Statement of Case and Facts
Procedural History
Anthony P. Constant, defendant-appellant herein, was charged with one count of aggravated robbery in violation of ORC 2911.01, one count of kidnapping in violation of ORC 2905.01, and two counts of rape in violation of ORC 2907.02.

A pretrial motion to suppress Mr. Constant's statements and identification was filed and a hearing was held on August 20, 1986. The motion was based on the allegation that Mr. Constant's arrest violated the Fourth Amendment of the U.S. Constitution, and that the photographic lineups herein involved were improperly conducted. The trial court granted a portion of the motion, but denied the remainder. R69, (tr 170-175).

Trial began on August 25, 1986, and on August 28, the jury returned a verdict of guilty to each count in the indictment. R67, 68 (tr  668-669). Sentencing was held on August 29, and Mr. Constant was sentenced to serve 10-25 years on each count, R68, (tr  678). A notice of appeal was filed on September 18, 1986, and was affirmed on April 25, 1988.

On July 22, 1996, defendant filed a petition for post conviction relief on the grounds of new evidence, and evidence which was withheld from the defense that would have been favorable to the defendant. On December 16, 1996, defendant filed an amendment to the petition claiming that the clerk of the common pleas court altered the docket sheet in order to favor the state in its claim that defendant re-filed his petition on August 26, 1996.

Factual History
In the late evening and early morning hours of April 29 and 30, 1986, a person alleged to be Anthony Constant entered the Lawson's store located at 6441 Chapel Rd., Madison, OH, R67 (tr 33). The person, allegedly with a small knife, approached the clerk, Bonnie Zelenak, and asked for money from the register, (tr 50). After retrieving the money, the assailant ordered her to leave with him and sit in the front seat of his car. She testified that she kept her eyes closed for the remainder of the time she was with him, with the exception of several moments when climbing in and out of the car. (tr 118-119).

Wrong Identification
Later that same morning she was interviewed by Officer Mongell, and a composite sketch of the assailant was completed. Zelenak went to the Madison Safety Center on May 1, 1986, and was asked to view an array of photos to see if she recognized any of them. She chose two photos, one of which was Anthony Constant, but did not make any positive identification.

On May 6, 1986, Madison Police conducted another photo array with a more recent photo of Mr. Constant than previously, but did not include the other photo she had chosen. The array consisted of three pages, six photos on each page, and were all Xerox copies, no original photos. Mr. Constant's picture was the only one that was not a mug shot, and had been altered with something over the eyes to make it appear extremely abnormal.

After viewing this array, Zelenak identified Mr. Constant, and absent any other evidence, the prosecutor's office was advised that they could arrest Mr. Constant. The court denied the request of defense to suppress the identification. The defense asked the court to consider the factors from Neil v. Biggers, 409 U.S. 188 (1972), in determining the admissibility of the Xerox photo array, the court refused.

Zelenak testified that the assailant's sleeves were rolled up during the robbery, and she did not see any tattoos, even though Mr. Constant has one large six inch tattoo on each forearm. She also testified that he had a mustache, and the composite sketch included a mustache. Several witnesses including Mr. Constant's aunt, and a witness from a church he visited, testified that he did not have a mustache several days before the incident.

No fingerprints were found to connect Constant to this crime, even though the assailant played a video game there and removed money from the cash drawer. (tr 39, 50). The clerk could not positively identify Constant's vehicle as the one involved in the crime (tr 95). Also, authorities testified at trial that tire tracks at the scene were of the same make (tr 327-329), but when Constant's car was inspected it was clearly determined that the tires were not the same make.

The Tonya Kelly Factor
A clerk at the Euclid Sunoco gas station, Tonya Kelly, testified that Constant made an admission of guilt in an incident that allegedly occurred on the night of May 28, 1986. Kelly claimed that the defendant approached her on more than one occasion and made threats that he had committed a crime in Perry, Ohio, and that she was next. During the trial, she could not recall the date that this happened, and the description she gave to police does not match Constant even remotely.

Kelly testified that this person had black or dark brown hair (tr 467), contradicting what she told police, that he had blonde hair. Constant has neither black, dark brown nor blonde hair. She also testified that he was 5' 11" and 220 pounds, while Constant has never weighed 220 pounds, and hasn't been 5' 11" since he was 17. The state knew that her description didn't match and allowed her to testify anyway. Defense counsel Albert Purola never objected.

Two affidavits confirm that Constant was in Delaware in May of 1986, not in Ohio.

Ineffective Assistance of Counsel
Attorney Albert Purola would not allow Constant to take the stand in his own defense. Counsel failed to present the crime lab reports that showed absolutely no evidence that Zelenak had ever been in Constant's car, not even a single hair. Also, Constant made it clear from the beginning that he could not pay for his services, yet Purola continually badgered him for payment.

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