State of Louisiana v. Leroy Jackson

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #021
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 1st day of May, 2018, are as follows:
PER CURIAM:
2016-KP-1100 STATE OF LOUISIANA v. LEROY JACKSON (Parish of Orleans)
The only real question here is whether counsel’s deficient
performance prejudiced defendant. We find it clear that it did.
There are stark contrasts between the witnesses’ descriptions of
the robber’s complexion, hair, height, and weight, and those
characteristics of the defendant. Furthermore, the convictions
rested solely on the witness identifications, which went
virtually unchallenged at trial. The likelihood of a different
result if that information had been used at trial in a case with
no other evidence linking defendant to the crimes is more than
conceivable; it is substantial. Therefore, we find it sufficient
to undermine confidence in the outcome. We reverse the court of
appeal and reinstate the district court’s ruling that granted
defendant a new trial. The matter is remanded to the district
court for further proceedings.
REVERSED AND REMANDED.
WEIMER, J., concurs in the result.
GUIDRY, J., dissents and assigns reasons.
CLARK, J., dissents.
CRICHTON, J., additionally concurs and assigns reasons.
05/01/18
SUPREME COURT OF LOUISIANA
No. 2016-KP-1100
STATE OF LOUISIANA
VERSUS
LEROY JACKSON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT PARISH OF ORLEANS
PER CURIAM
Defendant was found guilty of armed robbery and two counts of attempted
armed robbery based solely on his identification by the two victims, Adrian
Maldonado and Wilson Vargas, and an eyewitness to the crimes, Anibal
Maldonado. The offenses were committed on August 15, 2009, by three armed
men. Two of the men wore masks. Defendant was identified as the unmasked man
after the witnesses collaborated with an officer to make a computerized composite
of a dark-skinned man with short hair and a distinctive hairline. A detective
proposed placing defendant in a photographic lineup based on the composite. The
three witnesses then each identified defendant from a photographic lineup.
The two victims expressed uncertainty, however, in their identifications to a
defense investigator. Vargas told the investigator that the unmasked man was light-
skinned with a distinctive hairline, 1 and that he had picked out defendant from
police photographs as a man who “looked a lot like the person who’d robbed
1
Specifically, Vargas stated, “The third man was much lighter-skinned than the other two
and also had short hair. I also remember that the light-skinned black man had a very distinctive
hairline because it was very long, all down the sides of his face.”
[him].” When asked to express his certainty in the identification on a scale of one
to ten, Vargas chose a five. Adrian Maldonado described the unmasked man as
light-skinned with short hair, and expressed his confidence on the ten-point scale
as a five. In addition, Adrian Maldonado stated that it was difficult to make an
identification because “all black people look alike” to him.
Although the defense investigator provided these statements to defense
counsel, he did not use them at trial. In addition, defendant’s head was clean-
shaven at the time of the crimes and had been since 2007, as evidenced by
photographs and testimony presented at the evidentiary hearing. 2 Furthermore, the
witnesses described the unmasked robber as standing approximately five feet nine
inches tall and weighing approximately 180 pounds. According to the arrest
register, defendant stands five feet seven inches tall and weighs 152 pounds.
Nonetheless, counsel conceded at the evidentiary hearing that he did not use the
discrepancies between the robber’s complexion, hair, height, and weight, and his
client, and counsel was unable to recall why he failed to use the witnesses’
statements to undermine their identifications.
After defendant was found guilty by the jury, the district court sentenced
him to 50 years imprisonment at hard labor as a second-felony offender for armed
robbery, and two terms of 24 years imprisonment at hard labor for attempted
armed robbery, with the sentences to run concurrently and without benefit of
parole, probation, or suspension of sentence. The court of appeal affirmed. State v.
Jackson, 10-1633 (La. App. 4 Cir. 10/12/11), 76 So. 3d 602, writ denied, 11-2528
(La. 3/30/12), 85 So. 3d 116.
Defendant timely sought relief on collateral review on the ground of
2
A picture of defendant taken before 2007 was used in the photographic lineup.
Additionally, defendant was the only individual in the lineup wearing a white sleeveless
undershirt, as opposed to a short-sleeve shirt.
2
ineffective assistance of counsel. After conducting an evidentiary hearing, the
district court granted defendant a new trial. In ruling, the district court emphasized
the problematic nature of cross-racial identifications, and the strong indications
here that the identifications were unreliable. A divided panel of the court of appeal
granted the state’s writ application and reinstated the convictions and sentences.
The majority found that defendant had failed to carry his burden under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) of showing
that he was prejudiced by counsel’s error. State v. Jackson, 15-1358 (La. App. 4
Cir. 5/16/16) (unpub’d). Judge Jenkins dissented, emphasizing that the
identification testimony presented by the state was the “sole evidence linking
defendant to the crimes,” and that defense counsel possessed statements from the
two victims, which “conflict[ed], and even contradict[ed], the original police report
narrative, the supplemental police report, and the victims’ testimony.” Id., 15-
1358, p. 3 (Jenkins, J., dissenting). Therefore, the dissent would deny the state’s
writ application and leave the district court’s order that granted defendant a new
trial intact. We agree with Judge Jenkins.
“The Sixth Amendment, applicable to the States by the terms of the
Fourteenth Amendment, provides that the accused shall have the assistance of
counsel in all criminal prosecutions.” Missouri v. Frye, 566 U.S. 134, 138, 132
S. Ct. 1399, 1404, 182 L. Ed. 2d 379 (2012). The United States Supreme Court has
long recognized that the right to counsel is the right to the effective assistance of
counsel. See McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449,
25 L. Ed. 2d 763 (1970) (citing Reece v. Georgia, 350 U.S. 85, 76 S. Ct. 167, 100
L. Ed. 77 (1955); Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680
(1942); Avery v. Alabama, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377 (1940);
Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932)). Claims of
3
ineffective assistance of counsel are generally governed by the standard set forth
by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), and adopted by this Court in State v. Washington, 491
So. 2d 1337, 1339 (La. 7/18/86).
To prevail on such a claim, a defendant must first show that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 687–88, 104 S.Ct. at 2064. The Supreme Court further noted that “[a]n
error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error has no effect on the
judgment.” Id., 466 U.S. at 691, 104 S. Ct. at 2066. Additionally, the Court
reasoned “[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure
that a defendant has the assistance necessary to justify reliance on the outcome of
the proceeding. Accordingly, any deficiencies in counsel’s performance must be
prejudicial to the defense in order to constitute ineffective assistance under the
Constitution.” Id., 466 U.S. at 691–92, 104 S. Ct. at 2067. Thus, the Strickland
court held that the “defendant must [also] show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id., 466 U.S. at 694, 104 S. Ct.
at 2066. The court further explained that in making a determination of
ineffectiveness of counsel, “the ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is being challenged. In every
case the court should be concerned with whether, despite the strong presumption of
reliability, the result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on to produce just
results.” Id., 466 U.S. at 696, 104 S. Ct. at 2053–54.
4
The state here suggests without evidence that the defense investigator may
have pressured the witnesses to recant their identifications, mischaracterized what
they said when transcribing it, or otherwise obstructed justice, State’s brief at p. 12,
and further speculates that counsel may have chosen not to use the information
obtained by the investigator for that reason. Thus, the state, in essence, proposes
that counsel might have acted strategically to conceal the investigator’s misconduct
rather than committed professional error. This conjecture does not merit serious
consideration, and (if true) could provide further evidence of a failure in the
representation. Instead, it seems clear counsel’s representation fell below an
objective standard of reasonableness. Counsel was provided with information that
undermined the witness identifications, in a case that rested entirely on the witness
identifications, but did not use it.
In addition, the state faults the district court for considering the strong
indicia here that the identifications were unreliable, and further faults the court for
seizing on the cross-racial nature of the identifications. Courts, however, have
recognized that “centuries of experience in the administration of criminal justice
have shown that convictions based solely on testimony that identifies a defendant
previously unknown to the witness is highly suspect,” and that, “[o]f all the various
kinds of evidence[,] it is the least reliable, especially where unsupported by
corroborating evidence.” See, e.g., Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.
1978); see also United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933, 18
L. Ed. 2d 1149 (1967) (“[T]he annals of criminal law are rife with instances of
mistaken identification. [As] Mr. Justice Frankfurter once said: ‘What is the worth
of identification testimony even when uncontradicted? The identification of
strangers is proverbially untrustworthy.’”). Scholars and judges alike have
commented that the inherent risk of misidentification is generally exacerbated by
5
the compelling nature of eyewitness testimony: “there is almost nothing more
convincing than a live human being who takes the stand, points a finger at the
defendant, and says[,] ‘That’s the one!’” Elizabeth F. Loftus, Eyewitness
Testimony 19 (1979). As Justice Brennan put it, “eyewitness identification
evidence has a powerful impact on juries. Juries seem most receptive to, and not
inclined to discredit, testimony of a witness who states that he saw the defendant
commit the crime.” Watkins v. Sowders, 449 U.S. 341, 352, 101 S. Ct. 654, 661, 66
L. Ed. 2d 549 (1981) (Brennan, J., dissenting). Furthermore, cross-racial
identifications have, in the words of the Fifth Circuit, been “demonstrated to be
particularly unreliable.” Gonzales v. Thaler, 643 F.3d 425, 432 (5th Cir. 2011).
The only real question here is whether counsel’s deficient performance
prejudiced defendant. We find it clear that it did. The United States Supreme Court
instructed in Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d 624
(2011) as follows:
In assessing prejudice under Strickland, the question is not whether a
court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have been
established if counsel acted differently. Instead, Strickland asks
whether it is reasonably likely the result would have been different.
This does not require a showing that counsel’s actions more likely
than not altered the outcome, but the difference between Strickland’s
prejudice standard and a more-probable-than-not standard is slight and
matters only in the rarest case. The likelihood of a different result
must be substantial, not just conceivable.
Richter, 562 U.S. at 111–12, 131 S.Ct. at 791–92 (internal citations and quotation
marks omitted). Here, there are stark contrasts between the witnesses’ descriptions
of the robber’s complexion, hair, height, and weight, and those characteristics of
the defendant. Furthermore, the convictions rested solely on the witness
identifications, which went virtually unchallenged at trial. The likelihood of a
different result if that information had been used at trial in a case with no other
6
evidence linking defendant to the crimes is more than conceivable; it is substantial.
Therefore, we find it sufficient to undermine confidence in the outcome. We
reverse the court of appeal and reinstate the district court’s ruling that granted
defendant a new trial. The matter is remanded to the district court for further
proceedings.
REVERSED AND REMANDED
7
05/01/18
SUPREME COURT OF LOUISIANA
No. 2016-KP-1100
STATE OF LOUISIANA
VERSUS
LEROY JACKSON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
FOURTH CIRCUIT, PARISH OF ORLEANS
GUIDRY, Justice, dissents and assigns reasons.
Under the standard for ineffective assistance of counsel set out in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), adopted by this court in State
v. Washington, 491 So. 2d 1337, 1339 (La. 1986), a reviewing court must reverse a
conviction if the defendant establishes his counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms, and the
inadequate performance prejudiced defendant to the extent that the trial was rendered
unfair and the verdict suspect. While defendant’s trial counsel may have erred in
failing to pursue at trial information provided earlier by the defense investigator, the
defendant has failed to satisfy his burden of proving prejudice by any alleged error.
As correctly noted by the court of appeal when it reversed the trial court’s ruling
granting the defendant a new trial, the record reveals each of the three robbery victims
assisted the law enforcement sketch artist with the preparation of a composite sketch
of the assailant. Each victim selected the defendant as his assailant in a photographic
lineup. Moreover, each of the victims identified in open court the defendant as his
assailant. In addition to the defendant’s presence at trial, the composite sketch and
photographic line-up were presented to the jury for their consideration of whether the
victims’ identifications were reasonable under the given facts. For these reasons, I
would affirm the ruling of the court of appeal.
2
05/01/18
SUPREME COURT OF LOUISIANA
No. 2016-KP-1100
STATE OF LOUISIANA
VERSUS
LEROY JACKSON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
Crichton, J., additionally concurs and assigns reasons.
I agree with the majority opinion, and write separately only to note that this
case presents unique facts that led to unreliable identifications made by the victim
eyewitnesses. However, the case should not be interpreted to corrode the value of
eyewitness testimony as competent direct evidence in Louisiana.