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Tony Egbuna Ford |
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Petition on his case |
Petizione sul suo caso |
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CLAIM FIVE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO CROSS-EXAMINE THE MURILLO'S ON FACTS THAT RAISED QUESTIONS ABOUT THE RELIABILITY OF THEIR IDENTIFICATIONS.
Trial counsel knew or should have known of four factual areas that, even without expert assistance, raised questions about the reliability of Myra and Lisa Murillo's identifications. First, counsel knew that Lisa Murillo had seen Mr. Ford's photograph in the local newspaper, identified as a suspect in the case, before she viewed the photo spread. Counsel established this fact in cross-examining Ms. Murillo in the pretrial hearing on the motion to suppress the identifications. See SF Vol. I-C pp. 51-52. Even without expert testimony about the "proactive inhibition" psychological process induced by such an experience, it is clear to lay people that exposure to someone's photograph prior to being shown his photograph in a photo spread makes it more likely that the witness will pick out the photograph of that person, if for no other reason than the familiarity associated with seeing the newspaper photograph. Despite having this information at their fingertips, defense counsel failed to bring it up in the cross-examination of Lisa at trial. Second, there was some question about whether in fact Myra Murillo had picked Mr. Ford's photograph out of the photo spread. Ms. Murillo and Detective Lowe both testified at the pretrial suppression that Ms. Murillo picked Tony Ford's photograph out of the photo spread at 4:10 pm on December 19, 1991. [SF Vol. I-C pp. 6-9, 26]. In addition, both Ms. Murillo and Detective Lowe testified that Ms. Murillo signed the back of Mr. Ford's photograph and noted the date and time as December 19, 1991 and 4:10 pm. Id. Mr. Ford's photograph appeared in the number 5 position in the photo spread. Id. Two minutes after Ms. Murillo allegedly signed the back of Mr. Ford's photograph, at 4:12 pm, Detective Lowe typed a statement for Ms. Murillo to sign concerning the number of the photo she picked out of the photo spread. In that statement Detective Lowe typed, "I have recognized the man whose picture is numbered 4 as the man who shot and killed my brother." Exhibit 12 (emphasis supplied) (unsigned version of the statement, showing the time it was typed and by whom at the bottom of the page). When Ms. Murillo signed the statement thereafter, the reference to photograph number 4 is overwritten and the numeral "5" is written in by hand. See Exhibit 13. There are no initials by this overwriting, there is no note explaining what happened. There is just a change in the number, from the photo of someone else to the photo of Mr. Ford, who was depicted in photograph number 5. Defense counsel never questioned Ms. Murillo or Detective Lowe about this obvious and very significant change. Given the importance of this statement and of getting the number right, and given that Detective Lowe typed the statement within two minutes of Ms. Murillo's identification of the photograph, this handwritten change in number without contemporaneous explanation raises the question whether Myra Murillo did in fact pick Mr. Ford's or someone else's photograph out of the photo spread. In state habeas proceedings, Detective Lowe averred in an affidavit that she "ha[d] no knowledge how the number 4 came to appear in the unsigned witness statement, or under what circumstances it was changed to the number 5 in Myra's signed statement," but she went on to reiterate that "Myra Murillo never indicated to me that photo number 4 was the photo of any person involved in the capital murder of her brother." Affidavit of Lilia [Lowe] Munoz, February 7, 2001, attached to State's Answer to Applicant's First 11.071 Writ Application, Ex parte Ford, No. 69,441-346-01 (El Paso County, Texas) Had counsel pursued this area of question with Ms. Murillo and Detective Lowe, there is at least some circumstantial evidence that could have raised even further questions about this. The person who did the shooting was wearing a knit cap pulled down nearly to his eyebrows. [SF Vol. IX p. 61]. Thus the Murillo's could not have known what his hair was like. Even though Tony Ford's hair was short, and the hair of the person depicted in photograph number 4 was longer, see Exhibit 1 (the photo spread), hair length and style could not have been a determining factor in picking out the photograph. On information and belief, the person depicted in position number 4 is either Robert or Jojo Vislar, two twins who were contemporaries of Tony Ford and Victor Belton. The Vislar's, like Victor Belton, are of mixed racial heritage - Mexican American and African American. Thus, if Victor Belton was the shooter, as the defense contended, Myra Murillo may in fact have initially picked out photograph number 4, confusing him for Victor Belton due to the similarity in mixed racial features. Third, Myra Murillo knew Mr. Ford's codefendant, Van Belton, from school. As she told the police the night of the crime, I recognized the lighter skinned black guy from Eastwood Middle School and Eastwood High School. I thought he lived in my neighborhood when I lived on Crow St. because I had seen him walk past my house several times and I had also seen him at Album park when we were younger. I know that it is the same guy I have seen for several years.
Exhibit 14, at 4. With this kind of familiarity with Van Belton, it is likely that Myra Murillo sometime also saw his brother Victor, even though she could not recall that. If Victor were the shooter, rather Tony Ford, Victor may, for this reason, have looked somewhat familiar to her. When she then saw Mr. Ford in the photo lineup, she may have picked him out because he looked like Victor and Victor was, subconsciously, familiar to her. Finally, Myra Murillo could not be certain that she did not tell her sister Lisa that she had picked out the person in position number 5 in the photo lineup. While Lisa denied that Myra told her which person she picked out, [SF Vol. I-C pp. 42-50] (recalling that she knew that Myra had picked out someone from the photo lineup but not which person), Myra was far less certain. In the identification suppression hearing, defense counsel asked Myra three times whether she told Lisa which person she picked out, and Myra could not remember whether she had: Q. And you told your sister, I signed the back of photo number five? A. I don't remember....
Q. What I'm saying is can you tell this court that you never told your sister that you signed the back of a photograph in the fifth position or photograph number five? A. I do not remember....
Q What I would like to know, ma'am, is that can you tell this court absolutely that you never told your sister that you signed photograph number five? A. Absolutely I can't, to the best of my knowledge.
[SF Vol. I-C pp. 36-38].
Defense counsel raised none of the questions presented by these facts. There was no reason to fail to do so. The defense was able to raise substantial questions about the reliability of the identifications. See SF Vol. IX pp. 384-388 (closing argument by the defense in the guilt phase recapping the questions raised by the evidence). Something more, even something that simply raised more questions, could well have made the difference in the jury's verdict and sentencing findings. These four areas of questioning could well have tipped the balance. Counsel's failure to raise these questions was unreasonable. But for this omission, there is a reasonable probability that the jury's decisions would have been different. B. State Court Proceedings This claim was presented among the claims numbered 1-5 in the Amended Original Application for Writ of Habeas Corpus in the state courts. The state courts rejected the claim on the merits.
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