Crespo v. Warden
A trial attorney can provide ineffective assistance of counsel, if the attorney fails to call a credible witness who would have completely contradicted the victim's testimony. The victim alleged that the petitioner, a former police officer, struck her on three occasions, used force and intimidation to engage in intercourse four different days and chained her in a dirt basement. The petitioner claimed that the victim consented to intercourse and that he did not strike or restrain the victim, as alleged. A jury convicted the petitioner of two first-degree sexual assaults and two third-degree sexual assaults and acquitted the petitioner on kidnapping and two of the sexual assault allegations. The petitioner filed a writ of habeas corpus, alleging that trial counsel, Robert Pickering, did not provide effective assistance of counsel, because he did not call certain witnesses. The habeas court found that the petitioner proved that he receive ineffective assistance, because Attorney Pickering did not call the petitioner's friend, Jeffrey Cruz, to testify as a witness. The victim claimed that the petitioner struck her in the face, when she and the petitioner visited the Cruz family, and that Cruz, a software engineer, recommended that she end her relationship with the petitioner, because he was abusive. Allegedly, Cruz later denied that he observed the alleged injury, that he recommended that she end the relationship or that he said that the petitioner was abusive. At trial, the prosecutor used constancy of accusation, medical and psychological evidence to support the victim's claims. Cruz's testimony, if he had testified, would not have been cumulative of the testimony of other witnesses. "It was," wrote the habeas court, "incumbent upon Attorney Pickering to utilize an ostensibly credible witness, such as Mr. Cruz, whose testimony would contradict the victim's." Pickering provided ineffective assistance, because he did not call Cruz as a witness. A reasonable likelihood existed that the results of the trial would have been different, if Cruz had been called. The court vacated the petitioner's sexual assault convictions and remanded.