The People, Appellant,v.Kharye Jarvis, Respondent.BriefN.Y.Feb 19, 2015 To Be Argued By: William Pixley Time Requested: 15 minutes STATE OF NEW YORK COURT OF APPEALS ___________________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, vs. KHARYE JARVIS, Defendant-Respondent. __________________________________________________________ ___________________________________ BRIEF FOR RESPONDENT APL 2014-00067 ___________________________________ William G. Pixley, Esq. Attorney for Respondent 32 New London Rd. Rochester, N.Y. 14534 (585) 410-8022 Brief Completed: July 21, 2014 Table of Contents Table of Authorities 1 Preliminary Statement 4 Questions Presented 5 Summary of Argument 6 Statement of Facts 9 A. Barnwell’s testimony 11 B. The flawed alibi 13 C: Summations 16 1. Defense 16 2. Prosecution 17 D. Deliberations 18 Argument 19 POINT I: Contrary to the People’s contention, defense counsel’s failure to object to Barnwell’s testimony cannot be explained as an objectively reasonable trial tactic. 19 POINT II: Contrary to the People’s argument, defense counsel does not avoid responsibility for the flawed alibi simply because he directed the witnesses to the relevant date when he knew or should have known his witnesses tied the date to an event days later. 26 POINT III: Contrary to the People’s argument, the blunders – individually or collectively – most likely influenced the outcome of the trial, thus satisfying the second prong of the state and federal standards regardless of the overall quality of the representation. 32 POINT IV: Even if there is not a reasonable probability that, but for defense counsel’s errors, the result would have been the same, the errors were sufficiently egregious and prejudicial, even in their own right, to meet the state standard. 37 Conclusion 39 Attachment A – Barnwell Ruling 40 Attachment B – Barnwell’s Testimony 42 Attachment C – Flawed Alibi Testimony 44 Attachment D - Prosecutor’s Summation – Flawed Alibi 48 1 Table of Authorities Boyde v Brown, 404 F3d 1159 (9th Cir 2005), amended 421 F3d 1154 (9th Cir 2005) 25 Cox v Donnelly, 387 F3d 193 (2004) 36,38 Eze v Senkowski, 321 F3d 110 (2d Cir 2003) 20 Henry v Poole, 409 F3d 48 (2d Cir 2005), cert denied 547 US 1040 (2006) 8,27-33 Hodge v Hurley, 426 F3d 368 (6th Cir 2005) 32 Mason v Scully, 16 F3d 38 (2d Cir 1994) 35,38 Murray v Carrier, 477 US 478 (1986) 33 O’Donnell v State, 26 AD3d 59, 64 (2d Dept 2005) 29 Ouber v Guarino, 293 F3d 19 (1st Cir 2002) 36,38 People v Barboni, 21 NY3d 393 (2013) 19,24 People v Barnes, 106 AD3d 600 (1st Dept 2013) 36,38 People v Benevento, 91 NY2d 708 (1998) 32,33 People v Brown, 17 NY3d 742 (2011) 25 People v Caban, 5 NY3d 143 (2005) 33 People v Cabrera, 234 AD2d 557 (2d Dept 1996) 27,31 People v Cleophus, 81 AD3d 844 (2d Dept 2011) 20 People v Crimmins, 36 NY2d 230 (1975) 33 People v Donovan, 13 NY2d 148 (1963) 32 2 People v Droz, 39 NY2d 457 (1976) 28 People v Henry, 95 NY2d 563 (2000) 31 People v Jarvis, 202 AD2d 1036 (4th Dept 1994), lv denied 83 NY2d 968 (1994) 4 People v Jarvis, 78 AD3d 1634 (4th Dept 2010), rearg denied 82 AD3d 1718 (2011), lv denied 16 NY3d 743 (2011), reconsid denied 16 NY3d 860 (2011) 4 People v Jarvis, 98 AD3d 1323 (4th Dept 2012), rearg denied 101 AD3d 1700 (2012), lv denied 20 NY3d 1012 (2013) 5 People v Jarvis, 113 AD3d 1058 (4th Dept 2014) 5 People v Jenkins, 84 AD2d 1403 (2d Dept 2011), lv denied 19 NY3d 1026 (2012) 27 People v Long, 81 AD2d 521 (1st Dept 1981) 27,31 People v Oathout, 21 NY3d 127 (2013) 37 People v Ofunniyin, 114 AD2d 1045 (2d Dept 1985) 36,38 People v Oliveras, 21 NY3d 339 (2013) 28,31 People v Pinchback, 82 NY2d 857 (1993) 21 People v Rakiec, 289 NY 306 (1942) 28 People v Rivera, 71 NY2d 705 (1988) 20 People v Rumola, 31 AD3d 1059 (3d Dept 2007) 21 People v Santiago, 22 NY3d 740 (2014) 25 People v Satterfield, 66 NY2d 796 (1985) 19 3 People v Stultz, 2 NY3d 277 (2004) 32 People v Torres, 61 AD3d 489 (1st Dept 2009), lv denied 12 NY3d 921 (2009), reconsid denied 13 NY3d 750 (2009) 20 People v Turner, 5 NY3d 476 (2005) 19 People v Zaborski, 59 NY2d 863 (1983) 25 Rosario v Ercole, 601 F3d 118 (2d Cir 2010), reh en banc denied, 617 F3d 683 (2d Cir 2010) 19,33 Strickland v Washington, 466 US 668 (1984) passim United States v Cronic, 466 US 648 (1984) 27,33 United States v McCoy, 410 F3d 124 (3d Cir 2005) 20 United States v Rhynes, 218 F3d 310 (4th Cir 2000) 28 Washington v Hofbauer, 228 F3d 689 (6th Cir 2000) 20 Wilson v Mazzuca, 570 F3d 490 (2d Cir 2009) 20 Miscellaneous 2 F. Bailey & K. Fishman, Criminal Trial Techniques § 32:21 (2002) 28 2 G. Schultz, Proving Criminal Defenses ¶ 6.08 (1991) 28 4 Preliminary Statement Defendant has been incarcerated for more than twenty years for a double- homicide that occurred in Rochester on Tuesday June 4, 1991 in the early morning. His trial and appellate attorneys were from the same public defender office, and his appellate counsel failed to recognize apparent ineffectiveness. The conviction was affirmed on appeal (People v Jarvis, 202 AD2d 1036 [4th Dept 1994], lv denied 83 NY2d 968 ). As relevant here, defendant asserted an ineffective-assistance claim in 2009. The CPL 440.10 motion challenged trial counsel’s presentation of an alibi unmasked at trial as pertaining to the wrong day of the week and then attacked by the prosecutor on summation as a “Hollywood charade” orchestrated to deceive the jury. The trial court denied the motion on the ground that the issue should have been raised on the direct appeal, and leave to appeal was denied (SA 6-11). The Fourth Department thereafter denied a coram nobis application based on the same claim (People v Jarvis, 78 AD3d 1634 [4th Dept 2010], rearg denied 82 AD3d 1718 , lv denied 16 NY3d 743 , reconsid denied 16 NY3d 860 ). In 2012, defendant tried a different tack. In the context of a coram nobis application, he challenged his counsel’s failure to object to evidence that he successfully moved to preclude. The evidence was a threat to the life of a 5 witness, which opened the door to the argument by the prosecutor on summation that it identified defendant “just as easily” as any eyewitness. With the ineffectiveness issue framed that way, the Appellate Division granted the writ and reinstated the appeal (People v Jarvis, 98 AD3d 1323 [4th Dept 2012], rearg denied 101 AD3d 1700 , lv denied 20 NY3d 1012 ). By reinstating the appeal, the Appellate Division provided defendant the opportunity to raise both issues. Defendant therefore attacked the performance of his trial counsel under federal and state standards because he failed not only to object to the threat but also presented a woefully ill-prepared alibi. A three-judge majority of the Court accepted the argument that defendant did not receive meaningful representation and reversed the conviction (People v Jarvis, 113 AD3d 1058 [4th Dept 2014]). The Court though did not address the federal claim. The People were given permission to appeal by one of the dissenting justices. Following the reversal, defendant was returned to Supreme Court for a retrial. No bail has been set and defendant remains in custody as Supreme Court waits for the final determination of this Court. Questions Presented 1. Was defense counsel’s failure to object to evidence that he had successfully moved to preclude, a plausible trial strategy? 2. Was the discredited alibi simply an unsuccessful trial tactic? 6 3. Did defendant receive meaningful representation under the State Constitution? 4. Was defendant denied the effective assistance of counsel under the Federal Constitution? Not addressed by the People. Summary of Argument The prosecutor’s case rests on three witnesses. One is a convicted drug dealer (Victor Simmons) who was a very close friend of one of the victims (Sherrill Prather) and who said he could identify someone after saying he could not but who admitted at trial that he had very little opportunity to view anyone. Another is a former girlfriend with a very real motive to lie (Ida Rivera). And then there is Charlotte Barnwell. Defense counsel did not object to her direct testimony that defendant threatened to shoot her “if we were to tell,” even though little more than an hour earlier the testimony had been barred as evidence-in-chief. Four times during her questioning the prosecutor asked Barnwell about the threat without objection by defense counsel, who later said the evidence was “critical.” Defense counsel also presented an alibi that was so flawed that the prosecutor called it an alibi for the wrong day. The threat opened the door to the argument by the prosecutor on summation that it tellingly identified defendant. The “alibi” became the lynchpin 7 of an argument that defendant orchestrated the witnesses to deceive the jury. While struggling to reach a verdict, the jury examined Barnwell’s testimony and the alibi. It reached a verdict only after twice declaring itself dead-locked. The People imagine an explanation for counsel’s failure to object. They suggest that he let it go because Barnwell’s “demeanor,” “reluctance” and “failure of memory” undercut her credibility in general and thus the entirety of her testimony. However, a trial strategy must be objectively reasonable under the circumstances. No reasonably competent attorney fails to enforce an order precluding damaging testimony in the hope that the jury will not believe the witness. With respect to the alibi, the People echo the dissent, which labeled the flaw as simply a “discrepancy” in testimony by one alibi witness (Carolyn G.) about what she had been watching on television. They claim that defense counsel would have to be prescient to anticipate the cross-examination that exposed the mistake. The critical error, however, did not concern the show Carolyn watched but a birthday party that she, another alibi witness (Wyette G.) attended with defendant four days after the shootings. Both witnesses linked the alibi to the birthday party later that afternoon, and thus they gave an alibi for the wrong day of the week. The error surfaced in an answer by Carolyn on direct examination, 8 was compounded by defense counsel in a follow-up question, was probed by the prosecutor on cross examination and then repeated by Wyette. Defense counsel knew or should have known about the problem. He failed to locate the witnesses for nine months and obviously did not probe why they remembered the date. A reasonably competent attorney does not present an alibi in the hope that it will withstand cross-examination when he knows or should have known it would not. This alibi was so flawed that defense counsel abandoned it and it opened the door to the argument that it had been had been purposefully concocted to deceive the jury. An alibi is fraught with danger thereby putting a premium on proper preparation (see Henry v Poole, 409 F3d 48, 65 [2d Cir 2005], cert denied 547 US 1040 ), particularly since the statutory notice gives prosecutors the opportunity to fully vet the witnesses (CPL 250.20). Manifestly, defense counsel failed to properly prepare for trial and thus did not provide constitutionally acceptable representation. The People argue that defense counsel’s competency in other aspects of the trial excuses any isolated error he may have made. However, it is because of that competency that the errors he made loom so large. The difficulty of the deliberative process necessarily underscores the closeness of the case and the gravity of any error. If there is not a reasonable probability under the federal 9 standard of a different verdict but for the errors, there is prejudice under the state standard because defendant was denied a fair trial on the only issue of moment in the case, i.e. whether defendant was involved. Under either standard, defendant did not receive effective representation and thus the Appellate Division properly reversed the conviction (US Const, 6th Amend; NY Const, art I, § 6). Statement of Facts None of the eyewitnesses, including the three-time convicted drug felon Victor Simmons1 initially professed an ability to identify anyone. It was too dark, their opportunity too fleeting or they simply did not see anyone’s face. Dorothy Wood and Gary Turnipseed gave general descriptions (A 73 [Wood]), A 79, 81-82 [Turnipseed]), as did John Wyche (A 169-170) and Simmons, who told police that night he did not get a good look at anyone (A 306, 322). A couple of months or so later though Simmons went to police and changed his story (A 306-307, 317-318). Prather was “like a Godbrother” to Simmons (A 304), and beforehand Simmons talked to Prather’s family, as well as others (A 307, 323-324). At trial Simmons testified that as he was leaving a house, he heard gunshots down the street and shortly afterwards saw two men running from that 1 The People brought Simmons back from Florida where he was awaiting trial on another drug charge (A 299, 310-11). 10 direction on the other side of the street. As they passed by, they turned from Simmons and cut through an open field. It was at that moment that Simmons allegedly saw what the other witnesses could not in the dark, the face of a suspect (A 300-302). Simmons admitted he did not pay attention to the gunshots (A 301), much less the two people running by (A 302, 307). But according to Simmons, as the two men turned to run through the field, one of them took a quick glance at him, long enough for him to recognize that person as someone he had seen “growing up” (A 308), a person he claimed was defendant (A 305). He described that moment this way, “Well, when both of them was running by, it was like when you notice a motion moving and you just turn and look and then you turn your face and just keep going like, well, it isn’t nothing, you know” (A 307). The former girlfriend Ida Rivera did not go to the police until she was allegedly assaulted by defendant on August 2, 1991, two months after the crime. That day she decided “to solve this problem” (A 195-196) and called the police (A 191). She claimed that defendant told her the day before the homicide that he had argued with Prather (A 188-189) and shortly after the homicide that he had shot him (A 185-187). Rivera’s account of what happened the day before the homicide was embellished by Charlotte Barnwell, who testified that defendant said not, only that he had been arguing with Prather, but also that he was “going 11 to shoot that fucking nigger” (A 208). Barnwell is the cousin of one of the victims, Robert Horn (A 211). Barnwell waited nearly three months before coming forward (A 210). To explain the delay, the prosecutor asked at a midtrial Molineux hearing shortly before Barnwell testified2 for permission to question her about a purported threat by defendant to shoot her “also” if she “told” (A 154). The request was denied categorically. The Court ruled, “With regard to Charlotte Barnwell on the threatening her, not to be used on direct examination, you may, on redirect, explain the delay in reporting” (A 160-161). When the prosecutor asked for clarification, the Court reiterated: “[There shall be] no mention of any threats unless [the delay] is raised on cross” (A 161). Thereafter, the prosecutor made a similar application with respect to Simmons, and the Court made the same ruling (A 161-162) (Attachment A [pertinent transcript excerpts]). While the prosecutor obeyed the order when Simmons testified, she did not with Barnwell, and defense counsel failed to object. During her summation, the prosecutor used the testimony to full advantage to rebut defense counsel’s argument challenging the evidence that defendant was involved. A. Barnwell’s testimony 2 The hearing started at 1:43 p.m. (A 151), and Barnwell testified at 3:10 p.m. (A 197). 12 Immediately prior to the direct examination of Barnwell, there was a confirmatory identification hearing (A 197-203). Barnwell answered the questions but indicated that she was “nervous from being here” (A 201). The nervousness came through in her trial testimony as well (A 209, 211), prompting the judge at one point to give the prosecutor “a little latitude” in her questioning (A 209). The initial trial testimony concerned the prior alleged threat against Prather. Barnwell readily identified defendant (A 204), explained how she knew him (A 205) and repeated her version of what defendant said (A 206-208). Her only failing was a reluctance to use defendant’s exact words because she “don’t like cussing” (A 206-207). Barnwell was more forthcoming, however, after the judge assured her that it was all right to “recite it in court * * * [because] [i]t is important that you tell what you heard” (A 207). The prosecutor then moved immediately to the prohibited line of questioning, and the only objections had nothing to do with the prior order. An objection was made to a question as already “asked and answered” and to another as leading (A 209). Four times the prosecutor asked Barnwell about the threat, and defense counsel never mentioned the preclusion order. “Now, there came a point in time,” asked the prosecutor, “where defendant made a statement to you about if you knew what happened. Can you 13 tell us what he said at that time?” “He said that if we told, he would shoot us.” “You have to speak up,” said the prosecutor. “They said if we would have told, something would happen to us.” The prosecutor, “What did he say would happen to you?” “[They would] [s]hoot, kill, beat us up.” Barnwell was then asked to clarify her answer, but she was unable to do so without reviewing her police statement. When the prosecutor then asked, “What was it that he said to you?” she replied, “He said if we were to tell, he would shot [sic] us too” (A 208-211) (Attachment B [pertinent transcript excerpts]). Defense counsel asked ten questions on cross examination, one of which concerned the purported threat (A 211-213). Isn’t it true, he asked, “that as you sit here today in the courtroom, you didn’t remember what you said in your statement until you read it again?” Answer, “Yes.” On redirect, Barnwell said again that she was nervous “[b]ecause I don’t want to be here” (A 213). B. The flawed alibi The alibi was supposed to establish that defendant was with a girlfriend (Wyette G.) at her mother’s house (Carolyn G.) and from there went to his sister’s apartment (Melissa Jarvis) with Wyette. Defense counsel keyed his questions to the date, June 4th. Carolyn and Wyette, however, tied their testimony to the birthday party four days later, and Melissa said it was “social security day.” 14 Carolyn testified on direct that defendant “came over” the evening before sometime between “seven to eight” while she was “in front of the TV” watching, among other things, “The Price Is Right.” She said that she “fell asleep watching TV” and was awaken by “my friend,” who said that “Kharye was in the [bed]room with [Wyette].” Carolyn became upset and spoke to them about it, and shortly thereafter, according to Carolyn, defendant called “a cab to go home and then [Wyette] went out the door with him” (A 349-350). The problem with the alibi first surfaced when defense counsel asked Carolyn, “What time would that conversation have taken place?” She answered by referencing the time when her friend got home “every night,” which she said was “ten minutes to two.” “That would have been?” asked defense counsel, to which Carolyn replied, “That Friday morning” (A 351) (Attachment C [pertinent transcript excerpts]). Showing no sign that he was surprised by the answer, defense counsel followed up with a question that served only to confirm that Carolyn had answered purposefully. Q. Ten minutes to two Friday morning? That would have been June 4th? A. Yes (A 350-351). The prosecutor knew what Carolyn meant when she said “Friday morning,” and on cross had Carolyn clarify that she meant “Saturday morning.” In a series of questions and answers, Carolyn indicated unequivocally that she 15 had been talking about a Friday evening into a Saturday morning, that the alibi was specifically for a Saturday morning and that she was not mistaken. She said remembered this particular “Saturday morning” because later that same day there was a birthday party for her “twin grandkids” that Wyette and defendant attended (A 354-355, 357, 364-365). Inexplicably, in light of Carolyn’s testimony, defense counsel then put Wyette on the stand, who only confirmed on cross examination what Carolyn had said: the alibi was for a Saturday morning, the same day as the birthday party (A 371). Melissa, the other defense witness, was not asked to remember the day of the week. She testified, however, that she remembered June 3rd because it was “social security day” and defendant had an argument with his mother about a social security check3 (A 382). Finally, the “discrepancy” that the dissent identified in Carolyn’s testimony was not really a discrepancy at all but a confirmation that she had indeed testified about a Friday. During her cross-examination, Carolyn indicated that – like most Friday nights - she watched “America’s Most Wanted” after 3 Later, defense counsel argued on summation that Melissa’s testimony dovetailed with the testimony of Turnispeed, who indicated that on the day of the shootings he was given a “[DSS] voucher check” (A 75-76, 81). The prosecutor though implied that Melissa’s testimony was too little, too late, and that it simply “runs right behind the testimony of Carolyn G. and Wyette G.” (A 441). 16 watching “The Price is Right” (A 354, 363). The prosecutor established on rebuttal that “America’s Most Wanted” aired only on Friday nights (A 405). C. Summations 1. Defense Defense counsel reviewed the testimony of the prosecution witnesses, pointing out discrepancies and credibility issues (A 412-428). He argued that there was reasonable doubt whether defendant was involved (A 428-434). However, he abandoned the alibi, never once mentioning it or the witnesses, Carolyn and Wyette (A 423-434). He mentioned Melissa only to cast doubt on Rivera’s account of what happened after the shooting. Rivera had claimed that she was at Melissa’s house after the shooting when defendant came over alone and purportedly told them what happened (A 185-188). Defense counsel, however, called attention to Melissa’s testimony that “Jennifer Salters, Omar Jarvis, Brittney Jarvis and Keyanna Maddox” were there but not Rivera, and defendant was with Wyette and not alone (A 381, 433-434). Unlike Carolyn and Wyette, defense counsel did not ignore Barnwell. Calling the threat as the “most critical piece of evidence she claims she has,” he argued that Barnwell was neither “reliable” nor “believable” because “[y]ou cannot separate some of what she says from her manner in which she says it” (A 420-421). 17 He cited two specific examples. The first was “when she was testifying [and] the Judge had to instruct her at one point to answer the question” (A 421), apparently alluding to her problem “cussing” in the courtroom (A 206-207). The other, when she needed to review her police statement in order to clarify the precise threat (A 421). Defense counsel asked the jury to disregard her testimony because “she tells the District Attorney she forgot” and then after reading the statement, she “says, Oh, yeah, now I remember” (id.). Defense counsel also argued that Barnwell’s testimony should be disregarded because “her demeanor indicate[s] that there [is] something else going on with her,” “she’s related so she’s an interested witness” and “she had some contact with the family of the deceased” (id.). 2. Prosecution The prosecutor took full advantage of defense counsel’s errors. Although she had indicated before Barnwell testified that she intended to use the threat to explain Barnwell’s fear, in her summation she treated the threat as an admission. “She told you,” argued the prosecutor, “that when the Defendant was with her, he told her, if you know about what happened, I’ll shoot you, too. That puts the Defendant there just as easily as any person you saw in there. He’s telling her if you know what happened and you say what happened about it, I’ll shoot you too” (A 534). 18 The prosecutor also used the threat to turn defense counsel’s demeanor- argument on its head. “And think about the way she testified. Think about the way she sat there with her hand in front of her mouth, didn’t look at him. Think about the way she jiggled. She told you, I don’t want to be here. Well, this is the time to show you. If you know about this and came into this courtroom to tell everybody who did it and the person who did this said to you, if you know about this, I’ll shoot you too, would you be real anxious to sit in that seat and say it? I submit to you what you saw was fear. She didn’t want to be here because she’s scared” (A 447-448). The flawed alibi also added fuel to her fire. She called it an “alibi for the wrong day” (A 441) and a “Hollywood charade” (A 440, 442) orchestrated by the defense witnesses to deceive the jury (A 529-530). In doing so, she not so subtly implied that its staging was proof that defendant “was one of the shooters responsible” (A 440) (Attachment D [pertinent transcript excerpts]). D. Deliberations The jury had difficulty reaching a verdict. It took deliberations spanning two days, a read-back of testimony including Barnwell’s (A 478-479), a request to examine the statement used to refresh Barnwell’s recollection (SA 5), a read- back of Melissa’s testimony (which was keyed to “social security day”) (A 479), a deadlocked-jury note (A 479-80) (“We can’t reach a unanimous verdict at this 19 time.”), another deadlocked-jury note 2½ hours later (A 480) (“We still cannot reach a unanimous verdict.”), an Allen charge (A 480-482), a sequestered night in a hotel (A 482-483), and upon return an immediate read-back of Wyette’s testimony (which was keyed to Saturday) (A 483) before the jury resolved its differences (A 484-486). Argument Point I: Contrary to the People’s contention, defense counsel’s failure to object to Barnwell’s testimony cannot be explained as an objectively reasonable trial tactic. Ineffective-assistance claims under the Federal and State Constitutions are subject to a two-part analysis. The first part focuses on the performance of defense counsel and the second on the effect of that performance (Strickland v Washington, 466 US 668, 687-688 ; People v Turner, 5 NY3d 476, 479- 480 ). The first prong is the same under either standard (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010], reh en banc denied, 617 F3d 683 [2d Cir 2010]; Turner, 5 NY3d at 480). The basic question is whether the circumstances “‘viewed objectively * * * reveal the existence of a trial strategy that might have been pursued by a reasonably competent attorney’” (People v Barboni, 21 NY3d 393,406 , quoting People v Satterfield, 66 NY2d 796, 799 ; see Strickland, 466 US at 688 [the “objective standard of reasonableness”). While 20 the burden is on the defendant to demonstrate the absence of “strategic or other legitimate explanations” for counsel’s error (People v Rivera, 71 NY2d 705, 709 ), if it is a reasonableness standard, then merely labeling a counsel’s decision as “strategic” should not insulate it from review (see United States v McCoy, 410 F3d 124, 135 [3d Cir 2005]; Washington v Hofbauer, 228 F3d 689, 704 [6th Cir 2000]). Under the circumstances of this case objectively considered “from counsel’s perspective at the time” (Strickland, 466 US at 689), particularly given the nature of the evidence and defense counsel’s recognition of its importance, failing to object to the violation of the preclusion order was not a plausible trial strategy. Omissions that arise from “oversight, carelessness, ineptitude or laziness” are not a strategy (Wilson v Mazzuca, 570 F3d 490, 502 [2d Cir 2009]; Eze v Senkowski, 321 F3d 110, 112 [2d Cir 2003]). In this one instance, leaving aside for the moment the question of prejudice, the representation received by this defendant “fell below the objective standard of reasonableness” (id. at 688; see People v Cleophus, 81 AD3d 844 [2d Dept 2011] [where counsel failed to object to evidence precluded at his request pursuant to CPL 200.60 ). The danger posed by the threat as evidence-in-chief cannot be overstated. A threat to a witness is strongly indicative of a consciousness of guilt (see People v Torres, 61 AD2d 489 [1st Dept 2009], lv denied 12 NY3d 921 , 21 reconsid denied 13 NY3d 750 ). A person innocent of a crime might flee; but few if any threaten the life of a witness while the police are looking for them. Any reasonably competent attorney would recognize that. But defense counsel knew or should have known before Barnwell testified that the threat had much more significance. In her Molineux application, the prosecutor had said the threat was “to shoot her, also,” which is clearly an implied admission of guilt even if the prosecutor did not recognize it herself (A 154). Defense counsel admitted in his summation that the “threat” was the “most critical piece” of Barnwell’s testimony (A 421). A reasonably competent attorney would have recognized the significance of the evidence long before then and objected to it immediately when it was introduced. In a trial where the question was whether defendant was involved, it is self-evident that the testimony was not helpful to the defense but could only cripple it (compare People v Rumola, 31 AD3d 1059 [3d Dept 2006] [where otherwise inadmissible statement contained information favorable to defense]; see also People v Pinchback, 82 NY2d 857 ). The People do not dispute that proposition. Instead, they point to supposed flaws in the way Barnwell actually testified as making plausible a strategy, which only an hour before would have been unthinkable, to look the other way 22 in the hope that the longer she remained on the stand the less credible should would appear4. One thing that the People identify, as defense counsel did in his summation, was a “failure of memory” when Barnwell was asked to clarify the alleged threat to “[s]hoot, kill, beat us up” if “we” told the police what “we” knew. “Which did he say,” asked the prosecutor, apparently not willing to accept any deviation from her police statement. When pressed, Barnwell acknowledged that the statement would help refresh her memory, and after reviewing it, testified that defendant said, “if we were to tell, he would shoot us, too” 5 (A 208-211). One problem with the People’s argument is that the “failure” they identify does not explain why defense counsel did not object sooner. Barnwell had already been asked several times about the threat without objection. Considering the circumstances from counsel’s perspective at the time (Strickland, 466 US at 689), a reasonably competent attorney after just obtaining a preclusion order would have objected the moment the prosecutor asked Barnwell, “Now, did 4 The People do not argue that an attorney might look the other way if the attorney recognized that the evidence, which had been precluded for one purpose, was actually admissible for another. What the prosecutor would have argued in the face of an objection, however, is speculation. What the trial court would have done after its categorical ruling is not (cf. People v Vasquez, 20 NY3d 461, 467  [where not clear objection would result in exclusion of evidence). Helping the prosecutor make a stronger case by failing to object is obviously incompatible with the duty of defense attorneys to protect their client’s interest. 5 The statement was used only to refresh recollection and thus not offered in evidence. 23 there come a point in time where the defendant made a statement to you about if you knew what happened?” (A 208). The other problem is that the so-called “failure of memory” pertained only to the threat. Until she had difficulty recalling the exact wording of the threat, she had no trouble recalling the aspects of her testimony. She identified defendant unequivocally and said without equivocation that she “remembered the day that they were shot” (A 205), subjects that defense counsel did not address on cross-examination (A 300-301) or on summation. The only use defense counsel made on summation of the so-called “failure of memory” was to attack the credibility of the threat, which of course would not have been an issue had he objected to the testimony in the first place. The People also note a “hesitancy” when Barnwell was asked to clarify what defendant allegedly said the day before the shooting. However, her only reluctance was to “cuss” in the courtroom (A 206-207). She is not the first person with a reluctance to swear – particularly in a courtroom. In fact, an aversion to swearing is generally considered a mark of good character. To suggest that Barnwell’s “hesitancy” to swear reflects badly upon her credibility is absurd, and a reasonably competent attorney would not think otherwise. There is absolutely no equivalency. 24 The argument though is also somewhat of a red herring. The so-called “hesitancy” occurred before the prosecutor questioned Barnwell about the threat. Thus, the argument was always available to defense counsel, whether or not the threat was received as evidence. Other aspects of defense counsel’s attack on Barnwell’s credibility were likewise available without regard for the threat. Barnwell’s relationship to one of the deceased (A 300) and her criminal record (A 212-213) obviously have nothing to do with the threat itself and could have been developed without allowing the threat in evidence. Finally, the People point to Barnwell’s “demeanor,” which is generally a subject that cannot be resolved on a trial record (see Barboni, 21 NY3d at 406 [discussing demeanor as basis for challenging prospective juror]). Here, though, it can be. The record reflects that Barnwell was scared and did not “want to be here” (A 213). The prosecutor tagged that fear as the reason she wanted to introduce testimony that Barnwell had been threatened (A 154). The Court in turn gave the prosecutor leeway in her questioning because of Barnwell’s nervousness (A 209). The last thing a reasonably competent attorney would want a jury to hear is that the source of Barnwell’s nervousness and fear was a threat to kill her if she “told.” Put another way, a reasonably competent attorney would expect a jury to consider Barnwell’s nervousness and fear as corroborating her 25 testimony that she had been threatened (see A 447-448 [prosecutor’s summation]). It does not detract from her credibility. It enhances it. The bottom line. No reasonably competent attorney fails to enforce a preclusion order on the outside chance that the jury will not believe the witness. “The notion that defense counsel’s silence was designed to expose the weakness of the People’s evidence is utterly untenable” (People v Santiago, 22 NY3d 740, 755  [Rivera, J. dissenting]). Reliance on a wing and a prayer when there is a preclusion order of this nature is an “inexplicably prejudicial” tactical decision (see People v Zaborski, 59 NY2d 863, 865 ; see United States v Villalpando, 259 F3d 934, 939 [8th Cir 2001] [“Some strategy decisions *** are so unreasonable that they can support a claim of ineffective assistance of counsel.”]). Counsel’s performance fell below the constitutional standard because he failed to protect the interests of his client by objecting to the introduction of crippling testimony that had been precluded at his request. The objection was a winning argument that no reasonably competent attorney in the context of this case could have thought not worth making (see People v Brown, 17 NY3d 742, 743-744 ; see also Boyde v Brown, 404 F3d 1159, 1179-1180 [9th Cir 2005, amended 421 F3d 1154 [9th Cir 2005] [counsel deficient for failing to 26 object to harmful evidence “which probably would have been excluded had he done so.”]). Point II: Contrary to the People’s argument, defense counsel does not avoid responsibility for the flawed alibi simply because he directed the witnesses to the relevant date when he knew or should have known the witnesses tied the date to an event days later. The crux of the People’s argument is that the discredited alibi was at most an unsuccessful tactic. They try to lay the blame on Carolyn for its failure and argue that defense counsel is not responsible for the discrepancy exposed when she was cross-examined about what she had been watching on television. They contend that defense counsel presented an alibi for the proper date, and it was only fortuitous for the prosecutor that Carolyn added a detail that could be so easily disproven. That argument also was made by the dissent below. Defense counsel, wrote the dissent, “would have to be prescient to know that the prosecutor would cross-examine one of the witnesses with respect to the television program and then establish that the witness was incorrect about the time that it aired.” That argument though is based on a false premise. The fatal flaw in Carolyn’s testimony did not concern “America’s Most Wanted.” She watched that program regularly, if not every Friday night. The critical flaw was tying the alibi to the birthday on Saturday, and in that she was not alone. Wyette did the same thing. Notwithstanding defense counsel’s questions keyed to the date of the 27 shootings on June 4th, both witnesses indicated that the alibi was inextricably linked to the birthday party on Saturday, which was days later. Defense counsel did not contact the witnesses until March 23, 1992 (A 340). That was nine months after the crime. It may have taken prophetic powers to anticipate a cross-examination about television viewing habits, but not about something as basic as the reason why after so many months Carolyn and Wyette remembered June 4th 1991. The presentation of an alibi keyed by a defense counsel to the wrong time period and thus constituting an irrelevant explanation of the defendant’s whereabouts is quintessential constitutional incompetence because it is a patently implausible trial strategy (see Henry, 409 F3d at 65-66; People v Cabrera, 234 AD2d 557, 558 [2d Dept 1996]; People v Long, 81 AD2d 521, 521-522 [1st Dept 1981]). The presentation of an alibi by a defense attorney who, as here, knows or should have known his witnesses tie the alibi to an event days after the fact is no less manifest incompetence. “A defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses” (People v Jenkins, 84 AD2d 1403, 1408 [2d Dept 2011], lv denied 19 NY3d 1026 ; see United States v Cronic,466 US 648, 656  [recognizing pretrial investigation as “perhaps the most critical stage of a lawyer’s preparation”]; 28 People v Oliveras, 21 NY3d 339 ; People v Droz, 39 NY2d 457, 462  [an attorney must “review and prepare both the law and the facts relevant to the defense.”]). “No competent lawyer would call a witness without appropriate and thorough pre-trial interviews and discussions” (United States v Rhynes, 218 F3d 310, 319 [4th Cir 2000]). That is particularly true with respect to an alibi defense. First, as the Second Circuit observed in Henry, the presentation of an alibi is fraught with danger (409 F3d at 65). “‘A poorly prepared alibi is worse than no alibi at all’” (quoting 2 G. Schultz, Proving Criminal Defenses ¶ 6.08 ). “‘If the prosecution can establish the falsity of an alibi *** your case is as good as lost. Many jurors regard a false alibi as an admission of guilt’” (quoting 2 F. Bailey & K. Fishman, Criminal Trial Techniques § 32:21 ; see also O’Donnell v State, 26 AD3d 59, 64 [2d Dept 2005]). “An attorney who is not thoroughly prepared does a disservice to his client and runs the risk of having his client convicted even where the prosecution’s case is weak.” (G. Schultz, supra). Second, a thorough investigation of an alibi is demanded because a defense attorney knows that once the statutory notice is given (CPL 250.20) the prosecutor will subject the alibi to intense scrutiny. The witnesses will be contacted and their story probed. A statement will be taken to lock-in the story and provide potential impeachment material (see People v Rakiec, 289 NY 306 29  [indicating the notice requirement affords prosecutor opportunity to investigate]). The prosecutor did her homework in this case. Obviously, defense counsel did not. From the way the prosecutor framed her question to Carolyn and asked Wyette about it too, the prosecutor knew that they were keying their testimony to the birthday party celebrated on the Saturday after the shootings6. Defense counsel had no idea. In fact, it is not clear that when Carolyn mentioned “Friday” in an answer to a question he asked, he was even aware of the relevant days of the weeks7 since he compounded her mistake by then asking her, “Ten minutes to two Friday morning? That would have been June 4th?” (A 351). Furthermore, after watching one alibi witness eviscerated on cross- examination, defense counsel put on a second who made the same mistake. When one witness makes an error, as Carolyn did, the witness may be to blame. But when two witnesses make the same mistake, the blame lies elsewhere. Moreover, had defense counsel been listening to the cross-examination of Carolyn, he would have known that Wyette was at the party too. If Carolyn’s 6 The prosecutor investigated the alibi and took statements from Carolyn and Wyette. Although the statements were shared with defense counsel before he presented the alibi, they are not part of the record (A 346-347). Defendant’s attempt to discover the notes in a prior CPL 440.10 motion was not successful (SA 7). 7 Of course he should have been, if for no other reason than the fact that the police reports provided in discovery note that June 4th was a Tuesday (A 26-27; SA 2). 30 testimony was a surprise to defense counsel, Wyette’s testimony should not have been. Reasonably competent attorneys, knowing that they are asking alibi witnesses to recall a date months earlier, would ask why they remember it. Manifestly, this defense counsel did not. Reasonably competent attorneys do not compound an obvious error in the testimony of an alibi witness by asking the witness, as this defense counsel did, to confirm the mistake. Reasonably competent attorneys realizing their mistake in calling one alibi witness, do not call a second to repeat it. In Henry, the defense counsel elicited an alibi for the wrong day and “adhered to [it] and urged the jury to accept it * * * long after it must have been clear to the jury beyond peradventure that [the witness] provided * * * an alibi only for the night after the night of the crime” (409 F3d at 64). It could not have been a tactic, said the Second Circuit, since an attempt to create a false alibi is evidence of a consciousness of guilt (at 65). It could not have been a mistake, in the view of the Court, since the defense counsel undoubtedly knew when the crime occurred (at 64). Furthermore, said the Court, the idea that defense counsel presented the alibi at his client’s insistence was pure conjecture (at 65). The Court concluded, “In sum, we recognize that counsel has wide leeway to adopt tactical decisions; but counsel’s lack of recognition that [the witness] presented 31 an alibi for the wrong night, and his presentation, adherence to, and emphasis on that evidence although it had no tendency to show Henry’s innocence and was instead a type of evidence that is commonly accepted as evidence of a defendant’s consciousness of guilt, was representation that fell far below an objectively acceptable level of professional competence” (at 65-66; but see People v Henry, 95 NY2d 563, 566 ). Other cases in New York are similar on their facts, but unlike Henry were resolved on direct appeal in favor of the defendant as a matter of state law8 (see Cabrera, 234 AD2d at 558; Long, 81 AD2d at 521-522). This is not a case involving a complete failure to investigate as in Oliveras (21 NY3d, supra). It is a case though where defense counsel either knew or should have known that the alibi was for the wrong day of the week. The alibi was so ill-prepared and its presentation so poorly executed by defense counsel it is not simply a failed trial tactic but representation as in Henry (409 F3d, supra) not meeting constitutional standards. 8In this case, defendant tried to raise his alibi claim on a prior CPL 440.10 motion, but the court ruled that it was reserved for the direct appeal (SA 6). 32 POINT III: Contrary to the People’s argument, the blunders – individually or collectively – most likely influenced the outcome of the trial, thus satisfying the second prong of the federal and state standards regardless of the overall quality of the representation. The second part of an ineffective-assistance analysis under both the Federal and State Constitutions focuses on the effect of the deficient performance. Under the federal standard the concern is with the reliability of the verdict, i.e. whether there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different (Strickland, 466 US at 694). “A reasonable probability is a probability sufficient to undermine confidence in the outcome” (id.). Thus, the prejudice determination under the federal standard “is necessarily affected by the quantity and quality of the other evidence against the defendant” (Hodge v Hurley, 426 F3d 368, 376 n 17 [6th Cir 2005]). Under the “meaningful representation” standard, however, the focus is on the “fairness of the process as a whole” (People v Benevento, 91 NY2d 708, 714 ). “[O]ur legal system is concerned as much with the integrity of the judicial process as with the issue of guilt or innocence” (id. quoting People v Donovan, 13 NY2d 148, 153-154 ). Thus, “a defendant need not fully satisfy the prejudice test of Strickland” (People v Stultz, 2 NY3d 277, 284 ) and violations of the state standard are not subject to a harmless error 33 analysis (Benevento, 91 NY2d at 714; see People v Crimmins, 36 NY2d 230, 238  [fair trial is guaranteed regardless of strength of People’s case]). There is an overlap, however. “[A]n attorney error that prejudiced a defendant under the federal standard would necessarily affect the fairness of the process as a whole under the state standard” (Rosario, 617 F3d at 684 [Wesley, J. concurring]; see Rosario, 601 F3d 118, 126 [2d Cir 2010] [Wesley, J.] [“Fundamental fairness analysis by its very nature must always encompass prejudice”]). Thus, even an isolated instance of deficient performance is a violation of federal and state constitutional guarantees if it “most likely influenced the outcome of the trial” (601 F3d at 125; see Murray v Carrier, 477 US 478, 496 ; Cronic, 466 US at 657; compare People v Caban, 5 NY3d 143, 152  [single error qualifies as ineffective assistance under state standard when sufficiently egregious and prejudicial as to compromise right to fair trial]). In that instance, it makes no difference that the defendant otherwise received meaningful representation. A court cannot rely on “counsel’s competency in all other aspects” to excuse an error that meets the Strickland standard of prejudice (Henry, 409 F3d at 72). The People, like the dissent, point to the overall quality of representation as demonstrating that defendant received meaningful representation. That 34 argument though misses the point. Because defense counsel’s errors meet the Strickland standard of prejudice that argument is irrelevant. This was a close case, perhaps not on paper, but in the courtroom as evidenced by the jury’s deliberative process. Deliberations spanned a two-day period, involved read-backs of critical testimony, included a request for the statement used to refresh Barnwell’s recollection, were stalled twice by seeming deadlocks and required an Allen charge to bring them to conclusion. These are the earmarks of a jury struggling with the question whether defendant was involved. It appears probable that the threat, which the jury should not have heard, and/or the alibi, which was significantly flawed, tipped the balance. As far as the threat is concerned, defense counsel labeled it in his summation as the “the most critical piece of evidence that [Barnwell] claims she has” (A 421). The prosecutor then hammered that point home by telling the jury that the threat “puts the Defendant there just as easily as any person you saw in [the courtroom]” (A 447). The first request made by the jury was for Barnwell’s testimony, among others, and within minutes of the read-back they wanted the statement spelling out the threat, even though it had not been received in evidence (SA 5). 35 As far as the alibi is concerned, defense counsel abandoned it after the Carolyn and Wyette debacle. He never even mentioned the alibi in his summation. In fact, he never mentioned Carolyn or Wyette by name. He called Melissa “credible” (A 433) and “reliable” (A 434), but only to undermine Rivera’s account of who was present at Melissa’s house after the shootings (A 433). The abandonment of the alibi on summation was an implied concession by defense counsel that it was not credible. Calling Melissa credible and reliable implied that Carolyn and Wyette were not. The prosecutor though was more direct. She told the jury that Carolyn and Wyette “came in here and gave you an alibi for the wrong day” and that Melissa’s testimony “runs right behind” theirs (A 441). The prosecutor talked about their contact with one another and their closeness to defendant (A 442) and told the jurors that the alibi was a “Hollywood charade” orchestrated to deceive the jury (A 440, 442-443). A half hour before first indicating they were hung, the jurors wanted Melissa’s testimony, which was keyed to “social security day.” After the second note and the Allen charge they wanted Wyette’s testimony, which had been keyed to Saturday. An hour later they returned their verdict. There are similarities with Mason v Scully (16 F3d 38 [2d Cir 1994]), which was a failure-to-object case. The state’s evidence was not overpowering, 36 the prosecution felt it needed to bolster its case with the objectionable testimony, the jury asked to review that testimony and the verdict was reached only after an Allen charge. In those circumstances, the Court held that the second-prong of the Strickland test was satisfied (at 44-45; see Cox v Donnelly, 387 F3d 193, 200  [same conclusion on similar facts]; Ouber v Guarino, 293 F3d 19, 35 [1st Cir 2002] [two days of deliberations and a “dynamite” charge “necessarily underscores the closeness of the case (and, therefore, the gravity of any error) (emphasis in original)”]; People v Barnes, 106 AD3d 600 [1st Dept 2013] [juror hesitancy coupled with blunder undermined confidence that “defendant would have been convicted no matter what”]; People v Ofunniyin, 114 AD2d 1045, 1046 [2d Dept 1985] [“Moreover, the obvious impact which this testimony had on the jury is reflected by the fact that the jury specifically requested a read-back of that portion of defendant’s testimony dealing with his prior conviction, as its first request during the course of deliberation.”]). The nature of the errors in this case (individually or collectively), their connection with the asserted defense, the exploitation of the errors by the prosecutor, the jury’s review of the pertinent testimony and the difficulty of the deliberative process demonstrate a level of prejudice meeting federal (and thus state) standards. But for one or both of counsel’s errors, it is reasonably likely the result would have been different, even if it was only a hung jury. The 37 conviction therefore was rightfully reversed and a new trial ordered. Defendant did not receive the effective assistance of counsel that is his right under the Federal and State Constitutions. Point IV: Even if there is not a reasonable probability that, but for defense counsel’s errors, the result would have been the same, the errors were sufficiently egregious and prejudicial, even in their own right, to meet the state standard. Defense counsel otherwise performed admirably. But it is precisely because of that performance, that his discrete errors loom so large. Perfect representation may not be required, but the “[reasonable competence] test cannot be so weak as to deny a defendant [a fair trial]” (People v Oathout, 21 NY3d 127, 128 ). With everything hanging in the balance after damaging the the credibility of Simmons and Rivera, defense counsel could ill-afford to look the other way when, in violation of a specific court order, Barnwell testified that defendant threatened to “shoot us too.” Defense counsel challenged the sufficiency of the evidence that defendant was involved, but as evidence-in-chief, the threat provided the prosecutor with lethal ammunition to counter that argument. The threat, argued the prosecutor, “puts the Defendant there just as easily as any person you saw in there.” Nor could defense counsel afford to present a deeply flawed alibi. An alibi is intended to cast doubt on the proof of a suspect’s involvement. Defense 38 counsel, though, presented an alibi that was so demonstrably flawed that it allowed the prosecutor to argue on summation that it had the opposite effect. With two alibi witnesses keying their testimony to the wrong day of the week and the third said to be “run[ing] right behind”, and the witnesses having close ties to defendant, the flawed alibi invited the argument that it was a “Hollywood charade” orchestrated to deceive the jury (A 441-442). Not only did this eviscerate their credibility, but it put an exclamation mark on the prosecutor’s case. Counsel’s errors were conspicuously bad and the prejudice real. Two days of deliberations and an Allen charge underscore the closeness of the case and the gravity of any error (see Cox, 387 F3d at 200; Ouber, 293 F3d at 35; Mason, 16 F3d at 44-45; Barnes, 106 AD3d at 603). The jury’s interest in the threat and the flawed alibi demonstrate that the errors cannot be dismissed as inconsequential (see Ofunniyin, 114 AD2d at 1046]). Even if there is not a probability that, but for counsel’s errors, the result would have been different, the conviction was properly reversed under the State Constitution because the errors resulted in a fundamentally unfair trial on the only issue of moment in the case. 39 Conclusion Defendant did not receive representation meeting federal and state standards and thus the Appellate Division properly ordered a new trial. July 22, 2014 Respectfully Submitted, William G. Pixley William G. Pixley, Esq. Attorney for Respondent 32 New London Road Pittsford, N.Y. 14534 (585) 410-8022 email@example.com 40 ATTACHMENT A Barnwell Ruling MS. WINSLOW: After the shooting at one point in time he also threatened her and told her if she knew about what happened, he would shoot her, also, and that would be part of her explanation of why she had been too scared to tell at first. THE COURT: Threatened her concerning relating anything about this – She did not report it immediately * * *. MS. WINSLOW: She didn’t report it immediately, in other words. It does bear on that issue. (A 154). *** THE COURT: ***. With regard to Charlotte Barnwell, on the threatening her, not to be used on direct examination. If the issue is raised on cross-examination, you may, on redirect, explain the delay in reporting. MS. WINSLOW: She would not be precluded from simply stating she was scared on direct, though not necessarily by the Defendant, but just in general terms, scared? THE COURT: But no mention of any threats unless it’s raised on cross (A 160- 161). *** 41 MS. WINSLOW: [T]here were some threats made to kill [Simmons] mother and himself made by this defendant * * * [and that] [e]xplains part of the reason why he was very hesitant in coming forward with regard to the ID. THE COURT: Same rulings with regard to the threats of Charlotte Barnwell. MS. WINSLOW: Okay (A 161-162). 42 ATTACHMENT B Barnwell’s Testimony MS. WINSLOW: Now, there came a point in time where Defendant made a statement to you about if you knew what happened. Can you tell us what he said at that time? BARNWELL: He said that if he told, he would shoot us. MS. WINSLOW: You need to speak up, please. BARNWELL: They said if we would have told, something would happen to us. MS. WINSLOW: What did he say would happen to you? BARNWELL: Shoot, kill, beat us up MS. WINSLOW: Which did he say? BARNWELL: I don’t remember. MS. WINSLOW: Miss Barnwell? BARNWELL: Hum? MS. WINSLOW: I know this isn’t easy for you, but could you tell the jury what it was that he said? MR. SMITH: Objection, your Honor. I believe that question was asked and answered. MS. WINSLOW: Judge, she’s obviously having a great deal of difficulty. I’d ask for a little latitude. THE COURT: Yes, overruled. MS. WINSLOW: We’re almost finished. Could you tell the jury, please, what it was that he said he would do if you knew what happened and you told? 43 MR. SMITH: Objection, your Honor. I don’t believe that’s what the witness said. The prosecutor’s attempting to basically clarify the prosecutor’s words and that’s not the scenario we have, so we have basically the prosecutor putting in proof. I ask the witness be instructed to disregard the question and the prosecutor ask more open-ended questions. THE COURT: She asked a question before that, didn’t you? MS. WINSLOW: Judge, I’ll ask a different question. THE COURT: All right. MS. WINSLOW: Miss Barnwell, as you sit here, do you remember exactly what it is that he said? BARNWELL: Not now, no. MS. WINSLOW: Do you remember giving a statement to the police back closer to that time about what he said? BARNWELL: Yes. MS. WINSLOW: Okay. Would it help you to look at that statement to remember specifically what he said? BARNWELL: I guess, yes. (People’s exhibit numbered 38 was marked for identification.) *** MS. WINSLOW: I ask you to refer to your statement to the very last portion of your statement and ask you to look at that for a moment and read it to yourself, okay? (There was a pause in the proceeding.) MS. WINSLOW: Does that refresh your memory as to what it was he said to you? 44 *** BARNWELL: Yes. MS. WINSLOW: What was it that he said to you? BARNWELL: He said if we were to tell, he would shot [sic] us too. MS. WINSLOW: Thank you. A 208-211. ATTACHMENT C Flawed Alibi Testimony Direct Examination – Carolyn G. MR. SMITH: What time would that conversation have taken place, ma’am? CAROLYN: Well my friend normally get home ten minutes to two every night, you can guarantee he gets home ten minutes to two. MR. SMITH: That would have been - - CAROLYN: That Friday morning. MR. SMITH: Ten minutes to two Friday morning? That would have been June 4th? CAROLYN: Yes. MR. SMITH: At about 1:50? CAROLYN: Right. * * * MR. SMITH: When was the last time you saw Mr. Jarvis? CAROLYN: June 4th. 45 MR. SMITH: When was the last time that day, the last time that day when you saw Mr. Jarvis? CAROLYN: Well, he left out there, it was I guess about five after two or something like that. MR. SMITH: On the 4th? CAROLYN: Right, the morning. A 350-353. Cross Examination MS. WINSLOW: Now you have talked about the night of June 3rd, 1991, a Friday night, right? CAROLYN: Um-hum. A 353-354 * * * MS. WINSLOW: Okay. So [defendant] came in sometime between seven and 7:30? CAROLYN: Uh-hum. MS. WINSLOW: And that was on a Friday night? CAROLYN: Yes. A 354-355 * * * MS. WINSLOW: And * * * that was on June 3rd? CAROLYN: Yes. 46 MS. WINSLOW: And that was the Friday night, so then when * * * your friend came in, you said he usually gets home around 1:50? CAROLYN: Yes. MS. WINSLOW: That would have been on June 4th after midnight, right? CAROLYN: Yes. MS. WINSLOW: So that would have been then Saturday? CAROLYN: Right. A 355. * * * MS. WINSLOW: And you remember that day in particular? CAROLYN: Yes. MS. WINSLOW: Because it was near somebody’s birthday? CAROLYN: My twin grandkids. A 357. * * * MS. WINSLOW: Well, do you remember what shows you watched after The Price Is Right that night? CAROLYN: * * * I know I watched most wanted and then after that, I don’t know, some kind of special program that they had on. A 363. * * * MS. WINSLOW: All right. And is that the last time that you saw [defendant]? 47 CAROLYN: Are you speaking of then to now? MS. WINSLOW: Well, during that day, that time period? CAROLYN: After he left there, that morning, like five after, later that day I saw him, Saturday when they came back to my twin grandkids’ birthday party. MS. WINSLOW: When you say later on that day, you mean in the afternoon, noon hours of the day? CAROLYN: Yes. A 364. Direct examination: Wyette G. MR. SMITH: Directing your attention back to June 3rd, 1991, where were you living at the time? WYETTE: Sobieski [Street] MR. SMITH: And were you going to school then? WYETTE: No. MR. SMITH: Do you remember the evening of June 3rd? WYETTE: Yes. Cross examination MS. WINSLOW: And you testify here today that you remember the night of June 3rd into June 4th, correct? WYETTE: Yes. MS. WINSLOW: Now on June 4th in the afternoon hours, did you go to a birthday party for a relative at your mother’s house? 48 WYETTE: My nieces. MS. WINSLOW: Your nieces? All right. That was a Saturday? WYETTE: Yes. A 371. ATTACHMENT D Prosecutor’s Summation – Flawed Alibi “But how do you know that the Defendant *** was one of the shooters responsible? Well before I answer that directly, I think it’s important to talk for a minute about the defense witnesses on this case. Now, during voir dire, the word alibi was mentioned, the word alibi was defined. I believe the term elsewhere was used and there was some other terms that were used. I think Hollywood was mentioned and charade was mentioned. Well, members of the jury, I submit to you that what you saw here was precisely what was feared you might think it might be. What you saw was a Hollywood charade. Who did they have testify? Mrs. Carolyn G., Wyette G., mother and daughter. They came in here, they testified. They took that chair and they said, Oh, I remember the 3rd and the 4th. And how do we remember it? Well Mrs. G. remembered it. She said it was Friday night and she remembered the television programs, told you all about watching America’s Most Wanted and you know that show was on Friday night. It wasn’t on Monday night June 3rd. *** You also know the reason they 49 remember that Friday, Saturday, because Saturday afternoon was a relative’s birthday party everybody came back for. *** They came in here and gave you an alibi for the wrong day. And what do we know about the testimony of Melissa Jarvis? Her testimony runs right behind the testimony of Carolyn G. and Wyette G.” (A 440- 441). “Well, members of the jury, what do you know? You know all of these people had contact with one another after this event and certainly after the defendant was arrested. You also know that all of these people do have an interest in this case. They have an interest in the defendant. Certainly Melissa Jarvis, defendant’s sister *** His girlfriend (Wyette), who stuck by him, who goes to see him regularly at the jail. *** Mrs. G., I don’t know, maybe she thinks she’s trying to help. Maybe she’s just confused as to which night it was. Members of the jury, however, if you take all of that testimony together, I think you know and I think you can conclude that what it was you saw and what it was that you heard and the words Hollywood and charade come clearly and quickly to mind” (A 442-443). “Think again about *** Wyette ***. *** Do you sit on that [alibi] until sometime in the end of March? Do you keep it to yourself even though you see police come to the house looking for him or do you go forward and tell 50 somebody? What’s the natural, common thing to do? Again, members of the jury, remember, they had time to be together and certainly had time to continue visiting with Defendant” (A 443-444).