Marrio D'Shane Willis v The State Of Oklahoma

F-2004-67

Filed: Apr. 6, 2006

Not for publication

Prevailing Party: Marrio D'Shane Willis

Summary

Marrio D'Shane Willis appealed his conviction for robbery with firearms. His conviction was reversed, and he was sentenced to ten years in prison and a $1,000 fine. Judge C. Johnson dissented.

Decision

The Judgment and Sentence of the District Court of Tulsa County is REVERSED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a failure of trial counsel to develop evidence indicating misidentification by the sole eyewitness?
• Did the trial counsel's deficient performance result in a verdict that was unreliable?
• Was there a reasonable probability that the outcome of the trial would have been different if the misidentification evidence had been developed?
• Did the eyewitness's retraction of his identification undermine the confidence in the accuracy of his trial testimony?

Findings

• the court erred in concluding trial counsel's performance was adequate
• evidence was not sufficient to support the conviction due to misidentification
• the conviction is reversed

F-2004-67

Apr. 6, 2006

Marrio D'Shane Willis

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Marrio D’Shane Willis, Appellant, was tried by jury and found guilty of robbery with firearms, in violation of 21 O.S. 2001 § 801, after former conviction of a felony, in Tulsa County District Court, Case No. CF-2003-1753. The jury sentenced Appellant to ten (10) years imprisonment and a $1,000.00 fine. The Honorable Tom Gillert, District Judge, imposed judgment and sentence accordingly. Appellant timely appealed the judgment and sentence to this Court. Appellant also filed a Motion for New Trial Based on Newly Discovered Evidence and an Application for Evidentiary Hearing on Sixth Amendment Claims. On August 30, 2005, this Court remanded the case for an evidentiary hearing in connection with Appellant’s claims of newly discovered evidence and ineffective assistance of counsel. The District Court subsequently conducted the hearing on November 30, 2005, and filed findings of fact and conclusions of law.

In Appellant’s Proposition VII, he argues reversal is warranted based on trial counsel’s failure to develop evidence available at trial indicating that the sole eyewitness misidentified Appellant as the robber. To prevail on his claim, Appellant must show both deficient performance and prejudice. Grant v. State, 2002 OK CR 36, 58 P.3d 783, quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Our cases define prejudice as a reasonable probability that the result of the proceeding would have been different. Grant, at I 82. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

We accord considerable weight to the findings of the District Court, but this Court must ultimately determine whether counsel’s allegedly deficient performance resulted in a verdict that is unreliable. Contrary to the findings of the District Court, there are circumstances in which effective assistance may require that trial counsel take reasonable steps to develop evidence that a misidentification has occurred. Cf. People v. Ortiz, 586 N.E.2d 1384, 224 III.App.3d 1065 (Ill.App. 5 Dist., 1992) (finding reversal required where counsel did not use available procedures to develop evidence that another person perpetrated the offense, and theory was left virtually unexplored). Such steps may include a timely request for an in camera hearing to inquire of the eyewitness about possible misidentification. Cf. Sanders v. State, 1980 OK CR 49, 12-13, 612 P.2d 1363, 1365-1366 (trial court conducted in camera hearing to permit development of defense evidence of possible misidentification); Frick v. State, 1981 OK CR 108, I 17, 634 P.2d 738, 741-42 (trial court properly conducted in camera hearing to afford defense counsel opportunity to question eyewitness extensively about identification and subsequent events); Young v. State, 1975 OK CR 25, 531 P.2d 1403 (right to develop evidence in camera on reliability of identification is dependent on timely request by counsel).

Counsel was unaware of available means for developing the evidence to support his theory of misidentification; he essentially abandoned the attempt to develop it in the face of the District Court’s in limine ruling prohibiting counsel from alluding, in front of the jury, to the possibility that another individual arrested for similar robberies was the robber in this case. Trial counsel was in possession of the photographic evidence that ultimately caused the eyewitness here to testify at the evidentiary hearing that his 100 percent sure identification of Appellant at trial was mistaken. While there is inherent risk in the development of this type of evidence, the eyewitness’ unshakeable identification of Appellant on direct examination at trial virtually guaranteed Appellant’s conviction unless evidence supporting misidentification was developed and presented to the jury. Under these circumstances, trial counsel’s failure to take reasonable steps to examine the eyewitness in camera and develop this misidentification evidence was objectively deficient.

The Court finds there is a reasonable probability that trial counsel’s development of this evidence would have resulted in a different outcome at trial. In testimony at the evidentiary hearing, the eyewitness retracted his earlier identification based on the very evidence counsel failed to develop and actually identified another individual as the robber. Following the evidentiary hearing, the District Court found that the testimony of the eyewitness undermines any confidence about the accuracy or reliability of his trial testimony. The record supports this conclusion. There is no question that Appellant suffered prejudice from counsel’s omission. The conviction is reversed.

DECISION

The Judgment and Sentence of the District Court of Tulsa County is REVERSED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 801
2. Grant v. State, 2002 OK CR 36, 58 P.3d 783
3. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
4. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068
5. People v. Ortiz, 586 N.E.2d 1384, 224 III.App.3d 1065 (Ill.App. 5 Dist., 1992)
6. Sanders v. State, 1980 OK CR 49, 12-13, 612 P.2d 1363, 1365-1366
7. Frick v. State, 1981 OK CR 108, I 17, 634 P.2d 738, 741-42
8. Young v. State, 1975 OK CR 25, 531 P.2d 1403
9. Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with firearms
• Okla. Stat. tit. 22 § 3.15 (2005) - MANDATE issuance
• Okla. Stat. tit. 12 § 327.1 - In camera hearings

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 17 U.S.C. § 107 - Limitations on Exclusive Rights: Fair Use
• 46 U.S.C. § 10502 - Voyages for the Purpose of Generating Profit

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Grant v. State, 2002 OK CR 36, 58 P.3d 783
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• People v. Ortiz, 586 N.E.2d 1384, 224 III.App.3d 1065 (Ill.App. 5 Dist., 1992)
• Sanders v. State, 1980 OK CR 49, 12-13, 612 P.2d 1363, 1365-1366
• Frick v. State, 1981 OK CR 108, I 17, 634 P.2d 738, 741-42
• Young v. State, 1975 OK CR 25, 531 P.2d 1403