Petition for Writ of Certiorari — Aaron Orlando Richards, Petitioner v. Darrel Vannoy, Warden

Supreme Court briefMar 24, 2021

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IN THE

SUPREME COURT OF THE UNITED STATES

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AARON ORLANDO RICHARDS — PETITIONER

vs.

DARREL VANNOY, WARDEN — RESPONDENT(S)

FILED

MAR 2 h 2021

OFFICE OF THE CLERK

SUPREME COURT. U.S.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

AARON ORLANDO RICHARDS

388486, SPRUCE—2

LOUISIANA STATE PENITENTIARY

ANGOLA, LA 70712

QUESTIONS PRESENTED

This is a principal to second degree robbery case based, almost

exclusively, on questionable circumstantial evidence that ended in a life

sentence for Aaron Orlando Richards and leads to the following questions:

The State's evidence, presented at trial, established that a male

perpetrator attacked and robbed the victim. The entire ordeal

was captured by a security camera. The video exclusively proves

Richards was not the perpetrator. The video also, as the State

conceded, disproved the theory of anyone acting as a lookout for

the perpetrator:

Did the State, according to the standard announced in

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979) present sufficient evidence to convict

in this case?

Did the State prove, beyond a reasonable doubt, that

Richards acted as a lookout for an alleged accomplice?

Was the jury's decision to convict a rational decision?

Richards's trial counsel, who has since been disbarred, rendered

ineffective assistance contrary to the Sixth Amendment to the

United States Constitution. Counsel had several issues

transpiring in his life that caused his performance to be

constitutionally deficient:

Did Richards's trial counsel render ineffective assistance

when he failed to file a Motion for Bill of Particulars and

Notice?

Did Richards's trial counsel render ineffective assistance

when he failed to file a motion to suppress an alleged

inculpatory statement?

Did Richards's trial counsel render ineffective assistance

when he failed to present a defense and meaningfully

challenge

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LIST OF PARTIES

All parties appear in the caption of the case on the cover page,

TABLE OF CONTENTS

PAGE NO.

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF CONTENTS

INDEX TO APPENDICES

TABLE OF CITED AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

Richards’s Conviction For Being A Principal To Second Degree

Robbery Was Obtained Contrary To The Standard Announced In

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979)..............

The Incident...............................................................................

The Elements of the Alleged Offense.....................................

The Alleged Confession...........................................................

The Victim’s Description of the Perpetrator..........................

Trial Counsel’s Deficient Performance..................................

•

Richards’s Trial Counsel Rendered Ineffective Assistance Under The

Standard Announced In Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984)....................................................... . 14

Failed to File a Motion for Bill of Particulars and Notice....... 15

Failed to Offer a Defense

Failed to File Motion to Suppress

CONCLUSION

INDEX TO APPENDICES

Page

Appendix

Order Denying COA

District Court’s Judgment

Magistrate Judge’s Report and Recommendation

State Supreme Court’s Denial of Post-Conviction Relief

State Appellate Court’s Denial of Post-Conviction Relief

State Supreme Court’s Denial of Certiorari on Direct Appeal

State Appellate Court’s Opinion on Direct Appeal

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Cole v. Arkansas, 68 S.Ct. 514 (1948)

Combs v. Tennessee, 530 F.2d 695 (6th Cir. 1976),

DeJonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255 (1937)

In re Oliver, 33 U.S. 257, 68 S.Ct. 499 (1948)

State v. Allen, 2005-1622 (La. App. 1 Cir. 3/2/06); 934 So.3d 146

State v. Brady, 414 So.2d 364 (La. 1982)

State v. Brown, 51,352 (La. App. 2 Cir. 5/2/17); 223 So.3d 88

Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982)

Hohn v. United States, 524 U.S. 236,253, 118 S.Ct. 1969 (1998)

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979)....ii,l,5,8,9,12,13,18

Lucas v. O’Dea, 179 F.3d 412 (C. A. 6 1999)

16,17

Lucas v. O’Dea, No. 3:96-CV-482-A (June 18, 1997)

Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477 (1985)

Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979)

State v. Hampton, 98-0625, p. 13 (La. 4/23/99); 750 So.2d 867

State v. Jacobs, 504 So.2d 817 (La. 1987)

State v. Langford, 483 So.2d 979 (La. 1986)

State v. Muss all, 523 So.2d 1305 (La. 1988)

State v. Neal, 00-0674 (La. 6/29/01); 796 So.2d 649

State v. Porretto, 468 So.2d 1142 (La. 1985).

State v. Wiggins, 44,616 (La. App. 2 Cir. 9/23/09); 22 So.3d 1039

7,8

Stirone v. United States, 362 U.S. 212, 80 S.Ct. 270 (1960)

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

1,14

United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984)

1,20

Wade v. Armontrout, 798 F.2d 304 (8th Cir. 1986)

STATUTES AND RULES

28U.S.C. § 1254(1)

La. C. Cr. P. art. 484

La.R.S. 14:10(1)

La.R.S. 14:24

8,15

La.R.S. 15:438

Rule 10 of the United States Supreme Court

Rule 13.1 of the United States Supreme Court

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Richards respectfully prays that a writ of certiorari be issued to review

the order of the United States Court of Appeals for the Fifth Circuit denying

a Certificate of Appealability (COA) on his Fifth, Sixth and Fourteenth

Amendment claims, as interpreted by Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979); Stricklandv. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and United States v, Cronic, 466

U.S. 648, 104 S.Ct. 2039 80 L.Ed.2d 657 (1984).

OPINIONS BELOW

The order of the Court of Appeals, No. 20-30411, denying a COA

appears at Appendix A to the petition and has been designated for

publication but is not yet reported. The District Court’s order and the

Magistrate Judge’s report and recommendation appear in Appendices B and

C to the petition and they are reported at USDC No. 6:19-CV-314, 2020 WL

3422164 (6/22/20); and 2020 WL 3424863 (4/16/20). The various state court

opinions underlying the federal proceedings appear in Appendices D-G.

JURISDICTION

The Court of Appeals entered final judgment against Richards

February 12, 2021 and he did not file a petition for rehearing. As such, this

Court has jurisdiction under 28 U.S.C, § 1254(1) and Rule 13.1 of the Rules

of the Supreme Court of the United States. See Hohn v. United States, 524

U.S. 236,253, 118 S.Ct. 1969,1978, 141 L.Ed.2d 242 (1998) (holding denial

of COA reviewable).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides in

pertinent part:

[N]or shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property,

without due process of law[.]

The Sixth Amendment to the United Sates Constitution provides in

pertinent part:

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury ... and to have the

assistance of counsel for his defense.

The Fourteenth Amendment to the United Sates Constitution provides

in pertinent part:

No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

La.C. Cr.P.art. 821(B)

A post verdict judgment of acquittal shall be granted only if the

court finds that the evidence, viewed in a light most favorable to

the state, does not permit a finding of guilty.

STATEMENT OF THE CASE

On April 16, 2009, Addie Bourgeois’s purse was snatched after she

was punched in the face. She initially said her assailant “had dark hair ...

and was dark complected, not black.” R. p. 400, vol. 2 of 3. On October 15,

2009, Richards, a light-skinned black man, was charged with the second

degree robbery perpetrated against Bourgeois. Richards was found guilty as

a principal to second degree robbery. Richards was initially sentenced to

twenty-five years without the benefit of probation, parole, or suspension of

sentence. He was later adjudicated a habitual offender and sentenced to

spend the rest of his life in prison without benefits. Richards’s direct appeal,

and the collateral attack, of his conviction and sentence were unsuccessful.

Thus far, Richards has been unable to obtain a writ of habeas corpus. On

February 12, 2021, the Fifth Circuit Court of Appeals denied Richards’s

request for a Certificate of Appealability. This instant petition for a writ of

certiorari timely follows.

REASONS FOR GRANTING THE WRIT

Under Rule 10, the Louisiana courts and the United States Fifth

Circuit Court of Appeals denied relief contrary to decided important

questions of federal law that has been settled by this Court and farther

decided important federal questions in ways that conflicts with relevant

decisions of this Court as set forth below:

Richards's Conviction For Being A Principal To Second Degree

Robbery Was Obtained Contrary To The Standard Announced In

Jacksonv. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).

In any criminal prosecution, the State must sustain the heavy burden

of proving every element of the crime charged beyond a reasonable doubt.

State v. Brady, 414 So.2d 364,365 (La. 1982). In evaluating whether

evidence is constitutionally sufficient to support a conviction, the reviewing

court must determine whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781. A reviewing court making this inquiry is not permitted

to consider only the evidence most favorable to the prosecution. State v.

Mussall, 523 So.2d 1305,1310 (La. 1988); citing Jackson v. Virginia, supra.

The court must consider the record as a whole since that is what a rational

trier of fact would do. Id. When the key issue is the defendant's identity as

the perpetrator, rather than whether the crime was committed, the State is

required to negate any reasonable probability of misidentification. State v.

Neal, 00-0674 (La. 6/29/01); 796 So.2d 649,658. In this case, the State

failed to prove, beyond a reasonable doubt, that Richards acted as lookout,

or actually committed, a robbery in violation of the Fifth, Sixth and

Fourteenth Amendments to the United States Constitution.

A. The Incident.

Surveillance footage obtained from a Buffalo Wild Wing’s captured

the incident Richards was convicted for. The video showed Bourgeois’s

vehicle pulling into the parking lot and another vehicle enter the lot behind

her. The driver of the second car exited his vehicle, approached Bourgeois’s

car where he proceeded to attack and rob her. After the assault and robbery,

the driver ran back to his car. The video established the person who robbed

Bourgeois got out on the driver’s side and re-entered the same way. The

video does not show anyone acting as a lookout for the person who attacked

and robbed Bourgeois. About forty-five minutes after the robbery,

Bourgeois’s credit card was used at a Wal-Mart store. The card was used

again later that evening at a gas station. Video surveillance from the 2

locations established that D&rvin Williams was the person who used

Bourgeois’s credit card.

The State does not claim Richards was the robber captured on video.

The State also told the jury the video does not show anyone acting as a

lookout:

ladies and gentlemen, if you choose to believe [Richards’s]

statement that he participated and was there in the robbery but he just acted

as a look-out, even though we all saw that there was no look-out on the

video, he’s still guilty. It[s] called “principals.” R. p. 212 (emphasis added).

Two important factors were presented to the jury that makes their decision

to convict irrational: (1) Richards was not the person on the video who

attacked and robbed Bourgeois; and (2) the video does not show anyone

acting as a lookout. Richards was charged with second degree robbery and

convicted as a principal to the same only because he was seen on video

surveillance with the person who used Bourgeois’s credit cards.

B. The Elements of the Alleged Offense.

To convict a defendant of second degree robbery, the prosecution is

required to prove:

(1) the taking of (2) anything of value (3) belonging to another from

the person of another or that is in the immediate control of another (4)

when the offender intentionally inflicts serious bodily injury.

State v. Brawn, 51,352 (La App. 2 Cir. 5/2/17); 223 So.3d 88,95 (citing

State v. Wiggins, 44,616 (La. App. 2 Cir. 9/23/09); 22 So.3d 1039,1042).

In cases where the defendant is accused of being principal to the

offense, the prosecution is also required to establish that any:

... persons concerned in the commission of a crime, whether present

or absent, and whether they directly commit the act constituting the

offense, aid and abet in its commission, or directly or indirectly

counsel or procure another to commit the crime, are principals.

State v. Wiggins, 22 So.3d at 1041 (citing La. JLS. 14:24 (emphasis added)).

Another element the prosecution is required to establish is specific

intent, which has been explained as being;

[T]hat state of mind that exists when the circumstances indicate the

offender actively desired the prescribed criminal consequences to

follow his act or failure to act. La. R.S. 14:10(1). Though intent is a

question of fact, it need not be proven as a fact. It may be inferred

from the circumstances of the transaction. However, die defendant’s

mere presence at the scene is not enough to 'concern’ an individual in

the crime. A principal may be connected only to those crimes for

which he has the requisite mental state.

State v. Allen, 2005-1622 (La. App. 1 Cir. 3/2/06); 934 So.3d 146,153 (citing

State v. Hampton, 98-0625, p. 13 (La. 4/23/99); 750 So.2d 867,880.

The “determination of whether the requisite intent is present in a

criminal case is for the trier of fact, and a review of this determination is to

be guided by the standards of Jackson v. Virginia[.]” State v. Wiggins, 22

So.3d at 1042. There are, at least 3, critical questions that must be answered

in this case under the Jackson standard: (1) Is there sufficient proof to

support the State’s claim that Richards confessed to acting as a lookout? (2)

Is a signed waiver of rights form sufficient proof that Richards allegedly

confessed to acting as a lookout without a signed or taped confession? And

(3) Without proof of any alleged confession, can the question of

voluntariness be effectively addressed?

Questions concerning the identity of the robber are essentially of no

consequence to this case because the victim did not identify Richards as the

person who punched her and took her purse. Bourgeois’s description of the

attacker, her failure to pick Richards out of a lineup, and her testimony that

she never identified Richards as her attacker, serves as sufficient proof that

Richards did not accost her in any way. Bourgeois was undeniably punched

in her face and robbed; however, there are 2 important questions that should

have been answered for the jury: (1) Who robbed Bourgeois? and (2) Did the

perpetrator have someone acting as lookout when he robbed her? As is

evident from Bourgeois’s identification of her assailant, Richards was not

the perpetrator. In fact, the State did not present any appreciable evidence,

that could withstand the Jackson test, to prove Richards acted as principal,

in any capacity, to the attack and robbery. The issue in this case is did

Richards, either “directly or indirectly” cause the incident to happen; and,

did the State satisfy its burden under Jackson v. Virginia, supra.

C. The Alleged Confession.

According to Louisiana’s Third Circuit Court of Appeal, Richards

“confessed his participation in the robbery” and after he was “Mirandized

twice regarding the voluntariness of the statements ... [t]he advice of rights

forms were submitted into the record.” Appendix C, p.27. Even so, there is

no proof Richards gave any confession. Even assuming Richards returned to

give a statement, the question would have to turn to why the detective, who

allegedly received the confession, failed to preserve or corroborate it.

The federal district court noted that Richards’s trial counsel failed to

file a motion to suppress statements prior to trial and also failed to object to

the detective’s testimony about the statement he allegedly made. Appendix

C, p. 7. Even so, the court made no mention of the State’s failure to offer

anything, except hearsay testimony, to support its claim that Richards made

an inculpatory statement. On the other hand, the state and lower federal

courts claim counsel did not render ineffective assistance when he failed to

file a motion to suppress Richards’s alleged statement—a statement no one

can prove exists. The detective’s hearsay allegation, that Richards confessed

involvement in a crime, cannot stand. Where there is no proof Richards

made a statement, his trial counsel had a duty to, at least, make an attempt at

keeping the detective's uncorroborated claim (that Richards confessed) from

the jury. Especially where one prospective juror said he would give more

weight to police testimony, Richards’s trial was adversely affected.

In an unrelated case (where Richards was the defendant) the State

called Detective Borel to testify about the instant case. The state appellate

court noted:

Detective Borel testified he obtained a video from Buffalo Wild

Wing’s surveillance camera for the evening of the robbery. The video

showed Ms. Bourgeois’ vehicle pulling into the parking lot. Another

vehicle pulled in right behind her vehicle. A man exited the second

car, approached Ms. Bourgeois, struck her, and raced back to the

waiting vehicle. The detective stated the next day he learned that one

of Ms. Bourgeois’ credit cards was used at a Wal-Mart store

approximately forty-five minutes after the robbery. Detective Borel

obtained Wal-Mart’s surveillance video and identified Defendant,

wearing a green polo shirt, and another man making a purchase with

Ms. Bourgeois’ credit card. That same evening, the credit card was

used again at a gas station in Kaplan. A surveillance video was also

obtained of one of the men using the credit card. The gas station’s

store clerk identified the man using the credit card as Darvin

Williams. Mr. Williams was picked up and questioned by police. Mr.

Williams admitted that he was with Defendant the night Ms.

Bourgeois was robbed. Mr. Williams told the detective he was driving

the vehicle that pulled up behind Ms. Bourgeois’ vehicle and it was

Defendant who assaulted and robbed Ms. Bourgeois. Detective Borel

identified Defendant in court as the man who was with Darvin

Williams at Wal-Mart wearing a green polo shirt. The detective said

Defendant told him it was Mr. Williams who hit and robbed Ms.

Bourgeois and that they had switched shirts afterwards.

State v. Richards, 2017-135 (La. App. 3 Cir. 6/6/18); 247 So.3d 878,884.

Under the Jackson standard, the state appellate court’s cursory gloss

emphasizes the State’s deficient evidence. First of all, the Walmaxt video

does not reasonably infer Richards used the credit card because the video

showed “another man making a purchase with Ms. Bourgeois’ credit card.”

Another surveillance video showed the same man (later identified as Darvin

Williams) using Bourgeois’s credit card.

D. The Victim’s Description of the Perpetrator.

The federal district court considered Bourgeois’s description of her

attacker and noted she “identified the perpetrator as a male with a dark

complexion, broad shoulders, dark hair, wearing a green polo shirt.” Appendix

C, p. 8. The court, however, failed to make mention of Richards’s light

skinned complexion. The State mischaracterized Bourgeois’s testimony to

support the misidentification of an innocent man. In fact, the state appellate

court acknowledged, in an unrelated case where Bourgeois testified, that she

never identified Richards as her assailant. See State v. Richards, 247 So.3d

at 883-84. Again, the lower courts ignored this and claimed Richards

“confessed his participation in the robbery.” Appendix G, p. 27.

E. Trial Counsel's Deficient Performance.

The state appellate court's conclusion establishes Richards’s claim of

ineffective assistance. The court said Richards failed to file a motion to

suppress his statement (although the State did not prove Richards made a

statement). The court also said he failed to object to Detective Borel’s

testimony; and, “even if [he was] precluded from attempting to suppress his

confession, there is sufficient evidence in the record to indicate [] the

confession was freely and voluntarily made... .[and therefore] the evidence

was sufficient to sustain the jury’s verdict.”

In evaluating the sufficiency of the evidence to support a conviction, a

reviewing court must determine whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have

found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia,

43 U.S. 307, 99 S.Ct. 2781 (1979); Slate v. Jacobs, 504 So.2d 817 (La. 1987).

Where the conviction is based on circumstantial evidence, La. R.S. 15:438

provides that such evidence must exclude every reasonable hypothesis of

innocence. Stale v. Langford, 483 So.2d 979 (La. 1986). La. R.S. 15:438

does not establish a stricter standard of review than the more general

rational juror’s reasonable doubt formula. It is merely an evidentiary guide

for the jury when considering circumstantial evidence. State v. Porretto, 468

So.2d 1142 (La. 1985). The State’s case failed to establish, beyond a

reasonable doubt, that Richards was guilty of second degree robbery in any

capacity.

Richards’s trial counsel rendered ineffective assistance under the

standard announced in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A criminal defendant’s right to the effective assistance of counsel is

guaranteed by the Sixth and Fourteenth Amendments and “is indispensable

to the fair administration of our adversarial system of criminal justice.”

Maine v. Moulton, 474 U.S. 159, 168, 106 S.Ct. 477, 88 L.Ed.2d481 (1985):

The standard of review for a claim of ineffective-assistance-of-counsel

requires a reviewing court to reverse a conviction if the defendant establishes

his counsel’s performance fell below an objective standard of reasonableness

under prevailing professional norms; and, if not for counsel’s deficient

performance, there is a reasonable probability the outcome of the proceeding

would have been different. Stricklandv. Washington, 466 U.S. at 688,694. The

reasonable probability standard does not require a defendant to show that

counsel’s deficient conduct more likely than not altered the outcome. Strickland

v. Washington, 466 U.S. at 693, 104 S.Ct., at 2068. While a reviewing court

must examine the “totality of circumstances and the entire record” to assess

counsel’s performance, “[s]ometimes a single error is so substantial that it

alone causes the attorney’s performance to fall below the Sixth Amendment

standard.” Nero v. Blackburn, 597 F.2d 991, 994 (5th Cir. 1979).

A. Failed to File a Motion for Bill of Particulars and Notice.

Under La. C. Cr. P. art 484, the prosecution is required to “furnish a

bill of particulars setting forth more specifically the nature and cause of the

charge against [a] defendant.” A Bill of Particulars must specify the manner

in which a particular statute is alleged to have been violated. For instance,

Richards was charged with second degree robbery but convicted as a

principal. The video surveillance proves Richards was not the perpetrator

and further shows there was no one acting as a lookout. This had to have

confused the jury and is probably what led them to ask if they could “get the

definition of each charge and affirmation that principal to the crime is still

‘guilty’ of the same crime?” The problem here is, the State failed to specify

what Richards did to “aid and abet... [or] counsel or procure mother to

[do].” La. R.S. 14:24. In other words, The jury did not understand if

Richards was accused of robbing Bourgeois or if he was accused of acting in

concert with the actual perpetrator. Therein lies the dilemma of the State’s

principal accusation—the prosecution failed to tell the jury exactly what

Richards supposedly did.

The State’s constructive amendment to the bill of information

happened after Richards’s trial began. The State’s mere mention of the law

of principals was not sufficient to qualify as: (1) a legal amendment of the

accusation; and (2) adequate notice of the crime Richards was accused of.

The State failed to provide Richards with written notice of being charged as

a principal to second degree robbery and his trial counsel, who has since

been disbarred, rendered ineffective-assistance when he failed to object.

B. Failed to Offer a Defense.

The Sixth Circuit Court of Appeals said that a “modification at trial

that acts to broaden the charge contained in an indictment constitutes

reversible error.” Lucas v. O’Dea, 179 F.3d412, 416 (C. A. 6 (Ky.) 1999);

citing Stirone v. United States, 362 U.S. 212, 217-19, 80 S.Ct. 270, 4

L.Ed.2d 252 (1960). That court also explained that there is no distinction

between federal or state prosecutions because “a state prisoner petitioning

for habeas corpus relief [also] has a due process right to be informed of the

nature of the accusations against him.” Lucas v. O’Dea,, at 417; citing

Combs v. Tennessee, 530 F.2d 695, 698 (6th Cir. 1976). The Lucas court also

considered the district court’s observation concerning the “result of the fatal

variance between the indictment and the jury instruction!:]”

[I]t is clear that [Lucas] was prejudiced, given that his defense

to the murder charge was that he was not the one who shot

Zurla. Given the form in which the case was delivered to the

jury, this would end up being no defense at all.

Lucas v. O'Dea, quoting Lucas v. O’Dea, No. 3:96-CV-482-A (June 18, 1997).

There was a fatal variance between the State’s bill of information, the

presentation of its case, and the instructions given to the jury. Worse still,

Richards’s trial counsel did not present a defense, instead he told the jury:

[T]he key thing that you have to determine is who done it.

That’s the theme in this case. [That’s] the only thing that I’m

asking you to do is when you’re focusing on the evidence in this

case, focus on that primary question on who done it?

Richards’s trial counsel could not have understood the law of principal.

He failed to ask the jury to consider the evidence and decide what, if anything,

the evidence proves Richards did. Richards was deprived of his constitutionally

protected right to present a defense and to be given notice of the accusation

against him in this case because of his trial counsel’s ineffectiveness.

The Louisiana Constitution provides that a “person arrested or

detained ... shall be advised fully of the reason for his arrest or detention

[and] SI! in a criminal prosecution, an accused shall be informed of the

nature and the cause of the accusation against him.” La. Const. Art. I, § 13.

Likewise, the United States Constitution requires that an accused “be

informed of the nature and cause of the accusation ... against him ... and to

have the effective assistance of counsel for his defense.” U.S. Const.

Amend. VI. The federal protection is afforded a state defendant by the equal

protection and due process clauses of the Fourteenth Amendment to the

United States Constitution. This honorable Court has said that “[n]o

principal of procedural due process is more clearly established than that

notice of the specific charge, and a chance to be heard in a trial of issues

raised by that charge, if desired, are among the constitutional rights of every

accused in a criminal proceeding in all courts, state or federal.” Cole v.

Arkansas, 68 S.Ct. 514 (1948) (citing In re Olive?, 33 U.S. 257, 68 S.Ct. 499

(1948); DeJonge v. State of Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259,

81 L.Ed. 278 (1937); see also Jackson v. Virginia, 99 S.Ct. 2781 (1979).

C. Failed to File Motion to Suppress.

The federal district court's reference to the state appellate court’s

ruling on the admissibility of Richards’s alleged statement is misplaced.

There is no tangible proof Richards ever made a statement. How, then, can

the question of voluntariness truly be addressed? Richards’s trial counsel

rendered ineffective assistance when he failed to object to Detective BOrel’s

hearsay statement in the jury’s presence that Richards confessed to acting as

a lookout during the robbery. Better still, counsel should have known the

State intended on offering the detective’s statement under oath. Counsel had

a duty to file a motion to suppress the alleged confession and make clear to

the court that, without proof of any alleged confession, the question of

voluntariness should not have been the first inquiry.

The Eleventh Circuit Court of Appeals has said that “[a]t the heart of

effective representation is the independent duty to investigate and prepare.”

Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982) (internal citations

omitted). The Eighth Circuit Court of Appeals said:

Investigation is mi essential component of the adversary process.

“Because [the adversarial] testing process generally will not

function properly unless counsel has done some investigation

into the prosecution’s case and into various defense strategies ...

'counsel has a duty to make reasonable investigations...

Wade v. Armonirout, 798 F.2d 304, 307 (8th Cir. 1986) (internal quotations

omitted).

Richards was deprived of his Sixth Amendment right to the effective

assistance of counsel because his trial counsel was not prepared. In fact,

Richards’s counsel requested a continuance so he could better prepare;

however, he failed to file other necessary pre-trial motions to gain more than

just a passing knowledge of the case against Richards. Richards’s trial

counsel neglected the central issue and also failed to meaningfully challenge

the State’s case; therefore, prejudice must be presumed. See United States v.

Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984).

CONCLUSION

For the foregoing reasons Richards’s petition for a writ of certiorari

should be granted.

Respectfully submitted,

Aaron Orlando Richards

Date: March 23, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.