Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona SHARON K. SEXTON Assistant U.S. Attorney Arizona State Bar No. 012359 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-358-PHX-DGC Plaintiff-Respondent, v. Lawrence Leon Jackson, Defendant-Movant. CV-07-1880-PHX-DGC (JRI) RESPONSE TO MOTION FOR NEW TRIAL PURSUANT TO FED. R. CRIM. P. 33(B)(1)

The United States of America, by and through its attorneys undersigned, hereby opposes defendant's "Motion for New Trial Pursuant to Fed. R. Crim. P. 33(b)(1)." The motion for new trial pertains to matters regarding defendant's "Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255," and thus, the government's response to that motion is also relevant to this response. Thus, the government incorporates the pleadings regarding that motion by reference. Respectfully submitted this 19th day of December, 2007. DIANE J. HUMETEWA United States Attorney District of Arizona S/Sharon K. Sexton SHARON K. SEXTON Assistant U.S. Attorney

Case 2:04-cr-00358-DGC

Document 142

Filed 12/19/2007

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MEMORANDUM OF POINTS AND AUTHORITIES Issues Presented Defendant agues that he is entitled to a new trial because of the testimony of Clifford Smith.

4 Defendant argues that Clifford Smith would now testify that defendant was not present during 5 the homicide. 6 II. Law 7 In order to prevail on a motion for a new trial based on newly discovered evidence, a

8 defendant must satisfy a five-part test: "(1) the evidence must be newly discovered; (2) the 9 failure to discover the evidence sooner must not be the result of a lack of diligence on the 10 defendant's part; (3) the evidence must be material to the issues at trial; (4) the evidence must 11 be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial 12 would probably result in acquittal." United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 13 2005). 14 15 1.) The evidence was not newly discovered In support of his motion, defendant has provided a purported affidavit of Clifford Smith,

16 alleging that defendant was not present during the murder. Clearly, this is not "newly 17 discovered." If in fact defendant was not at the murder, and Clifford Smith was present at the 18 murder, then Clifford Smith always had this knowledge; it is nothing new. 19 Defendant avows that he knew of this "evidence" because he discussed the issue of using

20 Clifford Smith as a witness with trial counsel prior to trial. (Defendant's affidavit p. 1.) 21 Defendant avows that his lawyer attempted to use Mr. Smith as a witness, but that Mr. Smith's 22 lawyer did not make Mr. Smith available as a witness. (Defendant's Affidavit p. 1.) Indeed, 23 Clifford Smith could not have been compelled to testify in view of his own pending 24 prosecutions, and his consequent Fifth Amendment Right to remain silent. 25 Defendant never raised this issue with the court either pre-trial, during trial or at sentencing.

26 Further, on October 21, 2004, only five days before trial, when the court addressed the issue of 27 the joint witness list, defendant never advised the court of issues regarding "Clifford Smith." 28 However, the parties contemplated Clifford Smith as a potential witness as his name was read
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1 to the jury on October 26, 2004. (RT 10/26/04 27.) Thus, the Clifford Smith evidence is not 2 new. 3 Clifford Smith's purported affidavit confirms that Smith knew of defendant's desire to have

4 him testify as a witness and that Clifford Smith discussed the matter with his lawyer. (Clifford 5 Smith affidavit p. 1.) Thus, the affidavit proves that Clifford Smith knew that defendant wanted 6 Smith to testify and that Smith possessed this "evidence" at the time of trial. It further shows 7 that Smith had an ability to testify if in fact Clifford Smith wanted to testify. That Clifford 8 Smith admits to discussing the matter with his lawyer is further evidence that Smith's lawyer 9 knew Smith's position regarding testimony. The fact that neither Smith's lawyer, nor Smith 10 himself came forward to offer testimony is evidence that Smith did not want to be a witness in 11 defendant's case. 12 Interestingly, no where in the affidavit does Clifford Smith allege that he was willing to

13 testify for defendant; rather, he states what he would have stated if he had been called to testify. 14 (Clifford Smith affidavit p. 1.) There is no information that Clifford Smith requested that his 15 attorney communicate with defendant or defense counsel. Thus, while defendant seems to imply 16 that his attorney and Smith's attorney conspired against defendant to keep Clifford Smith off the 17 witness stand, the evidence suggests otherwise. The evidence shows that both attorneys were 18 aware of the request and that as a result of consultation with their clients, no testimony was 19 provided by Clifford Smith. 20 In fact, during Smith's plea proceeding which occurred only six days before defendant's

21 trial, Smith was specifically asked, "Is there anything you have wanted [your lawyer] to do for 22 you that he has not done?" Smith answered, "No." (RT 10/20/04 5.) If Smith had wanted to 23 be a witness for defendant, he surely would have advised the court of that fact. If Smith had 24 advised his lawyer of his desire to be a witness, Smith's lawyer would have communicated that 25 to defendant and his lawyer. 26 The unwillingness to testify is also a matter that counsel undersigned can attest to. Counsel

27 undersigned specifically asked Clifford Smith's lawyer if Smith had a desire to testify in 28 defendant's case and/or to provide a "free talk" regarding the murder and the participants.
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1 Clifford Smith's lawyer advised counsel undersigned that he discussed the matter with Smith 2 and that Smith had a steadfast position that he did not want to testify. (Affidavit of Assistant 3 U.S. Attorney, Sharon K. Sexton, Attached to 2255 motion.) 4 Smith's unwillingness to become involved with the trial in this matter was evidenced by his

5 plea agreement. Smith was unwilling to name other participants of the offense: 6 7 8 9 10 11 12 Clifford Smith: Clifford Smith: The Court: The Court: Now there's a factual statement in your plea agreement that I'm looking at on page 5. It goes on to state a couple of other things. It states you and others beat the victim with fists and feet. Is that a true statement? Yes. It says the group further stabbed the victim multiple times in the back. Is that a true statement? Yes.

13 (RT 10/20/04 20.) (Emphasis added.) 14 Clifford Smith did not name his other co-conspirators because he refused to do so. (RT

15 10/20/04 1-28.) However, he did acknowledge them. Smith's plea statements that this was a 16 "group" murder is consistent with the trial testimony of Raymond Jackson and Vanessa Cross. 17 At best, the proffer is not that the evidence is new, but that Clifford Smith is now allegedly

18 willing to testify to this fact. Such does not meet the standard of "newly discovered evidence." 19 20 As noted above, there was no "lack of diligence" regarding this issue; according to 21 defendant's affidavit, both defense counsel and defendant were working to possibly use Clifford 22 Smith as a witness. 23 3.) The evidence must be material to an issue at trial 24 The government does not dispute that this evidence is material. 25 4.) The evidence must not be cumulative or merely impeaching 26 The evidence in this case would not be cumulative or merely impeaching. 27 28
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2.) The failure to discover the evidence sooner must not be the result of the lack of diligence on the defendant's part.

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5.) The evidence must indicate that a new trial would probably result in acquittal There was overwhelming evidence in this case, including the fact that there were two eye-

3 witnesses, (Vanessa Cross and Raymond Jackson) defendant threatened a third witness (Dawn 4 Dixon) not to talk to the police, defendant lied to the victim's girlfriend (Pamela Jackson) about 5 his whereabouts on the night of the murder and defendant had previously assaulted Antonio 6 Jackson in a substantially similar manner in the "battledome." Further defendant testified he was 7 not present during the murder and the jury rejected his argument. Thus, this "new evidence" 8 would not "probably result in an acquittal." 9 Under a best case scenario for defendant, if granted a new trial, Clifford Smith would testify

10 that defendant was not present during the murder, contrary to the testimony set forth above. The 11 jury would be presented with the fact that the government offered Clifford Smith an opportunity 12 to testify in the first trial and that he refused to do so. The jury would hear that Clifford Smith 13 never came forward with the statements in his affidavit until nearly 2 years later and after he 14 was sentenced to 22 years in prison. The jury would thus know that Clifford Smith is basically 15 confined to prison for a huge part of his life and would virtually risk nothing by lying for 16 defendant. Further, defendant is a person who was feared by many of the witnesses and likely, 17 Clifford Smith. Thus, Clifford Smith would have a motive to lie for defendant who is also 18 confined in a federal prison (fear of retaliation). 19 Conclusion 20 Based on the foregoing, the government requests that defendant's "Motion for New Trial

21 Pursuant to Fed. R. Crim. P. 33(b)(1)" be denied. 22 23 24 25 26 27 28
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Respectfully submitted this 19th day of December, 2007. DIANE J. HUMETEWA United States Attorney District of Arizona

S/Sharon K. Sexton SHARON K. SEXTON Assistant U.S. Attorney

1 Copy mailed this 19th day of December, 2007 to: 2 Lawrence Jackson Fed. Reg. No. 82426-008 3 U.S. Penitentiary Pollock P.O. Box 2099 4 Pollock, Louisiana 71467 5 BY: 6 :nbd 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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