dissenting:
While I agree with Judge Schwelb that this is an extremely close case, I disagree *760that the pressure faced by counsel at trial or the prolonged delay in the filing of the 23-110 motion necessarily leads to the conclusion that the performance of Dobson’s trial counsel was not so deficient as to warrant reversal under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In fact, the concerns raised by Judge Schwelb in his concurring opinion concerning the prejudice to Dobson from his counsel’s decision to preview his defense in opening statement and then not produce the promised evidence leads me to conclude that under our decision in Edwards v. United States, 767 A.2d 241 (D.C.2001), the trial court’s decision to deny Dobson’s first 23-110 motion in this case must be reversed.
As Judge King points out in his concurring opinion, we addressed this very issue recently in Edwards and therefore the present case must be analyzed under the five-prong test that we articulated in that case. Judge King concludes and I agree that both the first prong, that a promise was made to the jury, and the fourth prong, that no other alibi evidence was presented to the jury, argues in favor of Dobson’s motion. I also agree with Judge King that we are hampered by the passage of time in our ability to fully address the third factor, the explanation, if any, given to the jury for the failure of defense counsel to call the promised witnesses. Where we part company, however, is in our analysis of the weight that should be given to the second prong of Edwards, the strategic decision prong, and the fifth prong, whether the decision caused substantial prejudice to Dobson given the facts of this case.
Judge Schwelb notes in his concurring opinion that Dobson’s alibi defense was entirely consistent with his attack on the credibility of the complaining witness’ identification of him as the perpetrator of the crime. It is for this reason that I believe Judge King has given far too much weight to the second Edwards prong, the strategic justification for the decision not to produce the evidence, and far too little weight to the other Edwards factors that we agree weigh in favor of Dobson. In addition, Judge King appears to improperly conflate the second and fifth prongs of Edwards when he concludes that the impact on the jury was minimal because the decision not to offer the evidence was a tactical decision.
In Edwards, we cited to the decisions of several federal circuit courts that have held that the failure of defense counsel to produce evidence promised in an opening statement supports a claim of deficient performance of trial counsel sufficiently prejudicial to warrant a new trial: Id. at 247. In doing so, we recognized that there are cases where such a promise, coupled with sufficient prejudice from the failure to follow through oh that promise, could result in the granting of a new trial. We also once again noted that the determination of ineffective assistance of counsel is necessarily fact based, id. at 248, and that all of the Edwards’ factors must be considered in making that determination. In this case, I submit that the Edwards factors argue in favor of reversal.
First, as I pointed out earlier, the alibi defense promised to the jury and the defense ultimately relied upon by defense counsel were entirely consistent. This is not an Edwards-type circumstance where the promises máde to the jury in opening statement were modified because trial counsel was compelled to explore other strategies when the defendant’s version of the events changed. Here, defense counsel was never confronted with new evidence or information that required him to alter his original trial strategy. In fact, defense counsel was well aware of the *761risks inherent in presenting Dobson’s alibi defense before he made his opening statement to the jury and still he chose to do so. The mere fact that the government’s evidence was weaker than expected, although strong enough to withstand a motion for judgment of acquittal, is not a sufficient strategic justification for a change in trial strategy that severely undermines the jury’s expectations of what evidence will be presented. The effect of such a break in trust with a jury cannot be underestimated in terms of the potential prejudice to the defendant. For that reason, trial counsel’s decision to forgo presenting the testimony of several apparently credible alibi witnesses because he thought the government’s case was weak, was a tactical decision that in my opinion should not be given overriding weight in our decision.
With respect to the fifth prong of Edwards, the impact on the defense and the jury of the failure to present this alibi testimony, I also respectfully disagree with my colleague’s analysis. Judge King appears to argue that because the jury probably would have discovered that Dobson had a prior criminal conviction, either through the direct or cross-examination of the alibi witnesses, the decision not to present those witnesses was a reasonable tactical choice. While that' may be an appropriate consideration under the second prong of Edwards, I believe the question posed under the fifth prong of Edwards is more appropriately analyzed in a manner more consistent with this court’s jurisprudence under the second prong of Strickland. Thus, the question is not whether Dobson’s counsel made a reasonable tactical decision but rather whether Dobson has demonstrated “a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. While reasonable people can disagree on this point, I believe that the failure of Dobson’s trial counsel to present the witnesses, whom he promised in opening statement would account for Dobson’s whereabouts on the night in question, actually helped to bolster the weak identification evidence offered by the government. While juries are presumed to follow instructions of the trial court, and the trial court properly instructed the jury in this case that the statements of counsel, are not evidence, there is little doubt that counsel’s failure to follow through on his promised alibi defense created a credibility gap with the jury. When Dobson failed to fill the gap with any evidence supporting an alibi defense, it became much easier for the jury to conclude that he was merely trying to confuse them as opposed to defending himself. Even if we assume that the jury would have learned that Dobson had been incarcerated in the past, it is quite probable, especially given the weak identification evidence tying Dobson to the crime, that had the jury heard the testimony of the proffered alibi witnesses the outcome of the case would have been different.
After applying all five Edwards factors to the facts of this case, I believe that trial counsel’s promise to the jury to present alibi witnesses and his subsequent failure to present those witnesses or any other evidence in support of his purported alibi defense constituted deficient performance, and that given the weakness of the government’s case, there was sufficient prejudice to the defense to warrant reversal. Therefore, I respectfully dissent.