Trial attorney closing argument is about mis-identification, yet trial attorney did not request an evidentiary hearing, also known as a Richardson Hearing when the victim/witness went from someone unable to identify the suspect to almost 3 years later, able to identify.
It is also unfathomable to me why the trial attorney did not put in a motion to suppress the 2nd photo lineup or the 2nd written statement.
Read excerpts from his closing argument and tell me what you think.
TRIAL ATTORNEY
Excerpts from trial transcript.
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Whether the identification was a product of the eye
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witness’s own recollection is a result of influence or
suggestiveness. Well, we’ve got two opportunities here
for identification to present to Ms. Sl***. And the
first opportunity Ms. Sl*** is presented with a photo
lineup number one. And there’s six people on there.
And Ms. Sl***cannot identify her assailant in that
lineup.
Now, what I’m going to ask you to keep in mind when
you look — and we stipulated into evidence photo lineup
number one into evidence. But recollect what the
officer — what the detective told you. It’s a bad
copy. It’s not the original. It’s darker. You can
presume that it was dark. Use your common sense. It’s
darker, more unclear than the original one. She told
you the original one was in color. So it’s not
basically a big black score that she was able to totally
identify.
What was suggested? I would argue, we don’t know
what was said to Ms. Sl*** during the conversation
between herself and the detective during the
administration of that first lineup. We don’t know. We
won’t know. We know she talked to the victim a lot —
Ms. Sl*** a lot over a period of months. And we
know — and we know that the detective was sold on
Mr. Ajoloko being the suspect in this case because
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rather than taking that first lineup and saying, you
know what, I guess maybe we need to look in other
directions because she didn’t identify him. She said,
you know what? I’m going to do another lineup. We’re
going to try this again. And on that occasion — again,
we don’t know what conversations took place in the
meantime. But what we do know is that when Ms. Sl***
looked at the second lineup, she had already seen
Mr. Ajoloko because she saw him on the first lineup.
That’s the only face in those lineups that she had ever
seen in her life.
Now, think about the way the mind works. The mind
is susceptible to suggestion, to subtle manners. So if
there’s a question of she’s going to pick out someone
she has seen before, hey, I kind of remember that guy.
Sure. You just looked at his lineup about a week ago.
Every one — and I asked her, every one of the other 10
photographs were new. They weren’t the same people she
looked at. She would never seen any of those people,
only Mr. Ajoloko. No one talked about suggestiveness.
She came in — remember, the best it gets — the best it
ever gets is with regards to that second time she sees
Mr. Ajoloko’s picture, yeah, I’m 60 percent sure. Sixty
percent sure. What’s the standard of proof? What does
the State need to prove to you by? The burden is beyond
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and to the exclusion of every reasonable doubt:
Now, we haven’t talked to you about percentages or
numbers, what that means. But beyond and to the
exclusion of every reasonable doubt, is that 60 percent?
It’s not. I will submit to you it’s not. It’s far
higher.
Today — she comes in today, November 20th, 2013,
looks at Mr. Ajoloko and says, you know what? I’m a
hundred percent sure that this is the guy that robbed
- Well, what’s suggestive about this situation?
Everything. Because she’s here. She knows that the guy
that has been arrested for robbing her is being
prosecuted. She’s not going to mix Mr. Ajoloko up with
either of us. That’s not going to happen. Mr. Ajoloko
is the only African-American gentleman sitting at
counsel table. That’s easy.
And what she tells you is Mr. Ajoloko looks
different. These three inches of skin that Ms. — I’m
sorry — Ms. Sl*** observed for a minute with a gun in
her face when she was trying to not look at him in the
dark and it was so dark, he was, in fact, back lit, and
she couldn’t see his eyes, is different three years
later, but I’m a hundred percent sure that that’s the
guy that did it. She is a hundred percent sure. She is
saying that — I’m not saying she’s lying, but she’s
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suggestible. The human mind is suggestible.
Mr. Ajoloko is at this table. Mr. Ajoloko is the
guy that she is going to say robbed her because she
knows she has been through a horrific experience and she
knows the only way that she can get closure and in her
mind justice is to see a successful prosecution of
Mr. Ajoloko. And how is that going to go if she goes,
you know what, three years ago I was 60 percent sure
that I ID’d the guy — and I don’t even — I’m not
trying to tell you Ms. Sl*** is being dishonest. I’m
not. What I’m telling you is both the second lineup
and, more importantly, today’s identification, is a
product of absolute suggestion by virtue of the process.
I would ask you further with regards to the second
lineup administer by Detective Collins, let’s say
Ms. Sl*** had been unable to identify her [sic], would
there have been a lineup three or four or eight?
Detective Co*** is pretty convinced and she is
utilizing an awful lot of tactics to get Mr. Ajoloko in
this case. We don’t know. It only took two. I would
submit to you two is one too many. Two is one too many
for exactly the reason that I told you is because now
Ms. Sl*** has already seen Mr. Ajoloko. So if she’s
going to point out the one that’s familiar, the only one
is Mr. Ajoloko’s face.
Please read the following:
00-03: A Review of Selected Cases Of Interest To Florida Law Enforcement (Opinions Issued 10/99 – 9/00)
Non-disclosure of changed testimony
Nondisclosure of the fact that a witness changes testimony constitutes a discovery violation requiring a Richardson hearing, the Florida Supreme Court said.
Bernard Evans was convicted of second-degree murder and unlawful possession of a firearm while engaged in a criminal offense. Evans contended, and the DCA agreed, that the trial court failed to conduct a proper Richardson hearing upon being advised that Sylvia Green, a key witness, had changed her testimony.
The DCA also determined that when the trial court did finally conduct a Richardson hearing, it was legally inadequate. The DCA found that the state’s discovery violation in Evans’ case was “substantial and undeniably had a negative effect on defense counsel’s ability to properly prepare for trial.” The DCA’s conclusion was in direct conflict with the Supreme Court’s 1984 decision in Bush vs. State, in which the court held that a prosecutor’s failure to inform the defense of a change in a witness’ testimony was not a discovery violation and did not require either a mistrial or a Richardson inquiry. The Supreme Court approved the DCA’s decision in Evans and clarified its statements in Bush regarding the nondisclosure of changed testimony.
“We determine that the State committed a discovery violation in this case by withholding from the defense the fact that Green had changed her original police statement to such an extent that she transformed from a witness who ‘didn’t see anything’ into an eyewitness – indeed, apparently the only eyewitness – to the shooting,” Justice Lewis wrote for the 5-2 court majority. “
(T)he State’s failure in this case to disclose … the transformation of Green into an eyewitness was harmful because we cannot say beyond a reasonable doubt that the defense was not procedurally prejudiced by the violation.”
[State vs. Evans, 2000 Lexis 1981 (10/05/00)]
