APPEAL FROM THE SUPERIOR COURT, JOSEPH M.F. RYAN, J.
Before Steadman, Schwelb, and Reid, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge:
This is an appeal by Sherman W. Dobson from an order of the trial court denying Dobson's motion, filed pursuant to D.C.Code § 23-110 (1996), to set aside his convictions in 1980 of armed robbery *fn1 and of carrying a pistol without a license (CPWOL). *fn1 Dobson claims that his trial counsel was constitutionally ineffective. The trial judge held that Dobson was not prejudiced by any deficiency in his attorney's performance and that no hearing on the motion was required. Primarily because the judge failed to address Dobson's most persuasive argument, we reverse.
In the late evening of June 6, 1978, Edward Sawyer, a special police officer at Howard [711 A2d Page 80]
University, was robbed at gunpoint by two men. On January 10, 1979, a grand jury returned an indictment charging Dobson and James Harris with the crime.
On October 14 and 15, 1980, Dobson was brought to trial in the Superior Court. The case against Dobson consisted primarily of Officer Sawyer's identification testimony against him. *fn2
Although no transcript of the trial is now available, it appears from the parties' briefs in Dobson's initial appeal *fn3 that the identification testimony was somewhat problematic. Specifically, Sawyer testified at trial that the following identification procedures had taken place:
1. On June 26, 1978, less than three weeks after the robbery, Sawyer selected Dobson's picture from a photo array as the more light-skinned of the two robbers. According to Dobson's brief, however, Sawyer stated that he was only "45 to 60 percent sure" of his identification.
2. Fifteen days later, on July 11, 1978, at a lineup at Metropolitan Police headquarters, Sawyer selected two individuals other than Dobson as the robbers.
3. On November 21, 1978, nearly six months after the robbery, Sawyer viewed a second lineup, this one in Baltimore. On this occasion, Sawyer identified Dobson as one of the robbers. The individual whom Sawyer had identified at the first lineup as the "light-skinned" robber did not participate in the Baltimore lineup.
4. On October 15, 1980, two years and four months after the robbery, Sawyer identified Dobson in the courtroom as one of the men who robbed him.
The defense introduced into evidence a videotape of the initial lineup at which Sawyer had identified two men other than Dobson as the perpetrators of the crime. Dobson's attorney called no witnesses. Dobson was found guilty of armed robbery and CPWOL, and he was sentenced to serve a total of eighteen years and four months to life. The judge ordered that Dobson's prison term be served consecutively to any other sentence.
B. The prospective alibi.
Dobson's trial counsel told the jury in his opening statement that he would present testimony establishing that, on June 6, 1978, Dobson was at a party in Baltimore and could not have been on the campus of Howard University at the time that Sawyer was robbed. During the voir dire proceedings to select the prospective jurors, counsel introduced three prospective alibi witnesses to the jury. These witnesses were Imogene (Jean) Harris, the mother of Dobson's child, Dr. Eric B. Dobson, a physician who is Sherman Dobson's brother, and Steve Cole, a cousin of Ms. Harris.
Notwithstanding the representation made in his opening statement that Dobson was in Baltimore when the crime was committed, defense counsel did not call any of the alibi witnesses to the stand. At the beginning of his rebuttal argument, the prosecutor pounced on the defense's failure to produce the evidence that counsel had promised:
Ladies and gentlemen, defense attorney talked about all this evidence that the government could have gotten. The government could have got this witness from over here and the government could have got this witness from over there and said this and said that. But, that's the same defense attorney who stood right here yesterday and told you, "I'm going to bring in witnesses to say Mr. Dobson was somewhere else on June the 6th, 1978." Didn't he say that? He said it right to you. He stood right there and told you that. And, now, he's telling you a different story. [711 A2d Page 81]
He's saying now that Mr. Dobson was not in Washington, D.C. on June the 6th, 1978. But he told you, if you recall, yesterday that Mr. Dobson was in Baltimore on June 6th, 1978.
Let's not talk about things on one side. Let's counterbalance and talk about what happened on the other side, too. You can't put all ...