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Trial counsel’s failure to file timely alibi notice doesn’t get defendant new trial

State v. Deshun Latrell Bannister, 2013AP2679-CR, District 1, 9/3/14 (not recommended for publication); case activity

A claim that trial counsel was ineffective for failing to file a timely alibi notice founders on the lack of prejudice, as there’s nothing in the record showing what the alibi witness would have said had she been allowed to testify.

After Bannister’s first trial date was adjourned, trial counsel filed a motion for leave to file a notice of alibi, but the circuit court denied the request because the notice was untimely under § 971.23(8)(a). (¶¶3-7). Assuming trial counsel was deficient for not filing a timely notice, Bannister’s ineffective claim fails because his postconviction motion doesn’t set forth sufficient facts to establish prejudice:

¶18      …. Nowhere in the [postconviction] motion does Bannister explain who Green [the alibi witness] is or what she would have said. The only known information about Green comes from Bannister’s trial testimony. Bannister’s motion does not address any relevant information as to how Green’s testimony would have helped him at trial—he does not allege the precise times he was supposedly at Green’s home, where Green’s home is in relation to where the crimes took place, or why he was with Green to begin with. Moreover, Bannister did not support his motion with an affidavit from Green stating that she actually would testify in his favor and what exactly she would testify to. Speculative assertions that a witness will provide supporting testimony are insufficient to support a claim of ineffective assistance of counsel.

Nor did the circuit court err in denying the motion to file a late notice of alibi because the offer of proof as to the alibi testimony was insufficient:

¶22      ….[W]hen defense counsel discussed the alibi motion with the trial court, counsel stated that she did not speak with or investigate the alleged alibi [witness]. Indeed counsel did not even name the alleged alibi [witness], but rather referred to her simply as “my client’s girlfriend.” Defense counsel, much like Bannister’s postconviction motion, completely lacked any sort of specificity when requesting an opportunity to file the witness list, and even indicated that an alibi defense may not even have been possible, stating “[t]he alibi, I admit that might be shaky at best.” Simply stated, there was no basis for the trial court to grant defense counsel’s request when absolutely nothing about the alleged alibi [witness], other than her status as Bannister’s girlfriend, was offered to the trial court.

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