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Criminal Practice – No Habeas Relief for Missed Alibi Instruction

Hope v. Cartledge (Lawyers Weekly No. 001-116-17, 23 pp.) (Shedd, J.) No. 15-7356, May 22, 2017; USDC at Greenville, S.C. (Harwell, J.) 4th Cir.

Holding: Although petitioner was entitled to an alibi instruction under South Carolina law, and his trial lawyer was ineffective for failing to seek such an instruction, petitioner was not prejudiced by counsel’s error, as the jury clearly believed the state’s witnesses, instead of petitioner’s witnesses – including his girlfriend and his three roommates – who testified that petitioner was with them when a Bi-Lo grocery store was robbed in 2008.

Prejudice Issue

The parties accept for purposes of appeal that trial counsel’s performance was deficient. We focus our inquiry on the prejudice prong of Washington v. Strickland.

If requested, South Carolina law requires an alibi instruction to be given when the defendant claims he was in another place at the time of the criminal act. The dispositive issue here is whether there is a reasonable probability that the outcome of the proceedings would have been different had the alibi instruction been given to the jury. In jurisdictions such as South Carolina, where a jury must return a unanimous verdict to convict, the prejudice prong is met where there is a reasonable probability that at least one juror would have struck a different balance.

Petitioner argues he was prejudiced because the jury likely misunderstood the burden of proof surrounding an alibi defense. We disagree.

First, the trial court repeatedly instructed the jury, at least 15 times, that the state must prove defendant guilty beyond a reasonable doubt. The trial court also clearly defined reasonable doubt and repeatedly stated that defendant was to be presumed innocent. Because the jury was fully aware the state bore the burden of proof on each element of each offense, it is inconceivable that the jury was misled on which party bore the burden of proof.

Witness Credibility

Also, the crucial issue at trial was witness credibility, and the parties presented the jury with two different and irreconcilable factual scenarios. The state’s version directly placed petitioner at the crime scene and implicated him in the robbery, through store employee and his codefendants’ testimony. Petitioner’s version directly placed him at home and absolved him of any involvement in the robbery. The guilty verdict necessarily establishes that the jury found the state’s witnesses to be credible and believed the state’s version of events. We do not believe the inclusion of an alibi instruction would have changed the jury’s credibility determination of the ultimate verdict.

Finally, and most importantly, petitioner has failed to demonstrate that the post-conviction review court unreasonably applied federal law as defined by the Supreme Court. Its decision is a reasonable application of Strickland and is supported by the record.

Dismissal of habeas petition affirmed.


Thacker, J.: In this case, South Carolina’s alibi instruction would have educated the jurors that the state was required to disprove petitioner’s alibi defense in order to convict him. I believe there is a reasonable probability that the outcome of petitioner’s trial would have been different had counsel requested the instruction. I also believe the state post-conviction review court unreasonably applied Strickland in concluding to the contrary. I respectfully dissent.

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