Opinion
No. 98-K-0912.
December 9, 1998. Writ Denied May 7, 1999.
APPEAL FROM THE CRIMINAL DISTRICT COURT, NO. 373-704, STATE OF LOUISIANA, HONORABLE SHARON K. HUNTER, J.
Harry F. Connick, District Attorney, Susan Erlanger Talbot, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Relator.
Kevin V. Boshea, Regan Boshea, P.L.C., New Orleans, LA, for Defendant/Respondent.
Court composed of Chief Judge PATRICK M. SCHOTT, Judge WILLIAM H. BYRNES and Judge PATRICIA RIVET MURRAY.
ON REHEARING
We granted a rehearing in order to consider two points raised by the defendant. First, he provides the names of two witnesses he says will supply him with an alibi, and, second, he claims that the State failed to disclose Brady material to his prejudice.
As noted in the original opinion defendant had the opportunity to identify alibi witnesses at the hearing on the motion for a new trial and on the application for post-conviction relief. Only now, in his application for rehearing, does he supply the names of these witnesses, Jonathan Martin and Dowanda Martin, who he says will provide him with an 8:15 alibi. He states that Jonathan would testify that he (defendant) came to his house on the day of the robbery at 7:05-7:15 a.m. to see Jonathan's son, Dwight; and that Dwight's sister, Dowanda, would corroborate this testimony. Defendant further states that Dwight would testify that defendant was with him from 7:15 until noon.
Defendant also shows that subpoenas were issued for Dwight's Martin and Ray Sterling to testify at the trial and argues ineffectiveness of his trial counsel for failing to have these witnesses at the trial. Copies of these subpoenas supplied by defendant show that attempts were made to serve these witnesses with subpoenas for trial dates in 1995 but not for the actual trial date in January 1996. In any event, these documents establish that defendant intended to use these witnesses for the 9:15 alibi time, and his counsel knew about them long before he learned about the 8:15 time on the day of the trial. Counsel's so-called panic on the day of the trial had nothing to do with his failure to call these witnesses. We are not aware of what Sterling's testimony would have been, but Dwight Martin according to defendant, would have supplied an alibi for the entire morning of the crime. We can only conclude that defense counsel made a conscious decision not to call Dwight Martin well in advance of the trial, and that decision had nothing to do with the discrepancy in the time of the crime.
As to the late disclosure of the identity of the additional witnesses, Jonathan Martin and Dowanda Martin, Dwight Martin's father and sister respectively, defendant obviously had plenty of time to identify these witnesses if he was in touch with Dwight. Defendant's self serving assertion at this late date that these witnesses would help him with his 8:15 alibi is unconvincing and highly suspicious. The best explanation for this entire scenario is that Dwight Martin was not going to be a good witness for defendant at the very beginning, this was well known to defendant and his counsel long before the trial date, and these other witnesses who were close relatives living with Dwight; would not be helpful either.
As to the claimed Brady violation this pertains to a supplemental police report containing the statement, "While detectives were interviewing the victim/cashier, Bernadette Washington, she informed the detectives that Green robbed her at gun point at the same store back in 1993." Defendant argues that he could have impeached Washington had he known about her alleged previous experience with him. The record shows that back in March 1995, ten months before trial, at a motion hearing, defendant's then appointed counsel asked the police witness wasn't defendant identified by Washington as the same person who robbed her in 1993. Thus, defendant knew about this and would have learned nothing new from the supplemental police report. Parenthetically, we question that defendant's case would have been strengthened had he given the jury the information about the other robbery.
We have concluded that defendant is simply trying to get another bite at the apple under the guise of ineffective assistance of counsel. He has failed to prove that the additional witnesses would be available or helpful or that, given a new trial, there is a reasonable probability that the result would be different than the first.
We reinstate our original opinion reversing the judgment of the trial court and denying defendant's application for post-conviction relief.
ORIGINAL OPINION REINSTATED; JUDGMENT REVERSED.
MURRAY, J., dissents with reasons.
I find no abuse of discretion in the trial court's determination that, under these circumstances. a new trial is required in the interests of justice and fundamental fairness.
As the majority notes, Mr. Green's original, appointed counsel (OIDP) was aware that on October 26, 1994, several weeks after the robbery at issue here, Ms. Washington suddenly reported that Mr. Green was the same man who had robbed her in September 1993. There is no indication, however, that Mr. Green's trial counsel made any investigation concerning the prior crime or the circumstances of this much-delayed "positive identification." In fact, that 1993 police report shows that both alleged perpetrators had brown eyes, with no notation of any distinctive features. Yet Ms. Washington testified repeatedly at trial that it was Mr. Green's memorable eyes, which appeared to change from brown to blue to green, that made her certain that he was the robber. Because Mr. Green's attorney was unaware of these contradictions they could not be put before the jury at trial.
The majority further notes that Mr. Green's trial counsel failed to discover and/or ensure service of subpoenas on other alibi witnesses, and attributes these failures to "a conscious decision" that some or all of them might be less than helpful. However, trial counsel admitted that he filed no pretrial discovery motions, and testified that with Mr. Dove's testimony that Mr. Green was at home at 9:15 a.m., he saw no need for any additional investigation or witnesses. This suggests to me that an ineffective strategy resulted from trial counsel's professed reliance on his predecessor's file, rather than an informed decision concerning witness credibility.
The available information thus establishes that the defense attorney did little to prepare for a trial that was expected to hinge on Mr Green's whereabouts at 9:15 a.m. on October 5, 1994. While his preparation may have been adequate under that assumption, the trial was already underway when the foundation of the defense was dangerously weakened. Notwithstanding the prosecutor's equal surprise when Ms. Washington revealed that she had been robbed at 8:15, I find trial counsel's failure to protect his client by moving for a mistrial, continuance, or even a recess at that revelation to be inexcusable. Although the attorney subsequently filed a motion for new trial based upon the time discrepancy, this was denied because he offered no additional alibi witnesses for 8:15 a.m.
The prejudicial effect of these accumulated errors was substantial, considering that the only evidence against Mr. Green was the testimony of Ms. Washington. See, e.g. State v. Cavalier, 96-3052 (La. 10/31/97), 701 So.2d 949. There is, in my view, more than a reasonable probability of a different outcome if the jury had known that despite the 1993 robbery, Ms. Washington apparently "tolerated" Mr. Green's subsequent frequent visits to the store and that she failed to tell the police until weeks after the 1994 crime that this was the second time he had robbed her. The importance of such impeachment evidence must be seen as critical once the attempt to present an alibi had been weakened whether or not the loss of that defense was counsel's fault.
In granting Mr. Green's application for post-conviction relief, the trial court stated: The Court . . . finds that this case was comedy of error, a true comedy of error and a tragedy of justice . . . To allow this conviction to stand as presented at the time would just be fundamentally unfair." I find no abuse of discretion in this assessment of the circumstances and thus must agree that Mr. Green is entitled to a new trial.