Appellate attorney was ineffective for not requesting a Richardson or evidentiary hearing when the victim went from inability to identify the suspect 0% to 100% ability to identify the petitioner two and a half years later at trial. In the interim, appellate attorney was ineffective for failing to argue that trial counsel was ineffective for not motioning to suppress the 2nd photo lineup and in-court identification, as well as not requesting an evidentiary hearing, in light of the fact that was all trial counsel discussed in his closing argument.
Most of trial counsel’s closing argument was about the inconsistency of the photo lineups and in-court identification. Counsel argued about misidentification in closing, yet not motion to suppress the photo lineup or request a Richardson hearing. This cannot be said to be trial strategy. If trial counsel had motion to suppress the photo lineup and/or in court identification, there is probability that the jurors would have acquitted the petitioner. (TR-654-660)
Counsel conceded the admissibility of inadmissible statements that ultimately convicted his client without having researched the admissibility issue. This is ineffective assistance on the face of the record.
The State has the burden to demonstrate an independent source for the in-court identification. The petitioner’s Fourth and Fourteenth Amendment was violated when the trial attorney did not try to suppress the photo lineups and in-court identification. Below are excerpts from trial counsel’s closing argument.
(TR-654-660)-Trial Counsel here today, some two-and-a half years later and says, you know what, Mr. Ajoloko, that’s definitely the guy that did this. I remember that from two-and-a-half years ago from a minute-long observation I made. I know –and we know that the detective was sold on Mr. Ajoloko being the suspect in this case because 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. Slater 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. They weren’t the same people she looked at. She would never have 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 picture, yeah, I’m 60 percent sure.
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 me. 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.
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? 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 face”.
In other words, counsel conceded the admissibility of inadmissible statements that ultimately convicted his client without having researched the admissibility issue. This is ineffective assistance on the face of the record.
The trial court erred in not conducting a timely Richardson hearing after it learned that the crucial state witness, had on April 16, 2011, given exculpatory statements about the identification of the suspect.
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