And the Majority, Maj. Op. at 79–80, 204 A.3d at 150, favorably quotes the following statement by the Eighth Circuit in Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991) : "Once a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." (Citing Lawrence v. Armontrout, 900 F.2d 127, 129 (8th Cir. 1990) ; Tosh v. Lockhart, 879 F.2d 412, 414 (8th Cir. 1989) ). I would decline to adopt the bright-line rule the Majority has essentially espoused.
Lawrence appealed, and this court held that Lawrence's trial counsel was constitutionally deficient in failing to pursue Lawrence's alibi defense. Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) ( Lawrence I). We further held that Lawrence's failure to have his alibi witnesses testify at his Rule 27.26 hearing did not constitute a procedural default of the prejudice requirement articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Lawrence I, 900 F.2d at 131.
In Lawrence v. Armontrout , Lawrence was convicted of capital murder and murder in the first degree. 900 F.2d 127, 128 (8th Cir. 1990). After his convictions were affirmed on appeal, Lawrence sought post-conviction relief in state court, claiming ineffective assistance of counsel.
The district court adopted the magistrate's recommendation, denied Lawrence's requests for appointed counsel and an evidentiary hearing, and dismissed the petition with prejudice. Lawrence appealed. This court reversed and remanded with instructions to appoint counsel for Lawrence and to hold an evidentiary hearing to determine whether trial counsel's failure to investigate and call alibi witnesses prejudiced Lawrence's defense. Lawrence v. Armontrout, 900 F.2d 127 (8th Cir. 1990). The matter was again referred to a magistrate, who determined that trial counsel's failure to call alibi witnesses did not prejudice Lawrence's defense.
Our review of Grooms' allegation of ineffective assistance must take into account the fact that "[a] state's conclusion regarding the effectiveness of counsel is a mixed question of law and fact not binding on this court," and is not subject to the deference requirement of 28 U.S.C. § 2254(d). Lawrence v. Armontrout, 900 F.2d 127, 129 (8th Cir. 1990); Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. As the Court observed in Strickland, "[B]oth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact."
Instead, to prove prejudice, Mr. Banghart must show the proposed uncalled witness would have testified in his defense, that his testimony would have been favorable, and that his testimony “would have probably changed the outcome of the trial.” See Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990); Stewart v. Nix, 31 F.3d 741, 744 (8th Cir. 1994). The court “should avoid the distorting effects of hindsight and try to evaluate counsel's conduct by looking at the circumstances as they must have appeared to counsel at the time.” Rodela-Aguilar v. United States, 596 F.3d 457, 461 (8th Cir. 2010) (quotation omitted). “[C]omplaints of uncalled witnesses are not favored . . . because allegations of what the witness would have testified [to] are largely speculative.”
Instead, to prove prejudice, Mr. Sorensen must show the proposed uncalled witness would have testified in his defense, that his testimony would have been favorable, and that his testimony had the potential to have “changed the outcome of the trial.” See Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990); Stewart v. Nix, 31 F.3d 741, 744 (8th Cir. 1994). In assessing ineffective assistance claims under the Strickland standard, “[t]he decision not to call a witness is a virtually unchallengeable decision of trial strategy.”
Instead, to prove prejudice, Mr. Krabbenhoft must show the proposed uncalled witness would have testified in his defense, that his testimony would have been favorable, and that his testimony "probably would have changed the outcome of the trial." See Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990); Stewart v. Nix, 31 F.3d 741, 744 (8th Cir. 1994). In assessing ineffective assistance claims under the Strickland standard, "[t]he decision not to call witnesses is a virtually unchallengeable decision of trial strategy."
To prove prejudice, Heckard must show not only that "the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial." Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990). Officer White testified that Marsh was involved in the drug sale at the park.
See Romero, 46 F.3d at 1029 ("Counsel's failure to investigate a defendant's case, particularly for purposes of an alibi defense, may render his performance constitutionally inadequate.") (citing Kimmelman, 477 U.S. at 384, 106 S.Ct. at 2587); Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) ("trial counsel owed [defendant] a duty to pursue his alibi defense and to investigate all witnesses who allegedly possessed knowledge concerning [defendant's] guilt or innocence"), cert. denied, ___ U.S. ___, 115 S.Ct. 1124, 130 L.Ed.2d 1087 (1995). Respondents argue that there is no evidence that Demarest gave Cohan any leads about alibi witnesses.