With respect to the first prong of Strickland, barely touched upon by the motions judge, we think that appellant met his burden of “alleg[ing] facts which, if demonstrated, would establish ineffective assistance of counsel.” Lane, supra, 737 A.2d at 548 (quoting Johnson v. United States, 385 A.2d 742, 744 (D.C.1978)). “We have recognized previously that the failure of trial counsel to investigate properly a case, ‘to interview exculpatory witnesses, and to present their testimony constitutes constitutional ineffectiveness.’ “ Lopez, supra, 801 A.2d at 46 (internal quotation and citation omitted). Here, if believed, the various affidavits attached to appellant's § 23-110 motion, which provide alibis for the times of both assaults, present powerful assertions of innocence. Therefore, the allegations made by appellant in his motion, if true, demonstrate “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, supra, 466 U.S. at 687.Appellant stated, in his affidavit, that his trial counsel ignored his requests to interview his family, contact Mr. Williams, and obtain his employment records. Of course, as the government correctly notes, decisions concerning which witnesses to call at trial are often based on tactical considerations, and therefore, generally remain within the discretion of the defense attorney. See Lopez v. United States, 863 A.2d 852, 861-62 (D.C.2004) (“[T]he decision to call witnesses is a judgment left almost exclusively to counsel” (citation omitted)); Bell v. United States, 260 A.2d 690, 691 (D.C.1970) (“The decision to call or not to call witnesses on behalf of a defendant is part of the strategy utilized by counsel in the preparation of the defense. It is a question of judgment, and this court will not engage in a subjective determination of the wisdom of counsel's strategy.” (internal footnote omitted)).
Here, however, there is nothing in the record indicating that counsel's failure to call the alibi witnesses was a sound tactical decision, or, for that matter, that counsel even knew of the existence of the witnesses. The government did not produce any evidence explaining trial counsel's decisions or refuting appellant's claim that counsel ignored his requests to interview Mr. Williams and appellant's family members. See Gillis v. United States, 586 A.2d 726, 729 (D.C.1991) (remanding because “[t]he record is devoid of any meaningful explanation as to why a potential defense was not pursued” and “[a]t a minimum, there was a serious question regarding the need for a hearing”).
Finally, the government argues that, due to the strength of its case at trial, appellant could not possibility satisfy the second prong of the Strickland test, even with his affidavits, by establishing “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, supra, 466 U.S. at 694. The government did not rely on the strength of its case in its presentation to the motions judge and, as a general rule, we do not consider arguments “not properly raised and preserved [in the trial court.]” Bradley v. United States, 881 A.2d 640, 646 n. 5 (D.C .2005) (quoting Miller v. Avirom, 127 U.S.App. D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967)). In any event, we think that the government may overstate the strength of its case and underestimate the persuasive power of the affidavits if believed as alibis.
To be sure, LL and NN [two rape victims] each identified appellant, in and out of court, as the man who assaulted her. Each witness also testified at trial that she was certain that appellant was the assailant. However, “[t]he vagaries of eyewitness identification, and the potential for wrongful convictions or adjudications based upon such evidence, have long been recognized in the District of Columbia.” In re As. H., 851 A.2d 456, 459-60 (D.C.2004) (citing United States v. Telfaire, 152 U.S.App. D.C. 146, 149-51, 469 F.2d 552, 555-57 (1972) (per curiam); Crawley v. United States, 320 A.2d 309, 311-12 (D.C.1974)) “Even if the witness professes certainty, ‘it is well recognized that the most positive eyewitness is not necessarily the most reliable.’ “ Webster v. United States, 623 A.2d 1198, 1204 n. 15 (D.C.1993) (quoting Crawley, supra, 320 A.2d at 312).
Here, both the circumstances surrounding the identifications of appellant, and the descriptions given by the complainants of their assailant, may have given the jury some reason to pause. Although both complainants claim to have viewed their assailant in well-lit rooms, the testimony of each establishes that she was only able to view her assailant for a limited amount of time, during an extremely traumatic event. While NN, who testified that she was 5′4″, described her assailant as somewhere around 5′8′ and only slightly taller than she was, appellant testified that he was six feet tall. LL, moreover, described her assailant at trial as between 5′8′ and 5′10″, but informed the police that he was six feet tall. Furthermore, NN described her assailant to the police as darkly complected and clean shaven, but testified at trial that he had a “lighter brown complexion” and “a little hair right on his chin.” Finally, NN failed to identify appellant as her assailant at the first lineup she attended. Although she testified that she had recognized appellant, but did not identify him because she felt ill and afraid, the jury may have viewed that testimony with greater scepticism if it had also heard testimony that appellant was working when NN was assaulted. The serology evidence presented by the government at trial was of little consequence. As the trial was held in 1986, DNA evidence was apparently unavailable.FN46 The evidence here was based on crude science, and established only that appellant, along with a very large percentage of the population, could “not be excluded” as the attacker.
FN46. See supra note 19.
The presence of appellant's prints at NN's home unquestionably presents a serious problem for appellant. In Newman, supra, however, we held that appellant was entitled to a hearing on his § 23-110 motion, despite the presence of his wallet at the crime scene, in part, because appellant asserted in his motion that he had been at the crime scene earlier on the day of the crime. 705 A.2d at 262.
There, Newman and his co-defendant Samuels were convicted of various crimes related to an incident in which they allegedly burst into an apartment and robbed the occupants, shooting and killing one of them. Id. at 249-50. Among the physical evidence presented by the government was Newman's wallet, which was found at the crime scene. Id. at 250-51. Newman's photo identification was discovered inside the wallet. Id. at 250.
Following his conviction, Newman filed a § 23-110 motion in which he alleged that his trial counsel's failure to contact an alibi witness constituted ineffective assistance of counsel. Id. at 260. In the motion, Newman also asserted that “he had been [at the apartment where the crime occurred] earlier on the day of the crime and at that time had left his wallet there by accident.” Id. Newman attached two affidavits. Id. In his own affidavit, Newman claimed that although he had informed counsel of the witness's existence, counsel did not contact her. Id. In a second affidavit, the alibi witness stated “that Newman had been with her at her home-a significant distance from the murder scene-from approximately six or seven in the evening until about midnight on the day the crime occurred.” Id. We noted that “[b]ecause the murder took place at approximately 8:30 to 9 p.m., [the witness's] testimony-if believed-would have completely exonerated Newman.” Id.
We also observed that “[t]he motions judge denied the motion without a hearing and without calling for an answer from the government.” Id. (internal footnote omitted). The judge based his decision largely on the presence of Newman's wallet at the crime scene and the failure of the alibi witness to account for the wallet's presence. Id. at 260-61. According to the motions judge, “it is highly unlikely that [the witness] would leave out such important information in her affidavit.” Id. at 261. The judge further asserted that “because [the witness] could not explain away the government's ‘overwhelming evidence,’ Newman could not show prejudice from his attorney's failure to contact [the witness].” Id.
In reversing the trial judge's order denying Newman's § 23-110 motion without a hearing, we rejected the conclusion that “the government witnesses provided such overwhelming evidence of Newman's guilt that a hearing on [the alibi witness's] credibility was not necessary,” observing:
Three witnesses identified Newman as someone present at the scene of the crime, but two of these witnesses admitted they had smoked crack cocaine and drunk alcohol immediately before the robbery, and there was testimony that the third had done so as well. One of the witnesses, [an alleged accomplice], was severely impeached with evidence of her plea bargain, prior convictions, and previous inconsistent statements. The other two-the complaining witnesses-had failed to identify either defendant from a photographic array. And, only after a newspaper article about the murder had appeared did they identify Newman and Samuels as the assailants. If the jury had received the benefit of [the alibi witness's] testimony that Newman had been with her elsewhere at the time of the shooting, therefore, it might have resolved the conflicts between Newman's and the government's versions of events in Newman's favor.18 Id. at 261-62.Turning to the issue of Newman's wallet, we further concluded:
Contrary to the motions judge's ruling, ... the presence of Newman's wallet at the scene of the crime does not negate the exculpatory testimony of an alibi witness as a matter of law. Trial counsel told the jury in closing argument that “there's no evidence to show that [Newman] wasn't there earlier in the day,” and that “[t]he only other person that would have known that is [a] woman who hasn't testified.... Furthermore, we cannot know whether, if [the alibi witness] had testified, Newman himself would have taken the stand to present his explanation about the wallet.... While the jury might have found this proffered explanation-that Newman happened to come by the apartment on the very day of the murder and accidentally left his wallet there-too incredible to believe, it also could have found the combination of an alibi witness and the defendant's version of how the wallet got there believable. Without a hearing to assess the credibility of the witness, however, we cannot tell what a jury might have done.Id. at 262 (internal citation omitted).We further stated:
[W]e cannot agree with the motions judge that “it is highly unlikely that [the alibi witness] would leave out such important information [as to how Newman's wallet innocently came to be at the crime scene] in her affidavit.” While [the witness's] failure to mention the wallet might affect her credibility, it does not as a matter of law make her testimony incredible-even if only because there is no discernible reason why [the witness] could have been expected to know anything about Newman's wallet ... In any event, the jury might have believed [the witness] despite the presence of the wallet; without a hearing to assess her credibility in the context of the other evidence, we cannot tell. Therefore, because the record here is “barren of the evidentiary facts which would either confirm or refute [the] allegation” that Newman's attorney failed even to attempt to contact a potential alibi witness, Newman is entitled to a hearing on his § 23-110 motion.Id.The situation involving the presence of Newman's wallet at the crime scene in Newman is analogous to the situation involving the discovery of appellant's fingerprints and palm print at the home of NN. Unlike Newman, however, appellant offered an explanation for the presence of his prints at trial. Certainly, his explanation posits an unlikely coincidence, which the jury was under no obligation to credit. However, as in Newman, the testimony of an alibi witness here could have provided greater credibility to appellant's explanation. At the very least, the fingerprint evidence cannot be viewed as so conclusive that it itself destroys the credibility of the proffered alibi witness.
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In short, we do not think that the evidence presented by the government, while undeniably strong, was so overwhelming that it conclusively established, without a hearing, that appellant was entitled to no relief, whatever the possible strength of the proffered testimony of the alibi witnesses might be on further assessment. Because appellant “allege[d] facts which, if demonstrated, would establish ineffective assistance of counsel,” Lane, supra, 737 A.2d at 548 (quoting Johnson, supra, 385 A.2d at 744), and because “[t]he exculpatory value of the evidence proffered by appellant turns at bottom on the credibility ... of the witnesses specifically identified in [his] § 23-110 motion,” Newman, supra, 705 A.2d at 261 (quoting Rice v. United States, 580 A.2d 119, 122-23 (D.C.1990)), we conclude that it was improper for the motions judge to summarily deny appellant's motion. In so doing, we emphasize, as we did in Newman, that “we do not address the [ultimate] merits of [appellant's] claim.” Id. at 262 (citing Gray, supra, 617 A.2d at 524).
For the foregoing reasons, we vacate the order denying the § 23-110 motion and remand the case to the trial court for further proceedings consistent with this opinion.
Judge Kramer concurred in the appellate court's order requiring a hearing, but he wrote separately:
As the majority notes, Strickland v. Washington, 466 U.S. 668 (1984), provides that to prevail on a claim of ineffective assistance of counsel, a defendant must show both that the performance of counsel was deficient and that he was prejudiced by that deficiency. To meet the test, a defendant must establish “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” Id. at 687, and that the defendant suffered prejudice because “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Because of what I perceive to be the strength of the evidence in this case (and the deficiencies of the affidavits presented to Judge Dixon), I am persuaded that there is no realistic possibility that Mr. Jones was prejudiced by any of the asserted deficiencies of counsel.D.C.Code § 23-110(c) provides a presumption that there will be a hearing on an ineffective assistance of counsel claim. It also provides, however, that such a hearing is not necessary if “the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” In my judgment, the motion, files and records of this case “conclusively show” that the defendant committed the acts of which he was convicted and thus should be entitled to no relief. But the government did not rely on the strength of its evidence in its presentation to Judge Dixon, and, as Judge Steadman points out, as a general rule, we do not consider on appeal arguments that were not presented below. Nonetheless, because I view the strength of the evidence so differently from the majority, I concur and explain.
To explain my differing assessment, I provide my own rendition of the facts. Although the crimes against Mrs. N. came after those against Mrs. L., I begin with the offenses involving Mrs. N. since the evidence of these crimes, in my assessment, is sufficient to prove them not “merely” beyond a reasonable doubt, but practically to “a mathematical certainty”-a standard that involves a degree of evidence that goes beyond what is necessary to convict an accused . FN1
FN1. See Criminal Jury Instructions for the District of Columbia, No. 2.09 (4th ed. Rev.2005) (“The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainly.”)
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In sum, contrary to the view implicit in the majority opinion, I conclude that the government's evidence of Jones's guilt was overwhelming. FN5 For the reasons detailed above, this evidence easily met, if not exceeded, the standard of beyond a reasonable doubt. The record, on the other hand, convincingly refutes the belated allegations in the affidavits that Jones now proffers in his motion for post-conviction relief. Thus, I might well have been satisfied that “under no circumstances could [Jones] establish facts warranting relief.” See Joseph v. United States, 878 A.2d 1204, 1209 (D.C.2005) (quoting Ramsey v. United States, 569 A.2d 142, 147 (D.C.1990)) (internal quotation marks omitted), and that the trial court was therefore justified in denying the § 23-110 motion without a hearing. However, the government's decision not to argue the strength of its evidence before the trial court prevented the trial judge from conducting its own assessment of whether the Ramsey test had been met. For this reason, despite my own view that the evidence conclusively establishes Jones' guilt, I cannot disagree with the majority's decision to remand for a hearing. Thus, I concur rather than dissent.
FN5. Guilt, of course, is rarely established with absolute certainty. It is worth noting, however, that there is no indication that Mr. Jones has sought to take advantage of the Innocence Protection Act, D.C.Code § 22-4133, which would hold out the possibility of scientific exoneration should his DNA not match the DNA on the swabs taken from the victims.
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