No. 100,028
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JACK R. LAPOINTE,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1. A trial court shall hold an evidentiary hearing on a K.S.A. 60-1507 motion and make findings of fact and conclusions of law with respect thereto, unless the motion, files, and records of the case conclusively show the prisoner is not entitled to relief. The burden is on the movant to allege facts sufficient to warrant a hearing on the 60-1507 motion.
2. When a trial court appoints counsel and holds a preliminary hearing on a K.S.A. 60-1507 motion, an appellate court applies a findings of fact and conclusions of law standard of review. An appellate court determines whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support the trial court's conclusions of law. The appellate court reviews the trial court's ultimate conclusions of law using a de novo standard.
3. To support a claim of ineffective assistance of counsel, a movant must prove (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that the movant suffered prejudice in that, but for counsel's deficient performance, there was a reasonable probability that the result of the proceeding would have been different.
4. It is well established that a witness may not express an opinion on the credibility of another witness. This is because the determination of the truthfulness of a witness is left to the jury.
5. A witness may not express an opinion which would pass upon the credibility of another witness or upon the weight of disputed evidence.
6. Juries have the knowledge and experience to determine the reliability of an eyewitness identification.
7. When eyewitness identification is a critical part of the prosecution's case and there is a serious question about the reliability of the pretrial identification, a cautionary instruction should be given to the jury advising it of the factors to be considered in weighing credibility of the eyewitness identification testimony.
8. Because a jury in a criminal case can decide an issue of the reliability of eyewitness identification using its common knowledge, expert testimony on the unreliability of eyewitness identifications should not be admitted at trial.
9. Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffective assistance of counsel case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
10. When a defendant claims that he or she is innocent and was nowhere near the scene of the crime, it becomes necessary to investigate completely the details of the alibi.
11. A contemporaneous objection to alleged prosecutorial misconduct is not required to preserve the issue for appeal if the prosecutor's statements violated the defendant's right to a fair trial; an appellate court applies the same standard of review regardless of whether the defendant lodged an objection.
12. The civil discovery rules of K.S.A. 60-234 are not applicable in K.S.A. 60-1507 proceedings.
13. The framework under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), which held that due process requires a prosecutor to disclose material exculpatory evidence to the defendant before trial, does not apply to a proceeding for postconviction relief.
Appeal from Johnson District Court; JOHN ANDERSON III, judge. Opinion filed August 28, 2009. Affirmed in part, reversed in part, and remanded with directions.
Richard Ney, of Ney, Adams & Sylvester, of Wichita, for appellant.
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six, attorney general, for appellee.
Before MALONE, P.J., GREEN and STANDRIDGE, JJ.
GREEN, J.: Jack LaPointe appeals from the trial court's judgment denying his ineffective assistance of counsel claims in his K.S.A. 60-1507 motion without holding an evidentiary hearing. LaPointe argues that the trial court erred in failing to hold an evidentiary hearing on the following claims: (1) that his trial counsel was ineffective in failing to object to testimony concerning the reliability of eyewitness identification given by the lead detective in the case; (2) that his trial counsel was ineffective in failing to file a notice of alibi with the correct address of the main alibi witness; (3) that his trial counsel was ineffective in failing to request further DNA testing; and (4) that his trial counsel was ineffective in failing to object to prosecutorial misconduct. As to LaPointe's first three ineffective assistance of counsel claims, we determine that factual issues exist as to whether the conduct by LaPointe's trial counsel was deficient and whether LaPointe was prejudiced by this conduct. As a result, we reverse and remand for an evidentiary hearing on those claims. As to LaPointe's fourth claim of ineffective assistance of counsel, however, we determine that there is not a substantial issue as to whether LaPointe's trial counsel was ineffective. As a result, we affirm the trial court's decision on this ineffective assistance of counsel claim.
In addition, LaPointe appeals from the trial court's denial of his request for production of hairs and clothing for DNA testing as discovery evidence in the K.S.A. 60-1507 proceeding. LaPointe raises the following two arguments as to why the trial court's decision on this issue was erroneous: (1) that under the civil discovery statutes, specifically K.S.A. 60-234(a), he was entitled to production of the hairs and clothing for DNA testing; and (2) that he had a due process right to access potentially exculpatory evidence. Nevertheless, we determine that the discovery rules are inapplicable in a K.S.A. 60-1507 hearing. Moreover, based on the current procedural posture of this case, we determine that the question of whether LaPointe had a due process right to access the hair and clothing for DNA testing is not properly before this court. In the event that the trial court finds on remand that LaPointe's trial counsel was deficient in not requesting further DNA testing, then the court should consider whether LaPointe is entitled to obtain the hair and clothing for DNA testing. Accordingly, we affirm in part, reverse in part, and remand.
Underlying Criminal Case
In his underlying criminal case, LaPointe was found guilty by a jury of aggravated robbery and aggravated assault. LaPointe's convictions were based upon a robbery of a Payless Shoe Source (Payless), which was located in a strip mall in Roeland Park, that occurred on October 30, 2000.
The Robbery
Around 8 p.m. on October 30, 2000, Carrie Wellman was checking out customers at the Payless store when a man walked in with a gun and proceeded to rob the store. Monica Ortiz was shopping in the Payless store with her three children and was completing her purchase when the robber walked in the store. The robber pointed the gun in Ortiz' face and instructed her not to look at him. The robber also pushed Ortiz' 5-year-old daughter to the ground when she tried to run to her mother. After Wellman gave the robber approximately $1,000 in a plastic shopping bag, he ran from the store. Wellman then called the police.
Carrie Delaney and Brandy Loveall had been shopping at a store in the strip mall and were driving out of the parking lot when Loveall spotted a man carrying a gun and walking fast on the sidewalk. Loveall made eye contact with the man before he passed her and ran between two buildings. According to Loveall, Delaney was driving the car when Loveall saw the man.
When the police arrived at the scene, several officers went to a nearby apartment complex after learning that the robbery suspect had been seen there. Upon arriving at the apartment complex, Officer Eric Thompson saw a woman in the parking lot holding cash in her hand. The woman told Thompson that a Caucasian man had just run through the breezeway and had dropped the money on his way up the stairs. Thompson took the money, which was $138, from the woman and asked her to remain there. Thompson ran through the breezeway to look for the robber but was unable to find him. When Thompson returned to his patrol car, the woman was no longer there.
During their search of the apartment complex area, officers found a plaid shirt and hat in a breezeway and a pair of cloth gloves in the front of one of the buildings. In addition, a police dog that had been brought to the apartment complex to track the suspect's scent pulled a blue and white bandana from underneath a car parked at the complex.
Eyewitnesses' Description of Suspect
Detective Karen Borstelman interviewed Loveall on November 1, 2000, and completed a composite sketch of the man she saw carrying a gun on the evening of October 30, 2000. Loveall described the man as Caucasian and standing approximately 6 feet tall, wearing a blue and white bandana on his head, with blond hair sticking out from underneath the bandana. The man was wearing a blue and white flannel shirt and was carrying a double-barreled sawed-off shotgun. Loveall further described the man as being in his early 30's and having a slender build. By the time of trial, Loveall had forgotten some of the details she had given Borstelman and described the man she saw as Caucasian and wearing a bandana on his head, wearing a coat, and carrying a gun. Moreover, Loveall could not recall whether the headlights of Delaney's car were illuminating the shadowy area in which the man was walking. Nevertheless, at trial, Loveall identified LaPointe as the man she had seen on the evening of October 30, 2000.
The other witnesses' descriptions of the robber differed somewhat from Loveall's description. According to Wellman, the man was Caucasian, was in his mid- to late-20's, stood about 6 feet tall, wore a plaid jacket and a bandana over part of his face, and had blond spikey hair with dark roots. Ortiz described the robber as a Caucasian man who was in his mid-20's and of slender build. Ortiz testified that the robber was wearing a cap and had put a handkerchief over his face when he came into the store. Ortiz' 11-year-old daughter, Monserrat Santos, described the robber as a Caucasian man with blue eyes and a muscular build. According to Santos, the robber had blond spikey hair, stood about 6 feet tall, had placed a bandana over his nose and mouth shortly after he had entered the store, and had not been wearing a hat.
Delaney was also interviewed by a detective and gave a description of the man, but she was unable to make a composite sketch. Delaney described the man as Caucasian and standing 5'10" tall, having a skinny build, wearing nothing on his head, wearing a blue flannel-type shirt, and carrying a white plastic trash bag. Delaney did not see the man carrying a weapon. According to Delaney, she was shown a photo lineup but was unable to make a positive identification. Delaney testified that she had suffered a stroke, which had affected her short-term memory, during the first part of October 2000.
During the investigation of the robbery, one of the officers had commented that an individual named Joseph Seeber seemed to match the suspect's description and lived in the apartment complex just north of the Payless store. A photo lineup was then put together with Seeber's picture.
Wellman's Eyewitness Identification
On November 9, 2000, Detective Scott Atwell showed Wellman the photo lineup. In looking at the photographs, Wellman used her hand to cover up the lower half of each of the faces. After approximately 5 minutes, Wellman identified the suspect in photograph number 1 as the robber. Nevertheless, according to Atwell, Wellman indicated that the person depicted in photograph 1 had a fatter face and longer hair than the robber. At trial, Wellman acknowledged that she was unsure of her pick in the photo lineup. Moreover, Wellman testified that she would not recognize the man who robbed her if she saw him again. The person in photograph 1 was Seeber, the target suspect in that photographic lineup.
Loveall's Failure to Identify Suspect in First Lineup
On November 15, 2000, Atwell showed the same photo lineup to Loveall. Nevertheless, Loveall immediately stated that all the individuals in the photos were "way too young."
Atwell's Testimony Concerning Eyewitness Identifications
Despite Wellman's identification of Seeber in the photo lineup, the police did not attempt to contact Seeber to question him about the robbery. When questioned at trial about why he had not investigated Seeber further, Atwell testified that he had "absolutely no confidence in the way" Wellman picked out photograph 1. Moreover, Atwell explained that he had received a laboratory report stating that Seeber's fingerprints were not those on the latent fingerprint cards collected at the Payless store. Atwell acknowledged, however, that the latent prints did not match LaPointe's fingerprints either. Atwell further testified that he had confidence in Loveall's identification "because she had observed the suspect under no stress whatsoever" and had seen the suspect bare-faced.
Norton's Interviews With FBI Agents
During November 2000, Michael Norton was taken into FBI custody on suspicion of bank robbery. During his interview, Norton told FBI agents that he had been told by LaPointe that LaPointe had robbed the Payless store in Roeland Park. Norton stated that he believed that LaPointe had used a shotgun during the robbery and had thrown the shotgun on the roof of a nearby building after the robbery.
After Norton pled guilty to federal bank robbery charges, FBI agents interviewed Norton on January 4, 2001, regarding the Payless robbery. During that interview, Norton admitted that he had been involved with LaPointe in the Payless robbery. Norton stated that he had driven LaPointe to the Payless store and had parked at a nearby apartment complex while LaPointe went to commit the robbery using a shotgun. Norton told the FBI agents that when LaPointe had returned to the car, LaPointe said that he had thrown the shotgun onto the roof of the Fashion Bug, which was a store in the same strip mall as the Payless store.
Recovery of Sawed-off Shotgun
Based on this information, FBI Agent Jeffrey Harris contacted Atwell and then met him in the parking lot of the Fashion Bug. With the fire department's help, a 12-gauge sawed-off shotgun was recovered from the roof of the Fashion Bug.
Loveall's Identification of LaPointe in Second Photo Lineup
On January 22, 2001, Atwell showed Loveall a second photo lineup with LaPointe's picture in it. According to Atwell, as soon as the photo lineup hit Loveall's hand, she pointed to photo 4 and said "that's the guy." LaPointe was the individual in photograph 4. The ages of the other individuals depicted in the photo lineup were 21, 21, 20, 19, and 25, while LaPointe was 31. This second photo lineup was never shown to Wellman.
LaPointe's Trial
LaPointe went to trial on charges of one count of aggravated robbery and one count of aggravated assault. The State's main evidence against LaPointe at trial was Loveall's identification of LaPointe and Norton's statements and testimony that LaPointe had committed the robbery. Although Norton implicated himself in the Payless robbery during his testimony at trial, he had been given immunity in exchange for his testimony against LaPointe. Norton had not received any reduction in his federal sentence for his cooperation in LaPointe's criminal case.
Norton's Testimony
During his testimony at trial, Norton stated that he and LaPointe had known each other since 1998. Moreover, both Norton and LaPointe had worked for Norton's father during 2000.
According to Norton, on October 30, 2000, he and LaPointe had planned to do a robbery in a low-key area that had a quick get-away to the highway. Norton testified that he was supposed to get 3/4 of the money that LaPointe got from the robbery because LaPointe owed him money. Once LaPointe decided to rob the Payless store, Norton pulled into the parking lot behind the Fashion Bug to wait for LaPointe.
Norton testified that he brought a sawed-off shotgun that he had obtained from LaPointe. Norton further testified that when LaPointe got out of the car, he took the shotgun and placed it up the sleeve of his sweater. According to Norton, LaPointe was wearing jeans, a pull-over sweater, a ball cap, and a bandana when he got out of the car.
Norton testified that LaPointe came running to the car approximately 15 to 20 minutes later without the gun. LaPointe told Norton that there was a Hispanic woman in the store that was trying to leave, but he had forced her back and told her that no one was leaving. According to Norton, he heard a thump before he saw LaPointe and assumed that LaPointe had probably thrown the gun in a dumpster or on the roof of a building. When LaPointe returned to the car, he told Norton that he had thrown the gun on the roof of the building.
According to Norton, he dropped LaPointe off at the home of LaPointe's girlfriend, Deanna Burch, about 45 minutes after the robbery. Norton testified that Burch's car was parked outside when he dropped off LaPointe. Nevertheless, Burch testified that she was working at an event at Wal-Mart on October 30, 2000, and did not get home until around 9:30 that night. According to Burch, LaPointe did not have a key to her home, and he was not there when she got home that evening. Norton testified that he later disposed of LaPointe's bandana and gloves in a dumpster at his apartment complex. Norton testified that he has been bald on top of his head since he was 20, and his hair is brown but turns semi-blond with a lot of sunlight.
During his testimony at trial, Norton admitted that he had 10 prior convictions for dishonesty or false statement. His criminal history included several convictions for armed robbery and auto theft, which dated back to when he was a juvenile.
Seeber's Testimony
The State called Seeber as a witness at trial. Seeber testified that he was not the individual who had robbed the Payless store with a sawed-off shotgun. Seeber further testified that he did not have a car and did not know Norton or LaPointe. At the time of trial, Seeber was 22 years old, 5'9", and 170 pounds.
Loretta LaPointe's Testimony
Loretta LaPointe, who married Jack LaPointe on March 15, 2001, testified that she had seen LaPointe pull a sawed-off shotgun out of the trunk of her car around the beginning of October 2000. Loretta immediately told LaPointe that the gun was not staying there, and she never saw it again. LaPointe told Loretta that he had gotten the shotgun from one of their friends to compensate Norton for a pistol that Loretta had thrown in the river after she had found it in her car.
Forensic Evidence
Lila Thompson, a latent print examiner, testified that she was unable to develop any latent prints on the gun that was found on the roof of the Fashion Bug store. Thompson was able to find latent fingerprints on the latent print cards recovered from the Payless store. Thompson compared these latent fingerprints against Seeber's fingerprints, but they did not match. Another latent fingerprint examiner compared the fingerprints on three of the latent print cards with the fingerprints of LaPointe and Norton, but they did not match. He also tested the money recovered from the woman at the apartment complex for fingerprints, but no prints of sufficient value for comparison purposes were obtained.
Sally Lane, a forensic chemist at the Johnson County crime lab, examined the shirt, cap, gloves, and bandana recovered from the apartment complex for DNA evidence. Lane found two hairs on the bandana and additional hairs on the shirt, cap, and gloves. Lane sent the hairs to the Kansas City, Missouri, police crime lab. Lane attempted to obtain additional DNA evidence from the items submitted to her, but she was unable to obtain a sufficient DNA sample.
Robert Booth, the chief criminalist at the Kansas City, Missouri, police crime lab, examined four head hairs and microscopically compared them against LaPointe's hair. Booth compared the hairs with 34 of LaPointe's hairs, which were taken from the top, sides, and front of his head. Booth testified that none of the four head hairs matched LaPointe. According to Booth, his comparison testing did not definitively establish that the head hairs did not come from LaPointe because he had only a representative sample of LaPointe's hair or because LaPointe could have changed his hair since the hairs were deposited. Nevertheless, Booth testified that those two explanations were "rather remote in occurrence" and that the explanation that the hairs were not LaPointe's was "the most likely outcome." Booth did not compare the hairs to any from Seeber or Norton.
Alibi Evidence
LaPointe's alibi presented at trial was that he had been at the home of Loretta LaPointe, his girlfriend and later his wife, on the evening of October 30, 2000. According to LaPointe, he had broken up with Burch by that time and was living with Loretta. Loretta testified that on October 30, 2000, she received a call from work at 7:35 p.m. that she needed to report for the night shift that evening. According to Loretta, she left her home around 9:45 p.m. to work the 10:30 p.m. shift. Loretta testified that she remembered LaPointe being home that evening and eating Halloween candy with her daughter. Loretta further testified that LaPointe was at home from the time she received the call at 7:35 p.m. until she left for work and that he also babysat her children while she was at work.
The State presented rebuttal evidence from Detective Atwell that when he went to Loretta's home on December 18, 2003, she never told him that LaPointe was at home on October 30, 2000. According to Atwell, he served Loretta with a subpoena on March 18, 2004, and asked her then where LaPointe was on the day of the robbery. At that time, Loretta told Atwell that LaPointe had been at home on October 30, 2000, eating Halloween candy with her daughter while she was preparing for work.
LaPointe's Testimony
LaPointe testified that he did not see Norton on October 30, 2000, and he did not go to the Payless store. LaPointe further testified that he did not commit the armed robbery and aggravated assault. According to LaPointe, he weighed approximately 240 pounds in October 2000 and was 6 feet tall. During Loretta's testimony, a picture was admitted that was taken of LaPointe around October 28, 2000, which showed him having short dark brown hair.
Conviction and Sentencing
The jury found LaPointe guilty of both the aggravated robbery and aggravated assault charges. LaPointe was sentenced to 245 months in prison with his sentence to run consecutive to his sentences in three other cases. His convictions were affirmed on appeal by this court. See State v. LaPointe, Case No. 93,709, unpublished opinion filed October 13, 2006. Our Supreme Court denied LaPointe's petition for review on February 14, 2007.
Motion for Postconviction DNA Testing
In April 2007, LaPointe moved for postconviction DNA testing in his criminal case, but his motion was denied. LaPointe did not appeal the denial of his motion for DNA testing in his criminal case.
K.S.A. 60-1507 Motion
In June 2007, LaPointe moved for relief under K.S.A. 60-1507 based on claims of ineffective assistance of counsel. LaPointe argued that his trial counsel was ineffective for the following reasons: (1) failing to request independent DNA testing of hairs found on a bandana and biological material on clothing allegedly worn by the robber; (2) failing to object when Detective Atwell improperly bolstered the identification of LaPointe by Loveall; (3) failing to object when Atwell testified he had no confidence in Wellman's eyewitness identification of Seeber as the perpetrator of the robbery; (4) placing an incorrect address on the notice of alibi, which allowed the State to impeach LaPointe's alibi; (5) failing to object to improper comments by the prosecutor in closing argument; (6) failing to thoroughly investigate the case and interview witnesses; and (7) failing to effectively cross-examine and impeach the State's witnesses.
Request of Production of Hairs and Clothing for DNA Testing
In August 2007, LaPointe requested production of the five head hairs and the clothing recovered by officers during the investigation in the underlying criminal case for the purpose of DNA testing. In addition, LaPointe requested that the State produce Norton's DNA profile for the purpose of comparing Norton's profile to the DNA profile obtained from the hairs and clothing. LaPointe cited K.S.A. 60-234(a) and Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), as authority for his request for production. LaPointe asserted that the discovery and testing of the items was necessary to establish his claim that he was denied his right to effective assistance of counsel when his trial counsel failed to have those items subjected to independent DNA testing. LaPointe stated that he would bear the cost of the DNA testing.
On the same date that he filed his request for the production of the hairs, clothing, and DNA evidence, LaPointe also filed a request for an evidentiary hearing on his K.S.A. 60-1507 motion.
The trial court held a nonevidentiary hearing on October 24, 2007. The main focus of the hearing was whether LaPointe should be allowed to obtain the hairs, clothing, and DNA evidence in discovery in the K.S.A. 60-1507 proceeding. The trial court determined that it would take the matter under advisement and gave the parties the opportunity to submit additional briefs on the issue. The trial court noted that at the very least, there would still need to be an evidentiary hearing to delve into the reasonableness of defense counsel's actions in not requesting the DNA testing. The trial court told the parties that after it issued its ruling, they could contact the bailiff and coordinate with each other and get time on the docket.
Trial Court's Decision
On November 8, 2007, the trial court issued its memorandum decision denying LaPointe's request for the production of the hairs, clothing, and DNA evidence at that time. The trial court noted that LaPointe must first show that defense counsel was deficient in not ordering DNA testing before trial. The trial court stated that if LaPointe met that initial showing, it might reconsider the question of DNA testing to allow LaPointe to show prejudice as a result of trial counsel's failure to conduct those tests.
On January 22, 2008, the trial court issued a written order denying LaPointe's K.S.A. 60-1507 motion. The trial court noted that it had advised defense counsel that once the trial court issued its opinion on LaPointe's request for production, he should coordinate with opposing counsel and set a date with the bailiff if further hearings were desired. The trial court pointed out that it had filed its decision on November 9, 2007, with a copy sent to the parties, but no future hearing date had been requested. As a result, the trial court determined that it would decide LaPointe's K.S.A. 60-1507 motion on the brief submitted. The trial court found that the motion, files, and records of the case conclusively showed that LaPointe was not entitled to relief and denied LaPointe's K.S.A. 60-1507 motion without further hearing.
I. Ineffective Assistance of Counsel Claims
Standards of Review
First, LaPointe contends that the trial court erred in denying his K.S.A. 60-1507 motion without an evidentiary hearing. The trial court shall hold an evidentiary hearing on a K.S.A. 60-1507 motion and make findings of fact and conclusions of law with respect thereto, unless the motion, files, and records of the case conclusively show the prisoner is not entitled to relief. K.S.A. 60-1507(b); Supreme Court Rule 183(f) and (j) (2008 Kan. Ct. R. Annot. 247). The burden is on the movant to allege facts sufficient to warrant a hearing on the 60-1507 motion. Supreme Court Rule 183(g); Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007).
When a trial court appoints counsel and holds a preliminary hearing on a K.S.A. 60-1507 motion, an appellate court applies a findings of fact and conclusions of law standard of review. The appellate court determines whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support the trial court's conclusions of law. The appellate court reviews the trial court's ultimate conclusions of law using a de novo standard. Wilkins v. State, 286 Kan. 971, 980, 190 P.3d 957 (2008).
To support a claim of ineffective assistance of counsel, a movant must prove (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that the movant suffered prejudice in that, but for counsel's deficient performance, there was a reasonable probability that the result of the proceeding would have been different. Wilkins, 286 Kan. at 981.
We bear in mind that judicial scrutiny of trial counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of the challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must strongly presume that counsel's conduct falls within the wide range of reasonable professional assistance. 286 Kan. at 981.
A. Failure to Object to Detective Atwell's Testimony
LaPointe contends that his counsel was ineffective in failing to object to Detective Atwell testifying to the credibility of Brandy Loveall and Carrie Wellman, the two eyewitnesses identifying suspects in the photo lineups.
During Detective Atwell's testimony at trial, the prosecutor questioned Atwell about why he had not interviewed Seeber after Wellman had identified him as the robber. Testifying that he had no confidence in Wellman's identification but he did have confidence in Loveall, Atwell stated:
"I had absolutely no confidence in the way Ms. Wellman picked out photograph No. 1, also because of the length of time she took. I could understand the manner in which she was doing it with her hand; and when she