State of New Jersey v. Donnell Gideon

Trenton, NJ - Criminal defense attorney represented with determining whether trial counsel's failure to call Gideon-Nichols and/or Bey as alibi witnesses prejudiced Gideon's case within the meaning of Strickland v. Washington, 466 U.S. 668, 694 (1984), warranting a new trial.

After being arrested in connection with a shooting in Camden that resulted

in the death of one individual and injuries to three others, defendant Donnell

Gideon implicated himself in a statement to police. At trial, Gideon recanted his

statement to police and, for the first time, offered a potential alibi defense during

cross-examination. After his conviction and unsuccessful appeals, Gideon claimed

in a petition for post-conviction relief (PCR) that counsel was ineffective for not

investigating or presenting the alibi testimony of his mother, Bianca GideonNichols, and girlfriend, Sahleeha Bey. Although the PCR court concluded that

both witnesses were incredible and contradicted Gideon's trial testimony, the

Appellate Division, relying upon this Court's decision in State v. Pierre, 223 N.J.

560 (2015), reversed.

In this appeal, we are called upon to determine whether trial counsel's

failure to call Gideon-Nichols and/or Bey as alibi witnesses prejudiced Gideon's

case within the meaning of Strickland v. Washington, 466 U.S. 668, 694 (1984),

warranting a new trial. We determine that it did not and therefore reverse the

Appellate Division's judgment. In doing so, we make clear that Pierre applied our

existing jurisprudence to a specific set of facts. At a PCR hearing, an alibi

witness's false or inaccurate testimony may bear upon the witness's credibility

and, while not dispositive, the claimed alibi witness's credibility must be weighed

against the strength of the evidence presented at trial and offered post-conviction.

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I.

A.

The trial, appellate, and PCR records reveal that a July 2004 shooting in the

Yorkship Square section of Camden left one person dead and three others

wounded. The victims were all bystanders with no connection to the dispute that

led to the shooting. Gideon was arrested over a month later after being implicated

by an eyewitness, Vincent Robinson, and was charged with murder and aggravated

assault, among other offenses, in connection with the shooting. On the day of his

arrest, Gideon provided police officers with a statement.

Gideon told the officers that he had fought with Tony Alford earlier on the

day of the shooting, after Alford allegedly robbed individuals who sold drugs for

Gideon. After the fight, Gideon walked home and, before arriving, was stopped by

Alford, who was driving by. Alford told Gideon "it ain't over,” which Gideon

interpreted as a threat. Upon arriving home, Gideon called Eric Jackman, for

whom Gideon served as a middleman in Jackman's drug operation. Jackman

arrived at Gideon's home after dark and instructed Gideon to put on black clothing.

Gideon understood that they were preparing to "handle the situation from earlier.”

Gideon sat in the back of Jackman's car as a third man, whom Gideon did

not recognize, sat in the front passenger seat. Gideon described to police the route

taken as the three looked for Alford, referencing specific streets and landmarks.

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After believing that they saw Alford, the three parked. Gideon noticed that

Jackman was carrying an AK-47 rifle and the third man was carrying a Mossberg

shotgun. The three entered an alley and, when Gideon asked what was going on,

Jackman said, "[c]hill, just look up.” Gideon then heard "a lot” of gunshots and

the three fled to the car. Jackman and the third man stored the guns in a shed

behind an abandoned house. Gideon understood that the guns were to be disposed

of and melted down.

Gideon was later indicted on fifteen counts for offenses including murder,

attempted murder, conspiracy to commit murder, and aggravated assault, as well as

weapons charges.

At trial in 2007, the State played the audio recording of Gideon's statement

to police and offered the testimony of Robinson, a local drug dealer and former

classmate of Gideon's. Robinson testified that he saw Gideon and two others

wearing black and armed with a "long gun” standing in the alley at the time of the

shooting.

Gideon testified that police "told [him] what to say” during his initial

statement and that he was under the influence of alcohol and marijuana at the time.

He testified that he was bicycling home after his fight with Alford when Alford

drove by and stopped him. In contrast to his initial statement, Gideon testified that

their exchange was non-threatening.

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Gideon further testified that, before arriving home, he saw his mother,

Gideon-Nichols, who asked why he had been fighting. Gideon-Nichols drove

Gideon back to the scene of the fight to make peace with Alford and shake hands.

Gideon testified that Gideon-Nichols then drove him home and went to work. On

cross-examination, Gideon testified for the first time that he remained home

through the night with his girlfriend, Bey. Gideon-Nichols and Bey were present

at Gideon's trial but did not testify.

Alford testified that he caught up with Gideon while the latter was on his

way home after their fight and that Gideon returned with Gideon-Nichols to the

scene of the fight so that he and Gideon could shake hands. He stated that, after

shaking hands with Gideon, he went to his girlfriend's home in Somerdale and was

not present at the shooting.

The jury convicted Gideon of aggravated manslaughter, N.J.S.A. 2C:11-

4(a), as a lesser-included offense of murder; attempted murder, N.J.S.A. 2C:5-1

and N.J.S.A. 2C:11-3(a); multiple counts of aggravated assault, N.J.S.A. 2C:12-

1(b)(1); conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3;

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and

unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f). He was sentenced

to an aggregate twenty-seven-year prison term subject to the No Early Release Act,

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N.J.S.A. 2C:43-7.2(a). The conviction was affirmed on direct appeal, and we

denied certification.

B.

Five years after his conviction, Gideon filed a PCR petition alleging, as

relevant here, ineffective assistance of counsel for failure to investigate and call

Gideon-Nichols and Bey as alibi witnesses.

In a December 2012 certification in support of Gideon's petition, GideonNichols attested that she received several calls on the day of the shooting that

Gideon was in a fight. She stated that she then drove Bey, who was pregnant with

Gideon's child, to the scene of the fight and found Gideon and Alford scratched up

and bleeding. Gideon-Nichols certified that she asked if the fight was over, Alford

responded that it was, and Alford and Gideon shook hands. She stated that Alford

then departed on a bicycle while Gideon-Nichols, Bey, and Gideon drove to the

store to pick up food, ate together at home, and stayed with each other through the

night as Bey was very ill. Gideon-Nichols certified that she told trial counsel that

she could provide an alibi and that she confronted counsel about testifying at trial.

Bey produced a similar certification, stating that she and Gideon-Nichols

drove to the scene of the fight and that the three stayed home together through the

night. Both Bey and Gideon-Nichols's certifications placed the date of the

shooting in 2007 rather than 2004.

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The PCR court denied Gideon's petition, finding that it was a strategic

decision to not call Gideon-Nichols or Bey as witnesses. The court noted that,

were they to have testified, both would have contradicted Gideon's trial testimony.

For instance, Gideon-Nichols and Bey certified that the three stayed home together

on the night of the shooting, while Gideon testified that Gideon-Nichols went to

work after dropping him off at home. Gideon-Nichols and Bey also attested that

they drove to the scene of the fight to find Gideon, while Gideon testified that he

met Gideon-Nichols on his way home.

The Appellate Division found that Gideon presented a prima facie

ineffective assistance claim and remanded for an evidentiary hearing. Of utmost

importance to the Appellate Division was the fact that Bey supported Gideon's

trial testimony that he was with her through the evening.

C.

At the evidentiary hearing on remand, Gideon-Nichols repeated much of

what she had stated in her certification. She testified that she received multiple

calls that Gideon was in a fight and drove to the scene with Bey; that Gideon and

Alford shook hands; and that she, Bey, and Gideon then picked up food and went

home. Gideon-Nichols stated that although she was supposed to go to work, she

did not. She testified that, after cooking and eating, the three watched movies

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together all night. Gideon-Nichols also stated that she informed trial counsel on

multiple occasions that she could provide alibi testimony.

Bey testified similarly that after driving to Gideon and watching him shake

hands with Alford, she, Gideon-Nichols, and Gideon picked up food. She said that

after arriving home, the three ate dinner and watched a "Law & Order” marathon.

Bey testified that she became ill several times during the night and that Gideon did

not leave the house.

Trial counsel testified that he did not recall Gideon identifying any alibi

witnesses or Gideon-Nichols offering alibi testimony. Had she done so, counsel

said, he would have called her to testify at trial. Trial counsel further clarified that

his decision not to call Gideon-Nichols or Bey was not strategic because he did not

know that they would provide alibi testimony.

The PCR court found neither Gideon-Nichols nor Bey credible. The PCR

court highlighted Gideon-Nichols's bias stemming from her love for her son and

that her testimony seemed "rehearsed.” Her credibility was further undermined by

a 1993 drug-possession conviction and probation violation. The court found, as a

fact, that Gideon-Nichols never approached trial counsel to offer testimony.

Finally, the court identified inconsistencies between her hearing testimony and

Gideon's trial testimony, namely that Gideon-Nichols testified to driving to the

scene of the fight and staying with Gideon and Bey through the night, while

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Gideon testified that he saw Gideon-Nichols on his way home and that she dropped

him off at home and went to work.

Bey, as the mother of Gideon's child, was found similarly incredible. The

court noted that she too testified that she drove with Gideon-Nichols to the scene

of the fight and that Gideon-Nichols stayed with them through the night, which

were inconsistent with Gideon's trial testimony.

Notwithstanding those findings, the court granted Gideon's petition,

concluding that trial counsel had a continuing duty to investigate potential alibi

evidence following Gideon's cross-examination and that his performance was

deficient in light of his failure to do so. The State appealed.

The Appellate Division again reversed and remanded for further findings as

to whether Gideon was prejudiced by counsel's deficiencies.

D.

The second remand tasked the PCR court solely with determining whether

Gideon was prejudiced by trial counsel's deficient performance. The PCR court

found that Gideon premised his defense on a claim that he was at home at the time

of the shooting after Gideon-Nichols picked him up, brought him back to Alford to

make peace, and then dropped him off at home. The court found that GideonNichols and Bey would have contradicted Gideon's trial testimony and, "if

anything[,] would have increased the likelihood of conviction based upon th[e]

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discrepancies.” The court therefore found that counsel's deficiencies did not

prejudice Gideon and denied Gideon's petition and motion for reconsideration.

The Appellate Division reversed, vacated Gideon's conviction, and

remanded for a new trial, relying in large part on our decision in Pierre. The

Appellate Division read Pierre to establish two principles: first, that the strength of

the evidence supporting the verdict is integral to determining prejudice under

Strickland; and second, that an alibi witness need not be wholly trustworthy in

order to establish prejudice. The Appellate Division interpreted our reference in

Pierre to the "fundamental points” of a witness's testimony to mean that "the

gravamen of the witness' testimony can be a more important circumstance than a

consideration of the witness' credibility issues.” The Appellate Division

interpreted Pierre to require that the court "pay close attention to the portions of the

potential testimony that relate directly to the critical question as to [Gideon's]

whereabouts” rather than "focus on non-fundamental matters that . . . do not

pertain directly to the central tenet of the alibi defense.”

Regarding the strength of the evidence supporting the verdict, the Appellate

Division noted the absence of objective proof such as surveillance footage or

global position system (GPS) data in the State's case against Gideon. The court

reasoned that aside from Gideon's statement to police, the only direct evidence

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implicating Gideon was the corroborating testimony of Robinson, who -- among

other credibility concerns -- had a personal relationship with Alford.

As to the second purported principle of Pierre -- that an alibi witness need

not be wholly trustworthy -- the Appellate Division found that the contradictions in

the testimony of Gideon, Gideon-Nichols, and Bey were relevant to their

credibility but did not alter the "fundamental point” of "their common assertions

that [Gideon] went home after the fistfight and ensuing reconciliation, and

remained at home throughout the night.” According to the court, many of the

discrepancies were not fundamental or directly contradictory on that point. For

instance, Gideon-Nichols and Bey testified that the three picked up food on the

way home, which was an additional detail absent from -- but not wholly

contradictory to -- Gideon's trial testimony. The "far more significant”

discrepancy as to whether Gideon-Nichols went to work or stayed home with

Gideon and Bey bore only on Gideon-Nichols's ability to establish Gideon's alibi

and did not impugn Bey, in the court's view.

Bey's testimony could have been invaluable to Gideon on its own, according

to the Appellate Division, and she did not possess any of the credibility flaws

burdening Gideon-Nichols. Noting that the jury may have ultimately found Bey

unconvincing, the Appellate Division nevertheless reversed the PCR court's

decision, concluding that Bey's testimony would have strengthened Gideon's alibi

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"if the jury believed her on the fundamental point that [Gideon] was home with her

that entire night.”

We granted the State's petition for certification. 240 N.J. 197 (2019). We

also granted leave to the Attorney General to appear as amicus curiae.

II.

The State asserts that the Appellate Division "unduly expanded” the

"strength-of-evidence benchmark set forth in Pierre” and emphasizes the quantity

and quality of evidence presented against Gideon at trial, including Gideon's own

statement to police, corroborating eyewitness testimony, and the earlier fight with

Alford -- which served as motive for the shooting. Distinguishing the present case

from Pierre, the State stresses that the proposed witnesses would have contradicted

Gideon's own testimony.

The State argues further that the Appellate Division exceeded its role by

"cherry-pick[ing] from [Gideon's] proffer, disregard[ing] the credibility

assessments made by the PCR court, and ignor[ing] the full context of the

evidence.” Isolating portions of a witness's testimony while disregarding those

harmful to the witness's credibility, according to the State, fails to afford

appropriate deference to the PCR court's factual findings.

The Attorney General largely echoes the State's arguments. Unlike in

Pierre, the Attorney General notes, Gideon did not file a notice of alibi and the

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State had at its disposal a corroborated confession from Gideon. And, by not

deferring to the credibility findings of the PCR court, the Attorney General argues

that the Appellate Division "effectively created a paradigm where prejudice can be

established in virtually any case which is not supported by overwhelming evidence

of guilt.”

Gideon, on the other hand, maintains that a fully developed alibi defense

would have changed the outcome of his case. He emphasizes that the strength of

alibi testimony is not measured by whether a PCR court would decide to acquit,

but rather whether the jury may have believed the testimony. In this regard,

Gideon asserts that the "State ha[d] no antidote to the testimony” of Bey, who

would have supported his claim that he was at home at the time of the shooting.

III.

A.

In his PCR petition, Gideon asserts that his conviction must be overturned

in light of his trial counsel's failure to investigate and call Gideon-Nichols and/or

Bey as alibi witnesses. A PCR petition is cognizable if it is based upon 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).

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Those accused in criminal proceedings are guaranteed the right to counsel to

assist in their defense. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "The right

to counsel plays a crucial role in the adversarial system embodied in the Sixth

Amendment, since access to counsel's skill and knowledge is necessary to accord

defendants the 'ample opportunity to meet the case of the prosecution' to which

they are entitled.” Strickland, 466 U.S. at 685 (quoting Adams v. United States ex

rel. McCann, 317 U.S. 269, 275 (1942)); see also Pierre, 223 N.J. at 577. To

satisfy the right to counsel guaranteed by our Federal and State Constitutions, it is

not enough "[t]hat a person who happens to be a lawyer is present at trial alongside

the accused,” Strickland, 466 U.S. at 685; rather, the right to counsel has been

interpreted by the United States Supreme Court and this Court as "the right to the

effective assistance of counsel.” Id. at 686; see also State v. Fritz, 105 N.J. 42, 57

(1987).

In Strickland, the United States Supreme Court set forth a standard for

determining whether an attorney's inadequacy deprived a defendant of the level of

assistance guaranteed by the Constitution. See 466 U.S. at 687; see also State v.

Preciose, 129 N.J. 451, 463-64 (1992). This Court has applied the Strickland

standard to claims of ineffective assistance brought under Article I, Paragraph 10

of the New Jersey Constitution. Fritz, 105 N.J. at 58; see also State v. Porter, 216

N.J. 343, 352 (2013). The standard for an ineffective assistance of counsel claim is

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thus the same under both the United States and New Jersey Constitutions. State v.

O'Neil, 219 N.J. 598, 610 (2014).

That standard has two prongs. "First, the defendant must show that

counsel's performance was deficient.” Strickland, 466 U.S. at 687. Second, the

defendant must have been prejudiced by counsel's deficient performance. Ibid.

The defendant's conviction must be reversed if both prongs of the Strickland

standard have been satisfied because, in such cases, "the ineffective representation

constitutes 'a breakdown in the adversary process that renders the result

unreliable.'” State v. Nash, 212 N.J. 518, 542 (2013) (quoting Strickland, 466 U.S.

at 687).

Only the "second, and far more difficult, prong of the” Strickland standard --

prejudice -- is at issue here. See Preciose, 129 N.J. at 463. Under the prejudice

prong, "[t]he defendant must show that there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; accord State v. Loftin,

191 N.J. 172, 198 (2007); State v. Castagna, 187 N.J. 293, 315 (2006) ("The error

committed must be so serious as to undermine the court's confidence in the jury's

verdict or the result reached.”). That "is an exacting standard.” State v. Allegro,

193 N.J. 352, 367 (2008). Prejudice is not to be presumed. Fritz, 105 N.J. at 52;

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accord State v. Goodwin, 173 N.J. 583, 597 (2002). The defendant must

"affirmatively prove prejudice.” Strickland, 466 U.S. at 693; Pierre, 223 N.J. at

583.

The PCR court found, here, that trial counsel's deficiencies were not

prejudicial. The Appellate Division reversed the PCR court, finding that they

were. In reviewing the judgment of the Appellate Division, we will defer to the

PCR court's factual findings, given its opportunity to hear live witness testimony,

and "we will uphold the PCR court's findings that are supported by sufficient

credible evidence in the record.” Nash, 212 N.J. at 540. That deferential standard

will bear upon the question presented here -- whether trial counsel's failure to call

Gideon-Nichols and/or Bey as alibi witnesses at trial established prejudice under

the second prong of Strickland.

B.

In determining whether, "but for counsel's unprofessional errors, the result

of the proceeding would have been different,” Strickland, 466 U.S. at 694, two

decisions of this Court -- Allegro and Pierre, the latter substantially relied upon by

the Appellate Division -- are particularly instructive and worthy of review.

1.

In Allegro, after the discovery of a marijuana-growing operation in the

apartment where the defendant used to live, a jury convicted the defendant of

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maintaining or operating a controlled dangerous substance production facility and

possession of a controlled dangerous substance with the intent to distribute.

Allegro, 193 N.J. at 357-60. At trial, the defendant presented the testimony of both

his brother and his ex-girlfriend to support his contention that he had moved out of

the apartment months prior to discovery of the marijuana-growing operation. Id. at

360.

Following his conviction, the defendant filed a PCR petition alleging

ineffective assistance of counsel for, among other reasons, trial counsel's failure to

present four additional witnesses who would have testified that he moved out of

the apartment prior to the discovery. Id. at 361. On reconsideration, the PCR court

vacated the defendant's convictions and ordered a new trial, concluding that the

defendant should have had the opportunity to present the witnesses. Id. at 362-63.

The Appellate Division reversed and reinstated the defendant's convictions,

finding that the additional witnesses' testimony would have been cumulative to the

testimony of the defendant's brother and ex-girlfriend. Id. at 363-64.

We affirmed in relevant part. Id. at 373. With respect to the prejudice prong

of Strickland, we stated that,

in determining whether those additional witnesses are

sufficient to prove to a reasonable probability that, absent

counsel's failure to call those witnesses, the outcome of

defendant's trial would have been different, we are guided,

in part, by the standard applicable to claims of newly

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discovered evidence, that is, "that the evidence 'would

probably change the jury's verdict if a new trial were

granted.'” In that respect, we cannot conclude to a

reasonable probability that the presentation of those

witnesses would have affected the outcome of defendant's

case.

[Id. at 370 (quoting State v. Ways, 180 N.J. 171, 187

(2004)).]

We reached that conclusion, in part, based on the content of the proposed

testimony, which challenged where the defendant lived. The State's case in

Allegro, however, did not rest on whether the defendant continued to live in the

apartment, but whether he grew marijuana there. Id. at 369-70. As such, the

offered witnesses would not have "directly or tangentially address[ed] the State's

proofs” that the defendant was solely responsible for the growing operation. Id. at

370.

Significantly, we also found that the additional witnesses would have

contradicted the trial witnesses and therefore could have been harmful to the

defendant. Ibid. For example, the State's witnesses testified that they frequently

saw defendant's white truck near the apartment, while the defendant's brother and

ex-girlfriend testified that the defendant drove a blue truck during the time leading

up to the discovery of the growing operation. Ibid. The additional witnesses the

defendant claimed should have been called to testify at trial would have stated that

the defendant drove a white truck at the time, which would have potentially

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undermined the defendant's existing witnesses and corroborated the State's

evidence. Ibid. Thus, the "defendant's belatedly tendered witnesses well could

have been harmful to him at trial.” Ibid.

2.

Most relevant here is our decision in Pierre, cited throughout the Appellate

Division's opinion. In Pierre, a jury convicted the defendant of felony murder,

knowing and purposeful murder, aggravated assault, armed robbery, and weapons

offenses stemming from an early-morning shooting in New Jersey that left one

person dead and another seriously wounded. 223 N.J. at 567, 570.

The defendant asserted an alibi defense: he alleged that he was traveling to

Florida to visit family at the time of the shooting. Id. at 569. In support of that

alibi, the defense offered both a speeding ticket issued in South Carolina several

hours before the shooting and a phone bill and related testimony from the

defendant's girlfriend showing that she had received a call from South Carolina not

long before the shooting. Ibid. The defendant alleged that he placed that call en

route to Florida. Ibid.

The State advanced the theory that it was not the defendant, but his brother,

who drove to South Carolina, received the speeding ticket, and called the

defendant's girlfriend. Id. at 569-70. In support of that theory, the State attempted

first to tie the defendant to the scene of the crime; however, just one of seven trial

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witnesses identified the defendant as having been at the scene, and that

identification did not come until ten months after the crime. Id. at 568. The same

identifying witness also testified that she would have been unable to recognize the

defendant at trial, while a separate eyewitness expressly testified that she did not

see the defendant at the scene of the shooting. Id. at 584. The only other witness

to place the defendant in New Jersey around the time of the crime was an admitted

abuser of cocaine who knew the defendant and told police six months after the

shooting that the defendant and another man came to her apartment building hours

after the murder and then again days later. Id. at 584-85.

To refute the defendant's assertion that he was traveling to Florida at the

time of the shooting, the State presented the South Carolina officer who issued the

speeding ticket; the officer, however, was unable to recall details from when he

issued the ticket or identify the defendant or his brother. Id. at 585. And the State

presented no evidence that the defendant's brother took the defendant's car or

license, was absent from his home or work, was seen by anyone in South Carolina,

or ever visited Florida. Id. at 586.

To counter that sparse evidence, defense counsel had the opportunity to call

as witnesses the defendant's brother and sister who asserted that, had they been

called, they would have testified that the defendant's brother did not know how to

drive; counsel did not call either potential witness. Id. at 565, 569. Moreover,

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counsel did not enter into evidence at trial the remainder of the defendant's

girlfriend's phone bill, which would have shown additional calls that she received

from Florida. Id. at 569, 574. While not determinative, the record of those calls

would have bolstered the defendant's claim that he was bound for Florida at the

time of the shooting. Id. at 587.

Defense counsel also had the opportunity to introduce testimony from the

defendant's Florida relatives that the defendant had visited them in Florida around

the date of the shooting. Id. at 570-71. Affidavits from four Florida family

members -- each certifying to the defendant's visit -- were presented as part of the

defendant's PCR petition. Ibid. In preparing for trial, defense counsel spoke to

only one of those four family members, yet dismissed the possibility of calling any

of them as witnesses -- even though their account, if accepted, would have helped

rebut the State's theory. Id. at 582.

The PCR court ultimately denied the defendant's petition, finding that trial

counsel's strategic decision not to call additional witnesses did not prejudice the

defendant's case. Id. at 574-75. In reaching that conclusion, the PCR court

pointed to inconsistencies between the Florida family members' affidavits and

statements the defendant made to police about the date on which he first contacted

his family in Florida and whether he stayed at a hotel. Id. at 571. The PCR court

also noted credibility issues with respect to the defendant's brother and sister. Id.

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at 573-74. The defendant's brother admitted to a drug conviction that he initially

denied. Id. at 573. And while the defendant's sister corroborated the brother's

account, stating that she had never seen him drive in eleven years and that he

remained home during the week following the shooting, she admitted that --

despite working for trial counsel -- she did not share that information prior to trial.

Id. at 574. The Appellate Division affirmed the denial of the petition. Id. at 575.

We reversed. Id. at 588. We found counsel's performance deficient in light

of his failure to present the testimony of the defendant's brother or sister and his

failure "to pursue or present” potential testimony by the Florida relatives -- failures

that left unrebutted the State's unsupported contention that the defendant's brother

received the speeding ticket in South Carolina. Id. at 580-83.

Importantly, as to the second prong of Strickland, we noted that the State's

proofs against the defendant were limited to the testimony of a single eyewitness

who implicated the defendant ten months after the shooting and of the defendant's

acquaintance who admitted to frequent cocaine use and who told police six months

after the shooting that the defendant and another man came to her apartment

building hours after the murder and then again days later. Id. at 584-85. "In that

context,” we concluded, the "defendant's alibi was far more significant than it

would have been in the face of compelling evidence of his guilt.” Id. at 585. And,

again in that context, we found counsel's failure to pursue the defendant's alibi

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defense prejudicial: notwithstanding the credibility issues of the witnesses and the

misstatements of facts in the affidavits from the defendant's Florida family

members, who "would have been subject to substantial impeachment had they

testified,” there existed a reasonable probability that, but for counsel's deficiencies,

the result of the defendant's trial would have been different. Id. at 586-88.

We now apply the principles enunciated in Allegro and Pierre to the present

appeal.

IV.

We begin by considering the strength of the State's evidence. Pierre made

clear that the overall strength of the evidence before the factfinder is important in

analyzing the second prong of Strickland. Pierre, 223 N.J. at 583. Our observation

that 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,” ibid.

(quoting Strickland, 466 U.S. at 696), did not alter any evidentiary burdens on the

part of defendants or the State. Rather, that straightforward principle

acknowledges the simple reality that a conviction is more readily attributable to

deficiencies in defense counsel's performance when the State has a relatively weak

case than when the State has presented overwhelming evidence of guilt.

Determination of prejudice requires consideration of all the evidence presented at

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trial and the likely effect the evidence presented post-conviction would have had

on the final result.

The State's proofs in Pierre were confined to the testimony of two witnesses

with their own credibility issues; only one of those witnesses purported to place

defendant at the scene of the crime. Id. at 568, 584. The defendant in Pierre

supported his timely alibi with physical evidence in the form of a speeding ticket

and phone bill. Id. at 569. The defendant offered additional physical evidence

post-conviction that he called his girlfriend from Florida, id. at 581-82, as well as

testimony by his Florida family members that would have reinforced his alibi

defense. Id. at 587-88.

Here, in contrast, there was more evidence against Gideon. The State

presented Gideon's statement to police, in which he implicated himself at least as

having been present during the shooting. And Robinson, who testified for the

State, corroborated Gideon's own story -- that Gideon and two men were waiting

in the alley, wearing all black, and armed with a long gun. As the Appellate

Division noted, the State did not present any objective physical evidence against

Gideon, such as GPS data or surveillance footage, that might have placed him at

the scene of the crime. Nevertheless, the State's case at trial here was stronger

than the testimony of the two witnesses in Pierre.

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And, against those stronger proofs, Gideon has offered a markedly weaker

alibi defense. Unlike the defendant in Pierre, Gideon did not provide at trial, nor

does he provide now, any physical evidence supporting his alibi. In Pierre, that

physical evidence -- the speeding ticket and phone record -- corroborated the

accounts of the witnesses defendant proposed to call. In this case, Gideon-Nichols

and Bey would not have served merely to bolster Gideon's independently

supported alibi or rebut the State's challenge thereto. Rather, the proposed

testimony of Gideon-Nichols and Bey constitutes Gideon's alibi.

Because Gideon's alibi rests exclusively on the potential testimony of

Gideon-Nichols and Bey, it is particularly significant that their testimony would

have contradicted important aspects of Gideon's trial testimony, including who he

was with at the time of the shooting. Had both of Gideon's proposed witnesses

testified, the jury would have heard three competing accounts of Gideon's

whereabouts on the night of the shooting: (1) his statement to police, (2) his trial

testimony, (3) and the testimony of Gideon-Nichols and Bey, which would have

overlapped in important respects and directly contradicted both of Gideon's

accounts. We repeat, Gideon testified that Gideon-Nichols went to work after

bringing him home, while both Gideon-Nichols and Bey testified that she stayed

through the night. That discrepancy undermines a material element of the claimed

alibi -- who was with Gideon at the time of the shooting.

26

Contradictions in a witness's proposed testimony are significant whether or

not there is accord as to the "fundamental point” of the defendant's whereabouts at

the time of the crime. See Allegro, 193 N.J. at 370 (reasoning that the proposed

alibi testimony about the defendant's white truck would have clashed with other

defense witness testimony that his truck was blue and thus undermined the

defense).1

If presented at trial, such contradictory testimony could have permitted

the inference that if Gideon, Gideon-Nichols, and/or Bey were "false about one

fact,” they might have been "false about all.” See State v. Fleckenstein, 60 N.J.

Super. 399, 408 (App. Div. 1960) ("The maxim 'falsus in uno falsus in omnibus,'

is not a mandatory rule of evidence, but rather a presumable inference that a jury

. . . may or may not draw when convinced that an attempt has been made to

mislead them by a witness in some material respect.” (quoting State v. Guida, 118

N.J.L. 289, 297 (Sup. Ct. 1937), aff'd, 119 N.J.L. 464 (E. & A. 1938)); see also

1

The Appellate Division stated that "a reviewing court applying second-prong

analysis should pay closer attention to the gravamen of the additional alibi

testimony -- its fundamental points -- than to details that do not directly or

tangentially address the critical question as to defendant's whereabouts.” The

phrase "directly or tangentially” comes from Allegro, but we did not use it to

suggest that inconsistencies and contradictions can be overlooked so long as

they do not pertain to the critical issues in a given case. Rather, as noted

above, we used that phrase to highlight the limited potential utility of the

proposed alibi testimony -- even absent the contradictions we went on to

discuss -- given that it would not have diminished the State's case because it

spoke to an extraneous point and did not "directly or tangentially address the

State's proofs.” Allegro, 193 N.J. at 370.

27

Capell v. Capell, 358 N.J. Super. 107, 111 n.1 (App. Div. 2003) (explaining the

maxim). Accordingly, whether falsehoods are material or ancillary, they may be

considered by the PCR court as affecting a witness's credibility.

Here, the PCR court found, and we agree, that the testimony of either

Gideon-Nichols or Bey "would not only have served as an attack on the testimony

of [Gideon] which had already been presented to the jury, but if anything would

have increased the likelihood of conviction based upon th[e] discrepancies.” In

addition to those discrepancies, the PCR court noted factors that undermined

Gideon-Nichols's credibility, such as her bias and criminal record. Indeed, the

PCR court found as a fact that Gideon-Nichols never approached defense counsel

to offer alibi testimony. We acknowledge, as did the Appellate Division, that the

PCR court did not list similar credibility concerns with respect to Bey. But we

cannot agree with the Appellate Division's view that presenting the testimony of

Bey alone would, with reasonable probability, have resulted in a different outcome

in this case.

Merely presenting Bey and not Gideon-Nichols would have necessarily

included in Bey's testimony that she accompanied Gideon-Nichols to the scene of

the fight and that they both remained home with Gideon through the night. That

testimony would have been inconsistent with Gideon's trial testimony that GideonNichols intercepted him while he was on his way home and that Gideon-Nichols

28

thereafter went to work. And that inconsistency, in turn, would have permitted the

false-as-to-all inference, just as if both Gideon-Nichols and Bey had testified.

We also find significant the passage of time between the shooting in 2004,

Gideon's trial in 2007, and Bey's support for Gideon's alibi appearing in 2012 or

2013.2

Unlike in Pierre, where the defendant served a notice of alibi on the State,

223 N.J. at 580, no mention of Gideon's alibi was made until his crossexamination at trial. And Bey was present in the courtroom during Gideon's trial

yet made no effort to buttress his alibi at that time.

Bey's failure to come forward in support of Gideon's alibi until roughly five

years after his trial -- and approximately eight years after the shooting -- creates a

separate issue with respect to her credibility. As we have previously

acknowledged,

where the natural response of a person in possession of

exculpatory information would be to come forward in

order to avoid a mistaken prosecution of a relative or a

friend[,] . . . the failure of a witness to offer the information

when it would have been natural to do so might well cast

doubt on the veracity of the witness' trial testimony.

[State v. Silva, 131 N.J. 438, 446 (1993) (quoting

Commonwealth v. Brown, 416 N.E.2d 218, 224 (Mass.

App. Ct. 1981)).]

2 Bey's certification was not dated, but Gideon-Nichols's certification was dated

December 29, 2012 and Gideon's PCR petition was dated April 27, 2012 and was

thereafter supplemented through 2013.

29

Thus, "defendant's belatedly tendered witness[] well could have been harmful to

him at trial.” Allegro, 193 N.J. at 370.

The Appellate Division interpreted Pierre to suggest that the failure to offer

alibi testimony can be deemed prejudicial -- regardless of adverse credibility

determinations -- if the testimony would have bolstered the defendant's alibi "on

the fundamental point” of the defendant's whereabouts at the time of the crime.

Such reasoning would require a new trial whenever a third party -- no matter how

incredible -- asserts that a defendant was elsewhere at the time of a crime. Pierre,

in which the defendant's alibi was supported by physical evidence beyond the

proposed testimony, did not set such a standard. We have never so weakened the

standard for demonstrating prejudice, and we do not do so here.

The prejudice prong of Strickland remains an "exacting standard.” Allegro,

193 N.J. at 367. We repeat that "[i]mportant to the prejudice analysis is the

strength of the evidence that was before the fact-finder at trial.” Pierre, 223 N.J. at

583. Against the backdrop of that evidence, the Strickland test, which we continue

to apply, requires a defendant to show there exists "a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have

been different.” State v. Taccetta, 200 N.J. 183, 193 (2009) (quoting Fritz, 105

N.J. at 52); see also State v. Hess, 207 N.J. 123, 146 (2011); Goodwin, 173 N.J. at

597.

30

In this case, the onus remained on Gideon to "affirmatively prove

prejudice.” Pierre, 223 N.J. at 583 (quoting Strickland, 466 U.S. at 693); see also

Fritz, 105 N.J. at 52 ("[P]rejudice must be proved; it is not presumed.”). But he

has not shown that Bey's proposed testimony, whether alone or in combination

with that of Gideon-Nichols, "would probably change the jury's verdict if a new

trial were granted.” Allegro, 193 N.J. at 370 (quoting Ways, 180 N.J. at 187).

Considering the strength of the State's case and the weakness of Gideon's alibi --

including the extent to which his proposed witnesses would have contradicted his

own account of the relevant events -- the PCR court's finding that Gideon failed to

demonstrate prejudice should not have been disturbed.

In reaching that conclusion, we defer to the PCR court’s credibility

determinations, which, as noted above, find sufficient credible support in the

record. See Nash, 212 N.J. at 540. “An 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. Here, we see “no basis to second-guess the

credibility findings of the PCR court.” Id. at 545. Although the Appellate

Division may have “reached a different conclusion were it the trial tribunal,” it was

not at liberty to disturb the PCR court’s findings absent a clear mistake, which we

do not find here. State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v.

Johnson, 42 N.J. 146, 162 (1964)).