This post contains dialogue from the sentencing transcript and the motion for new trial.
Charles Ajoloko petitions for a writ of habeas corpus alleging ineffective assistance of appellate counsel for failing to raise on direct appeal the trial court’s order denying the motion for a new trial. The trial court did not give any reason for her ruling. Rule 3.600(a)(2), Florida Rules of Criminal Procedure, provides that the court shall grant a new trial if, among other reasons, “[t]he verdict is contrary to law or the weight of the evidence.”
When ruling on a motion for new trial based on a claim that the verdict is against the weight of the evidence, the trial court is compelled to exercise its discretion to determine “whether a greater amount of credible evidence supports one side of an issue or the other.” Fulword v. State, 29 So. 3d 425 (Fla. 5th DCA 2010) (citing Geibel v. State, 817 So. 2d 1042, 1044 (Fla. 2d DCA 2002)).
The trial court under these circumstances acts as a “safety valve” by considering whether to grant a new trial where “the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict.” Moore v. State, 800 So. 2d 747, 749 (Fla. 5th DCA 2001).
In the present case it is unclear whether or not the trial judge applied the correct standard in denying the motion for new trial as she did not apply any standard at all.
Appellate attorney was actually at the sentencing hearing. The judge appeared to be unaware of a motion for a new trial. The dialogue between the judge, prosecutor and trial attorney is evident that the judge had not read the motion until then. She looked at the motion for a new trial and plainly said denied. Therefore, the trial court’s verbal ruling did not apply the proper standard of review when considering the defendant’s new trial motion. See Fulword v. State, 29 So. 3d
The appellate attorney is ineffective for not procuring the sentencing record for the appeal. At present, petitioner is in possession of sentencing transcript at 426; Moore v. State, 800 So. 2d 747, 750 (Fla. 5th DCA 2001).
Also, note that the motion for a new trial has some of arguments that the appellate attorney used in the appeal, yet the appellate attorney did not reference the motion for a new trial. This will be discussed later in the petition.
Please see below, the dialogue between the prosecutor, trial attorney and trial judge.
Below is the motion for a new trial filed by timely filed by trial counsel.
MOTION FOR NEW TRIAL
COMES NOW the Defendant, CHARLES AJOLOKO, by and through the undersigned attorney, and moves this Honorable Court to enter its Order granting a new trial as to the offenses contained in the above captioned Information or Acquitting the Defendant of the instant charges. As grounds in support of this Motion, the Defendant would state as follows:
That during the Assistant State Attorney’s Closing Argument he made reference to the Victim not having any stake in the outcome of the case, and asked the panel to do justice for victim.
That while the Defense truly believes that such comments were inadvertent, and made in the heat of litigation without any malice, such comments give rise to the improper bolstering of the State’s Witness. See e.g. Gorby v. State, 630 So.2d 544,547 (Fla.1993).
That where the pivotal issue is the credibility of a witness, as in the case at bar, where a core question is whether the victim could identify the person who robbed her, such issue is not harmless but rises to the level of fundamental error. See, e.g., Hill v. State, 477 So. 2d 553 (Fla. 1985).
That during the trial the defense endeavored to present testimony regarding Defendant’s victimization in two burglaries in order to establish an innocent explanation of his ownership of the guns allegedly utilized in the instant robbery. The Honorable Jenifer Davis declined to allow such testimony. A motion for a new trial is a good avenue if trial counsel did not object at trial.
Item -1 of the motion for a new trial indicates prosecutor misconduct and Item 3 goes to the weight of the evidence and the credibility of the victim. An evidentiary hearing should have been held as the victim went from a person who could not identify her assailant to being able to identify her assailant 2-1/2 years later.
Also, note that the motion for a new trial has some of arguments that the appellate attorney used, yet the appellate attorney did not reference the motion for a new trial. This was ineffective,as many of the pellate
Rule 3.600. Grounds for New Trial.
(a) Grounds for Granting. –The court shall grant a new trial if any of the following grounds is established.
(1) The jurors decided the verdict by lot.
(2) The verdict is contrary to law or the weight of the evidence.
(3) New and material evidence, which, if introduced at the trial would probably have changed the verdict or finding of the court, and which the defendant could not with reasonable diligence have discovered and produced at the trial, has been discovered.
(b) Grounds for Granting if Prejudice Established. –The court shall grant a new trial if any of the following grounds is established, providing substantial rights of the defendant were prejudiced thereby.
(1) The defendant was not present at any proceeding at which the defendant’s presence is required by these rules.
(2) The jury received any evidence out of court, other than that resulting from an authorized view of the premises.
(3) The jurors, after retiring to deliberate upon the verdict, separated without leave of court.
(4) Any juror was guilty of misconduct.
(5) The prosecuting attorney was guilty of misconduct.
(6) The court erred in the decision of any matter of law arising during the course of the trial.
(7) The court erroneously instructed the jury on a matter of law or refused to give a proper instruction requested by the defendant.
(8) For any other cause not due to the defendant’s own fault, the defendant did not receive a fair and impartial trial.
(c) Evidence. –When a motion for new trial calls for a decision on any question of fact, the court may consider evidence on such motion by affidavit or otherwise.