The opinion of the Court was delivered by HANDLER, Justice.
Defendant, David Fritz, seeks reversal of his convictions for second-degree aggravated assault and third-degree unlawful possession of a handgun. He asserts that the trial court's refusal to grant a continuance of the trial prevented his attorney from adequately preparing a defense and, consequently, deprived defendant of constitutionally adequate representation by counsel. The issue posed by defendant's appeal compels us to re-examine the standards that govern a criminal defendant's
This appeal arises out of an altercation between Newark Special Police Officer Daryl Armstrong and a group of youths, one of whom was defendant David Fritz. As a result, defendant was indicted on November 18, 1980, for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); first-degree robbery, N.J.S.A. 2C:15-1; and third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. In order to resolve the issues on appeal, we must first carefully examine the surrounding facts.
It is undisputed that on the night of September 2, 1980, Armstrong was armed and working in uniform as a security guard at Gino's, a fast food restaurant located on Park Avenue between Fifth and Sixth Streets in Newark. R.J., a juvenile, entered the establishment and asked in a vulgar manner to use the bathroom. Armstrong testified that while leaving the restaurant, R.J. uttered obscenities and threatened to take the officer's gun. Armstrong asked R.J. to leave and followed him out the door of the restaurant to the parking lot.
Defendant and his friends, members of a group called "The Assassins," were walking through the parking lot at this time. R.J. was standing in front of Gino's with Armstrong when he called to this group for help. Defendant Fritz and codefendant Miller approached R.J. and the officer and inquired as to the problem. Armstrong informed them that R.J. had been using obscene language and that he wanted R.J. to leave the restaurant. R.J.'s response was to turn around, drop his pants, and expose his buttocks to Armstrong. This action provoked laughter from R.J.'s friends. Armstrong then attempted to arrest R.J. for indecent exposure and for being a disorderly person.
The events subsequent to Armstrong's attempt to arrest R.J. are disputed. At the probable cause hearing, held one month
Armstrong also stated explicitly that defendant Fritz did not strike him:
Based upon the testimony of Special Officer Armstrong, the court dismissed the charge of aggravated assault, determining that "testimony is lacking with respect to any specific aggravated assault on Officer Armstrong by reason of specifically punching him or hitting him about the body."
In contrast to his testimony at the probable cause hearing, Armstrong testified at trial that "there was no doubt" in his mind that both Fritz and Miller had been punching him when he drew his gun. In addition, with respect to what defendant
Codefendant Miller's witness, Carl Middleton, testified at trial to yet another story. He was with Fritz and Miller in the parking lot, but did not go forward with them to engage Armstrong. Whereas Armstrong testified that there was one unidentified assailant involved in the altercation, Middleton placed the number at two or more. Moreover, Middleton testified that it was these unidentified individuals who actually hit Armstrong. Middleton stated that Fritz neither hit Armstrong nor grabbed at his gun, but was trying to remove himself from the fray when he tripped over a ledge in the sidewalk and fell near a parked car. Armstrong then broke free from the person holding him, drew his gun, and fired in Fritz's direction.
At this point the various accounts converge. R.J. and the unidentified assailant(s) fled at the sound of the gunshot, and Armstrong arrested Fritz and Miller. The police arrived shortly thereafter. One of the responding police officers, Officer Price, prepared an incident report based on information supplied by Armstrong. Significantly, Price testified that the report contained no indication that Fritz had hit Armstrong, and that Armstrong had reviewed the report and made no changes.
Following his arrest, defendant had only sporadic contact with the Public Defender's Office prior to trial. The Office opened a file on his behalf in November of 1982. Francis Meehan, Esq., who was ultimately to represent defendant at trial, spoke to him the next month about a proffered plea bargain, which defendant refused. The case was then assigned to Richard Aljian, Esq., of the Public Defender's Office. At this point, however, communications broke down. Nothing further was done on the case until Mr. Meehan received a trial notice on April 28, 1983 setting the trial date as Monday, May 9.
On the first morning of trial, Mr. Meehan requested a continuance on the ground that he was unprepared to try the case. He told the court that he had had his first serious discussion with defendant that very morning. In addition, counsel had neither ordered a copy of the probable cause transcript nor contacted witnesses. The trial court noted that Mr. Meehan was assigned to the court, and that defendant had not come forward to contact counsel with names of witnesses in the two and a half years since his arraignment. Further noting that the first day was only for jury selection, the court stated, "So you will have this evening and tomorrow until nine o'clock to do whatever you are able to do." The trial proceeded the next day, May 10, and concluded on May 12, 1983. The jury found defendant guilty of second-degree aggravated assault, second-degree robbery (a lesser-included offense), and third-degree possession of a handgun. On June 17, 1983, the trial court heard and denied defendant's motions for judgment of acquittal notwithstanding the verdict and for a new trial. Defendant was sentenced on August 12, 1983, to concurrent ten-year terms of imprisonment with three-year periods of parole ineligibility for the aggravated assault and robbery convictions, and a concurrent five-year term for the possession count.
The Appellate Division reversed defendant's conviction for robbery because the evidence, "once fully developed at trial," did not support it. However, a majority of the court affirmed defendant's other convictions in the face of defendant's allegation that he had received ineffective assistance of counsel at trial. The court held that the representation defendant received occasioned "no realistic prejudice to defendant's case or to the true interest of justice." On this point, one judge dissented, stating, "[d]efendant's claim of ineffective assistance of counsel should have been accepted, not due to any lack of counsel's diligence or legal ability, * * * but because defendant
The "ineffective assistance of counsel" claim is before this Court as of right pursuant to Rule 2:2-1(a)(2).
Defendant's claim that he received ineffective assistance of counsel is based upon the particular circumstances surrounding the underlying incident. Defendant contends that he neither hit Armstrong nor grabbed for his gun, but was merely the target of a wild shot fired by Armstrong after the latter was publicly embarrassed by a group of youths. According to defendant, Armstrong's testimony at the probable cause hearing to the effect that defendant never actually hit him or pointed the gun at him provides support for his version of the altercation. Thus, defendant argues, the probable cause testimony was "potentially devastating" to Armstrong's credibility at trial. However, because defense counsel had such a brief time to prepare, he was unaware that there had been a probable cause hearing until well into the trial. Defendant claims that this failure to use Armstrong's prior statements for impeachment purposes deprived him of effective assistance of counsel, which prejudicially affected the outcome of the trial. Defendant also asserts that counsel's inadequate preparation time prevented him from contacting witnesses who could have aided in the defense. We consider these claims under both the federal and state constitutions, addressing first the appropriate substantive standard that governs a criminal defendant's entitlement to effective representation of counsel.
In order to evaluate defendant's claim of ineffective assistance of counsel under the federal Constitution, we must examine the United States Supreme Court's recent pronouncements in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
It has long been established under the federal Constitution that the right to effective, unhindered, assistance of counsel is among those "immutable principles of justice which inhere in the very idea of free government." Powell v. Alabama, 287 U.S. 45, 71-72, 53 S.Ct. 55, 65, 77 L.Ed. 158, 172 (1932) (quoting Holden v. Hardy, 169 U.S. 366, 389, 18 S.Ct. 383, 387, 42 L.Ed. 780, 790 (1897). Powell and other early cases relied solely on a fifth amendment due process standard to ensure that counsel was effective. See, e.g., Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), overruled by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), however, the Supreme Court ruled that the sixth amendment's provision of the right to counsel applied to the states through the fourteenth amendment. As a result, the sixth amendment itself became a more important source influencing the constitutional right to the effective assistance of counsel.
This shift in perception as to the basis of the guarantee of effective representation also affected judicial views of its nature and scope. See W. Genego, "The Future of Effective Assistance of Counsel: "Performance Standards and Competent Representation," 22 Am.Crim.L.Rev. 181 (1984); Note, "A Functional Analysis of the Effective Assistance of Counsel," 80 Colum.L.Rev. 1053 (1980). Courts focusing on the fundamental fairness of a trial under the fifth amendment frequently evaluated counsel's performance under a "farce and mockery" standard, see, e.g., Diggs v. Welch, 148 F.2d 667 (D.C. Cir.), cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945) (first use of "farce and mockery" standard); Trapnell v. United States, 725 F.2d 149, 151 (2d Cir.1983) (by the time of Gideon v. Wainwright in 1963, the "farce and mockery" standard had been adopted by nine of the federal circuit courts). Under this
The federal decisional law on the right to effective assistance of counsel was synthesized in Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The Supreme Court there initially distinguished between two classes of right-to-counsel cases: cases "based on actual or constructive denial of the right to counsel altogether, including claims based on state interference with the ability of counsel to render effective assistance to the accused," id. at 683, 104 S.Ct. at 2062, 80 L.Ed.2d at 690; and cases in which counsel "simply
The Strickland Court announced a simple, two-part test for evaluating claims of "actual ineffectiveness" of counsel:
With respect to the performance prong of the test, the Court noted that client loyalty, adequate consultation, and legal proficiency are relevant in determining whether assistance was effective. It eschewed, however, any more specific test: "[N]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Id. at 688-89, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. The Court endorsed extreme deference in evaluating the performance of counsel, requiring "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance * * *." Id.
As to the second prong of the Strickland test, the Court ruled that in "actual ineffectiveness" cases, prejudice must be proved; it is not presumed. Id. at 692-93, 104 S.Ct. at 2067, 80 L.Ed.2d 696-97. Specifically, a defendant alleging actual ineffectiveness must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
The second prong of the Strickland test — the prejudicial effect of ineffective assistance of counsel — was further amplified
Before applying the Strickland-Cronic rule, as a matter of federal constitutional law, to the facts of this case, we turn next to the issue of a defendant's entitlement to counsel under the State Constitution. We do so in view of the established fact that the State Constitution is an independent basis for protectable rights. State v. Williams, 93 N.J. 39 (1983); State v. Hunt, 91 N.J. 338 (1982). We must decide whether the State Constitution accords greater protection than that secured by the federal Constitution, e.g., State v. Novembrino, 105 N.J. 95 (1987); State v. Hunt, supra, 91 N.J. 338; State v. Alston, 88 N.J. 211 (1981); State v. Johnson, 68 N.J. 349 (1975), or protections comparable to the federal Constitution, e.g. State v. Gilmore, 103 N.J. 508 (1986); see State v. Williams, supra, 93 N.J. 39.
Although the federal judiciary and many of the state courts have rejected the due process-based "farce and mockery" standard in favor of a "reasonable competence" test, e.g., Trapnell, supra, 725 F.2d at 151-52, this Court has yet to expressly reformulate or disavow the "farce and mockery" standard. In our first modern treatment of this issue, State v. Williams, 39 N.J. 471 (1963), cert. den., 382 U.S. 964, 86 S.Ct. 449, 15 L.Ed.2d 366 (1965), overruled on other grounds, State v. Czachor, 82 N.J. 392
State v. Bentley, 46 N.J.Super. 193 (App.Div. 1957), is the first New Jersey case to expressly enunciate the "farce and mockery" standard. In Bentley, counsel's numerous errors, including his failure to interview witnesses, were held insufficient to make out a claim of ineffective assistance. The court stated that "[u]nless the purported representation by counsel was such as to make the trial a farce and mockery of justice, mere allegations of incompetency or inefficiency of counsel will not ordinarily suffice as grounds to vitiate the trial." Id. at 203. Until the decision in Strickland, the "farce and mockery" standard is cited in the vast majority of ineffective assistance cases in our jurisdiction. The Appellate Division in State v. Pace, 171 N.J.Super. 240 (1979), certif. den., 84 N.J. 384 (1980), noted that although the test "has been subjected to criticisms in other jurisdictions ... it remains the test here." Id. at 251 n. 1. More recently, the "farce and mockery" standard was referred to as "long settled in this State." State v. Coruzzi, 189 N.J.Super. 273, 319-20 (App.Div.), certif. den., 94 N.J. 531 (1983).
However, in State v. Dennis, 43 N.J. 418 (1964), we articulated a slightly different test for determining ineffective assistance. There, defendant appealed his narcotics conviction on the ground that his trial counsel's failure to adequately pursue an entrapment
See also State v. Hines, 109 N.J.Super. 298, 304 (App.Div.), certif. den., 56 N.J. 248, cert. den. 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970) ("The test is, did [defendant] receive a fair trial?"); State v. Reddick, supra, 76 N.J. Super. at 352 ("fundamental justice" demands new trial).
Although defendant attempts to portray the case law in New Jersey as moving away from the "unduly narrow" "farce and mockery" standard in favor of a more liberal "fundamental fairness" approach, the standards have frequently been treated as equivalent by our courts. Both standards trace their origins to a due process evaluation of the fairness of the resulting trial. See Note, "Assistance of Counsel," supra, at 1054-1060 ("At least as traditionally applied, the `farce and mockery' analysis focuses primarily on the fairness of the trial as a whole, instead of particular instances of attorney misconduct." Id. at 1059). Indeed, a number of cases have explicitly equated the two standards. In State v. Edge, 57 N.J. 580 (1971), this Court rejected an assertion that the trial counsel's performance was constitutionally inadequate. We quoted Dennis, supra, 43 N.J. at 478, for the proposition that ineffectiveness claims are measured against the "fundamental guaranty of a fair trial," and went on to state: "Putting it another way, to warrant reversal, defense counsel must have been so incompetent as to make the trial a farce or mockery of justice." (citing State v. Bentley, supra, 43 N.J. Super. at 203). See also State v. Vassalluzzo, 114 N.J.Super. 153, 155 (App.Div.), aff'd, 58 N.J. 227 (1971) (equating "fair trial" and "farce and mockery" standards); State v. Woodard, 102 N.J.Super. 419, 429 (App.Div.), certif.
Only twice prior to Strickland has a New Jersey court purported to apply a "reasonable competence" standard. In State v. Anderson, 117 N.J.Super. 507 (App.Div. 1971), modified on other grounds, 60 N.J. 437 (1972), the court held that "[a] defendant is entitled to a standard of adequacy of legal services equal to the exercise of normal customary skill and knowledge." Id. at 519; see also State v. Marrero, 155 N.J.Super. 567, 570 (App.Div. 1978) (trial counsel departed from "the accepted standard of competence demanded of attorneys in criminal cases"); cf. State v. Sugar, 84 N.J. 1, 17 (1980) (without applying standard, court notes that counsel must be "reasonably competent").
Following Strickland and Cronic, almost all ineffective assistance cases addressed by the Appellate Division have been resolved exclusively on the basis of those decisions, ignoring prior New Jersey law on the subject. See, e.g., State v. Chung, 210 N.J.Super. 427, 434 (App.Div. 1986); State v. Merlino, 208 N.J.Super. 147, 152 (App.Div. 1984), certif. den., 103 N.J. 460 (1986); State v. Childs, 204 N.J.Super. 639, 645-46 (App. Div. 1985), certif. den., 104 N.J. 430 (1986); State v. Furguson, 198 N.J.Super. 395, 407 (App.Div.), certif. den., 101 N.J. 266 (1985); State v. Ortega, 198 N.J.Super. 161, 164-65 (App. Div. 1985); State v. Boyle, 198 N.J.Super. 64, 66, n. 1 (App. Div. 1984); cf. State v. Rhoda, 206 N.J.Super. 584, 596-97 (App. Div. 1986) (citing to both Strickland and State v. Woodard, supra, 102 N.J.Super. 419, a "farce and mockery"/"fundamental fairness" case). In fact, the Appellate Division opinions in the case sub judice — both majority and dissent — rely on Strickland in evaluating defendant's ineffectiveness claim.
The de facto adoption of the Strickland standard by our lower courts impliedly recognizes the paramountcy of the federal Constitution and acknowledges the possibility that this test is more protective than that posited by prior state law. However, Strickland itself made it clear that the Supreme Court did not intend this decision to compel state courts to make drastic changes in prior law. The Court stated that Strickland should not be regarded as a major change in sixth amendment jurisprudence because the various available standards produce disparate results "only in the rarest case." Id. 466 U.S. at 696-97,
Even if we are not constitutionally compelled to adopt the Strickland-Cronic test, the development of the law in this area impels us to conclude that we should recognize the soundness and efficacy of both the substance and formulation of this federal Constitutional standard in defining our own State Constitutional guarantee of effective assistance of counsel. We therefore hold that under Article I, paragraph 10 of the State Constitution a criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated.
We turn next to the standards for reversing a conviction under the Strickland-Cronic test, as reflecting both the federal and State constitutional rights of effective assistance of counsel. This entails an examination of the rule of prejudicial error in this context. Specifically, we must determine the quality of prejudice that must be shown — in terms of the particular ineffectiveness
Both earlier federal and New Jersey cases have noted the incongruity of applying a "harmless error" test to a violation of the constitutional right to counsel. The right to be effectively represented by counsel largely undergirds all other rights of criminal defendants. See State v. Sugar, supra, 84 N.J. at 16 ("[w]ithout the guiding hand of counsel, an innocent defendant may lose his freedom because he doesn't know how to establish his innocence") (quoting Powell v. Alabama, supra, 287 U.S. at 69, 53 S.Ct. at 64, 77 L.Ed.2d at 170). Consequently, both federal and New Jersey cases have sometimes articulated the principle that "[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); see Williams v. Kaiser, 323 U.S. 471, 475, 65 S.Ct. 363, 366, 89 L.Ed. 398, 402 (1945); State v. Ebinger, supra, 97 N.J. at 27.
New Jersey's pre-Strickland formulations of "farce and mockery" or "fundamental fairness" do not explicitly require a showing of prejudice. Indeed, State v. Bentley, supra, 46 N.J.Super. 193, expressly eschews the relevance of prejudice under its due process analysis, holding that counsel's failure to act competently is no ground for reversal "even though such failure results in a conviction which perhaps might have been avoided." Id. at 203. To this extent the "farce and mockery"/"fair trial" standard may well be less protective of sixth amendment rights than Strickland and Cronic. Nevertheless, at least some "farce and mockery"/"fair trial" cases consider whether counsel's failure was prejudicial to defendant's case. See, e.g., State v. Edge, supra, 57 N.J. at 592-93; State v. Dennis, supra, 46 N.J. at 478; State v. Coruzzi, supra, 189 N.J. Super. at 319-21; State v. Clark, 105 N.J.Super. 381, 384 (App.Div. 1968).
Although there is an intuitive appeal to the view that "harmless error" tests do not apply to constitutional violations, a conclusive presumption of prejudice every time defense counsel failed to display "reasonable competence" would allow for an intolerable number of truly unnecessary reversals. "Ineffective assistance" appeals have never been favored by courts. See Strickland, supra, 466 U.S. at 689-90, 104 S.Ct. at 2066, 80 L.Ed.2d at 694-95.
We are satisfied that unless the case warrants a presumption of prejudice under Cronic, a defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have
We turn finally to whether, based on the facts of this case, defendant is entitled to a reversal of his conviction under the Strickland-Cronic test. Defendant contends initially that he is entitled to a presumption of prejudice under Cronic.
One aspect of defendant's claim is that counsel's lack of preparation time — resulting from the trial court's refusal to grant a continuance — itself deprived defendant of constitutionally adequate assistance of counsel. However, as Cronic and the cases decided after it make clear, the obstacles facing defendant's attorney in terms of inability to prepare are insufficient to warrant a presumption of prejudice and to excuse the need for an inquiry into the actual conduct of the trial.
Reversals following Cronic have arisen only from more significant impairments of adequate representation than usually occur from lack of preparation. E.g., Martin v. Rose, 744 F.2d 1245 (6th Cir.1984); see also Walberg v. Israel, 766 F.2d 1071 (7th Cir.), cert. den., ___ U.S. ___, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985) (Cronic presumption appropriate when trial court actively interfered with defense counsel's representation and indicated to counsel that his future appointments to represent indigents would be jeopardized if he pressed too hard during trial; focus on "state interference" with representation); Siverson v. O'Leary, 764 F.2d 1208 (7th Cir.1985) (Cronic presumption appropriate where defense counsel was completely absent during jury deliberations and the return of the verdict, thus missing jury communications, motion for mistrial, and polling jury); Wilson v. Mintzes, 761 F.2d 275 (6th Cir.1985) (Cronic presumption appropriate where trial court questioned counsel's competence, provoked him into acts inconsistent with his duty of client loyalty, and refused to grant client's motion for substitution of counsel); Blake v. Kemp, 758 F.2d 523 (11th Cir.), cert. den., ___ U.S. ___, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985) (Cronic presumption appropriate where state failed to provide examining psychiatrist with defendant's taped confession and letter written by defendant, both of which strongly supported insanity defense); Government of Virgin Islands v. Zepp, 748 F.2d 125 (3rd Cir.1984) (Cronic presumption appropriate when trial counsel had actual conflict of interest due to (1) his potential liability for same charges on which defendant
We are satisfied from this collective judicial experience that the trial court's denial of defendant's motion for a continuance in this case to enable defense counsel to prepare did not completely vitiate the "crucible of meaningful adversarial testing." Cronic, supra, 466 U.S. at 656, 104 S.Ct. at 2045, 80 L.Ed.2d at 666. The record shows that counsel was familiar with this case prior to trial, having spoken with defendant about a proffered plea bargain. Moreover, counsel had at least one full day, and potentially three full days, to prepare for the trial. Finally, this case did not present overly difficult or complicated issues to an experienced criminal trial attorney. Thus, defendant is not entitled to a presumption of prejudice under Cronic.
Since a presumption of prejudice is unwarranted, we must turn to the "actual ineffectiveness" test of Strickland to evaluate whether defendant received inadequate assistance of counsel. Defendant argues that counsel's performance was inadequate because he (1) failed to contact witnesses who could have aided in the defense and (2) failed to use Armstrong's probable cause testimony for impeachment purposes. As noted, we must determine whether, as a matter of reasonable probability, the result of the trial would have been different had counsel not performed deficiently in these respects.
Initially, defendant does not deny that his attorney performed as well as could be expected under the circumstances; he asserts instead that the circumstances inexorably resulted in his receiving ineffective assistance. As noted in Moore v. United States, supra, 432 F.2d at 739, "[t]he exercise of utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the
With respect to the contention based on absent witnesses, the fact that defendant had ample time to identify witnesses and assist in the defense is irrelevant to whether his counsel had provided effective assistance. Here, for example, the trial court observed that there had been "plenty of time for [defendant] to do whatever he thought he had to do." However, as we remarked in Rodriquez v. Rosenblatt, 58 N.J. 281, 295 (1971), if a criminal matter "has any complexities, the untrained defendant is in no position to defend himself...." See also State v. Sugar, supra, 84 N.J. at 16 (the burden may not be placed on defendant to represent himself, because "the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty") (quoting Johnson v. Zerbst, supra, 304 U.S. at 462-63, 58 S.Ct. at 1022, 82 L.Ed. 1461). Accordingly, we must focus on whether counsel was, in fact, adequately prepared, not on whether with defendant's help he could or should have been.
We can dispose of defendant's claim based on absent witnesses fairly easily. These witnesses have never been identified and their potential testimony has never been described. The case law makes clear that such purely speculative deficiencies in representation are insufficient to justify reversal. See United States v. Rodgers, supra, 755 F.2d 533, 541 (counsel's failure to interview certain witnesses because of time pressure nonprejudicial when counsel could identify the witnesses but had "made no showing whatsoever that ... the ... witnesses to which he alludes would offer any favorable testimony...."); Aldrich v. Wainwright, supra, 777 F.2d at 637 (assertion of prejudice rejected because "[defendant] has not identified any
The import of the probable cause testimony and the failure to have used it pose a much more difficult problem. Defendant claims that counsel's failure to obtain the hearing transcripts left him unable to impeach the State's main witness, Armstrong.
Our courts have recognized the importance to a defendant's case of impeachment evidence. See State v. Brown, 132 N.J.Super. 584, 587 (Law Div. 1975) ("Defense counsel bears the burden of exposing any bias, prejudice or ulterior motive that affects the reliability of [the State's] testimony. This endeavor is severely hampered if the accused is deprived of information which may form the basis of such an attack."). Unavailability of such evidence has been held sufficient to ground a claim of ineffective assistance of counsel. See Asbell v. United States, 436 A.2d 804, 807 (D.C.App. 1981); Johnson v. United States, 413 A.2d 499, 504-05 (D.C.App. 1980). However, the significance of the impeachment evidence is frequently difficult to assess. In State v. Sullivan, 43 N.J. 209 (1964), cert. den. 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed.2d 477 (1966), we upheld a murder conviction despite the fact that prior grand jury testimony had not been available for impeachment. The Court examined this prior testimony and compared it with the trial testimony, and concluded that "in light of the whole case, [the discrepancies] are not so material in character or so prejudicial as to justify a reversal." Id. at 240. Moreover, it has been held that the absence of some impeachment evidence is not prejudicial when the credibility of the State's witness has nevertheless been subject to attack. State v.
In resolving this issue, it might also be helpful to analogize it to a case in which a convicted defendant moves for a new trial on the basis of newly discovered evidence. Rule 4:50-1(b) provides that a court may grant such a motion if the newly discovered evidence "would probably alter the judgment." See State v. Carter, 91 N.J. 86, 121 (1982) (Before a defendant is entitled to a new trial on this ground, he must establish that the new evidence is (1) "material to the issue and not merely cumulative or impeaching or contradictory" and (2) "of the sort that would probably change the jury's verdict if a new trial were granted.") (emphasis added).
Whether or not defense counsel's failure to use Armstrong's probable cause testimony prejudiced defendant to the extent that there is a reasonable probability that defendant would have escaped conviction is a difficult question to answer from the vantage of an appellate review of the trial record. Armstrong's probable cause testimony materially contradicted significant elements of his testimony at trial. At the probable cause hearing, Armstrong specifically denied that defendant hit him although he did testify that defendant grabbed his gun. Yet, Armstrong asserted at trial that defendant did strike him. Less significant is the discrepancy about whether defendant ever actually pointed the gun at Armstrong. The State argues that cross-examination of Officer Price as to what Special Officer Armstrong did or did not tell him overcame the unavailability of the probable cause testimony. Specifically, defense counsel succeeded in getting Officer Price to admit that Armstrong failed to report that defendant had actually hit him. Thus, Armstrong was in fact subject to impeachment with respect to the critical facts of the case. Defendant counters that this is not as effective for impeachment purposes as confronting Armstrong directly with his own contradictory statements sworn to at the probable cause hearing.
Accordingly, for the reasons expressed, the judgment of the Appellate Division is modified and the matter is remanded to the trial court for proceedings consistent with this opinion. We do not retain jurisdiction.
For modification and remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.
Opposed — None.