Since the conviction of Adam Braseel was based on identifications made by two witnesses. Becky Hill and her son Kirk Braden, the claim of invective council by Douglas Trant was mainly based on issues of the identification and a jury instruction not given about the reliability of witness identifications.
In a nutshell, Judge Timothy Easter claims that Braseel’s attorney, Douglas Trant, failed to offer evidence that would support the claims that the eye witness testimony or the witness identifications were questionable. And to show that if such evidence was offered, it would have changed the outcome of the trial
Any one reading this blog knows there are many things that undoubtedly bring the testimony and the identifications into question. Knowing these things, Judge Angel made the fair decision as these things are common knowledge now in the community. Yet there was no way for Judge Easter to know these things unless they were presented in court in Nashville. Essentially allowing questionable witnesses found at the crime scene, a well-known drug buying house to point the finger elsewhere — Adam Braseel.
1: That Malcolm Burrows house was the center of an illicit drug ring is for starters. With people coming and going transacting drug deals of which Adam had no part. Offering the real possibly that a story was concocted to deflect the crimes from themselves. (Not presented)
2: That Kirk Braden was later arrested for the very crime of assault on his smother he was claiming Adam committed that linked him to the murder is certainly telling. If Braden had been charged with assaulting his mother that night, he most certainly would have been charged with the murder too. (Not presented)
3: That Sheriff Myers had altered the witness Jay Douglas, speaks volumes of any credibility to the lineup. (Not presented)
4: The hiding of SGT Mike Brown, the missing wallet and the witness statements he said he did not take though his name was on them – speaks directly to the credibility of the Sheriff and his testimony about the lineups. (Not presented)
5: That TBI agent Davis had moved evidence around and then perjured himself to say he discovered the evidence in place, when the truth was that Mike Brown had discovered the evidence and had it in his possession. The prosecutor choosing not to bring Brown into court, any claims that evidence was “Put back where it was found” would be strictly hearsay, so instead police simply lied in court and said they found it. This speaks of the credulity of all involved and those who claimed to do an unbiased, or impermissively suggestive identification. (note presented)
5: That Malcolm Burrows was under investigation with nurse Garner and Dr Florence at the time of the murder for being in a pill ring. And Malcolm was accused of killing nurse Garners horses. (Not presented)
6: That trial judge Bud Perry was effected by illicit pill business when his son died as a consequence. No mention of Malcolm’s well known pill business was allowed or made in court. (not presnented)
Here are some excerpts – you may read the full opinion here:
- Trial Counsels’ Failure to Challenge Impermissibly Suggestive Lineup
Petitioner did not present any testimony at the post-conviction hearing to contradict the facts surrounding the identification of Petitioner by Mr. Braden as presented at trial. Instead, Petitioner relied on the trial transcript introduced at the hearing as an exhibit and argument of post-conviction counsel. Accordingly, the evidence in the record preponderates against the post-conviction court‟s finding that Mr. Braden‟s identification resulted from an unnecessarily suggestive single-photo lineup.
2 Trial Counsels’ Failure to File Motion to Suppress
In order to show prejudice, [a] [p]etitioner must show by clear and convincing evidence that (1) a motion to suppress would have been granted and (2) there was a reasonable probability that the proceedings would have concluded differently if counsel had performed as suggested
In essence, the petitioner should incorporate a motion to suppress within the proof presented at the post-conviction hearing.
Thus, “[i]f a petitioner alleges that trial counsel rendered ineffective assistance of counsel by failing to . . . file a motion to suppress[,] . . . the petitioner is generally obliged to present . . . the [evidence supporting his claim] at the post-conviction hearing in order to satisfy the Strickland prejudice prong.”
Based on the record before us, we are unable to determine that a motion to suppress would have been granted. The Petitioner has failed to show that he was prejudiced by any alleged deficiency as required by a proper Strickland analysis.
Post-conviction counsel’s argument is all that is contained in the record, and that equates to no proof at all. The post-conviction court improperly concluded that Petitioner received ineffective assistance of counsel for trial counsels‟ failure to file a motion to suppress.
3, Identification of Petitioner by Ms. Hill.
We acknowledge that post-conviction counsel also argued at the hearing that Chief Deputy Lonnie Cleek incorrectly identified Petitioner’s photograph in the lineup at trial as the “third from the right” when it was allegedly the “third from the left.” Petitioner took issue with the fact that trial counsel did not object during trial and did not raise this issue on appeal. However, Petitioner did not present any witnesses, including himself or either trial counsel, at the hearing to support this argument. Argument from counsel does not amount to proof.
* Moreover, the photographic lineup does not appear in the technical record in either the post-conviction or trial transcript, so we are unable to ascertain whether any of the witnesses truly misidentified Petitioner at trial. (Where is the photo line-up from the trial)
4 Jury instruction.
Petitioner takes issue with trial counsel’s failure to request a jury instruction regarding the reliability of eyewitness identification. The State concedes that trial counsel should have requested such an instruction. However, the State argues that the post-conviction court utilized the improper analysis of the claim and that the lack of the jury instruction was harmless.
In a case so heavily dependent on the identity of the perpetrator and so lacking in physical evidence connecting Petitioner to the crime, we agree with the post-conviction court, the State and Petitioner that Petitioner’s identity was a material issue at trial and that trial counsels‟ failure to request a jury instruction on identity was certainly deficient. The post-conviction court’s order found that trial counsels‟ failure to request the jury instruction “precluded the appellate court to consider [sic] the issue of identity due to the waiver said actions constituted.”
However, the post-conviction court did not perform the proper prejudice inquiry. In order to show prejudice at the post-conviction level, Petitioner is required to establish 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.‟” Goad, 938 S.W.2d at 370 (quoting Strickland, 466 U.S. at 694). Thus the post-conviction’s court’s failure to perform a proper prejudice analysis results in error.
That said, we must determine whether we should remand the case to require the post-conviction court to apply the proper legal standard or whether the state of the record enables us to apply the standard and adjudicate the prejudice issue in this appeal. Petitioner did nothing to contradict the trial record’s demonstration of what occurred relative to the absence of the Dyle instruction. He took no steps to articulate, other than through nonevidentiary argument of post-conviction counsel, how the failure to request the instruction prejudiced Petitioner. For this reason, we will review the prejudice issue de novo.
Contrary to argument of post-conviction counsel upon which the post-conviction court apparently relied, the record does not reflect that either witness “mis-identified” or failed to identify Petitioner as the offender. The record reflects no circumstances surrounding the pretrial identifications that would derogate from those identifications or the witnesses‟ identifications at trial.
The focus of the Dyle instruction is the competency of eyewitnesses, not their veracity or truthfulness.
5 Alibi Witness
Petitioner went on to present multiple alibi witnesses at the post-conviction hearing, but did not raise this issue on appeal. Issues raised in the pro se petition and not raised on appeal are deemed abandoned
Because we have determined that the evidence preponderates against the factual findings of the post-conviction court and because Petitioner has failed to prove that he received ineffective assistance of counsel, we reverse the judgment of the post-conviction court. Petitioner’s convictions are reinstated.
Adam can be free on bond for another appeal.