Suggestiveness of Two Photo Line-ups and in-Court Identification Procedures

This post includes excerpts from the trial transcript and original police report.

Charles Ajoloko petitions for a writ of habeas corpus alleging ineffective assistance of appellate counsel for failing to present several “arguable” and potentially successful” claims suggested by the record.  These included the suggestiveness of both the photo line-ups and in-court identification procedures and the weight and sufficiency of the evidence to support an attempted and aggravated assault robbery with firearm convictions.

Petitioner was denied the effective assistance of appellate counsel in violation of the Sixth Amendment to the United States Constitution where appellate counsel failed to raise the issue of the insufficiency of evidence on appeal.

The state gave the victim 2 photo lineups. The victim was unable to identify the petitioner in the 1st  photo  lineup. Three weeks later a 2nd photo lineup was done and the victim was 60% sure that it was the petitioner. Two and a half years later at trial, the victim is 100% that it was the petitioner. A person’s memory does not get better with time. The appellate attorney should have requested an evidentiary or Richardson hearing.

Appellate attorney was ineffective for failing to raise that the trial attorney also raised the credibility of the victim in his motion for a new trial and also in his closing argument. Petitioner is unsure why these arguments were not raised at pre-trial;; however, it should have been raised on direct appeal.

Trial counsel raised the following meritorious issue in his motion for a  new trial.

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).

Appellate counsel provided ineffective assistance for failing to adequately complete record on appeal with the original police report and the 911 recording in order to challenge the 2 photo lineup and in-court identification. The victim said that the assailant was wearing a mask which covered half his face and that she could only see the eyes.

These items should have been in the record on appeal.

If the appellate court had been provided with the 911 recording and police report on the appeal, the court would have granted a new trial because the evidence of guilt was not overwhelming. On the 911 call, the victim said that she would be unable to identify the assailant. 

POLICE REPORT FROM DEPUTY

On April 16, 2011 at 2352 hours, I responded to 2605 Summer Wind Drive, Orlando, Florida (Summer Wind Apartments), in reference to an Attempted Robbery with a firearm. Upon arrival I met with the victim, J. Slater, who advised the following information.

On April16, 2011 at approximately 2350 hours, Ms. Slater was in the parking lot of the above stated address waiting for her friend to come down, at which time an unknown black male approached her and pointed a black semi-automatic handgun as he demanded all her money. Ms. Slater told the suspect she did not have any money as she opened her purse showing the suspect that her purse was empty. The unknown suspect immediately left the scene on foot in an unknown direction. Ms. Slater immediately called the Orange County Sheriff’s Office.

Ms. Slater described the unknown suspect as an average built black male, approximately 5’11, wearing a dark colored hooded sweatshirt and blue jeans and a blue and white bandana covering his face leaving only his eyes exposed. 

Ms. Slater stated she felt in fear for her life when the suspect pointed the handgun at her.

Ms. Slater stated she would not be able to identify the suspect if she was to see him again. Ms. Slater stated she did not give the suspect permission to point a gun at her in the attempts to take her property, she further stated she wanted to prosecute and testify in court.

K9 handler D/S L. Phillips (K922) arrived on scene and conducted his investigation. The K9 track ended at Hanging Moss Road and North Semoran Boulevard.

I obtained a sworn written statement from Ms. Slater detailing the incident. I gave Ms. Slater a business card and a case number.

(Please note that the deputy was only questioned by the state and the defense attorney did not cross examine the deputy. The above never got into the trial)

 

 AT  TRIAL-STATE QUESTIONING VICTIM ON STAND 

Q About a month later on May 18th of 2011, did you —

did a detective by the name of E. Collins come to your

residence in Altamonte Springs?

A Yep.

Q Did she show you a first photographic lineup in

this case?

A Yes.

Q And were you able to pick out anybody from the

first lineup?

A I don’t think so.

Q Okay. On June 7, 2011, did you meet with her at

the Orange County Sheriff’s Office?

A Yes.

Q And did she show you a second photo lineup in this

case?

A Yes.

Q And were you able to identify from that photo

lineup the person who robbed you?

A I believe so. I think that’s the one that I

circled and initialed.

Q Okay. Beside those two lineups, were there any

photographs or suggestions or anything made to you as to who

had robbed you on April 16th of 2011, by anybody?

A No.

Q Okay. Do you see — let me rephrase that question.

Prior to — do you see the person in the courtroom today who

robbed you on April 16th of 2011?

A Yes.

Q Can you please point to him and identify him by an

article of clothing that he’s wearing?

A He’s in the striped shirt.

QADRI: May the record reflect the witness

identified the defendant?

BY MR. QADRI:

Q Actually, there’s two people at the table with

striped shirts. Can you describe what color the shirt is?

A He has the gray and blue shirt without the tie.

QADRI: May the record reflect the witness

identify the defendant?

THE COURT: The record will reflect it.

 

AT TRIAL – DEFENSE ATTORNEY CROSS EXAMINATION OF VICTIM 

Okay. And when that officer came out — I don’t 

know if you remember his name, but when that officer came

out, you — you had the opportunity to tell him what had

happened; isn’t that correct?

A Yes.

Q Okay. And at that point, you told the officer that

you probably were not going to be able to identify who did

this to you. Do you remember that?

A No.

Q Okay. And at another point during this — this

investigation, you spoke with the prosecutor and you told the

prosecutor that you actually met with Detective Collins and

she showed you a lineup around May of 2011, correct?

A Uh-huh.

Q Okay. And when she showed you that lineup, you

were not able to identify anybody in that lineup as well;

isn’t that correct?

A Yes.

Q Okay. And then a few weeks later Detective Collins

again asked you to come to the Orange County Sheriff’s

Office; isn’t that correct? 

A Yes.

Q And at that point, you did say you circled somebody

in that second photo lineup and you put your initials there;

isn’t that correct?

A Yes.

Q Okay. And that day she actually had you also write

a statement in regards to you circling —

A Yes.

Q — her picture; isn’t that correct?

A Uh-huh.

Q And in that statement, you indicated to Detective

Collins that you were only 60 percent sure that that was the

person that had robbed you; isn’t this correct?

A If that’s what I wrote.

Q Would — I mean, I don’t want to put words in your

mouth. But would looking at your report refresh your

recollection of what you wrote on that day?

A It could have, yes.

Q All right.

GERGELY: Judge, may I approach?

THE COURT: You may.

BY MS. GERGELY:

Q And I’ll just let you look at that and then turn it

over when you get done.

A (Complying.)

Okay. Do you remember writing that you were only

60 percent sure that the person that you circled in that

photo lineup was the person that robbed you?

A Yes.

Q Okay. And you wrote that statement on the day that

you actually did the — or did the photo lineup

identification; isn’t that correct?

A Yes.

Q So, like, you did the lineup, then you wrote the

statement; isn’t that correct?

A (No response.)

Q Okay. So on that day, you weren’t sure that that

was the person — you weren’t 100 percent sure that that was

the person that robbed you; isn’t that correct?

A Out of those people in the lineup, I would have

chosen him every time over any of the other ones for specific

characteristics on his picture.

Q Okay. Because you said that there was a few

characteristics that resembled the person that robbed you;

isn’t that correct?

A Yes.

Q Okay. In terms of — one of the specifics was the

shape of the glasses; isn’t that correct?

A Yes.

Q Okay. And you also indicated that the nose on the

person was similar; isn’t that correct?

A Yes.

Q Okay. When you met with Detective Collins about

the incident, did — every time you meet with her, did she —

isn’t it true that she asked you to sort of recite to her the

facts of your case?

A She wanted my memory to — she wanted me to retain

as much information from the night as I could, and I was

trying to do that. So if she had shown me any lineups or

asked me further questions for trial, I would remember as

much as I possibly could.

Q Okay. And you also indicate — or at some point

you were also shown some pictures of some guns; isn’t that

correct?

A Yes, ma’am. 

 

CLOSING ARGUMENT OF TRIAL ATTORNEY 

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. Slater 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

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. Slater 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. Slater had been unable to identify her [sic], would

there have been a lineup three or four or eight?

Detective Collins 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. Slater 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.

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)]

 

A trial court must apply the following two-pronged test to determine whether to suppress an out-of-court identification: “(1) whether the police used an unnecessarily suggestive procedure and (2), if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.” Dorsey, 5 So. 3d at 705; see also Fitzpatrick v. State, 900 So. 2d 495, 517-18 (Fla. 2005). When considering the totality of the circumstances to evaluate the likelihood of misidentification, the trial court must consider the following factors: “(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.” Dorsey, 5 So. 3d at 705; see also Fitzpatrick, 900 So. 2d at 518. The determination of whether the procedure was unnecessarily suggestive “is wholly separate and apart from the reliability of the identification.” Styles, 962 So. 2d at 1034

The standard for suppressing a later in-court identification, though, is different:

With respect to an in-court identification, when law enforcement obtains a pretrial identification by an impermissibly suggestive procedure, “an ‘in-court identification may not be admitted unless it is found to be reliable and based solely upon the witness’ independent recollection of the offender at the time of the crime, uninfluenced by the intervening illegal confrontation.’ ” Dorsey, 5 So. 3d at 706 (quoting Edwards v. State, 538 So. 2d 440, 442 (Fla. 1989)). To gauge the reliability of an in-court identification, the trial court must consider the following factors:

“the prior opportunity the witness had to observe the alleged criminal act; the existence of any discrepancy between any pretrial lineup description and the defendant’s actual description; any identification prior to the lineup of another person; any identification by picture of the defendant prior to the lineup; failure to identify the defendant on a prior occasion; any time lapse between the alleged act and the lineup identification; and any other factors raised by the totality of the circumstances that bear upon the likelihood that the witness’ in-court identification is not tainted by the illegal lineup.”

Fitzpatrick, 900 So. 2d at 519 (quoting Edwards, 538 So. 2d at 443). The State has the burden to demonstrate an independent source for the in-court identification. Dorsey, 5 So. 3d at 706.

Appellate counsel failed to communicate with his client and  to raise several important issues.

 

 

 

 

Justice for My Son 2

PO Box 70111

Tuscaloosa, Alabama 35407

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