SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5613-99T5
STATE OF NEW JERSEY,
Plaintiff-Appellant,
vs.
KENNETH BANKS,
Defendant-Respondent.
Submitted November 13, 2000 - Decided February 9, 2001
Before Judges Petrella, Braithwaite and Wells.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 95-
09-2996.
Donald C. Campolo, Assistant Attorney General,
Acting Essex County Prosecutor, attorney for
appellant (Barbara A. Rosenkrans, Special
Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the letter
brief).
Joel M. Harris, First Assistant Public
Defender, attorney for respondent (William
Welaj, Designated Counsel, of counsel and on
the brief).
PER CURIAM
The State appeals, by leave granted, from the grant of
defendant's petition for post conviction relief. The State
contends that the Law Division judge erred in concluding that
defendant's trial counsel was ineffective because he failed to
interview a witness, prior to her testimony, who was scheduled to
testify that "around the time of the alleged incident," defendant
was with her. We agree with the State and now reverse. Following
a jury trial, defendant was convicted of first-degree robbery,
N.J.S.A. 2C:15-1; fourth-degree aggravated assault, N.J.S.A. 2C:12-
1b(4); third-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5b; and second-degree possession of a handgun for an unlawful
purpose, N.J.S.A. 2C:39-4a. At sentencing, the judge granted the
State's motion for the imposition of an extended term pursuant to
N.J.S.A. 2C:44-3a. After merging the aggravated assault and
possession of a weapon for an unlawful purpose conviction,
defendant was sentenced to a custodial term of twenty-five years
with a twelve and one-half year period of parole ineligibility on
the robbery conviction and to a concurrent five-year term on the
possession of a handgun conviction. We affirmed defendant's
convictions and sentence. See State v. Banks, A5089-95 (App. Div.
August 27, 1997), certif. denied,
152 N.J. 364 (1998).
The underlying facts supporting defendant's convictions are
set forth in our prior opinion. We repeat them here.
On August 14, 1995, at approximately
8:30 a.m., Suzette Carter and her two young
children were waiting at a bus stop in Newark.
Defendant approached Carter and demanded her
jewelry. Defendant showed Carter a gun that he
had tucked in his shorts and ordered Carter
and her children into a nearby driveway where
he could complete the robbery.
Once in the driveway, Carter's son became
frightened and ran out of the driveway.
Defendant ordered Carter to call her son back,
which she did. When the boy returned,
defendant put the gun to the child's head,
took Carter's jewelry and demanded money. When
Carter told defendant that she had no money,
defendant stated that he would shoot her son
if she was lying. After going through
Carter's pocketbook and finding no money,
defendant fled the scene.
Carter then called her God-sister to
report what had occurred. Carter's God-sister
and cousin got into the cousin's car and
proceeded to Carter's apartment. Carter then
called the police. Thereafter, while looking
out of her apartment window, Carter saw
defendant. Before the police arrived, Carter
and her cousin got into the cousin's car and
followed defendant so that Carter could be
sure that defendant was the person who had
committed the robbery. Carter told her cousin
that defendant was the perpetrator. Carter's
cousin and sister followed defendant to his
destination.
Subsequently, the police arrived and were
told of defendant's whereabouts. Defendant
was arrested, and Carter identified him as the
person who committed the robbery approximately
ninety minutes after the incident. Carter
stated that defendant's appearance had changed
between the robbery and his arrest. He had on
different clothes, and his hair was combed
differently. Carter, however, was positive
that defendant was the person who committed
the robbery.
On June 16, 1998, defendant filed a pro se petition for post
conviction relief contending that: his trial counsel was
ineffective because of "tainted out of court identification [and]
improper jury instructions." Thereafter, counsel was assigned to
represent defendant for his post conviction relief petition.
Counsel amended defendant's petition to allege ineffective
assistance of counsel on the following grounds: (1) failure to
request mistrial or curative instruction when jury heard petitioner
was on probation; (2) failure to present alibi witness (after
opening to the jury with an alibi defense); (3) failure to object
to jury charge not conforming to facts of case; (4) failure to
consult with and discuss trial strategy with petitioner; (5)
failure to motion for a new trial or judgment of acquittal; (6)
failure to object or request mistrial or curative instruction
regarding prosecutors remarks in summation; (7) failure to object
to prosecutors improper opening remarks and instructing the jury on
the law of misidentification; and (8) ineffective assistance of
appellate counsel. The State opposed defendant's petition.
The Law Division judge rejected all of defendant's claims
except the claim of ineffective assistance of counsel based upon
counsel deficiencies involving the defense of alibi. The judge
scheduled an evidentiary hearing, at which time defendant's trial
counsel testified.
It is clear from the record that defense counsel filed a
notice of alibi pursuant to Rule 3:12-2, signed by counsel and
defendant. In the notice, counsel stated that defendant "may" rely
on the defense of alibi and that the witness, defendant's
girlfriend, Rhonda Caldwell ("Caldwell"), "will establish that
defendant was with her on public transportation between Newark and
Elizabeth around the time of the alleged incident." The alibi
information was provided to counsel by defendant.
Defense counsel attempted to interview Caldwell before trial
for two purposes. First, the interview was to cover defendant's
claim that the charges against him were retaliation by the victim
because defendant had "beaten up" the victim's boyfriend. Counsel
sought information about the fight between defendant and the
victim's boyfriend from Caldwell. Second, counsel sought to
interview Caldwell about defendant's whereabouts on the date and
time of the robbery. However, Caldwell could not be located for an
interview at that time.
Prior to trial, counsel subpoenaed Caldwell to appear for
trial on January 31, 1996. She did not appear. Following jury
selection, defense counsel made his opening statement where he said
in part:
But there is a different scenario, and I think
when I explain certain things to you you will
understand why there is an issue of fact. The
defendant says I didn't do it. That's the
first thing. Not me, you got the wrong
person. So we have a question of
identification. We have an issue as to where
the defendant was at the time. You will hear
testimony that it was approximately 8:30 in
the morning, that Suzette Carter and her
children were at a bus stop. Mr. Banks says I
spent -- this was a Monday morning. I spent
the weekend at my girlfriend's house in
Elizabeth. At that time the girlfriend's name
was Rhonda Caldwell. She was living at 112
West Jersey Street in Elizabeth. On Monday
morning they left his girlfriend's house and
they went, eventually, to South 19th Street
which is where the defendant lived. They took
buses, two buses. They took the 24 bus from
Elizabeth to downtown Newark and the 31 bus up
South Orange Avenue. They got off at South
19th Street, walked a couple of blocks to the
defendant's house which was I believe located
between 14th and 15th Avenues.
At no time in the route that they took
did they pass Littleton and 16th Avenue which
is the address where Ms. Carter was waiting
for the bus.
Counsel then pointed out that the State's theory of the case
required the jury to believe that about one and one-half hours
after the crime at approximately 8:30 a.m., defendant was spotted
in the neighborhood of the crime on 16th Avenue and was chased back
to his own house. Counsel further pointed out that the police
found neither the gun nor any of the jewelry when they arrested
defendant. Counsel then said:
These are some of the things I want you to be
thinking about because the State has got to
convince you beyond a reasonable doubt. They
have to convince you that they've got the
right guy, that he was present at the location
of the robbery and that he's the person who
committed these offenses, and when you hear
the testimony, you know, you're going to learn
that there was no jewelry, that there was no
gun found, and too, you know, ask yourselves
well, is this the kind of thing that can be
the basis for a doubt or can be the basis for
a reasonable doubt. Absence of testimony is
something that you are entitled to use and say
well, they haven't proved it.
What they're going to be able to show is
some people chased the defendant in his home.
Does that mean that an hour and a half before
that he was at the same location committing a
robbery. I think the issues are fairly clear.
He's saying I have an alibi defense, I was
some place else at the time, that is 8:30. I
wasn't there. I'm walking down the street and
all of a sudden some guys come chasing me and
they go chase me to my house, but I have
nothing to do with any robbery. I have no
knowledge of any robbery. I didn't do it, and
they never found anything on me that ties me
to the robbery. No gun, no jewelry, no
nothing.
Thus, defense counsel's opening statement was a full
explanation of defendant's defense which was a direct denial of the
charges. Part and parcel of that defense, was the defense of
alibi. State v. Garvin,
44 N.J. 268, 272 (1965).
Subsequent to the opening statements, the State put forth a
case that established the facts set forth above. On February 1,
1996, Caldwell appeared at trial. She did not testify that day but
returned on February 6, 1996, at which time she testified. Defense
counsel did not interview Caldwell concerning her testimony.
On direct examination, Caldwell testified that defendant had
spent the weekend with her in Elizabeth and that on the following
Monday morning, August 14, 1995, the date of the robbery, she and
defendant left her residence to go to defendant's residence in
Newark. The following questions and answers were provided:
Q And do you have a specific address in
Newark that you were going to?
A We were going to Kenneth's house.
Q And do you know what Kenneth's address
was?
A No, I don't. I think it's 18th Street.
Q Now, how were you planning to get from
your house in Elizabeth to Kenneth's
house?
A The bus.
Q Okay. Do you remember the number of the
bus?
A The 24 and the 31.
Q You had to take more than one bus?
A Yes.
Q And do you know the routes that these
buses took?
A Yes.
Q Want to tell us what they were?
A It takes you from Broad Street in
Elizabeth to Broad Street, downtown
Newark. It's the 24. We took the 31 from
Market Street to South Orange Avenue in
Newark.
Q And did there come a time when you got
off the bus?
A Yes.
Q And where did you get off the bus at?
A At the corner of 18th Street.
Q And what other street?
A South Orange Avenue.
Q Okay. Okay. Now, do you have any idea
at all as to what time it was that you
were on the buses from Elizabeth to
Newark?
A Between 7 and 7:30.
Q And how about when you got into Newark
and taking in the 31 up to Kenneth's
house. You have any idea what time it was
at that time?
A It had to be between 7:30 and 8 o'clock.
Q Now, do you have any idea as to where
Kenneth might have been around 8:30 in
the morning on that August 14th?
A In his house.
Q Were you with him at that time?
A No, I wasn't.
Q Now, where were you going when you left?
A I had an appointment at 9:30.
Q And how were you going to get to your
appointment?
A The bus.
Q Now, did you have a watch on with you
that day?
A No, I didn't.
Q So, when you're giving us approximations
of time, is this just guesses on your
part?
A No, I had the time on my beeper.
Q You have a beeper?
A Yes.
Q Now, did you walk to Kenneth's house or
did you go to Kenneth's house?
A Yes, I did.
Q And you have any idea as to what time it
was at that point?
A No.
During cross-examination, a rather contentious exchange
occurred between the prosecutor and Caldwell.
Q What time did you leave Elizabeth that
morning?
A Between 7 and 7:30.
Q And how do you know it was at that time?
A The time on my beeper.
Q What time did your beeper say?
A I don't know, between 7 and 7:30.
Q Well, you just said you knew it was that
time because of the time on your beeper,
didn't you?
A Yes.
Q And you just said that you don't know
what time your beeper said, did you?
A I said between 7 and 7:30. 1 don't know
the exact time.
Q Does your beeper only keep time by half
hours or does it keep times by -- strike
that. You have a problem with the time
on your beeper?
A No.
Q You have no idea what time it was, do
you?
A Between 7 and 7:30.
Q Well, your beeper didn't keep good time,
did it?
A Excuse me?
Q Your beeper didn't keep good time, did
it?
A I guess not if you want to say so.
Q You just testified your beeper didn't
keep good time, didn't you?
A No, I didn't say that. You said that.
You said, did you have a watch on.
Q Did you just testify that you had
problems with your beeper?
A Yes, just to you.
Q And your beeper didn't keep good time.
Isn't that one of the problems that you
had with it? Do you understand the
question?
A Yes, I do.
Q Do you understand you have to answer it?
A Yes.
Q What is your answer?
A That's the time I gave you, 7 to 7:30.
Q That's the time you gave us.
A You don't care what time it was, do you?
Q Yes, I do.
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
BY MR. BROWN:
Q You came here to give a certain time,
didn't you?
A No.
Q You came here to say between 7 and 7:30,
didn't you?
A No.
Q You came here intending to say exactly
what you said, didn't you?
A No.
Q You intended to come here to establish an
alibi to this defendant, didn't you?
A No.
Q You have no idea what time it was that
morning, do you?
A I said between 7 and 7:30.
Q You're going to stick to that, right?
A Yep.
Q Because that's what you decided to come
here and say, isn't it?
A Nope.
Q Other than your beeper, how do you know
it was between 7 and 7:30?
A That's the only time I know.
Q That's the only time you know?
A Yep.
Q And your beeper didn't keep good time,
did it?
A I guess not if you don't think so.
MR. BROWN: Not responsive, your Honor. I
would ask that you ask the
witness to respond to the
question.
[DEFENSE COUNSEL]: I think we've established
this.
THE COURT: I think you've established and
the witness is reluctant to
answer.
BY MR. BROWN:
Q What time did you leave the defendant
that day?
A I don't know, as soon as I dropped him
off at the house.
Q You don't know what time it was?
A No.
Q Could it have been before 8:30, couldn't
it?
A Could be.
Q You don't know where he was at 8:30, do
you?
A No.
Q You don't know if he robbed somebody that
morning, do you?
A Nope.
Caldwell's final testimony occurred during re-direct:
Q Ms. Caldwell, well, the Prosecutor is
talking a lot about times. Now, was
there any specific reason for you to keep
looking at your beeper to check the time?
A No.
Q You already told us you had no watch.
Q Is that correct?
A Yes.
Q And you had to be at this appointment at
Mt. Prospect Street at 9:30?
A Yes.
Q Was there any other particular reason for
you to pay attention to the time?
A No.
Q And just like the Prosecutor asked you
could have dropped off Kenneth before
8:30, you could have also dropped him off
after 8:30. Isn't that true?
A Yes.
Q And Kenneth, has he ever told you the
time that he's accused of this robbery
occurring?
A No.
Q Even now you don't even know what time
the robbery supposedly occurred?
A No.
Q Never discussed that with you?
A No.
Q Did he ever ask you to come into court
and establish an alibi for him?
A No.
Q Is what you testified the truth?
A Yes.
Q Regardless of the time?
A Yes.
Defendant asserted in his petition for post conviction relief
that his trial counsel promised an alibi defense and then failed to
deliver on that defense before the jury, thereby rendering
ineffective assistance of counsel. Following an evidentiary
hearing, the Law Division judge granted defendant's petition. In
granting the petition, the judge said in part:
Although the jury was clearly [told] at the
outset during opening statements that the
defense of misidentification would be, to a
large extent, premised on an alibi to be
provided during the course of the trial, the
alibi witness could not corroborate the alibi
of Mr. Banks.
Clearly, this was not a choice among
strategic alternatives on the part of defense
counsel which clearly this Court should give
great deference too. But in this instance the
Court finds that there was a conscious
decision and a choice of a defense, that the
defense had been identified and had been
discussed with the client, but unfortunately
without ascertainment of its underlying
factual support.
The conviction -- the counsel clearly did
not interview the alibi witness at any time
before she took the stand. Again, although
it's quite clear as to the materiality of that
particular defense, as heretofore indicated in
the notice of alibi, counsel did not seek a
continuance from the Court in order to have a
full opportunity to interview the purported
alibi witness.
This instance is simply, in this Court's
judgment, a significant instance of
inexcusable lack of preparation and failure on
the part of counsel to inquire into the facts
that would support his case. And any
objective assessment of performance, which
this Court is obligated to undertake and which
the Court does not undertake lightly,
demonstrates to this Court a serious
deficiency in the representation of
Mr. Banks.
The error, the deficiency in this
instance, is not the product of poor strategy
to which the Court must give great deference,
or unpredictable, or unexpected, or
unforeseeable testimony, to which the Court
must give great deference, but it's a direct
result of a lack of mandated preparation. This
error was so serious as to fall in this
instance below what is expected, in this
Court's opinion, under the sixth amendment and
the New Jersey Constitution Guarantee of
Effective Assistance of Counsel.
The assistance of counsel and the
presentation of a defense was plainly
ineffective. The seriousness of the error,
moreover, is compounded in this particular
instance by a realistic appreciation by
defense counsel, not only as to the
materiality and significance of the alibi
defense to a successful defense for his
client, but also on an understanding of the
inability of his client to take the stand
because of prior criminal convictions.
Good lawyering mandates an investigation
and exploration of a defense prior to its
announced submission to a jury. The failure
to interview the alibi witness deprived
counsel and more importantly, deprived the
defendant of the basis to make an informed
tactical decision as to the defense of
Mr. Banks. The defendant's defense was
thereby undermined. He was left with none for
which reasonable doubt could be provided and
he was convicted.
Moreover, the second prong of
[Strickland, Fritz and Cronic see infra], in
this Court's opinion, is such that there is
indeed a reasonable probability or a
substantial likelihood exists, in this Court's
mind, that the deficiency in this instance on
the part of counsel may have contributed to
the adverse outcome for the defendant. That
the deficiency leading to the defense, a
defense without merit, would contribute to the
jury's perception of the defendant
perpetrator.
On appeal, the State argues that the judge erred in granting
defendant's petition. It asserts that the judge's decision was
premised on the theory that defense counsel promised to deliver a
classic alibi defense and further, even if counsel did not make
such a promise, counsel was entitled to rely on the information
provided by defendant with respect to the alibi. Finally, the
State contends that defense counsel did not promise anything he did
not deliver and that defendant suffered no prejudice as a result of
defense counsel's failure to interview Caldwell.
For defendant to prevail on his ineffective assistance claim,
he must satisfy the test set forth in Strickland v. Washington,
466 U.S. 668, 694,
104 S. Ct. 2052, 2068,
80 L. Ed.2d 674,
80 L. Ed.2d 674, 698 (1984), and United States v. Cronic,
466 U.S. 648,
104 S. Ct. 2039,
80 L. Ed.2d 657 (1984), which our Supreme Court
adopted in State v. Fritz,
105 N.J. 42, 58 (1987). See also State
v. Preciose,
129 N.J. 451, 463-64 (1992) (acknowledge the adoption
of the test). Under the Strickland-Cronic-Fritz test, defendant
must demonstrate that: (a) "counsel's performance was deficient;"
and (b) "there exists 'a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different.'" State v. Preciose, supra, 129 N.J. at 463-
64.
Here, we agree that defendant's counsel should have
interviewed Caldwell prior to having her testify, but cannot
conclude that the result of defendant's trial would have been
different had counsel conducted such an interview. We are
satisfied that an interview of Caldwell by defense counsel would
have revealed no different version of events than Caldwell
testified to during the trial. An examination of Caldwell's
testimony reveals that an interview would have told counsel that at
approximately the time of the robbery, defendant was with Caldwell
or at his home.
Caldwell testified that she and defendant left her home in
Elizabeth "between 7:00 a.m. and 7:30 a.m." She stated that they
had to take two buses, one from Elizabeth to Newark and the other
from a location in Newark to the area of defendant's home. She
testified that she and defendant were on the second bus between
7:30 a.m. and 8:00 a.m.
She testified that defendant was in his home at 8:30, but
admitted that she was not with him at the time. Although, during
the contentious cross-examination by the prosecutor, Caldwell
admitted that she did not know where defendant was at 8:30 a.m.,
she testified on re-direct that because she was not "pay[ing]
particular attention to the time," defendant could have arrived at
his house after 8:30 a.m., after the robbery had occurred.
The Law Division judge must have concluded that if defense
counsel had interviewed Caldwell and learned the content of her
proposed testimony, then defense counsel would not have called her
as a witness. Our dissenting colleague contends that had defense
counsel interviewed Caldwell before trial, she would not have been
called as a defense witness, or counsel's opening statement "would
not have so depended on alibi." We can reach no such conclusion
from this record. It is highly likely in our view that counsel
would have still called Caldwell as a witness. Her testimony was
such that if believed, along with the other proofs, a reasonable
jury could have concluded that defendant was not the perpetrator of
the robbery.
Further, defense counsel attempted to interview Caldwell
before trial, but was unable to do so because she could not be
located. In this regard, counsel relied on defendant's
representations to make his opening statement.
Moreover, the Law Division judge and our dissenting colleague,
in their opinions, treat the alibi defense as if it were a
"separate defense." State v. Garvin, supra, 44 N.J. at 272. It is
not. "It is part and parcel of a direct denial of the State's
charge whenever the defendant's physical presence at a given time
and place is a critical part of the prosecutor's case." Ibid. See
also State v. Mucci,
25 N.J. 423, 431 (1957); State v. Nunn,
113 N.J. Super. 161, 167 (App. Div. 1971).
Here, defendant's defense was simply that he was not the
perpetrator of the robbery, and, as part of his direct denial, he
produced the testimony of Caldwell, his girlfriend, who was with
him around the time the robbery took place. Caldwell's testimony
was consistent with the notice of alibi that set forth that she
would testify that defendant was with her "around the time of the
alleged incident."
We are satisfied that, had counsel interviewed Caldwell prior
to trial, he would have learned then what she ultimately testified
to during her direct and re-direct testimony. An interview that
revealed what Caldwell testified to on those two occasions would
not have caused counsel to forego using her as a witness.
Moreover, we doubt that counsel's opening statement would have been
different based on the interview in that Caldwell, at least
inferentially, placed defendant at a different location at around
the time of the robbery.
The dissent's view, essentially, allows defendant to have it
both ways. We have no doubt that had defense counsel not called
Caldwell as a witness, defendant would have filed a petition for
post-conviction relief, contending that the failure to call
Caldwell as a witness constituted ineffective assistance of
counsel. Considering the circumstances here, not calling Caldwell
as a witness might reasonably be considered ineffective assistance
of counsel.
Further, with the information counsel learned from defendant,
he was prudent in providing the notice of alibi pursuant to
Rule 3:12-2.
Whether the testimony of the proposed
witness shows directly that a defendant was
not physically present at the precise time and
place of the alleged offense, or does so only
inferentially, its purposes and objectives are
the same. The difference is the weight and
degree of persuasiveness attributed to that
testimony by the jury. There is no less
reliance by defendant on such testimony nor
less need for notice by the State that it will
be offered.
[State v. Nunn, supra, 113 N.J. Super. at
168.]
Here, Caldwell, during her cross-examination, was not
particularly helpful to defendant's case, but that is not a basis
to conclude that counsel was ineffective because he failed to
interview her. The same cross-examination would have occurred
whether she was interviewed or not. Caldwell's testimony during
direct and re-direct examination was not damaging to defendant's
case.
Finally, counsel relied on defendant's representations in
deciding what defense to present. In fact, defendant signed the
notice of alibi along with his counsel. Given the circumstances
from a defense perspective, particularly that only defendant and
Caldwell knew about defendant's whereabouts around the time of the
robbery, we cannot conclude that counsel's reliance on defendant's
representations about an alibi constitutes ineffective assistance
of counsel. Cf. State v. Sloan,
226 N.J. Super. 605, 615 (App.
Div.) certif. denied,
113 N.J. 647 (1988).
Reversed.
_______________________________
WELLS, J.A.D. (dissenting)
I would affirm for substantially the reasons given by the
trial judge in his oral opinion. Strickland v. Washington,
466 U.S. 668, 1
104 S. Ct. 2052,
80 L. Ed.2d 674 (1984) requires that
two prongs be met to establish a claim of ineffective assistance of
counsel. First, the defendant must show that counsel's performance
was deficient. Second, the defendant must show that the deficient
performance prejudiced the defendant.
As to the first prong, the majority concedes only that counsel
"should have interviewed Caldwell prior to having her testify."
But the trial judge found that "[t]his error was so serious as to
fall in this instance below what is expected ... under the Sixth
Amendment and the New Jersey Constitutional guarantee of effective
assistance of counsel." I agree with that assessment and would,
therefore, expressly conclude that the first prong of Strickland
was met.
It is a clear error of professional judgment in a criminal
case not to interview an important alibi witness before that
witness takes the stand.See footnote 11 Counsel had two chances to interview
Caldwell. The first opportunity came on Thursday, February 1, 1996,
when she appeared at the courthouse but was not reached by the time
of evening recess. The second chance occurred when she belatedly
appeared after lunch on Tuesday, February 6, just before she was
called to the stand.
It is true, as the State argues, that counsel is entitled to
rely on the representations of his client in developing defenses
and in deciding what witnesses to interview or not to interview.
State v. Sloan,
226 N.J. Super. 605, 615, certif. denied, 113 N.J.
647 (1988). But such reliance does not extend to calling an alibi
witness without interviewing her. So potent is alibi testimony
that not to be certain as to precisely what such a witness will say
is to invite the serious prejudice that occurred here.
Even assuming that the benefits of an alibi defense were worth
the risk of mentioning it to the jury even though counsel was
unable to discuss it with Caldwell prior to the start of trial, I
also conclude that the judge was correct in finding it deficient
performance not to have confirmed the details of the alibi with the
witness when defense counsel had the opportunity to do so. Counsel
could have conducted a brief interview when Caldwell appeared on
Thursday, or he could have asked the trial judge for an opportunity
to do so just before she took the stand the following Tuesday. I
am not unmindful that the patience of the court and jury had been
sorely strained at that point in the trial by Caldwell's tardy
appearance. But I nevertheless deem it a significant omission that
counsel did not at least try to seek a brief recess to interview
her.
Second, the failure of Caldwell to place the defendant with
her at the time of the crime prejudicially damaged the claim of
misidentification by Carter. Had the jurors harbored doubts about
Carter's testimony or questions concerning her identification of
Banks, those doubts and questions surely paled in the face of the
failed alibi.
The defense rested on the doubt raised by a very stressed
victim's identification, the failure to locate the gun and the
jewelry and, most importantly, the alibi. When the alibi failed
the whole defense case lost credibility. I respectfully disagree
with the majority's speculation that had counsel interviewed
Caldwell, she probably would have been called as a witness anyway.
Its view is that Caldwell's testimony, notwithstanding her
concession that she was not with Banks at 8:30 a.m., could still
raise a doubt as to Banks' participation in the crime, because
Caldwell was not paying particular attention to the time, they had
just arrived in Newark perhaps as late as 8:00 a.m., and then went
to Banks' house. But they then separated and Caldwell left for an
appointment. She only surmised that Banks remained at his house
and she specifically denied they were together at 8:30 a.m. If
counsel had been able to interview her before the start of trial,
his opening would not have so depended on alibi. If he had
interviewed her before she testified, had she been called at all,
her interrogation on the stand would have been quite different.
In contrast to the majority, however, I see little chance
that had she been interviewed she would have been called. Without
Caldwell's testimony that she and Banks were together at 8:30 a.m.,
she adds little of probative value to the defense case. In fact,
her admission that they had separated by 8:30 a.m. not only
seriously detracts from viable defense arguments regarding the
victim's identification, but also places Banks near the scene of
the robbery before it occurred, something none of the State's other
witnesses did.
Had the defense of alibi not been mentioned to the jury and
Caldwell not been called to the stand, doubt could well have been
engendered in the minds of some jurors as to the victim's
identification as the result of (1) the stress that Carter, the
victim, was under; (2) the evidence of the suspect's changes in
clothing and hairstyle between the robbery and the chance sighting
of Banks later in the morning; (3) the failure to find the gun and
jewelry; and (4) the improbability of a robber returning to the
scene so quickly after the crime - facts urged upon the jury during
the opening. But when Caldwell's testimony unexpectedly did not
cover the time of the robbery and it happened that his house was
within a few blocks of the crime, reasonable doubts about the
State's case in the minds of jurors could not have but been
dispelled to Banks' great prejudice. Thus, the second prong of the
Strickland standard is established.
Footnote: 1 1 See Leonard N. Arnold, New Jersey Practice, §961 (1999-
2000) ("Interview all witnesses."); John S. Applegate, Witness
Preparation,
68 Tex. L. Rev. 277, 287 (1989) ("The practical
literature uniformly views the failure to interview witnesses
prior to testimony as a combination of strategic lunacy and gross
negligence."); Steven Lubet, Modern Trial Advocacy: Analysis and
Practice at 79 (2nd ed. 1997) ("[I]t is generally considered
incompetent for a lawyer to fail to meet with and prepare a
witness in advance of offering her testimony."); U.S. v. Brant,
1
993 WL 313369 (E.D. Pa. 1993), aff'd, U.S. v. Snead, 27 F.3d560
(3rd Cir. 1994), cert. denied, Snead v. U.S.,
513 U.S. 909,
115 S. Ct. 278,
130 L. Ed.2d 194 (1994). (finding that an attorney
who cross-examined prosecution eyewitnesses without first having
interviewed those witnesses had violated "an ancient principle of
cross-examination, recognized by advocates for millennia: never
ask a question to which you do not already know the answer.")
Most of the decided cases involving ineffective assistance claims
that are premised on faulty witness preparation ultimately rest
upon the failure of defense counsel to interview or call
witnesses proposed by the defendant. Most of these claims fail
because the defendant cannot establish prejudice in not calling
any particular witness. See e.g. State v. Bey,
161 N.J. 233
(1999), cert. denied, Bey v. New Jersey,
120 S. Ct. 2693,
147 L.
Ed.2d 964, (2000). The case, sub judice, is gratifyingly rare
because very infrequently does an uninterviewed friendly witness
take the stand and proceed to so deeply wound the very side for
which the witness was called.