P. v. Coleman

Filed 4/8/08 P. v. Coleman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.

A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Eric Michael Coleman was convicted of robbery and attempted voluntary manslaughter for shooting a resident while committing a home-invasion robbery. We reversed the trial courts denial of defendants post-conviction motion for substitution of counsel. On remand, defendants substituted counsel filed a motion for a new trial based on alleged ineffective assistance of trial counsel. The motion was denied and defendant now appeals again.

We affirm. The new trial motion was based primarily on trial counsels decision not to use the testimony of an expert on eyewitness identifications. Defendant has not shown a reasonable probability that the use of this expert would have led to a better result for him at trial. Therefore, he has not carried his burden of showing ineffective assistance of counsel. His claims about other items of evidence trial counsel did not use also fail to demonstrate ineffective assistance.

The parties agree that the trial court should be ordered to issue an amended abstract of judgment to reflect the correct amount of presentence in-custody credit. We direct the court to do so.

FACTUAL AND PROCEDURAL HISTORIES

We set out the facts of the offenses in our unpublished opinion in the previous appeal:

Jolly Eubanks and Jeanne Caviness were sitting in the living room of their apartment in Porterville one night when two armed, masked men suddenly entered. Both wore hoods on their heads and bandannas over the lower parts of their faces. One man held a handgun and the other a shotgun. They demanded money. Eubanks said, Screw that, or something similar. He threw a can of soda at the man with the shotgun and charged him. The other man fired and Eubanks fell to the floor. The intruders took $250 from Eubankss pants pocket and fled. The bullet lodged in Eubankss spine, permanently paralyzing him from the chest down. (People v. Coleman (July 18, 2006, F047792) p. 2.)

Police arrested defendant after Caviness identified him in a photographic lineup as one of the intruders. (People v. Coleman, supra, F047792, p. 2.) Eubanks also later identified defendant as the shooter. (Id. at p. 18.) His defense at trial was mistaken identity. (Id. at p. 3.) His counsel sought to exploit potential weaknesses in the identifications made by Caviness and Eubanks. The room was somewhat dimly lit when the intruders entered. They were masked and hooded. (Id. at pp. 2, 17.) The victims several identifications over time reflected some equivocation and inconsistency:

When first shown a photo lineup including a picture of defendant, Caviness was 85 to 90 percent sure he was the man who held the shotgun, according to a detectives testimony. But at trial, Caviness said she was 100 percent certain defendant was the one who shot Eubanks with the handgun and denied ever identifying him as the man with the shotgun. In two interviews with a detective, Caviness gave inconsistent descriptions of the shotgun wielders jacket or sweatshirt. Caviness also at first said the intruders bandannas were up beneath their eyes, but later said defendant wore his down at the tip of his nose. Eubanks testified that, although he first identified defendant in a photographic lineup, he was not 100 percent certain defendant was the person who shot him until he saw him at the preliminary hearing. (People v. Coleman, supra, F047792, pp. 3-4.)

After the verdict, defendant made an oral motion for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The discussion at the hearing, which took place immediately before sentencing, was as follows:

[THE COURT:] Mr. Coleman, Mr. Hamilton [i.e., defense counsel] has advised me that you wish to express some concerns with your representation. [] What do you want? What is the problem?

THE DEFENDANT: Well, sir, I have a couple witnesses that I feel that were mandatory that I call, and he didnt feel that way because he feels that the case wasthat we didnt need these people because the case wasa blind man could have seen the evidence wasnt there, and etc.

I feel that the ID expert, that we should have waited for the ID expert to get there because I guess the witnessesthe victim postponed it for ten days or something so I could not get my ID expert on time.

The victims mother has a taped statement from [counsel who represented defendant earlier in the case but afterward withdrew], that I paid for and he had to drop me, sayingthe victims mother saying that her son said that it wasntthat it wasnt me. They got her on the phone to get to talk to her, but the private investigator said she never showed up. There was already a taped statement and that she was already interviewed by the prior investigator for my [previous counsel]. So there was already a taped statement on this.

THE COURT: Okay. What about the taped statement?

MR. HAMILTON: I personally never heard the taped statement. There was some recordings that were provided to me that I gave to an investigator to have transcribed. There was some difficulty in transcribing them because the poor quality of the recordings. The victims motherwe had a difficult time locating some of these witnesses, which seems to predominate this case, and the expert wasnt available during the period that wewhen we trailed this case. And I felt the experts usefulness really diminished with the number of informants that were coming forward.

So these were a lot of decisions that I did make. And personally, Mr. Coleman did present these issues to me, and those are the decisions that I made. It might be useful to have another attorney review.

THE COURT: Anything else?

THE DEFENDANT: Yes, I just feel strongly that there was a couple other witnesses.

THE COURT: I disagree with your comment, Mr. Coleman, a blind man could have seen this case was not you. [] I think there was overwhelming evidence that youre the one that did it, and I so find the motion denied. (People v. Coleman, supra, F047792, pp. 24-25.)

We reversed the ruling. As we explained, trial counsel gave weak reasons for failing to pursue and present the evidence at issue. Among other things, his view that it would have been futile to do so because of the number of informants that were coming forward was not supported by the record. (People v. Coleman, supra, F047792, p. 25.) These were two jailhouse informants whose claims that they heard defendant confess were seriously compromised. One, George Riddle, recanted his statement at trial, claiming he had never made it. The other, James Nelms, claimed his wife participated in a three-way telephone conversation in which defendant confessed; his wife testified that this never happened. (Id. at p. 4.) Further, the trial courts view that the evidence of defendants guilt was overwhelming was not supported by the record.^[1] (Id. at p. 25.)

We remanded and ordered the trial court to grant the motion for substitution of counsel. Defendants new counsel was to determine whether to file a motion for a new trial based on ineffective assistance of trial counsel and to file it if appropriate. (People v. Coleman, supra, F047792, p. 36.)

The trial court appointed attorney Albert Garcia, who filed a motion for a new trial on February 13, 2007. The motion faulted trial counsel for failing to use Scott Frazier, an expert on eyewitness identifications, who had already been retained, paid, and subpoenaed by the defense, among other witnesses.

The court held an evidentiary hearing on the motion. Defendant called as a witness Antonio Reyes, who served as defendants defense counsel until his trial counsel, Eric Hamilton, was substituted in because of a conflict. Reyes caused the identification expert, Scott Frazier, to be retained for the trial. Reyes believed an expert on eyewitness identification was indispensable.

Hamilton also testified. In the course of preparing for trial, Hamilton had a subpoena served on Frazier. Shortly before trial, the parties learned that the victims, Eubanks and Caviness, were snowbound in the Lake Tahoe area; the court trailed the case for several days. Hamilton, however, was informed that Frazier was going abroad immediately after the originally scheduled date and would not return for about four months. Hamilton testified that defendant had been in custody for one or two years at that point [a]nd it came down to whether or not I think we were willing to wait that much longer.

Defendant testified at the hearing that he was frustrated by the delay and accepted Hamiltons advice that the expert was unnecessary:

Q. And do you recall how that decision [to proceed without the expert] was made?

A. Yes. He tells meI gobecause like you said, I was a little upset about the trial having to be postponed. And he goes, Well, Mr. Coleman, I feel that we dont need him. His exact words were, Ill have you home by Super Bowl. Them were his exact words.

I go Okay. Well, youre the lawyer. If you feel we dont need him, then

Q. Did he make any comments about his confidence in the jury trial?

A. Oh, yes. He comes in and tells me, I got em scared. Im going to give him the Hamilton effect. He goes like that. (Indicating.)

Q. And

A. It totally got my spirits up. I was, like, all right. You got me convinced. Lets go. [] []

Q. And any time before that trial, did he state to you, well, he probably isnt that important?

A. Not until that day he was going to be there at trial and then continued it for the ten days because of the weather. Not until then.

When asked why he concluded that the expert was unnecessary, Hamilton gave two answers that appeared to be in conflict with each other. On the one hand, he claimed the eyewitness identifications of the victims were so weak that expert testimony on their weakness was superfluous:

What I recall is I probably persuaded [defendant] that the IDs themselves were so weak that it was plain on their face. My position, I guess, was that you dont need an expert to explain something thats pretty obvious. And so when she testified

Q. She being who?

A. Whoever the female was in the houseI forgot her name, Cavinessmy recollection of the testimony, all right, made it even more clear how wrong she was in her identities, all right. I dont know if Im getting off point or not, but she was completely inaccurate on her identities, weapon the man even had. All right. So when she testified, it became even more clear to me that she was completely inconsistent. All right. And so when I was preparing during the course of that trial and when I listed all the inconsistencies, because we went through them in significant detail in the closing argument, all right, it was plain on its face to me, all right, how wrong [and inaccurate] she was.

Q. So you felt that evidence at that point was so strong that you had victory?

A. That I had a victory.

Q. That you felt confident?

A. I felt pretty confident. You bet. You bet I did.

Q. And confident that you felt you didnt need the identification expert you had subpoenaed?

A. Absolutely. Yeah. Thats where his importance to me diminished significantly.

On the other hand, Hamilton claimed the jailhouse informants who claimed defendant confessed gave the prosecutions case strength independent of the eyewitness identifications, so that attacking the eyewitness identifications with expert testimony would not have been helpful. When challenged on the tension between this and his first argumentthat is, on the appearance that he was saying he did not want the expert both because the prosecutions case was too weak and because it was too strongHamilton attempted to reconcile the two claims:

Q. On the Marsden hearing, I quote, you felt the experts usefulness really diminished with the number of informants that were coming forward?

A. Uh-huh.

Q. What did you mean by that?

A. Well, my understanding of the usefulness of ID experts is that the less corroborative evidence that there is to support the identification, the more helpful he is. Now, when theres more corroboration involving potential IDs then the less informative the ID expert is. So in this situation as an example, all right, if Mr. Colemans case did not involve Riddle and whoever those guys were, all right, if it came down solely upon whether or not the people in that house could identify the correct perpetrator just from his eyes, all right, an ID expert would be paramount. But in this case, all right, not only was there an issue of ID because they did pick out Eric from this photo lineup, all right, in addition, though, to these identifications, there was these three witnesses who are claiming Eric made certain admissions, all right. So thats somewhat corroborative. So in my mind, the IDs which seemed weak just from the police reports were made more weak after they testified, in my mind the expert became less significant. The focus to me became discrediting those witnesses.

Q. Earlier you stated that you felt that because of the inconsistencies that you felt the case was so strong, you did not need the expert witness.

A. Felt so strong in what case? In what way?

Q. This case.

A. What it did was, all right, is it reaffirmed my instinct, all right, that we probably didnt need him. I went into it thinking if hes here, great. If not, I didnt feel like we really needed him.

Q. So it was based on your confidence that their testimony was so weak that you did not even need to call the expert witness, correct?

A. Probably, maybe, yeah.

Q. And yet you are stating that on the other hand because of the informantsand you state three, but I believe theres only two that testified?^[[2]]

A. Right.

Q. Jail house informants?

A. Right.

Q. And one who I believe sort of swayed in the middle of his testimony, that the number of them coming forward diminished the need for the expert. Im trying to get your reasoning for it.

A. What Im saying is, is that prior to the trial starting, all right, my information was theres three individuals available who were going to testify that Mr. Coleman made certain statements to them, all right.

The other issue was the ID. Now, had I originally been on this case with the three witnesses, I probably would not have hired an ID expert because of the three witnesses that were making these alleged statements. But Mr. Reyes already had this ID expert rounded up. I didnt see the harm if he was here to use him.

But, personally, prior to the trial when I had three witnesses who were basically saying certain admissions were made which corroborated, no matter how weak ID was, it still corroborated it. I felt the need for the expert was not as important to me if there wasnt those three witnesses who were giving these corroborative statements. So my feelings of diminished importance certainly were there within me prior to the trial starting for sure. After the two victims testified, that was evenI felt even more strongly, so the expert wasnt used.

Defense investigator Robert Bourn also testified at the hearing. He discussed the taped statement by defendants mother that was mentioned at the Marsden hearing. Bourn obtained the tape from defendants brother. He listened to it and found it to be unintelligible. Then he gave it to two transcribers, who also found it to be unintelligible. Bourn turned the tape over to Hamilton.

Bourn also described his contacts with several witnesses who were not used at trial. Melissa Clifton was present during a photo lineup that was presented to Jeanne Caviness by police. Bourn stated:

She indicated to me that two things occurred during the lineup. Since the defendant, Mr. Coleman, wasaccording to the police report or statements givenwas masked at the time, Porterville Police Department used a piece of paper on their piece of paper, and moved it up and down on their faces to simulate a mask.

On two different occasions she overheard the Porterville Police Department detectives say, Point to, rather, to the defendant, Eric Coleman. Are you sure its not him on two different occasions. Melissa would also testify that at this point, her words, this gave Jeanne a way out.

Bourn interviewed Jana Hampton, the sister of defendants wife, Julie Hampton. Bourn located Jana recentlyapparently after the trial. She told Bourn she was with defendant and his wife at their home at the time of the shooting, reinforcing defendants alibi.

Finally, Bourn interviewed Zach Fancer. Fancer said he went with defendants brother, Richard Coleman, to visit the victims, Eubanks and Caviness. The victims told Fancer they did not know who shot Eubanks. Afterward, however, Eubanks and Caviness reported the visit to police, saying they felt threatened by it.

When it denied the new trial motion, the court found that Hamiltons reasoning regarding his decision not to use the expert makes sense. It also found that defendant had not shown there was a likelihood of a better result for him if any of the evidence proffered at the hearing had been used at trial.

DISCUSSION

Ineffective assistance of counsel is among the grounds upon which a court may grant a motion for a new trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036; People v. Fosselman (1983) 33 Cal.3d 572, 583.) Defendant contends that his motion demonstrated ineffective assistance of counsel, and the court erred in denying him a new trial. In our previous opinion, we noted that a defendant making a post-conviction motion for substitution of counsel based on a claim of ineffective assistance of counsel need not, to prevail on that motion, prove that his counsel was in fact ineffective. A lesser showing will require the court to grant the Marsden motion. (People v. Coleman, supra, F047792, p. 26.) To prevail on the new trial motion, by contrast, defendant was required to show that his trial counsel provided unconstitutionally ineffective representation.

The usual standard of review for a ruling on a new trial motion is abuse of discretion. (People v. Delgado (1993) 5 Cal.4th 312, 328.) It has been held that this standard applies where the asserted ground of the motion is ineffective assistance of counsel, since [t]he trial judge is the one best situated to determine the competency of defendants trial counsel. Where, as here, defendant is represented by different counsel at the motion for a new trial and the issue is called to the trial courts attention, the trial judges decision is especially entitled to great weight . (People v. Wallin (1981) 124 Cal.App.3d 479, 483; see also People v. Aubrey (1999) 70 Cal.App.4th 1088, 1104, overruled on other grounds by People v. Rubalcava (2000) 23 Cal.4th 322, 334, fn. 8.) There may, however, be reason to believe that, while an order granting a new trial motion because of ineffective assistance of counsel is reviewed for abuse of discretion, an order denying the same motion should be reviewed de novo. This is the approach our Supreme Court has taken to motions for a new trial based on alleged juror misconduct. (People v. Ault (2004) 33 Cal.4th 1250, 1255; see also People v. Callahan (2004) 124 Cal.App.4th 198, 209.) We need not resolve this issue. As will be seen, we would affirm the ruling under either standard, since we conclude independently that defendant has not demonstrated ineffective assistance of counsel.

To establish ineffective assistance of counsel, defendant must show that counsels performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.)

Unlike the trial court, we are not certain that trial counsels reasons for not using the eyewitness identification expert make sense. His client faced a life sentence and had no hope of prevailing if the victims identifications of him were believed. The expert had been retained and was ready to testify upon his return from his travels abroad. Counsel admitted it was he who persuaded defendant not to request a continuance and wait for the expert to be available; defendant did not insist on going to trial without further delay. It is difficult to understand a decision to forego the experts testimony under these circumstances. Counsels discussion at the hearing of the strengths and weaknesses of the prosecutions case shed little light on the issue.

We need not determine whether counsels decision was professionally unreasonable, however. We can resolve the ineffective-assistance claim by proceeding directly to the issue of prejudice. (Strickland v. Washington, supra, 466 U.S. at p. 697.)

Defendant has not shown prejudice, i.e., a reasonable probability that, but for counsels challenged actions, the result of the trial would have been different. Except for brief references to Melissa Clifton and Jana Hampton, defendants argument on appeal is based exclusively on the claim that trial counsel should have used Scott Frazier, the eyewitness identification expert, to undermine the victims eyewitness identifications of defendant as the shooter. Defendant presented nothing, however, in his written submissions on the motion or at the hearing to show what testimony Scott Frazier would have given or how it would have helped his case. Frazier did not testify at the hearing and counsel submitted no declaration by him.

The main problems with the eyewitness identificationsthat the intruders were masked, the room dimly lit, the encounter brief, and the identifying witnesses claims subject to impeachmentwere presented to the jury. Defendant concedes that the jury was instructed to consider matters of this kind in weighing the strength of the identifications. Even if we make a speculative assumption that the expert would have emphasized these facts and based conclusions on them, it is not reasonably probable that this would have caused the jury to find defendant not guilty.

In his appellate briefs, defendant makes a series of other speculative assumptions about what the expert might have said. These focus on allegedly suggestive identification procedures used before trial:

An expert on identification could have explained to the jurors various aspects of the identification procedures which suggested that the eyewitness identification evidence was unreliable. Eubanks was initially shown photographic lineups including appellants photograph and did not identify anyone. [Citation.] Subsequently, Eubanks was shown additional photographic lineups, for a second time including appellants photograph, and selected appellants photograph. [Citation.] After he selected appellants photograph, Eubanks was told that he had selected Eric Colemans photograph. [Citation.] Eubanks was not sure of his identification of appellant until he saw appellant in court in the defendants seat during the preliminary hearing. [Citation.]

An identification expert could have explained that Eubanks repeated exposure to photographic lineups including the defendant but no other repeat participants, as well as the suggestive nature of an in-court identification of a person sitting in the defendants seat in jail garb, constitute suggestive conditions conducive to mistaken identification. [Citations.]

Before she was shown any photographic lineups, Caviness heard rumors on the street that Eric Coleman was involved in the robbery and conveyed this information to Detective Olmos and Sergeant Blain. [Citation.] Caviness told detective Olmos during the first photographic lineup that appellants photograph was that of the man with the shotgun. [Citation.] Detective Olmos told Caviness that she had selected Eric Coleman. [Citation.] Caviness told Detective Azevedo during the second photographic lineup, which again included a photograph of appellant that she was 85 to 90 percent sure that appellants photograph was that of the man with the shotgun. Caviness said the other photographs were not even close, perhaps because of the familiarity engendered by seeing appellant during both sets of lineups. [Citation.] At trial, after having heard rumors that Coleman was involved, having reviewed two separate photographic lineups including Colemans photograph, having been told that she selected Colemans photograph, and knowing that Coleman is the defendant in this case, Caviness testified that she was now certain that Coleman was the man with the handgun who shot Eubanks. [Citation.]

An expert witness could have explained that Caviness expressions of increased confidence in her identifications did not necessarily mean that the identifications were accurate. Factors such as seeing the persons photograph in more than one photographic lineup, being told that the person selected is the named suspect, and seeing the suspect in the defendants seat in court may cause a witness to feel more confident about an identification which was previously uncertain. However, such facts tend to render the identification process unnecessarily suggestive and to cause the resulting identifications to be less reliable, not more reliable. [Citations.] (Fn. omitted.)

Even assuming the expert would have given testimony along these linesan assumption in support of which there is, again, no record evidencedefendant has not shown a reasonable probability that he would have obtained a better outcome if the testimony had been given. We discussed these allegedly suggestive identification procedures in our previous opinion and concluded they were not suggestive enough to justify excluding the eyewitness identifications from evidence at trial. (People v. Coleman, supra, F047792, p. 22.) We also think it is not reasonably probable that expert testimony about them would have produced a better verdict for defendant.

As defendant points out, an expert who undermined the eyewitness identifications would also indirectly have impeached the jailhouse informants statements that they heard defendant confess. This also, however, does not amount to a showing of a reasonable probability of a different outcome.

Defendant also points to trial counsels failure to use Melissa Clifton and Jana Hampton as witnesses.^[3] We cannot say counsel had no sound reasons for not calling these witnesses, as he was not asked about them at the hearing. Where the record does not contain counsels reasons for taking a challenged action and the record does not rule out all possible sound reasons, we affirm over a claim of ineffective assistance of counsel. (People v. Zapien (1993) 4 Cal.4th 929, 980; People v. Fosselman, supra, 33 Cal.3d at p. 581.)

The record does not rule out all possible sound reasons for not calling Hampton as a witness. If she had testified as Bourns comments suggested, Hampton would have been a corroborative alibi witness for defendant, adding to the claims of defendant and his wife that defendant was at home at the time of the shooting. This type of testimony can have significant weight, but in this case there was a potential downside to using Hamptons account. In ruling on the new trial motion, the trial court opined that defendant and his wife gave equivocal testimony about defendants presence in the house the night of the shooting:

The defendant testified. He gave three different stories during the course of that testimony. First, he said that he was living with Julie Hampton, and that he was home all night. The second statement was that he was with Jeff Wasson because Julie Hampton had kicked him out. And his third statement was that he was not living with [Julie Hampton] because she kicked him out around Thanksgiving but he stayed with her three to four times or nights a week at the time. That went before the jury.

Julie Hampton testified or stated that she could havethat the defendant could have left the house on the night of December 9th and might have beenor the defendant might have been at Jeffs house that night. She could not with certainty say that the defendant was at home that night regardless of the statements she made to the investigator. That went before the jury.

In light of this, counsel reasonably could have concluded that adding yet another account of defendants whereabouts would have had a negative impact on the jury, not a positive one.

With respect to Clifton, we can say neither that the record rules out a sound tactical basis for not calling her, nor that there would have been a reasonable probability of a better outcome for defendant if she had been called. Bourns first comment about Clifton was that she saw a detective use a piece of paper to cover portions of the faces in the photographs so that the subjects would look like they were wearing masks. We do not see why this would have been improper. Defendant does not explain why it would have caused the jury to doubt Cavinesss identification. Bourns second comment about Clifton was that she heard a detective say something like [a]re you sure its not him? while Caviness was viewing a photographic lineup. This comment did not demonstrate a reasonable probability of a better outcome for defendant if trial counsel had decided to use Clifton. Assuming Clifton would have testified in accordance with Bourns account and that this testimony would have been admissibleneither of which have been established in the recordwe still think it is not reasonably probable that this testimony would have tipped the balance in defendants favor.

On appeal, defendant does not claim that counsel should have called Richard Coleman or Zach Fancer as witnesses. He also does not claim that counsel could have done anything helpful with the indecipherable tape.

For all these reasons, we hold that defendant did not demonstrate ineffective assistance of counsel, and the trial court did not err in denying the motion for a new trial he made on that ground.

The parties agree that, although the trial court indicated in a minute order dated August 13, 2007, that it has corrected its calculation of presentence in-custody credits to show 721 days between the original sentencing hearing and the sentencing hearing on remand, for a total of 829 days credit, it never filed an amended abstract of judgment or forwarded one to the appropriate authorities. Both sides request that we direct the court to perform this task. We agree and order it be done.

DISPOSITION

The judgment is affirmed. The trial court shall prepare, if it has not already done so, an amended abstract of judgment in accordance with its minute order dated August 13, 2007, showing 721 days of presentence in-custody credit for the period between the first and second sentencing hearings, making a total of 829 days credit. The court shall file the amended abstract and forward it to the appropriate prison authorities.

`

_____________________

Wiseman, Acting P.J.

WE CONCUR:

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Levy, J.

_____________________

Kane, J.

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^[1]We also observed that the court seemed to misunderstand defendants comment about what a blind man could see. Defendant was reporting, and disagreeing with, his counsels opinion that a blind man could see he was not guilty. Defendants view was that more evidence was needed to support his defense.

^[2]The third jailhouse informant was Aaron Young. The only information in the record about why Young did not testify is a reference in a report by a defense investigator to a rumor from the streets that Young had admitted he lied to police when he claimed he heard defendant confess.

^[3]It is not clear whether Hamptons and Cliftons alleged statements were known to trial counsel at the time of trial or were first discovered by Bourn after trial. Since defendant on appeal argues only ineffective assistance of counsel, not new evidence, as grounds for a new trial, it is not obvious how Hampton and Clifton are relevant to the appeal if their statements were unknown to trial counsel at the time of trial. We will assume for the sake of argument that defendant is claiming either that counsel knew of the statements or would have known of them but for negligence in his investigation.