State Of New Jersey v. Duquene Pierre

In 1996, defendant Duquene Pierre was convicted of first degree murder, first-degree felony murder, and several other

offenses, arising from a fatal shooting in Elizabeth. Defendant was one of several suspects arrested for the shooting. He

maintained that when the crime occurred at 3:19 a.m. on March 20, 1994, he and one of his codefendants were not in New Jersey,

but on their way to Florida to visit defendant’s relatives. After defendant’s arrest, police officers found a speeding

ticket in his car. The ticket indicated that it was issued by a police officer in Yemassee, South Carolina at 11:34 p.m. on

March 19, 1994, less than four hours before the shooting in Elizabeth. It identified defendant as the driver whose vehicle

exceeded the speed limit, and described a car closely matching defendant’s vehicle. At trial, the State contended that it was not defendant, but his brother Kirby Pierre, who was pulled over for speeding in South Carolina in the hours preceding the shooting. The State suggested that Kirby Pierre used defendant’s car and driver’s license to travel to Florida, and that the South Carolina officer mistakenly wrote defendant’s name and addres on the ticket issued to his brother. Defendant’s trial counsel presented the testimony of defendant’s girlfriend, Yashonda Reid, and offered into evidence an excerpt from her telephone bill to demonstrate that defendant placed a call from South Carolina to Reid about three hours before the shooting in

Elizabeth. Trial counsel, however, did not present the testimony of Kirby Pierre or other witnesses to support

defendant’s alibi. Defendant was convicted of several charges and sentenced to an aggregate term of sixty years’

incarceration, and his conviction and sentence were affirmed. This appeal arises from the denial of defendant’s

application for post-conviction relief (PCR), based on a claim of ineffective assistance of counsel at trial. In evidentiary

hearings before the PCR court, defendant presented evidence that, if called to testify, his brother Kirby Pierre and sister

Astrid Pierre would have stated that in March 1994, Kirby did not know how to drive and did not travel to Florida. Defendant

also presented evidence that the remainder of Reid’s telephone bill, not offered into evidence at trial, would have supported

his contention that he was in Florida in the days that followed the Elizabeth shooting. Finally, three of defendant’s relatives testified that defendant visited each of them in Florida in March 1994, but defendant’s trial counsel did not contact them to ascertain their knowledge of those visits. The PCR court denied defendant’s PCR application, and the Appellate Division affirmed that determination. We conclude that, at his trial, defendant was denied the

effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 685-89, 104 S. Ct. 2052, 2063-65, 80

L. Ed. 2d 674, 692-94 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The record before the PCR court establishes that

defendant’s trial counsel did not present evidence that would have both rebutted the State’s theory regarding the South

Carolina speeding ticket and supported defendant’s alibi.

Defendant has overcome the presumption that his trial counsel

exercised reasonable professional judgment and developed a sound

trial strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct.

at 2065, 80 L. Ed. 2d at 694-95; Fritz, supra, 105 N.J. at 52.

In light of the inconclusive evidence presented against

defendant at trial and the potential impact of his alibi, had

that alibi been fully developed before the jury, defendant has

also demonstrated that counsel’s errors prejudiced the defense

and denied him a fair trial. Strickland, supra, 466 U.S. at

694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105

N.J. at 60-61.

Accordingly, we reverse the judgment of the Appellate

Division, vacate defendant’s conviction, and remand this matter

to the trial court for a new trial.

I.

A.

At approximately 3:00 a.m. on March 20, 1994, several young

men and women were gathered outside a residence on Magnolia

Avenue in Elizabeth. The house was shared by Belinda Myers, her

sister Gwen Myers, and a third resident. In addition to the

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women who lived in the house, the group included Kim Minus, her

boyfriend Eddie Henderson, his cousin Karon Henderson, and three

other men. The group was joined by two cousins of the Myers

sisters, Jerry Myers and Jeff Dozier.

According to Minus’s trial testimony, while she and the

others stood on the sidewalk talking, two cars sped down the

street and abruptly stopped at the gathering. Several men

emerged from the two cars and began shooting at the group.

Jerry Myers was robbed of his jewelry, shot, and killed. Karon

Henderson was chased down the street by some of the assailants

and was also shot, but survived.

In the immediate aftermath of the crime, several

eyewitnesses identified the first gunman to emerge from the

first car as MacGoohan Romelus. One witness identified the

second gunman to emerge as Jean Dorval, and another witness

identified the driver as James Jean Louis. Defendant was known

to be an associate of Romelus, Dorval, and Louis, and was linked

to them in photographs and documents discovered in the search of

a Newark apartment shortly after the shooting. However, the

trial record reveals no evidence that in the days and weeks

following the incident, any witness present at the scene

identified defendant as one of the men involved in the crime.

On April 15, 1994, defendant was arrested. That same day,

Elizabeth police officers executed a search warrant authorizing

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a search of defendant’s 1986 Acura Legend. In the car, officers

found a speeding ticket identifying the cited driver as “Pierre

Duquene,” and listing defendant’s address. The ticket indicated

that it was issued by a police officer, Captain Paul Barnett, at

hour “2334” (11:34 p.m.) on Saturday, March 19, 1994, in

Yemassee, South Carolina. It identified the vehicle stopped by

the officer as a 1986 Acura with a “paper,” or temporary, New

Jersey license plate, a description that matched the vehicle

owned by defendant and searched by Elizabeth police.

B.

A grand jury indicted defendant, Romelus, Dorval, and

Louis, charging them with first-degree purposeful or knowing

murder of Jerry Myers, N.J.S.A. 2C:11-3(a)(1), (2); first-degree

attempted murder of Karon Henderson, N.J.S.A. 2C:11-3(a)(1) and

N.J.S.A. 2C:5-1(a)(1), (2), (3); felony murder of Jerry Myers,

N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery of Myers,

N.J.S.A. 2C:15-1; possession of a gun for an unlawful purpose,

N.J.S.A. 2C:39-4(a); and possession of a gun under circumstances

not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(b).

Defendant was tried with two of his codefendants, Dorval

and Louis.1 The State’s theory was that the shooting was

1 Romelus, tried separately, was identified at his trial by three eyewitnesses as the first individual to emerge from the first vehicle and begin shooting at the victims. He was

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motivated by an earlier shooting of a man who was a friend of

all three defendants, that it was also prompted by Louis’s

desire for revenge against Gwen Myers, with whom he had been

romantically involved, and that it was intended to intimidate

the victims’ friends. The State presented the testimony of

three eyewitnesses identifying Dorval, who asserted an alibi

defense that he was traveling with defendant to Florida at the

time of the crime. The State also presented the testimony of

two eyewitnesses identifying Louis, who had admitted to police

that he was present at the scene. Only one of the seven

eyewitnesses who testified at trial, Minus, placed defendant at

the scene. She testified that she first identified defendant in

a photo array ten months after the shooting.

In its case against defendant, the State primarily focused

on rebutting his alibi. It presented the testimony of Johnson,

an acquaintance of defendant, who told the jury that she saw

defendant and Dorval at her apartment in Elizabeth in the early

morning hours of March 20, 1994. The State also called as a

witness a detective who had interviewed defendant about the

South Carolina speeding ticket. The detective recounted

defendant’s description of the South Carolina officer who,

acquitted of purposeful and knowing murder, but convicted of the remaining charges.

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according to defendant, had pulled him over and issued him a

speeding ticket.

Defendant did not testify. In support of defendant’s

alibi, his trial counsel offered into evidence two exhibits, the

South Carolina speeding ticket and a portion of Reid’s telephone

bill reflecting a collect call from South Carolina at 12:32 a.m.

on March 20, 1994. Defense counsel also presented the testimony

of Reid. She testified that defendant and Dorval left New

Jersey between 10:00 a.m. and 11:00 a.m. on March 19, 1994,

bound for Florida to visit defendant’s uncle and cousins. Reid

identified the March 20, 1994 collect call on her telephone bill

as a call from defendant, and testified that during that call,

defendant told her about the speeding ticket. According to

Reid, defendant and Dorval did not return to New Jersey until

March 31, 1994. In its cross-examination of Reid, the State

established that defendant’s brother Kirby Pierre sometimes

talked by telephone with Reid, that an observer might note a

resemblance between defendant and his brother, and that Reid had

failed to recall the content of her telephone call with

defendant in a pretrial interview with police.

Defendant’s trial counsel did not present the testimony of

defendant’s brother Kirby Pierre, his sister Astrid Pierre, or

the South Carolina officer who issued the speeding ticket. He

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also did not offer into evidence the remainder of Reid’s

telephone bill for March 1994.

In rebuttal, the State called two officers who had

interviewed defendant. Both testified about defendant’s

description of his claimed encounter with the South Carolina

police officer. The State then presented the testimony of that

officer, Captain Barnett. Captain Barnett was not asked whether

defendant or Kirby Pierre was the driver to whom he had issued

the speeding ticket on March 19, 1994. He testified that he did

not recall the details of that particular traffic stop. The

State asked Captain Barnett about his general procedures in

traffic stops, his personal appearance in March 1994, and the

police vehicle that he used at that time. Defense counsel

cross-examined the South Carolina officer on those issues.

In his summation, defense counsel told the jury that

Minus’s testimony about defendant should be rejected due to her

belated identification of defendant, and that Johnson was

disoriented and incredible in her testimony. He stated the

State’s suggestion that Kirby Pierre, not defendant, had

received the South Carolina speeding ticket was nothing more

than speculation. In her summation, the prosecutor told the

jury that it was Kirby Pierre, not defendant, who was issued the

ticket, and that the collect call from South Carolina was not

10

made by defendant to Reid, but by Kirby Pierre in South Carolina

to defendant at Reid’s home in New Jersey.

The jury convicted defendant of knowing and purposeful

murder, felony murder, aggravated assault as a lesser included

offense of attempted murder, armed robbery, and both weapons

offenses. The trial court denied defendant’s post-conviction

motion for a judgment of acquittal and sentenced defendant to

sixty years’ incarceration, with thirty-five years’ parole

ineligibility.2 Defendant’s conviction and sentence, and those

of his codefendants, were affirmed by the Appellate Division.

This Court denied certification. State v. Pierre, 162 N.J. 488

(1999).

C.

Pursuant to Rule 3:22-1, defendant filed a petition for

PCR. He claimed that he had asked his trial counsel to call

four of his Florida relatives as alibi witnesses, and that his

counsel failed to do so. In support of his petition, defendant

2 After merger of certain offenses, the court imposed a fiftyyear term of incarceration, with a thirty-year period of parole ineligibility for the purposeful or knowing murder conviction. It also imposed a consecutive term of ten years’ incarceration with a five-year period of parole ineligibility for the aggravated assault conviction, a concurrent term of twenty years’ incarceration with a ten-year period of parole ineligibility for the armed robbery conviction, and a concurrent term of five years’ incarceration for defendant’s conviction for possession of a weapon under circumstances manifestly inappropriate for lawful use.

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submitted virtually identical affidavits signed by four of his

Florida relatives: his uncle Anoux Estime, his uncle Brinny

Pierre, his sister Josiane Pierre, and his sister Serfise

Pierre. Each Florida relative’s affidavit stated that he or she

recalled that “[o]n March 20, 1994,” defendant visited the

relative in Florida, that defendant stayed in Florida for about

seven days, and that the relative had expected to be called by

trial counsel to testify, but was never contacted.

At the initial oral argument of defendant’s PCR petition,

the PCR court ordered an evidentiary hearing, confined to the

question whether trial counsel had departed from professional

norms by failing to develop or present the testimony of the

Florida relatives. At the commencement of that hearing, the PCR

judge informed counsel that he had determined that defendant

could not meet his burden to demonstrate prejudice as a result

of his counsel’s handling of his defense. The judge stated that

he was prepared to dismiss defendant’s PCR petition on that

basis. He cited the discrepancy between defendant’s statement

to police that after arriving in Florida, he first contacted a

relative on March 21, 1994, and the four relatives’ affidavits

stating that defendant’s first contact with a relative in

Florida occurred a day earlier, on March 20, 1994. The judge

also noted that the four relatives represented that defendant

stayed in their homes during his March 1994 visit to Florida,

12

but defendant had told police that he stayed in a Florida hotel.

The PCR judge reasoned that the Florida relatives were not

credible, and that their testimony could have undermined rather

than supported defendant’s alibi.

The PCR judge then heard testimony from defendant and his

trial counsel regarding defendant’s claim that counsel’s

performance failed to meet professional standards. Defendant

and his trial counsel both testified that defendant instructed

his counsel to contact the Florida relatives so that they could

corroborate his account. Defendant’s trial counsel testified

that he contacted defendant’s uncle, but concluded that the

uncle’s recollection of the timing of defendant’s arrival in

Florida was inconsistent with defendant’s alibi based on the

South Carolina traffic ticket, and that the uncle would not be a

helpful witness. Conceding that a defense attorney should

ordinarily interview all potential alibi witnesses, defendant’s

trial counsel told the PCR court that he did not contact

defendant’s other Florida relatives. He said that instead, he

recommended to defendant that they focus on the speeding ticket

as the foundation of his alibi defense. Defendant’s trial

counsel stated that defendant agreed to that plan.

Finding defendant’s trial counsel credible, the PCR judge

determined that defendant had not met his burden to demonstrate

ineffective assistance of counsel, and dismissed the PCR

13

petition. The judge concluded that with defendant’s consent,

trial counsel made a strategic decision to forego the testimony

of a “string of relatives,” whose recollection of dates diverged

from the timeline of defendant’s alibi defense, in favor of the

testimony of the objective police officer who issued the

speeding ticket in South Carolina.

The Appellate Division affirmed the PCR court’s

determination. This Court granted defendant’s petition for

certification and summarily remanded to the trial court for an

evidentiary hearing so that defendant could present the

testimony of “alibi-related witnesses.” 189 N.J. 102 (2006).

On remand, the PCR court heard the testimony of three of

defendant’s relatives who were residents of Florida:

defendant’s uncle Anoux Estime and sisters Josiane and Serfise

Pierre. The three relatives testified that in March 1994,

defendant surprised them with a visit to their Florida homes and

that defendant’s brother Kirby Pierre had never visited them

there. Defendant’s uncle testified that when he signed his

affidavit, the date of March 20, 1994 was already set forth in

the draft prepared for his signature. Serfise Pierre testified

that she remembered signing an affidavit confirming defendant’s

visit to Florida in March 1994, but not the exact date of the

visit. Josiane Pierre denied having signed an affidavit setting

forth a specific date.

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The PCR court declined to permit defendant to present the

testimony of Kirby Pierre, Astrid Pierre, or Reid at the

evidentiary hearing. It construed this Court’s remand to be

limited to the testimony of defendant’s Florida relatives.

Following the hearing, the PCR court again denied

defendant’s petition for PCR, expressing substantial

reservations about the Florida relatives’ credibility. The

court reiterated its prior holding that defendant’s trial

counsel made a strategic decision not to pursue an alibi

premised on the testimony of those relatives.

The Appellate Division reversed the PCR court’s

determination, and remanded for a further hearing to permit

defendant to present the testimony of additional witnesses.

The PCR court then conducted another evidentiary hearing.

Defendant’s brother Kirby Pierre testified that in March 1994,

he did not know how to drive, was not licensed to drive, did not

possess defendant’s driver’s license, and did not use

defendant’s car. Kirby Pierre also stated that he had expected

to be a witness at trial because of the State’s theory that he

had driven defendant’s car to Florida, and was excluded from the

courtroom because of that possibility.3 He asserted, however,

3 Kirby Pierre was uncertain whether defendant’s trial counsel or a court officer excluded him from the courtroom.

15

that he was never contacted by defendant’s trial counsel

regarding his potential testimony.

On cross-examination, Kirby Pierre initially denied, but

then conceded, that he had been convicted of possession of a

controlled dangerous substance. He also admitted

inconsistencies between his testimony and an affidavit with

respect to his activities in New Jersey on March 19, 1994, the

day that the South Carolina speeding ticket was issued.

The State also offered into evidence a driver’s abstract

showing that Kirby Pierre was issued a driver’s license three

years after the events that gave rise to this case and a court

record indicating that on February 23, 1994, a judge ordered a

six-month license revocation as part of a sentence imposed on

him for his drug offense.

Kirby Pierre’s account was corroborated in part by the

testimony of his sister Astrid, who told the PCR judge that she

never saw Kirby drive a car during the eleven years in which

they shared a home, and that Kirby did not leave New Jersey

between March 19 and March 26, 1994. Astrid Pierre conceded

that prior to defendant’s trial, she did not share these details

with defendant’s trial counsel, for whom she worked as a

receptionist at the time. She also qualified her prior

statement that Kirby Pierre was home all day with her on March

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19, 1994, the day that defendant claimed to have departed for

Florida.

Finally, Reid testified before the PCR court that in March

1994, her home was defendant’s primary residence, and that she

did not see him between March 19, 1994 and March 26, 1994. She

testified that several charges in her telephone bill for that

month reflected collect calls from defendant in Florida. Reid

conceded on cross-examination that she did not remember the day

of the Elizabeth shooting and that she had little recollection

of her testimony at defendant’s trial.

Citing the State’s presentation of “overwhelming evidence”

that defendant was not the recipient of the South Carolina

ticket, the PCR court again denied defendant’s petition. The

court reiterated its conclusion that defendant’s trial counsel

made a sound strategic choice when he declined to present the

proposed testimony of defendant’s Florida relatives and elected

to rely instead on an alibi premised on the South Carolina

speeding ticket. The PCR court reasoned that even if the

testimony of Kirby and Astrid Pierre had been presented and

believed by the jury, it would not have affected the trial’s

outcome. The court further determined that because the jury at

defendant’s trial was not persuaded by Reid’s testimony that it

was defendant who called her from South Carolina on March 20,

1994, evidence of subsequent collect calls that appeared on

17

Reid’s telephone records would not have altered the result of

defendant’s trial.

In an unpublished opinion, the Appellate Division affirmed

the PCR court’s determination. The panel acknowledged that

trial counsel’s single call to one of defendant’s Florida

relatives may not have constituted an adequate investigation.

It concurred with the PCR court, however, that it was unlikely

that defendant consequently suffered prejudice. With respect to

the testimony of Kirby Pierre, the corroborating testimony of

his sister Astrid, and the presentation of evidence regarding

Reid’s telephone records, the panel reasoned that the alibi

testimony elicited during the PCR proceedings would have been no

stronger than that elicited at trial, and would have been more

problematic.

We granted defendant’s petition for certification. State

v. Pierre, 217 N.J. 304 (2014).

II.

Defendant disputes the PCR court’s finding that his trial

counsel’s decision not to investigate potential witnesses living

in Florida was strategic. He asserts that the State’s evidence

that someone other than defendant was the driver issued a ticket

for speeding in South Carolina was weak. In defendant’s view,

that evidence would have been easily refuted had defendant’s

trial counsel presented the testimony of defendant’s Florida

18

relatives and Kirby and Astrid Pierre, and offered evidence of

all of the collect calls made to Reid in the days immediately

following the shooting. Defendant contends that this evidence

would have supported, not undermined, his alibi based on the

South Carolina speeding ticket.

The State asserts that, in accordance with the deference

afforded to the factual findings of a PCR judge, this Court

should affirm the judgment of the Appellate Division. It

contends that defendant’s trial counsel made a sound strategic

decision not to pursue testimony that the jury may have found

incredible, and stresses that the Florida relatives could have

not attested to defendant’s whereabouts at the precise time of

the shooting in Elizabeth. The State discounts the potential

impact of Kirby Pierre’s testimony, arguing that the jury would

have discounted his testimony because of his relationship with

defendant, the drug conviction on his record, and his evasive

and inconsistent statements. It dismisses Reid’s proffered

testimony that defendant made several calls to her, noting that

the jury evidently rejected her testimony regarding the one call

that she discussed at trial.

III.

A.

“Post-conviction relief is New Jersey’s analogue to the

federal writ of habeas corpus.” State v. Preciose, 129 N.J.

19

451, 459 (1992). It “provide[s] a built-in ‘safeguard that

ensures that a defendant [is] not unjustly convicted.’” State

v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147

N.J. 464, 482 (1997)). Among the four grounds for relief in a

PCR proceeding is a “[s]ubstantial denial in the conviction

proceedings of defendant’s rights under the Constitution of the

United States or the Constitution or laws of the State of New

Jersey.” R. 3:22-2(a); see also State v. O’Neil, 219 N.J. 598,

609 (2014); State v. Murray, 162 N.J. 240, 245 (2000).

In reviewing a PCR court’s factual findings based on live

testimony, an appellate court applies a deferential standard; it

“will uphold the PCR court’s findings that are supported by

sufficient credible evidence in the record.” Nash, supra, 212

N.J. at 540 (citing State v. Harris, 181 N.J. 391, 415 (2004),

cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898

(2005)). Indeed, “[a]n appellate court’s reading of a cold

record is a pale substitute for a trial judge’s assessment of

the credibility of a witness he has observed firsthand.” Ibid.

However, a “PCR court’s interpretation of the law” is afforded

no deference, and is “reviewed de novo.” Id. at 540-41 (citing

Harris, supra, 181 N.J. at 415-16). “[F]or mixed questions of

law and fact, [this Court] give[s] deference . . . to the

supported factual findings of the trial court, but review[s] de

novo the lower court’s application of any legal rules to such

20

factual findings.” Harris, supra, 181 N.J. at 416 (citing State

v. Marshall, 148 N.J. 89, 185, cert. denied, 522 U.S. 850, 118

S. Ct. 140, 139 L. Ed. 2d 88 (1997)).

Defendant’s petition for PCR is premised upon his right to

the effective assistance of counsel in his criminal trial,

guaranteed by the Sixth Amendment to the United States

Constitution and Article 1, Paragraph 10 of the New Jersey

Constitution. U.S. Const. amend. VI; N.J. Const. art. I, para.

10. The constitutional guarantee is premised on the need “to

protect the fundamental right to a fair trial.” Strickland,

supra, 466 U.S. at 684, 104 S. Ct. at 2063, 80 L. Ed. 2d at 691.

“[A] fair trial is one in which evidence subject to adversarial

testing is presented to an impartial tribunal for resolution of

issues defined in advance of the proceeding.” Id. at 685, 104

S. Ct. at 2063, 80 L. Ed. 2d at 692. Access to the skill and

knowledge of counsel “is necessary to accord defendants the

‘ample opportunity to meet the case of the prosecution’ to which

they are entitled.” Ibid. (quoting Adams v. United States ex

rel. McCann, 317 U.S. 269, 275, 63 S. Ct. 236, 240, 87 L. Ed.

268, 273 (1942)). “The right to counsel plays a crucial role in

the adversarial system embodied in the Sixth Amendment.” Ibid.

Given the constitutional mandate of a fair trial, “[t]he

benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning

21

of the adversarial process that the trial cannot be relied on as

having produced a just result.” Id. at 686, 104 S. Ct. at 2064,

80 L. Ed. 2d at 692-93. In Strickland, supra, the United States

Supreme Court established a two-pronged test for the

determination of a defendant’s claim that he or she was not

afforded the effective assistance of counsel:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Thus, Strickland, supra, requires a reviewing court to

evaluate not only the performance of counsel, but to assess the

impact of any deficiency in counsel’s representation on the

fairness of the defendant’s trial. See ibid.

Adopting the Strickland standard for ineffective assistance

of counsel claims based on Article 1, Paragraph 10 of the New

Jersey Constitution, this Court has held that “if counsel’s

22

performance has been so deficient as to create a reasonable

probability that these deficiencies materially contributed to

defendant’s conviction, the constitutional right will have been

violated.” Fritz, supra, 105 N.J. at 58. Accordingly, “[t]he

standard for establishing that a defendant was denied the

effective assistance of counsel is the same under both the

Federal and State Constitutions.” O’Neil, supra, 219 N.J. at

610 (citing State v. Allah, 170 N.J. 269, 283 (2002)). That

standard guides our analysis of this case.

B.

To satisfy the first prong of Strickland, supra, and Fritz,

supra, a “defendant must show that counsel’s representation fell

below an objective standard of reasonableness.” Strickland,

supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693;

accord Fritz, supra, 105 N.J. at 58. The court weighs “whether

counsel’s assistance was reasonable considering all the

circumstances.” Strickland, supra, 466 U.S. at 688, 104 S. Ct.

at 2065, 80 L. Ed. 2d at 694. In that inquiry, “[j]udicial

scrutiny of counsel’s performance must be highly deferential.”

Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. An

attorney is entitled to “a strong presumption” that he or she

provided reasonably effective assistance, and a “defendant must

overcome the presumption that” the attorney’s decisions followed

a sound strategic approach to the case. See id. at 689, 104 S.

23

Ct. at 2065, 80 L. Ed. 2d at 694-95; State v. Savage, 120 N.J.

594, 617 (1990) (“If counsel thoroughly investigates law and

facts, considering all possible options, his or her trial

strategy is ‘virtually unchallengeable.’” (quoting Strickland,

supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d

at 695)).

In evaluating the performance of defendant’s trial counsel,

we must make “every effort . . . to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, supra, 466 U.S.

at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. We recognize

that “[d]etermining which witnesses to call to the stand is one

of the most difficult strategic decisions that any trial

attorney must confront.” State v. Arthur, 184 N.J. 307, 320

(2005). Our task is to fairly assess defendant’s trial

counsel’s decisions in the context of the State’s case against

defendant and the strengths and weaknesses of the evidence

available to the defense. In so doing, we defer to the PCR

court’s factual findings, including its finding that defense

counsel’s testimony at the PCR hearing, in which he addressed

certain aspects of his trial strategy, was credible. See Nash,

supra, 212 N.J. at 540; State v. Elders, 192 N.J. 224, 244

(2007); Harris, supra, 181 N.J. at 415.

24

From the early stages of this case, the defense strategy

was to present an alibi. Following his arrest, defendant

asserted that when the shooting occurred in Elizabeth at 3:19

a.m. on March 20, 1994, he was not at the scene, but driving

with codefendant Dorval to Florida to visit his relatives. That

alibi was supported by the speeding ticket issued by Captain

Barnett in South Carolina almost four hours before the shooting,

addressed to defendant, and describing a vehicle closely

matching his car. As defendant’s counsel testified before the

PCR court, he considered the speeding ticket to be the most

significant evidence available to defendant in support of his

alibi, and attached a copy of the ticket to the notice of alibi

served on the State. Indeed, a traffic citation issued by a

South Carolina police officer to an individual identified as

defendant -- seven hundred and fifty miles from Elizabeth and

less than four hours before the shooting -- provided compelling

support for defendant’s alibi. The attorney’s decision to

assert an alibi defense based on the speeding ticket clearly

constituted a sound strategic choice.

In the presentation of that alibi, however, defendant’s

trial counsel’s performance was deficient in two significant

respects. First, defense counsel did not present the testimony

of Kirby or Astrid Pierre to rebut the State’s assertion that it

was Kirby Pierre, not defendant, who was issued a ticket in

25

South Carolina. The State’s theory regarding the South Carolina

speeding ticket placed Kirby Pierre in a crucial role. The

State did not simply assert that the speeding ticket was issued

to someone other than defendant. Instead, it specifically

claimed that it was Kirby Pierre who left New Jersey in

defendant’s car on a trip to Florida, presented defendant’s

license to Captain Barnett in South Carolina, called defendant’s

girlfriend Reid collect from Florida on March 20, 1994, and

visited relatives in Florida over the several days that

followed.4

The PCR record does not indicate whether defendant’s trial

counsel ever interviewed Kirby Pierre or investigated the

possibility of presenting his testimony at trial; counsel was

not asked about these issues during his testimony before the PCR

court. Accordingly, the PCR court’s finding that defendant’s

trial counsel considered calling Kirby Pierre as a witness, but

decided against that course as a matter of strategy, was not

grounded in the evidence. The record is similarly unclear as to

whether Astrid Pierre, who lived with her brother Kirby in March

4 The PCR court’s characterization of the State’s position at trial -– that it “wasn’t that [Kirby] was driving the car, but rather it was someone other than defendant, maybe [Kirby]” -– is inconsistent with the trial record. In its presentation of evidence and summation, the State consistently maintained that Kirby Pierre, not an unidentified individual, was the driver to whom the South Carolina ticket was issued.

26

1994 and worked in defense counsel’s office at the time of

trial, was interviewed about Kirby’s activities during the

relevant period, or was considered as a possible witness.

Whether or not defendant’s trial counsel ever contemplated

calling Kirby Pierre or Astrid Pierre at trial, neither witness

testified on defendant’s behalf. The alibi based on the South

Carolina speeding ticket, properly identified as defendant’s

strongest defense at trial, was unsupported by the testimony of

these central witnesses. Defendant’s trial counsel offered no

evidence regarding Kirby Pierre’s whereabouts during the last

two weeks of March 1994. Without that evidence, the State’s

attack on defendant’s alibi was essentially unrebutted.

Second, defense counsel declined to develop or present

evidence that could have supported defendant’s assertion that

following the shooting, he stayed in Florida for several days to

visit relatives. That evidence, in part, consisted of telephone

records reflecting collect calls placed from Florida to

defendant’s girlfriend, Reid, over several days during that

period.

Defense counsel offered into evidence an excerpt of Reid’s

telephone records, reflecting a collect call placed to her from

Hardeeville, South Carolina at 12:32 a.m. on March 20, 1994.

During Reid’s direct examination at trial, defendant’s trial

counsel asked her about that call, and Reid testified that it

27

was a call from defendant. Defense counsel, however, chose not

to introduce into evidence the remainder of Reid’s telephone

bill. Those additional pages reflected six collect calls to

Reid from Florida, one on March 21, 1994, one on March 23, 1994,

three on March 25, 1994, and one on March 26, 1994. Before the

PCR court, Reid testified that defendant made these calls.

The telephone record showing six additional calls did not

itself provide defendant with an alibi for the early hours of

March 20, 1994, when the Elizabeth shooting occurred; defendant

could have participated in the crime, traveled to Florida, and

made the calls that appeared on Reid’s telephone bill. However,

that record and Reid’s corresponding testimony would have

supported defendant’s alibi by placing defendant in Florida for

several days following the issuance of the speeding ticket in

South Carolina on March 19, 1994. It would have countered the

State’s contention that it was Kirby Pierre, not defendant, who

called the home of defendant’s girlfriend from South Carolina

the night of the shooting in Elizabeth. By declining to present

evidence of those calls, in the form of a telephone bill that

was in his possession and the testimony of a witness already on

the stand, defendant’s trial counsel provided ineffective

representation to his client.

Similarly, by virtue of his failure to interview

defendant’s Florida relatives as potential witnesses at trial,

28

defense counsel’s representation fell short of professional

norms. As defense counsel candidly told the PCR court, an

attorney representing a criminal defendant should, as a general

rule, interview all alibi witnesses. By dismissing the

possibility of calling defendant’s Florida relatives as trial

witnesses after a telephone call with just one of them, defense

counsel failed to pursue potentially relevant evidence. The

record reveals that the Florida relatives were uncertain and

inconsistent about the precise timing of defendant’s visit to

Florida, and thus were not in a position to provide defendant

with a definitive alibi for the night of the shooting in

Elizabeth. Those relatives, however, could have testified that

it was defendant, not his brother Kirby, who visited Florida in

late March 1994.

In short, the South Carolina alibi and the evidence of

defendant’s subsequent presence in Florida were not mutually

exclusive, but consistent. Evidence that defendant was in

Florida during the week after the crime could have supported -–

not undermined -- the alibi premised on the South Carolina

speeding ticket. Defense counsel had access to that evidence in

the form of the telephone records, the testimony of Reid, and

29

the potential testimony of the Florida relatives. Counsel

declined to pursue or present that evidence.5

Thus, although defendant’s trial counsel properly concluded

that the South Carolina speeding ticket provided defendant with

a promising alibi, counsel chose to forego evidence that could

have reinforced that alibi. In that regard, the attorney’s

performance fell below the objective standard of reasonableness

guaranteed by the United States and New Jersey constitutions.

Defendant has met his burden with respect to the first

Strickland/Fritz prong.

C.

Defendant must also satisfy the second, or “prejudice,”

Strickland/Fritz prong. The Supreme Court held that “actual

ineffectiveness claims alleging a deficiency in attorney

performance are subject to a general requirement that the

defendant affirmatively prove prejudice.” Strickland, supra,

466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697; see

also Fritz, supra, 105 N.J. at 52. A convicted defendant “must

show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

5 The record provides no support for the PCR court’s finding that defense counsel decided not to present Florida-related evidence because he feared that the jury might conclude that defendant fled to Florida after participating in the Elizabeth shooting. Neither trial counsel nor any other witness testified about any such concern.

30

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.

Ed. 2d at 698; Fritz, supra, 105 N.J. at 52. Important to the

prejudice analysis is the strength of the evidence that was

before the fact-finder at trial. “[A] verdict or conclusion

only weakly supported by the record is more likely to have been

affected by errors than one with overwhelming record support.”

Strickland, supra, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L.

Ed. 2d at 699.

The record of defendant’s thirteen-day trial reveals sparse

evidence implicating defendant in the Elizabeth shooting. Among

the four men tried for that shooting, only defendant was not

identified by any eyewitness in the days and weeks after the

crime. Belinda Myers, who was familiar with defendant and

witnessed the shooting at close range, testified that she did

not see him at the scene. The sole eyewitness who testified

against defendant, Minus, did not implicate him until ten months

after the shooting, when she selected his photograph and that of

the three other defendants from photo arrays and identified them

as “the guys from the cars.” Prior to viewing the photo arrays,

Minus provided no description of the man whom she identified as

defendant. Minus conceded that although she had felt that she

could identify the perpetrators ten months after the shooting,

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she would not be able to “pick [defendants] out” if she saw them

at the time of trial. None of the other eyewitnesses to the

shooting who testified at trial identified defendant as one of

the shooters, or as a driver or passenger in either of the cars

involved.

To establish that defendant was in New Jersey on the night

of the shooting, the State relied on the testimony of

defendant’s acquaintance, Johnson. She was not among the group

present when Jerry Myers was killed and Karon Henderson was

wounded, and her testimony did not place defendant at the scene.

However, in a statement to police six months later, and in her

testimony at trial, Johnson identified defendant and Dorval as

the two men who visited her apartment building twice in the

early morning hours of March 20, 1994, hours after the shooting.

She also testified that she saw them again outside her apartment

several days after the shooting. On cross-examination, Johnson

admitted that she was a frequent cocaine user at the time of the

shooting as well as when she provided her statement to police,

and that she would routinely sleep all day and be awake all

night.

That evidence -– Minus’s belated and uncertain

identification of defendant as one of the men at the scene of

the shooting, and Johnson’s testimony about a fleeting encounter

at her apartment -– comprised the core of the State’s case

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against defendant. In marked contrast to his codefendants, who

were identified by multiple eyewitnesses shortly after the

crime, defendant was tied to the shooting only by the testimony

of Minus, and was not identified by Myers as one of the

participants. In that context, defendant’s alibi was far more

significant than it would have been in the face of compelling

evidence of his guilt.

Moreover, the State’s evidence countering defendant’s alibi

was neither direct nor conclusive. The State substantially

premised its attack on defendant’s alibi on the testimony of

Captain Barnett, who was interviewed prior to trial and called

by the State as a rebuttal witness.6 Two years after issuing the

speeding ticket, Captain Barnett had no specific recollection of

the traffic stop. He did not identify either defendant or Kirby

Pierre as the individual to whom he had issued the ticket on

March 20, 1994. Instead, the officer generally stated that when

he is presented with a driver’s license with a photograph

“close” to the driver’s appearance, he does not “scrutinize it

too much.” The State also contested defendant’s alibi by asking

Captain Barnett to describe his own physical appearance,

uniform, and police vehicle as of the date of the traffic stop.

That description was consistent in some respects, and

6 The record does not reveal why defense counsel did not call Captain Barnett as a witness in defendant’s case.

33

inconsistent in other respects, with defendant’s account of the

stop in his statement to the police.7 The State argued to the

jury that defendant incorrectly described the officer and his

vehicle because it was Kirby Pierre, not defendant, who

encountered the officer.

The State, however, had no direct evidence to support its

theory that Kirby Pierre was the driver ticketed by Captain

Barnett. It called no witnesses to testify that Kirby Pierre

took his brother’s car and his brother’s driver’s license to

Florida. The State presented no evidence that Kirby was absent

from his home or his job at a local restaurant during the last

ten days of March 1994, that he was seen by anyone in South

Carolina, or that he visited Florida at any time. Although the

State vigorously argued against defendant’s alibi, it did not

7 Defendant described the South Carolina police officer who issued the ticket as “like 30 something, about five-eleven [and] good sized,” could not remember whether the South Carolina officer had facial hair, stated that the officer did not have long hair or glasses, stated that the officer did not speak with an accent, and commented that the officer’s hat “could have been a cowboy hat.” Captain Barnett, age thirty at the time of trial, testified that in March 1994, he had worn his hair in a “permanent” that was “collar length,” that he had a mustache, that his uniform was a black t-shirt with black khaki pants, and that he wore no hat. The detective also recounted defendant’s description of the South Carolina officer’s vehicle as “a white four-door, no markings on it and no light rack.” Captain Barnett described his vehicle as a four-door police vehicle marked “Police Yemassee” on both sides, with an overhead light rack with blue lights.

34

present the “overwhelming” proof against that alibi that was

described by the PCR court.

In that setting, a fully-developed alibi defense, carefully

constructed on defendant’s behalf, would likely have altered the

outcome of his trial. First, defendant’s alibi could have been

buttressed by the testimony of Kirby Pierre. To be sure, Kirby

Pierre could have been an unconvincing witness at trial, as the

PCR court found him to be at the evidentiary hearing. As

defendant’s brother, he could be accused of bias. He had a drug

offense on his record. He did not skillfully withstand cross

examination at the PCR hearing. If, however, the jury believed

Kirby Pierre on two fundamental points -– that in March 1994, he

did not know how to drive, and that he did not take his

brother’s car and license to Florida -– his testimony would have

been invaluable to defendant.

Second, defendant’s alibi would have found support in the

testimony of his sister, Astrid Pierre. Although Astrid would

be subject to a suggestion of bias by virtue of her relationship

to defendant, the record indicates no other basis for an attack

on her credibility. Based on her statements at the PCR hearing,

Astrid Pierre could have corroborated her brother Kirby’s

testimony that he could not drive, that he remained in New

Jersey throughout March 1994, and that he never visited Florida

that month or at any other time.

35

Third, while evidence that defendant was in South Carolina

on March 19 and 20 was most critical to his defense, evidence

that he was in Florida in the week that followed would have

supported his alibi. The six collect calls from Florida on

March 21, 23, 25 and 26, 1994 that were reflected on Reid’s

telephone bill could not themselves exculpate defendant; he

could have participated in the shooting in Elizabeth in the

early hours of March 20, driven to Florida, and then made the

calls. Evidence of those calls, however, would have permitted

the jury to infer that after being pulled over for speeding and

calling Reid from South Carolina on the night of the Elizabeth

shooting, defendant proceeded as planned to his Florida

destination. The record showing the six additional calls would

have undermined the State’s argument that only one call was in

evidence and that single call was placed by Kirby, not

defendant. Thus, the evidence of the additional telephone calls

to Reid, while not dispositive, could have assisted the defense.

The potential testimony of defendant’s Florida relatives,

if believed by the jury, might have provided further support for

defendant’s alibi by confirming his presence in Florida in the

days following the Elizabeth shooting. As revealed by the PCR

record, defendant’s Florida-based uncle and sisters raised

significant credibility concerns. None testified consistently

with the affidavit prepared for him or her by defendant’s PCR

36

counsel; each affidavit identified March 20, 1994 as the date

that he or she first encountered defendant on his Florida visit.

The three witnesses were uncertain of the precise date of

defendant’s arrival when they testified before the PCR court.

As is any witness who misstates a fact sworn to in an

affidavit, defendant’s Florida relatives would have been subject

to substantial impeachment had they testified. Notwithstanding

their credibility issues, however, the Florida witnesses

warranted defense counsel’s investigation. Had they done

nothing more than testify that defendant, as opposed to his

brother Kirby, visited them in Florida at some point in the last

ten days of March 1994, defendant’s relatives would have

reinforced his alibi centered on the South Carolina speeding

ticket. Their potential testimony, not explored by defense

counsel, could have strengthened that alibi.

In short, had it been developed to the extent permitted by

the available evidence, defendant’s South Carolina alibi would

most likely have given rise to reasonable doubt about

defendant’s guilt. Unsupported by that evidence, the alibi was

effectively neutralized by the arguments presented by the State.

Defendant has therefore met his burden to show a

“reasonable probability” -– a probability “sufficient to

undermine confidence in the outcome” -- that the result of his

trial would have been different had his counsel effectively

37

represented him at trial. Strickland, supra, 466 U.S. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.

at 52. Defendant’s counsel’s errors were sufficiently serious

so as to undermine confidence that defendant’s trial was fair,

and that the jury properly convicted him. Defendant has made

the required showing with respect to the second prong of the

Strickland/Fritz test.

We hold that, by virtue of the combined errors of his trial

attorney, defendant was denied his constitutional right to the

effective assistance of counsel under the Sixth Amendment to the

United States Constitution and Article I, Paragraph 10 of the

New Jersey Constitution, and that he is entitled to a new trial.

The judgment of the Appellate Division is reversed, and the

matter is remanded to the trial court for proceedings consistent

with this opinion.