ASSIGNMENT:Stan Kanton has contacted our office to discuss the possibility of appealing his conviction for theft. Please review the following facts as well as the legal authority that I have located to determine whether a basis for appeal exists.If so, please identify the legal issues to be raised in the appeal,and the strengths and weaknesses of any legal arguments involved.

In preparing your memorandum, please consult the sample Legal Memorandums in PCD and Statsky. Please note, this is a closed memo. Therefore, it is important that you do not conduct any outside research or apply any outside law in your analysis/conclusions. Apply the law as provided.

FACTS:Stan Kanton, an unemployed 24 year old man, stands convicted of Theft by Pickpocketing.

At approximately 3:15 p.m., on the afternoon of July 21, 20___, police were dispatched in response to a call made by Andrew Smith, a middle aged man, claiming that his wallet had been stolen while awaiting a signal change at the intersection of Electric Avenue and Broken Dreams Boulevard.A witness, Mrs. Esther Sayso, told police that she saw a young man deliberately walk into the back of Mr. Smith.According to Mrs. Sayso, while pretending to assist the victim in regaining his balance following the collision, the pickpocket placed his hand into the lower pocket of Smith's suit coat and removed an item.Both Mr. Smith and Mrs. Sayso claim that the perpetrator then offered some rapid mumbled apologies, and quickly fled the scene.

Andrew Smith, disoriented following the impact, was unable to offer any physical description of the perpetrator, other than the fact that he was wearing a blue hooded sweatshirt and white sneakers.Mrs. Sayso, on the other hand, claimed that she "got a pretty good look at the punk" and agreed to work with police to composite sketch.On July 23rd, that sketch was used to identify, capture, and charge Stan Kanton with the crime.Stan could not provide an alibi for the afternoon of July 21, but voluntarily participated in police questioning until it "reached the point that he felt it would be smart to get an attorney in there."At no time was Stan asked to participate in a line up.

According to our client, the conviction was obtained based on the police report, statements offered by Esther Sayso and Andrew Smith at the time of the event, Stan's admission to police that he "almost always wears a blue hoodie and sneakers" and the sketch, which was introduced and admitted as evidence despite a hearsay objection raised by Stan's defense counsel. Andrew Smith was shown the composite sketch for the first time while offering his testimony in court, and stated on the record, "Yeah, that sure could be the guy."A few days before trial, Mrs. Sayso suffered a serious fall down a flight of stairs, resulting in her death and inability to testify.Stan Kanton's defense attorney chose not to have him testify on his own behalf.

LEGAL AUTHORITY:

Relevant portions of theLiliput Rules of Evidence and Procedureprovide, in part, the following:

L.R.E.P. Rule 352.6 :A composite sketch is an out of court statement by a witness and is hearsay, but may be admitted as an exception to hearsay when offered by a person testifying under oath to have perceived the subject of the sketch.

L.R.E.P. Rule 501 :A composite sketch is allowed when, in an investigation, it is used to select subjects for a police line-up or, at trial, it is used to bolster identifying witness testimony.

InStonewall v. The State, Rupert Stonewall appealed his conviction for 1st Degree Attempted Robbery and 2nd Degree Assault after being arrested on the strength of a composite sketch created by the victim and a police artist.Stonewall argued that the District Court erroneously admitted the sketch, which was hearsay because the witness who participated in the creation of sketch was unavailable to testify and be cross-examined at trial.The Liliput Supreme Court upheld the conviction, ruling that the composite sketch was admissible as a hearsay exception because, prior to moving from the state, the witness was sworn in and deposed regarding the events giving rise to trial.The deposition was taken under oath, defense counsel was present at the deposition, and hence, had ample opportunity to question the witness regarding the events.[Stonewall v. The State, 51 L.P.T 241 (2012)]

InState v. Quencher, the District Court found Albert Quencher guilty of Theft from a Mercantile Establishment.Witness A, a store security guard, assisted police in creating a composite sketch which allowed police to detain Quencher for questioning. Both Witness A and Witness B picked Quencher out of a police line-up, and he was subsequently charged with the theft.At trial, the prosecution presented the sketch to Witness B while she was on the stand, and asked her if she recognized the person represented in the drawing.Witness B answered in the affirmative, indicated that it was quite clearly the Defendant, and pointed directly to Albert Quencher, who was seated in the courtroom.Quencher's attorney objected, and Judge Harshly overruled the objection stating, "It is true that, in the ordinary process of a witness assisting in the creation of a composite sketch, the witness may be open to the influence of the police artist, and as such, caution should be used in allowing such evidence due to factors inherent to reliability.In this case, however, the witness in question has merely been presented with the sketch, and was not involved in its creation.She previously identified the defendant under circumstances which would not have subjected her to any direct influence by the sketch, has been called to provide direct testimony regarding his involvement in the theft, and simply recognized him, once again, from the sketch.I'm going to allow this."[State v. Quencher, 20 L.P.T. 155 (2001)]This ruling has not been overturned by the State of Liliput to date.