Oscar Perez, along with an accomplice, broke into the home of a young woman and her thirteen-year-old son. She was able to identify the accomplice, and the boy was able to identify Perez. According to the boy, Perez pointed a knife at the boy while his cohort trashed everything and demanded money. A jury convicted Perez of aggravated robbery, and defense counsel withdrew on the date of the judgment.
Perez filed a motion for new trial alleging ineffective assistance of counsel. Perez claimed that the defense failed to do a proper investigation. The court-appointed investigator listed four people that defense counsel could've called as witnesses. One of the witnesses lived in a two-bedroom apartment with seven other people including Perez. She would've testified that she slept on the floor next to the couch Perez slept on. She would've testified that "we went to bed about 10:00" and she was certain that Perez was sleeping on the couch every night during the time the robbery occurred. The only evidence of the time of the robbery came from the mother (who said it was around 8:00 p.m.) and her son (who said it was around 10:00 p.m.). The trial court denied the motion for new trial.
The court of appeals affirmed. While trial counsel's failure to investigate fell below prevailing professional norms, the majority still held that Perez had not been prejudiced by trial counsel's deficient performance. The "alibi" witness had not provided a specific date or event, so her testimony did not directly conflict with the testimony provided by the State. Justice Frost dissented because the testimony from the uninvestigated witnesses could've established an alibi defense for the jury to consider. [Here's a link to the court of appeals case information if you are interested.]
The CCA affirmed. Writing for a unanimous court, Judge Meyers explained pretty much as the court of appeals had that the alibi witness did not really provide an alibi or make it impossible for the defendant to commit the crime. The witness's affidavit was unclear about whether "we went to bed" meant she and Perez or just her and her child, and simply was not the game-changer Perez wished it to be. After viewing the evidence the State presented compared to what the defense failed to present, there was no reasonable probability sufficient to undermine confidence in the outcome. [Here's a link to the CCA case information if you're interested.]
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I wonder if this means alibi witnesses in motions for new trial will be required to testify in such a manner that it was impossible for the defendant to commit the offense. I suppose a little more information from the witness might have helped Perez carry his burden to show that he was prejudiced by trial counsel's performance. Had there been live testimony But after finding himself in a minority of one twice today, he pulled out a unanimous majority.