State v. Duquene Pierre(072859)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. Duquene Pierre (A-86-13) (072859)
Argued April 13, 2015 -- Decided December 17, 2015
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court reviews the denial of defendant Duquene Pierre’s application for post-conviction
relief (PCR), which is based on a claim of ineffective assistance of counsel in light of trial counsel’s failure to
present evidence that would have rebutted the State’s theory and supported defendant’s alibi.
At approximately 3:00 a.m. on March 20, 1994, several people were talking on the sidewalk outside a
residence in Elizabeth, New Jersey. During their conversation, two cars sped down the street and stopped nearby.
Several men emerged from the cars and began shooting at the group, killing and robbing one man and wounding
another. Immediately following the shooting, several eyewitnesses identified three of the gunmen, all of whom were
known associates of defendant. Defendant was arrested on April 15, 1994.
Defendant asserted that, at the time of the shooting, he was traveling to Florida to visit relatives. During a
search of his car, officers found a speeding ticket identifying the cited driver as defendant and listing his address.
The ticket was issued at 11:34 p.m. on March 19, 1994, in Yemassee, South Carolina, almost four hours before the
March 20 shooting and almost 800 miles from Elizabeth.
Defendant and his codefendants were indicted on several charges, including first-degree purposeful or
knowing murder. Multiple witnesses identified the codefendants, but only one placed defendant at the scene, having
first identified him in a photo array ten months after the shooting. Defendant did not testify, relying instead on two
pieces of evidence: (1) the South Carolina speeding ticket, and (2) a portion of a phone bill from defendant’s
girlfriend, Yashonda Reid, reflecting a collect call from South Carolina at 12:32 a.m. the morning of the shooting.
Although the State focused on rebutting defendant’s alibi by attempting to prove that it was defendant’s
brother, Kirby Pierre, and not defendant, who received the ticket in South Carolina and visited relatives in Florida,
defendant’s trial counsel did not present testimony from Kirby Pierre, defendant’s sister Astrid Pierre, or the South
Carolina officer who issued the speeding ticket. Additionally, he did not offer the remainder of Reid’s March 1994
phone bill, which including several collect calls from defendant during the time period he claimed to be in Florida.
Defendant was convicted of knowing and purposeful murder, felony murder, aggravated assault as a lesser included
offense of attempted murder, armed robbery, and two weapons offenses. He was sentenced to a term of sixty years,
with thirty-five years’ parole ineligibility.
Pursuant to Rule 3:22-1, defendant filed a petition for post-conviction relief (PCR), alleging ineffective
assistance of counsel because, despite his request, counsel did not call four of his Florida relatives as alibi witnesses.
Although it held an evidentiary hearing, the court determined that defendant could not meet his burden to
demonstrate prejudice as a result of counsel’s handling of the case because of discrepancies between defendant’s
statement to police and his relatives’ affidavits. Counsel admitted that he did not interview all of defendant’s
relatives, but asserted that defendant agreed that they should focus their defense on the ticket. Concluding that the
relatives were not credible, their testimony could have undermined defendant’s alibi, and counsel’s failure to call
them was a strategic decision, the court dismissed the PCR petition. The Appellate Division affirmed. This Court
granted defendant’s petition for certification and summarily remanded to the trial court for the presentation of
testimony from “alibi-related witnesses.” 189 N.J. 102 (2006).
On remand, the court heard the testimony of three of defendant’s Florida relatives, who asserted that
defendant, not Kirby Pierre, visited in March 1994. Construing the Court’s remand as limited to the testimony of
Florida relatives, the PCR court declined to permit testimony of Kirby and Astrid Pierre and Reid. It again denied
defendant’s petition based on its concerns about the relatives’ credibility and its belief that trial counsel’s conduct
constituted strategy. The Appellate Division reversed, remanding for a further hearing to permit the testimony of
additional witnesses.
The PCR court then conducted another evidentiary hearing at which Kirby Pierre testified that he did not
1
drive in 1994. Astrid Pierre corroborated his testimony, asserting that Kirby was in New Jersey at the time of the
shooting. Reid testified that defendant lived with her in March 1994, and she did not see him between March 19 and
March 26. Moreover, she noted that several charges on her phone bill for that month reflected collect calls from
defendant in Florida. The PCR court again denied defendant’s petition, citing “overwhelming evidence” that
defendant did not receive the South Carolina ticket and again explaining that trial counsel’s decision to rely on the
ticket alone was sound strategy. The court found that presentation of the additional testimony would not have
altered the trial’s outcome.
The Appellate Division affirmed in an unpublished opinion. Acknowledging that counsel may not have
adequately investigated potential witnesses, the panel nevertheless determined that it was unlikely defendant was
prejudiced as a result. The Court granted defendant’s petition for certification. 217 N.J. 304 (2014).
HELD: By virtue of the combined errors of his trial counsel, 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 he is entitled to a new trial.
1. Post-conviction relief in New Jersey is analogous to the federal writ of habeas corpus. It is intended to provide a
safeguard ensuring that a defendant is not unjustly convicted. Factual findings that are supported by credible
evidence are given deference by reviewing courts, while legal interpretations are reviewed de novo. (pp. 18-20)
2. Defendant’s petition for PCR is premised upon his right to the effective assistance of counsel, as guaranteed by
the Sixth Amendment to the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution.
Under the two-prong test stablished by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668,
687 (1984), and adopted by this Court in State v. Fritz, 105 N.J. 42, 58 (1987), a defendant must show, first, that
counsel’s performance was not objectively reasonable and, second, that absent counsel’s errors there is a reasonable
probability that the outcome of the trial may have been different. (pp. 20-22)
3. When assessing the reasonableness of counsel’s performance under the first prong of the Strickland/Fritz test,
there is a strong presumption in counsel’s favor. Review of trial counsel’s strategic decisions regarding which
witnesses to call to the stand must take into account the context of the State’s case and the available evidence. The
Court defers to the PCR court’s conclusion that defense counsel’s testimony was credible and agrees that counsel’s
decision to assert an alibi defense based on the speeding ticket constituted sound strategy. However, counsel’s
presentation of that alibi was deficient in two key respects. First, counsel failed to present the testimony of Kirby or
Astrid Pierre to rebut the State’s assertion that Kirby, not defendant, received the ticket in South Carolina. Second,
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. Counsel’s failure to interview defendant’s Florida
relatives as potential witnesses also fell short of professional norms. Although the relatives could not have provided
a definitive alibi for the night of the shooting, they could have testified that it was defendant, and not his brother,
who visited them in late March 1994. Because counsel’s decision to forego evidence that could have reinforced
defendant’s alibi fell below the objective standard of reasonableness guaranteed by the United States and New
Jersey constitutions, defendant met his burden with respect to the first Strickland/Fritz prong. (pp. 22-29)
4. Under the second Strickland/Fritz prong, a defendant must show that there was a reasonable probability that, but
for counsel’s errors, the result of the proceeding would have been different. Here, unlike his codefendants, there
was sparse evidence implicating defendant in the shooting, and the State’s evidence countering defendant’s alibi was
neither direct nor conclusive. In this context, a fully-developed alibi defense, carefully constructed on defendant’s
behalf, likely would have given rise to reasonable doubt about his guilt and altered the outcome of his trial.
Defendant therefore met his burden with respect to the second Strickland/Fritz prong, demonstrating that counsel’s
errors were serious enough to undermine confidence in the fairness and outcome of the trial. (pp. 29-37)
The judgment of the Appellate Division is REVERSED, defendant’s conviction is VACATED, and the
matter is REMANDED to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.
2
SUPREME COURT OF NEW JERSEY
A-86 September Term 2013
072859
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DUQUENE PIERRE,
Defendant-Appellant.
Argued April 13, 2015 - Decided December 17, 2015
On certification to the Superior Court,
Appellate Division.
Linda Mehling, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney).
Kimberly L. Donnelly, Assistant Prosecutor,
argued the cause for respondent (Grace H.
Park, Acting Union County Prosecutor,
attorney; Sara B. Liebman, Assistant
Prosecutor, of counsel and on the brief).
Duquene Pierre submitted a letter brief pro
se.
JUSTICE PATTERSON delivered the opinion of the Court.
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
1
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 address
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
2
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
3
(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
4
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
5
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
6
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.
7
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
8
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
9
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 fifty-
year 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.
10
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,
11
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
12
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.
13
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.
14
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
15
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
16
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
17
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.
18
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
19
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
20
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
21
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.
22
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.
23
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
24
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.
25
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
26
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,
27
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
28
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.
29
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,
30
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
31
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.
32
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.
33
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.
34
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
35
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
36
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.
IV.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the trial court for proceedings consistent
with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did not
participate.
37
SUPREME COURT OF NEW JERSEY
NO. A-86 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DUQUENE PIERRE,
Defendant-Appellant.
DECIDED December 17, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6