Stephan, J.
A jury convicted James Branch of robbery and kidnapping, and we affirmed his convictions and sentences on direct appeal.
The underlying facts are fully set forth in our opinion denying Branch relief in his direct appeal.
At trial, Branch testified in his own behalf. He admitted using a credit card taken from the victim during the robbery but denied involvement in the robbery itself. He testified that he slept in an apartment he shared with his girlfriend, Laquesha Martin, until either 11 a.m. or 2 p.m. on July 16, 2007, and then picked up Martin from work. Branch stated that he did not know whether they returned to the apartment at 2:30 or 4:30 p.m., but then he said he and Miller left the apartment around 2 or 3 p.m. Branch said they arrived at the convenience store, where the
In April 2011, Branch filed a pro se motion for postconviction relief.
On remand, the court received the depositions of Martin, Branch, and the attorney who represented Branch at trial and on direct appeal. The court found Branch's deposition testimony was consistent with his testimony at trial. Significantly, Branch testified in the deposition that on July 16, 2007, he slept until 11 a.m. or 2 p.m. at Martin's house and then left to pick up Martin from work. He said they then ran some errands and returned to Martin's home between 2 and 4 p.m. Branch testified that later that afternoon, he and Miller left in Martin's car to use some credit cards which Miller had obtained to fill up gas tanks. Branch testified that he wanted his trial counsel to call Martin as a witness at trial because he felt that "she could have pretty much told them where we was that day and probably helped me out a little bit with this case."
Martin testified that she and Branch ran errands on the morning of July 16, 2007, before he took her to work around noon. She testified that Branch picked her up from work between 5 and 6 p.m. and that she was with him for the remainder of the evening.
Branch's trial counsel testified in her deposition that she talked to Martin on the telephone several times before trial, but that Martin was evasive and said she could not testify that Branch was with her or picked her up from work at the time the crime occurred. Martin further told counsel she could not testify that Branch's version of events was "factually correct." Nevertheless, counsel subpoenaed Martin for trial. When counsel approached Martin during the trial about what her testimony would be, Martin again told her that she could not testify to Branch's version of events. Counsel testified that she decided not to have Martin testify because
In denying postconviction relief, the district court determined that the testimony of Branch and Martin was inconsistent as to the events of July 16, 2007. It noted that Branch claimed "to have been alone all morning until he picked ... Martin up at 11 a.m. or 2 p.m., whereas ... Martin states she was with [Branch] all morning until he dropped her off at work around noon." The court found that "[c]onsidering the evidence adduced at trial in combination with this extreme contrast[, Branch] failed to establish that ... Martin even provides an alibi."
The court then addressed whether trial counsel was deficient for failing to call Martin at trial. It found that counsel's decision not to call Martin as a witness was reasonable "based on the interactions with... Martin, especially in light of the fact that such testimony would be in direct contradiction with [Branch's] own version of the events he insisted on relaying during
Branch assigns the district court erred in denying his amended motion for postconviction relief.
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.
In an evidentiary hearing for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and the weight to be given a witness' testimony.
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.
Branch claims that Martin's testimony would have corroborated his alibi and that thus, trial counsel was deficient for failing to call Martin at trial. His claim is based solely upon an alleged deprivation of his constitutional right to effective assistance of counsel. Because Branch's trial counsel was also his appellate counsel, this is his first opportunity to assert his claims relating to ineffective assistance of his trial and appellate counsel.
In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden first to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case.
When reviewing a claim of ineffective assistance of counsel, an appellate court will not second-guess reasonable strategic decisions by counsel.
Branch's trial counsel articulated two reasons for not calling Martin at trial. First, Martin appeared reluctant to testify and thus would have made a bad witness. Second, Martin told counsel that her version of events would not have corroborated Branch's testimony. Both are sound reasons for counsel's strategic decision not to call Martin as a witness. Based upon what Martin told her, counsel reasonably believed that Martin's testimony would not benefit Branch's defense but would in fact be detrimental.
Even when viewed with the benefit of hindsight, counsel's decision not to call Martin as a witness was correct. It is evident from Martin's subsequent deposition testimony that she could not corroborate Branch's claim that he was alone in her home all morning before leaving to pick her up from work. Martin testified that she was with Branch in the morning until he took her to work in the afternoon. Faced with inconsistent testimony of this nature, a jury would likely have concluded that either Branch, Martin, or both of them were not telling the truth. Martin's testimony would likely have undermined Branch's credibility as to his whereabouts at the time of the crime. Based upon our review of the record, we agree with the district court that Branch has not shown that he was denied the effective assistance of counsel. The evidence does not support either the deficient performance prong or the prejudice prong of the Strickland standard.
For the foregoing reasons, the judgment of the district court denying postconviction relief is affirmed.
AFFIRMED.