dissenting:
I agree with the majority’s conclusion that the failure of petitioner’s counsel to take any depositions or to conduct a meaningful pretrial investigation constituted errors so serious that counsel was “not functioning as the counsel guaranteed by the Sixth Amendment.” . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, I conclude that because petitioner was prejudiced by his counsel’s lack of preparation and trial errors, petitioner was denied effective assistance of counsel.
To demonstrate “prejudice” under Strickland v. Washington, the petitioner must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id., 104 S.Ct. at 2068. In determining whether the petitioner was prejudiced by counsel’s errors, a reviewing court must consider “the totality of the evidence before the judge or jury,” and that “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 2069.
Petitioner was convicted on the basis of evidence that was far from strong. No physical evidence implicating Aldrich was recovered at the scene of the killing. While in custody, Aldrich made no statements resembling a confession. The only direct evidence implicating Aldrich was testimony from a convicted felon who had violated the terms of his parole and lied to police investigators, and who was the other most likely suspect in the crime. It is in light of this record that counsel’s errors take on their full significance.
This case required the jury to unravel and choose between two conflicting versions of a murder. The jury heard testimony from several people who said that Aid-rich had told them of his intent to rob A1 DiVagno’s restaurant, where the murder victim worked. The prosecution’s most important testimony, however, was provided by Charles Strickland, who had been a roommate of Aldrich in prison. Strickland testified that Aldrich borrowed a shotgun from him on the evening of September 2, 1974, and that Aldrich said he wanted to use the gun for deer hunting. According to Strickland, Aldrich later asked him for help in retrieving the weapon. Strickland claimed Aldrich told him that, in the course of the robbery, Aldrich had to shoot Robert Ward, an employee of the restaurant, because Ward “tried to pull off his mask.” A security guard who worked nearby testified that she was almost run over by Aldrich’s vehicle at about 1:00 a.m. that night. Another witness, who lived in the same house as Strickland, testified that Strickland was with her from 11:50 p.m. on September 2 to 12:40 a.m. on September 3, during which time the murder occurred.
Aldrich testified that, on the night in question, he was fishing until approximately 10:30 or 11:00 p.m., and that he then went to JoAnn’s Quarter Bar, where he stayed until after 1:30 a.m. At this time, he left the bar for the home of a woman from whom he had just agreed to rent a room. He testified that he needed to finalize the rental, and that the woman had said that she often stayed awake until 3:00 or 4:00 a.m. On the way to this woman’s home, Aldrich drove slowly by DiVagno’s restaurant, looking for the right road.
Aldrich testified that, shortly thereafter, he was stopped by police who were investigating an incident at DiVagno’s restaurant. During questioning, he showed the police $500-$600 he had in his possession and explained that he had saved the money from payments for work received from the prison road camp. Aldrich testified that he subsequently went with police to his apartment, where he permitted them to search his room and belongings and showed them the payment voucher for the money from the correctional center. Aldrich also testified that, during the period just preceding the robbery of the restaurant, Strickland had asked his help in robbing a grocery store at the store’s closing time. Aldrich refused, stating that it had taken a long time to get out of prison and that he was *643trying to stay out. Aldrich testified that this response started an argument between the two men.
By his own admission, Aldrich’s counsel, Public Defender Elton Schwarz, went to trial “totally unprepared.” He had no knowledge of the State’s case or the evidence the State was likely to present at trial. He had failed to depose any of the State’s witnesses, and had undertaken only minimal investigation: only three individuals had even been approached. Schwarz barely had any knowledge of Aldrich’s case: his office had hardly begun to review the papers in the case until two weeks before the trial. His investigator had contacted only one person with information relating to Aldrich’s alibi defense. Four days before the trial, Schwarz moved for a continuance. At the hearing on the continuance motion, conducted on the day the trial was to begin, Schwarz advised the court: “This case is not prepared. We are not in a position to provide competent legal representation.” Schwarz testified at the habeas corpus hearing that he believed the continuance would be granted, and he had scheduled depositions of the State’s witnesses for the following week. The court denied the motion for continuance. Schwarz later stated that “I don’t recall going to trial, even on a misdemeanor case, in the state of readiness that we were in at that time.”
At the trial, the jury had the opportunity to hear the State’s version of what happened but, in effect, never heard Aldrich’s side of the case. Because his counsel had not spoken with the State’s witnesses, Aid-rich did not have the benefit of effective cross-examination that is critical to the fact-finding process. Also, because of his inadequate preparation, Aldrich’s counsel failed to present evidence that would have supported Aldrich’s alibi.
Although there was testimony corroborating Strickland’s account, if Strickland’s testimony had been anticipated, counsel could have brought out information that would have strongly impeached Strickland’s credibility. Strickland had told Aid-rich that he was planning to leave for North Carolina with the wife of Leonard Sapp, the brother of Aldrich’s former roommate, Norman Sapp, and that he needed money in order to make the move. It was for this purpose that he asked Aldrich to help him rob a grocery store. Strickland was apparently angered not only by Aldrich’s refusal to help him in this effort, but also by Aldrich’s failure to approve of Strickland’s relationship with Sapp’s wife. Strickland thus had a motive both to commit the crime himself and to place the blame on Aldrich, which motive Aldrich’s counsel did not attempt to develop at trial.
Several other facts tended to impeach Strickland’s credibility. Strickland was on parole from prison, and had been granted immunity for his testimony. He owned the murder weapon, in violation of the terms of his parole. Also, when the prosecutor first spoke with Strickland after the crime, Strickland falsely told him that his gun had been stolen. Strickland later changed this story and led the police to the place where he had disposed of the gun. If the defense counsel had deposed Strickland before he testified, counsel could have been free at trial to fully exploit Strickland’s vulnerability. However, because Schwarz did not know what answers to expect from Strickland, he could not risk asking many of the questions that might have broken down Strickland’s credibility and caused the jury to disbelieve his testimony.
Strickland was not the only witness whose testimony might have been shaken by effective cross-examination. Norman Sapp, who testified that Aldrich had said he intended to rob the restaurant, was not investigated or deposed prior to the trial. The defense did not even have a statement from Sapp — it knew nothing about him. Thus, his testimony could not be effectively challenged. The security guard who testified that she saw Aldrich’s ear also could not be effectively challenged. Although she testified that she saw what looked like Aldrich’s car driving through her plant at exactly 1:00 a.m. on the night of the offense, a summary presented at the prelimi*644nary hearing indicated that she would testify that the time she saw the car was between 12:00 and 12:30 a.m. However, without having first deposed her, the defense could not know where to find inconsistencies in her testimony.
As a result of its inadequate investigation, the defense also failed to present evidence corroborating Aldrich’s claim that he was in a bar at the time of the homicide. Although the owner of the bar made a post-trial affidavit saying that Aldrich was in her bar at the time of the crime, she was not called to testify.
Because he did not know what to expect from the State’s witnesses, Schwarz’s cross-examinations were largely fishing expeditions that did his client more harm than good. His cross-examination of Norman Sapp unexpectedly brought out the fact that Sapp had received threatening phone calls after the offense. Had counsel known what to expect, he could have prevented this inadmissible and possibly prejudicial testimony. Through cross-examination of another witness, Schwarz inadvertently brought out Aldrich’s entire criminal record in specific detail, which testimony also was inadmissible.
Counsel’s lack of preparation might also have harmed Aldrich at the penalty phase. The State presented testimony by a police investigator that the owner of JoAnn’s Quarter Bar had told police that Aldrich had not been in the bar on the night of the homicide. The defense did not call the bar owner to rebut this hearsay statement. In fact, the defense presented no argument or evidence whatsoever in mitigation of punishment.
This is not the kind of case where, no matter how counsel performed, the outcome would undoubtedly have been the same. There was no one piece of conclusive evidence, such as a voluntary confession, that would have precluded an effective defense. Nor was there an overwhelming amount of evidence from which a jury could draw but one conclusion. Rather, the outcome depended on which of two stories the jury believed, where there were substantial reasons to disbelieve either one.
The majority cannot justify its position as one of deference to the jury, because the issue is not whether the jury, based on a review of all the facts, came to the right conclusion. The issue here is whether the jury was improperly denied the opportunity to have and consider the facts. Because of his counsel’s lack of preparation, Aldrich’s story has never really been presented before a jury. If Aldrich had been represented by competent counsel, there is in my judgment a reasonable probability that a jury would have believed his version and found him innocent.
Accordingly, I dissent.