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Trial counsel was not ineffective for failing to challenge photo array evidence or object to alleged prosecutorial misconduct

State v. Mario Emmanuel James, 2013AP309-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity

James, charged with armed robbery, alleged trial counsel was ineffective based on various alleged omissions, including the following:

  • Failing to object to evidence that the victims of the robbery identified James from a photo array based on the claim that it was a suggestive identification procedure because the police told the victims before they viewed the array that they had found the victims’ property in James’s residence. (¶21). While the police may have found the stolen goods at James’s residence, and while the victims may have believed, by the time trial occurred, that police found their stolen items at James’s residence, there’s no evidence establishing that police told the victims where their belongings were found; in fact, police witnesses testified that they did not inform the victims where the property was found. (¶22). Thus, there would have been no merit to objecting to evidence about the array. (¶23).
  • Failing to object to prosecutorial misconduct–namely, putting in “false” testimony in the form of testimony by one witness that was inconsistent with the witness’s testimony at the preliminary hearing. (¶15). There would have been no merit in raising this objection because the testimony wasn’t inconsistent; rather, his trial testimony simply elaborated on the information he provided during his “brief” preliminary hearing testimony. (¶¶16-18). Nor did the prosecutor “vouch” for a state’s witness by arguing in closing reasons why the witness should be deemed to be credible. (¶¶19-20).
  • Failing to impeach a witness for saying James had a “birthmark” on his face that he doesn’t have. “James cannot prove prejudice, however, because James appeared in front of the jury at trial. The jury saw James and his birthmark (or lack thereof) for itself, and counsel was not ineffective for failing to draw attention to it.” (¶26). 
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