State v. Kenneth Banksaffirmance of the judgmentof the Appellate Division is based substantiallyon the reasons expressed in thepercuriamopinion below.)

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 interests of brevity, portions of any opinion may not have been summarized).
 
State v. Kenneth Banks (A-114-00)
 
(NOTE: The Court wrote no full opinion in this case. Rather, the Court s affirmance of the judgment
of the Appellate Division is based substantially on the reasons expressed in the per curiam opinion below.)
 
 
Argued January 15, 2002 -- Decided March 26, 2002

PER CURIAM

The issue in this appeal is whether trial counsel was ineffective because he failed to interview a witness, who counsel expected would provide an alibi, prior to the witness appearing at trial.

Banks was convicted of first-degree robbery and other offenses, as a result of an armed robbery committed in Newark against Suzette Carter and her two children. Carter testified that at 8:30 in the morning on August 14, 1995, Banks approached her and her sons while they were waiting for a bus. Banks held a gun to the head of one of the children and demanded Carter s jewelry and money. Carter told Banks that she had no money. After going through Carter s pocketbook to confirm this, Banks fled the scene.

Carter returned to her nearby apartment and called police and her God-sister. While in her apartment waiting for the police, Carter looked out the window, saw Banks and recognized him as the perpetrator. Carter and her God-sister got into a car and followed Banks to his destination. When police arrived, Carter told them where defendant could be found. Police arrested Banks, and, approximately 90 minutes after the robbery, Carter identified him.
 
Banks appealed his convictions and sentence. The Appellate Division affirmed and the Supreme Court denied Banks petition for certification. Banks filed a pro se petition for post conviction relief in June 1998. Thereafter, counsel was assigned to represent Banks, and an amended petition was filed. The Law Division judge rejected all of the claims raised in the petition except the claim of ineffective assistance of counsel based on counsel s deficiencies regarding the alibi defense. At an evidentiary hearing, Banks trial counsel testified that Banks told him he was with his girlfriend, Rhonda Caldwell, at the time of the robbery. Counsel attempted to interview Caldwell before trial, but he could not locate her. In his opening statement, Banks trial counsel made mention of the alibi defense, stating that Banks was returning by bus from Elizabeth with his girlfriend at the time of the robbery and that they did not pass the bus stop where the robbery occurred.

Banks counsel called Caldwell as a witness at trial. Counsel did not interview Caldwell prior to her appearance. Caldwell testified that she and Banks left Elizabeth by bus between 7:00 and 7:30 on the morning in question, and arrived in Newark sometime between 8:00 and 8:30. When counsel asked Caldwell if she knew where Banks was at 8:30 in the morning, she responded in his house. Counsel asked Caldwell if she was with Banks, and Caldwell stated no, she had simply dropped him off at the house because she had an appointment elsewhere at 9:30. On cross-examination and re-direct, Caldwell acknowledged that she was not sure of the exact time she had left Banks at the house, and that it could have been before 8:30.

The Law Division judge granted Banks petition, finding that trial counsel s failure to interview Caldwell was the product of an inexcusable lack of preparation. The judge concluded that counsel s lack of preparation deprived defendant of the ability to make an informed decision regarding his available defenses. An order was entered vacating Banks conviction and requiring a new trial on the indictment. The State appealed, arguing that the trial court erred in stating that defendant s counsel promised in his opening to deliver an alibi defense. It also argued that even if counsel had made such a promise, he was entitled to rely on the information provided by Banks concerning the alibi, and that Banks suffered no prejudice as a result of the failure to interview Caldwell.

The Appellate Division reversed in a split decision. The majority agreed that counsel should have interviewed Caldwell prior to having her testify, but could not conclude that had he done so, the result of the trial would have been different. According to the majority, an interview would have revealed just what Caldwell testified to at trial that she believed Banks was with her around the time of the alleged incident. The Appellate Division majority also found that although Caldwell s cross-examination may not have been helpful to Banks case, her testimony on direct and re-direct was not damaging. Further, the majority noted that trial counsel s opening was based on the information provided to him by Banks, and that only Banks and Caldwell knew of Banks whereabouts at the time of the crime. The dissenting member of the panel would have affirmed for the reasons stated by the Law Division judge in the judge s oral opinion. The dissent concluded that if trial counsel had interviewed Caldwell, she would not have been called to testify. The dissent further found that Caldwell s testimony served to undermine the credibility of Banks defense, because Caldwell denied that she and Banks were together at the time of the crime.

Banks filed an appeal as of right based on the dissent in the Appellate Division.

HELD: The failure of trial counsel to interview the alibi witness prior to the trial did not constitute ineffective assistance of counsel because there is not a reasonable probability that if such an interview had occurred, the result would have been different.

Judgment of the Appellate Division is AFFIRMED, substantially for the reasons expressed by the Appellate Division s per curiam opinion.

JUSTICE LONG filed a separate, dissenting opinion, stating that she would affirm the Law Division substantially for the reasons expressed by the dissent of Judge Wells in the Appellate Division.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in this opinion. JUSTICE LONG has filed a separate, dissenting opinion.

SUPREME COURT OF NEW JERSEY
A- 114 September Term 2000

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH BANKS,

Defendant-Appellant.

Argued January 15, 2002 Decided March 26, 2002

On appeal from the Superior Court, Appellate Division, whose opinion is reported at ___ N.J. Super. ___ (2001).

Susan C. Green, Assistant Deputy Public Defender, argued the cause for appellant (Peter A. Garcia, Acting Public Defender, attorney).

Barbara A. Rosenkrans, Acting Assistant Prosecutor, argued the cause for respondent (Donald C. Campolo, Acting Essex County Prosecutor, attorney).

PER CURIAM

The judgment is affirmed, substantially for the reasons
expressed in the Per Curiam opinion of the Appellate Division, reported at ___ N.J. Super. ___ (2001).

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in this opinion. JUSTICE LONG has filed a separate, dissenting opinion.

SUPREME COURT OF NEW JERSEY
A- 114 September Term 2000

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH BANKS,

Defendant-Appellant.

LONG, J., dissenting.

This was a one witness case. The state presented the victim of the robbery who identified Banks as the perpetrator. There was not a shred of evidence to corroborate the victim s testimony and, in fact, there was significant evidence to undercut her identification of Banks. That included the victim s three different descriptions of the perpetrator; the fact that Bank s hair and clothing were entirely unlike what the victim had described; and that upon searching Banks and his apartment shortly after the crime, no gun or robbery proceeds were found.
In other words, the case was by no means open and shut. In light of the problems with the victim s testimony, a jury could well have concluded that the state failed to prove its case beyond a reasonable doubt. At the very least, a serious issue for deliberation was presented by the victim s identification of Banks. Yet, the jury returned a guilty verdict on four separate counts in twenty-three minutes.
In my estimation, that was a direct result of the testimony of Rhonda Caldwell, who defense counsel called as an alibi witness without a prior meeting or interview. Because defense counsel was not aware of what Caldwell intended to say, during her testimony she delivered three brutal blows to the defense. First, she eviscerated the alibi, which was a devastating occurrence, after defense counsel had promised such an alibi in his opening. Second, she placed Banks near the scene of the crime at or about the time it occurred when there was no other evidence to that effect. Finally, she introduced the notion of prior criminality on Banks part by blurting out that on the morning of the crime Banks was on his way to see his probation officer. That was particularly damaging because Banks had chosen not to take the stand, presumably to shield his criminal record from the jury. Together , Caldwell s statements injured the defense immeasurably.
In failing to interview her, defense counsel s conduct plainly met the deficiency prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as both the majority and dissent in the Appellate Division acknowledged. Had he done so, he could have prepared Caldwell to be a better witness or declined to call her altogether. In either event he could have tailored his opening and eliminated the promised alibi, if necessary. The very idea that there is not a reasonable probability that . . . the result of the proceeding would have been different , if he had done so , is preposterous. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Accordingly, I would affirm the disposition of the Law Division substantially for the reasons expressed by Judge Wells in his thorough and thoughtful Appellate Division dissent.

SUPREME COURT OF NEW JERSEY

NO. A-114 SEPTEMBER TERM 2000
ON APPEAL FROM Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH BANKS,

Defendant-Appellant.

DECIDED March 26, 2002
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Long

CHECKLIST AFFIRM
REVERSE CHIEF JUSTICE PORITZ X
JUSTICE STEIN X
JUSTICE COLEMAN X
JUSTICE LONG
X JUSTICE VERNIERO X
JUSTICE LaVECCHIA X
JUSTICE ZAZZALI X
TOTALS 6
1