Johnson v. Premo

Witness testimony not provided to the trier of fact could have a tendency to affect the verdict even if the testimony only coincides with other evidence.

Johnson appealed the denial of his petition for post-conviction relief. In his seventh assignment of error, Johnson asserted that the post-conviction court should have found that his trial counsel’s deficient failure to interview a witness was prejudicial. On appeal, Johnson argued that the post-conviction court applied the improper legal standard to determine prejudice or, alternatively, that they misapplied the legal standard. In response, the Superintendent argued that the post-conviction court correctly found that trial counsel’s error did not tend to affect the verdict because the witness’s testimony would not have rebutted the State’s case and merely corroborated the testimony of others. Witness testimony not provided to the trier of fact could have a tendency to affect the verdict even if the testimony only coincides with other evidence. The Court found that the post-conviction court applied the correct legal standard, whether the missing testimony could have tended to affect the verdict. The Court found that although the witness’s testimony would have coincided with or corroborated other evidence, it still has evidentiary value in that it could make that evidence and the testimony more persuasive and could have impacted defense counsel’s decision making throughout the case. Reversed and Remanded.