              49 163 129

              Highlights of the Fourth Quarter include the following:

              • mug-johnsonbrandondeshawn-mdoc2006june
                B. Johnson
                In People v Brandon Deshawn Johnson (Eaton County Circuit Ct #05-020559-FH), the Michigan Court of Appeals (#273693) affirmed the defendant's convictions and sentences of life for felony murder and a consecutive two-year term for felony firearm. Defendant argued there was insufficient evidence that the victim was murdered during the commission of a larceny. However, several witnesses testified that the victim had money and/or drugs in his possession the night before and/or the morning of his murder. There was no money or drugs found at the crime scene or on the victim's body. Defendant agreed that whoever killed the victim must have stolen his drugs and money. Another witness testified defendant told him that he "stuck a guy up for money and ended up shooting him in the head" and that he took money and drugs from the victim's apartment. This testimony, along with the fact that defendant had the murder weapon in his possession and his fingerprint was on the trigger of the weapon, was more than sufficient to establish that defendant took drugs and money from the victim. Although defendant argued that there was testimony explaining away the theft of money a nd drugs and that defendant was not found with either money or drugs in his possession the next day, the Court of Appeals concluded there was more than sufficient evidence that defendant committed felony murder and larceny.
              •  

              • hasselbring
                Hasselbring
                In People v Richard Lee Hasselbring (Circuit Ct #03-020327-FH; Ct of Appeals #257846; Supreme Ct #134478), the Michigan Supreme Court denied the defendant's application for leave to appeal, thus reinstating the Court of Appeals decision reversing the trial court's directed verdict of acquittal on the second count of CSC II, reversing the order for resentencing, reversing the order granting a new trial and holding that the trial court erred in dismissing the second count of CSC II. In December of 2007, the trial court revoked the defendant's bond and Hasselbring was remanded to the custody of the Michigan Department of Corrections. Following his 2004 convictions by an Eaton County jury for sexually molesting a six-year-old boy, the defendant was sentenced to 18-180 months. Hasselbring had already served his minimum sentence when, in December of 2006, he was released on bond by the trial court judge. He is currently re-incarcerated with the Michigan Department of Corrections.
              •  

              • r jones ii

                R. Jones, II

                People v Ronald Emery Jones II (Eaton County Circuit Ct #03-020113-FC; Court of Appeals #280829), the Court of Appeals denied the defendant's application for leave to appeal because defendant failed to meet the burden of establishing entitlement to relief. Jones pled guilty but mentally ill to two armed robbery charges. In 2003, Jones robbed the Bay gas station in the City of Charlotte and the Double Nickel Party Store in Olivet. During both robberies, Jones carried an unloaded BB gun pistol (which looked like a real handgun) in his waistband where the victims could see it. Defendant unsuccessfully challenged information contained in his pre-sentence investigation report. According to the MDOC web site, Jones' earliest release date is 03/27/2013.

               


               

               

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