Verdict Forms were Calculated to Confuse or Mislead the Jury.

This post contains the verdict forms, prosecutor closing arguments incorrectly stating the lesser included offenses and trial court written jury instructions about lesser included offenses.

Charles Ajoloko petitions this court for a writ of habeas corpus asserting that his appellate counsel was ineffective for failing to argue that the trial court erred in giving the jurors an erroneous verdict form.
Petitioner was charged with Attempted Robbery with a Firearm, which is a Second Degree Felony.

The verdict form incorrectly listed robbery with a deadly weapon as a lesser included offense.

Robbery with a deadly weapon is a first-degree felony punishable by up to 30 years in prison and is not a lesser included offense of Attempted Robbery with a Firearm.

Also, listed of lesser included offenses were robbery with a weapon, robbery and petit theft.

The jurors had no choice but to choose the attempted robbery with a firearm ,as it was apparent that the lesser were not subsumed in the attempted robbery with a firearm charge.

If given the proper verdict form, the jurors could have found the petitioner guilty of attempted robbery.

Also, as you can see from the verdict form below, petit theft is listed also as a lesser included offense; however instructions for theft were in the written instructions.

The instructions/verdict forms were calculated to confuse or mislead the jury.

Please note that on numerous occasions throughout the trial, the trial court, prosecutor and even trial counsel inadvertently used the word robbery instead of attempted robbery.
Please see Verdict Forms Below. .

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

STATE OF FLORIDA CASE NO: 48-2011-CF-008401-0

vs.

Plaintiff, DIVISION: 14

CHARLES AJOLOKO
Defendant.
————————
V E R D I C T (Count 1 -Attempted Robbery with a Firearm)

WE THE JURY find the Defendant, CHARLES AJOLOKO_____________________________
X____GUILTY of the crime of Attempted Robbery with a Firearm, and
 we further find that the Defendant, CHARLES AJOLOKO, actually

X___ possessed a firearm during the commission of the offense, or

____ we further find that the Defendant, CHARLES AJOLOKO, did not actually possess a firearm during the commission of the Attempted Robbery.

GUILTY of the crime of Robbery with a Deadly Weapon a lesser included offense.

GUILTY of the crime of Robbery with a Weapon, a lesser included offense.

GUILTY of the crime of Robbery, a lesser included offense.

GUILTY of the crime of Petit Theft, a lesser included offense.

NOT GUILTY.

SO SAY WE ALL.

IN THE CIRCUIT COURT OF’THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

STATE OF FLORIDA CASE NO: 48-2011-CF-008401-0

. vs.

Plaintiff, DIVISION: 14

CHARLES AJOLOKO

Defendant.
—————————————————.

V E R D I C T (Count 2- Aggravated Assault with a Firearm)
WE THE JURY find the Defendant, CHARLES AJOLOKO,
 X____ GUILTY of the crime of Aggravated Assault with a Firearm, and
 X_____we further find that the Defendant, CHARLES, AJOLOKO during the commission of said offense actually possessed said firearm, or
we further find that the Defendant, CHARLES AJOLOKO, during the commission of said offense, did not actually possess a firearm

GUILTY of the crime of Aggravated Assault with a Deadly Weapon, a lesser included offense.

GUILTY of the crime of Assault, a lesser included offense.

NOT GUILTY.

SO SAY WE ALL.

____________________________________________________

Constitutional guarantees to adequate notice and to due process of law make it almost inconceivable that a person charged with a second degree felony could be convicted of a first degree felony “lesser” included offense at jury trial and could be sentenced to thirty years in prison when he was only charged with a second degree felony crime punishable by ten years imprisonment. Such a conviction would also violate the Florida and United States. Constitutions’ protection against double jeopardy in that a person who goes to trial, and thereby jeopardy attaches, on a second degree felony would be subjected to the increased penalty of a first degree felony conviction for a “lesser” included offense.
Allowing lesser included offenses to include crimes of greater degree and penalty than that of the crime charged would also violate the Florida and United States Constitutions’ right to trial by jury.
A defendant charged with second degree attempted robbery with a firearm who exercises his constitutional right to a jury trial could be convicted of first degree felony grand theft and be sentenced to thirty years in prison. The result is that the person is punished more severely for exercising his constitutional right to have a jury determine his guilt. This outcome violates a citizen’s constitutional right to trial by jury and violates due process of the law.
If the Court allows permissive lesser included offenses to be crimes that are greater in degree and penalty than the charged offense and there is no schedule of lesser included offenses for a particular crime, the defendant would have no notice of what he might be convicted of at trial and the state would have the incentive to be “creative” in its wording of its information so that the state can surprise the court and the defendant at trial with its argument for instruction on a permissive lesser included offense which could result in a prison sentence that increases the maximum penalty of the charged crime by a factor of three or even six (e.g., a person charged with a third degree felony being convicted of a “lesser” included offense that is a second degree or first degree felony).
Prosecutor’s closing argument about the verdict forms.
You’re going to get these two forms. And, again,
the first verdict form — this is a little
complicated — a little bit more complicated than the
usual form, so I’m going to go over this with you.

I’m  actually going to go over it in reverse.

This is  verdict Count 1, the aggravated assault rob — I’m
sorry. Actually, this should say attempted robbery with
a firearm.

For the verdict form for Count 1, attempted
robbery with a firearm. The bottom one is not guilty.
I would submit to you that he is guilty. The evidence
is pretty straightforward as to his guilt.
Right above that is guilty of the crime of petit
theft, a lesser-included offense. I would submit to you
that he’s not guilty of petit theft.
Guilty of the crime of robbery, a lesser-included
offense. He’s guilty of robbery, but with the
enhancement. And I’m going to keep going above that.

 These are all lessers of robbery with a firearm. Guilty
of the crime of robbery with a weapon, robbery with a
deadly weapon. And the highest one is guilty of the
crime of attempted robbery with a firearm.
The evidence is pretty clear he had a firearm. He
attempted to rob her. She had no money on her, so he
was not able to be successful on the robbery, so it’s
attempted robbery with a firearm. If you check that
off, then there’s two other boxes that you have to pick,
one of the two.
And one says, so if you select guilty of the crime
of attempted robbery with a firearm and, one, we find —
we further find that the defendant, Charles Ajoloko,
actually possessed a firearm during the commission of
the attempted robbery, or we further find that the
defendant, Charles Ajoloko, did not possess a firearm
during the commission of the attempted robbery.
So if you find that he was guilty of the crime of
attempted robbery with a firearm, you have to find —
make a special finding, is what it’s called. You have
to make a special finding whether he actually possessed
a firearm or he didn’t possess a firearm.

I would submit to you to check off the first one that he’s
guilty of the attempted robbery with a firearm. And
then check off the first box right next to that, we
further find that the defendant actually possessed a
firearm during the commission of the attempted robbery
because he clearly did. The charge is attempted robbery
with a firearm.

Below is Part of the trial court jury instructions submitted to jurors.

In the considering the evidence, you should
consider the possibility that although the evidence may
not convince you that the defendant committed the main
crimes of which he is accused, there may be evidence he
committed other acts that would constitute a
lesser-included crimes.

Therefore, if you decide that  the main accusation has not been proved beyond a  reasonable doubt, you will next need to decide if the
defendant’s guilty of any lesser-included crime.
The lesser crimes indicated in the definition of
attempted robbery with a firearm are attempted robbery
with a deadly weapon, attempted robbery with a weapon,
robbery, and petit theft.
The lesser crimes indicated in the definition of
aggravated assault with a firearm are aggravated assault
with a deadly weapon and assault.

Please note the following taken from Florida Supreme Court Jury Instructions. There aren’t any lesser included offenses for attempted robbery with a firearm

Lesser Included Offenses 

            No lesser included offenses have been identified for this offense.


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