State v. Mann

State of Maryland v. Christopher Mann, No. 29, September Term, 2019 INEFFECTIVE ASSISTANCE OF COUNSEL – PREJUDICE PRONG – PURPORTED ALIBI WITNESSES – Court of Appeals held that petitioner for postconviction relief failed to establish that his trial counsel rendered ineffective assistance of counsel by not requesting alibi jury instruction, as petitioner had failed to satisfy prejudice prong of test set forth in Strickland v. Washington, 466 U.S. 668 (1984), i.e., burden to prove that there was reasonable probability, or substantial or significant possibility, that jury would have acquitted him if his trial counsel had requested alibi jury instruction and trial court had given instruction. Circumstance that petitioner’s trial counsel did not request alibi jury instruction did not prejudice petitioner because, upon closer inspection, none of four purported alibi witnesses’ testimony led to conclusion that petitioner could not have been at murder scene when victim was killed, and trial court’s giving of instructions on State’s burden to prove guilt beyond a reasonable doubt undercut claim of prejudice. Circuit Court for Baltimore City Case No. 104002009 to 104002014 Argued: October 31, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 29 September Term, 2019 ______________________________________ STATE OF MARYLAND v. CHRISTOPHER MANN ______________________________________ Barbera, C.J. McDonald Watts Hotten Booth Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) Greene, Clayton, Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. Barbera, C.J., and Hotten, J., dissent. ______________________________________ Filed: December 19, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-12-19 11:42-05:00 Suzanne C. Johnson, Clerk An alibi is “[a] defense [that is] based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time.” Alibi, Black’s Law Dictionary (11th ed. 2019). An alibi is not an affirmative defense—that is, a defense that “[t]he defendant bears the burden of proving[.]” Affirmative Defense, Black’s Law Dictionary. “An alibi is not an affirmative defense” because it “simply negates an element of the crime”—namely, the allegation that the defendant was the one who committed the crime, which the State has the burden of proving beyond a reasonable doubt.

Harris v. State, 458 Md. 370 , 411 n.31, 182 A.3d 821 , 845 n.31 (2018) (citations omitted). Maryland Criminal Pattern Jury Instruction 5:00, addressing alibis, provides: You have heard evidence that the defendant was not present when the crime was committed. You should consider this evidence along with all other evidence in this case. In order to convict the defendant, the State must prove, beyond a reasonable doubt, that the crime was committed and the defendant committed it.

Although Maryland Criminal Pattern Jury Instruction 5:00 is known as an “alibi jury instruction,” it does not use the word “alibi” because doing so could “incorrectly suggest that alibi is an affirmative defense.” MPJI-Cr 5:00 cmt. Where an alibi jury instruction is applicable under a case’s facts, on request, a trial court must give an alibi jury instruction. See Smith v. State, 302 Md. 175, 180-81 , 486 A.2d 196, 198-99 (1985). This case requires us to determine whether a petitioner for postconviction relief has satisfied, under Strickland v. Washington, 466 U.S. 668 (1984), the burden of proving that he was prejudiced by his trial counsel not requesting, and the trial court not giving, an alibi jury instruction where purported alibi witnesses testified at trial.

In the Circuit Court for Baltimore City, the State, Petitioner, charged Christopher “Crack” Mann, Respondent, with first-degree felony murder, kidnapping, conspiracy to kidnap, and other crimes. At trial, the State offered evidence of the following events. On April 22, 2003, sometime between 6:43 p.m. and 7:03 p.m., Mann and two of his friends, Tayvon “Tay” Whetstone and Kenneth “Kane” / “Kenny” Fleet,1 confronted the victim, Ricky “Little Rick” Prince, at a McDonald’s on Liberty Road near its intersection with Rolling Road, about him having been a witness for the State in a criminal case. Fleet got into Prince’s vehicle and drove away.

Whetstone told Prince that he would take Prince to his vehicle. Mann, Whetstone, and Prince got into a vehicle. Ultimately, Whetstone drove to the area behind a nightclub called “Fantasies,” which is in the Curtis Bay neighborhood of Baltimore City. There, in Mann’s presence, sometime during the evening of April 22, 2003, Whetstone shot Prince.

Mann’s trial counsel called four alleged alibi witnesses, who purported to account for Mann’s whereabouts from approximately 7:30 p.m. or 7:45 p.m. on April 22, 2003 to the morning of April 23, 2003. Mann’s trial counsel did not request, and the circuit court did not give, an alibi jury instruction. After being convicted and pursuing an unsuccessful direct appeal, Mann petitioned for postconviction relief, contending that his trial counsel provided ineffective assistance of counsel by not requesting an alibi jury instruction. The circuit court agreed and ordered 1 Mann and Whetstone were charged with first-degree felony murder and were tried separately.

Fleet was charged with, and pled guilty to, carjacking. Neither Mann, Whetstone, nor Fleet testified in this case. -2- a new trial. The State successfully applied for leave to appeal, and the Court of Special Appeals affirmed. The State filed a petition for a writ of certiorari, which this Court granted.

Before us, the State contends that an alibi jury instruction would not have significantly affected the jury’s deliberations. Mann responds that it is reasonably possible that, in the absence of an alibi jury instruction, the jury believed that he had the burden to prove an alibi or did not consider the purported alibi witnesses’ testimony at all. We hold that Mann has failed to satisfy the burden to prove that there is a reasonable probability, or a substantial or significant possibility, that the jury would have acquitted him if his trial counsel had requested an alibi jury instruction and the circuit court had given the instruction. The circumstance that Mann’s trial counsel did not request an alibi jury instruction did not prejudice Mann because, upon closer inspection, none of the four purported alibi witnesses’ testimony indicated that Mann could not have been at the murder scene when Whetstone shot Prince, and the circuit court’s giving of other instructions regarding the State’s burden to prove guilt beyond a reasonable doubt diminishes the claim of prejudice.

BACKGROUND Trial and Direct Appeal At trial, as a witness for the State, Detective Kevin Klimko of the Baltimore County Police Department testified that, on April 15, 2003, Jerrard “Tick” Bazemore pled guilty to the murder of Charles Edward Sharp. During Mr. Bazemore’s guilty plea hearing, the prosecutor in that matter proffered that, had there been a trial, Prince—the murder victim -3- in this case—would have testified that he provided Bazemore with the gun that was used to fatally shoot Sharp. After Bazemore said that he was pleading guilty, two individuals in the gallery “stood up and said[:] ‘You don’t have to go down like that, man,’ and pretty much objected to the fact that he was pleading guilty.” The two individuals then left the courtroom. Detective Klimko testified that he would not recognize the two individuals if he saw them again.

As a witness for the State, Detective Gerald D’Angelo of the Baltimore County Police Department testified that, on April 23, 2003, he interviewed Mann, who said that, on the evening of April 22, 2003, he went to the McDonald’s to get something to eat and saw Prince there. Mann said that he and Prince calmly talked about Prince having been a witness against Bazemore, and that, while they were talking, someone got into Prince’s vehicle and drove away. Detective D’Angelo responded that he did not believe that Mann had told the truth. Detective D’Angelo also said that he knew that Mann had gone to the McDonald’s with two other individuals, and that his conversation with Prince had been heated.

During the interview, Mann acknowledged that he had not told the truth. Mann said that he had been driving a Ford Escort that belonged to his girlfriend, Tanea Jenkins, and needed to return it to her before her shift at a Target2 ended. Mann said that two of his friends, Whetstone and Fleet, gave him a ride from the Target to the McDonald’s in a black 1991 Chevrolet Caprice that belonged to Whetstone’s girlfriend. Mann acknowledged that he had gotten into a heated argument with Prince about Prince having been, as Mann put 2 Multiple witnesses’ testimony indicated that the Target in question is on Reisterstown Road. -4- it, a “snitch” against Bazemore.

Mann said that Fleet got into Prince’s vehicle, a Toyota Corolla, and drove away, and that he told Prince that that he would get Prince’s vehicle back for him. Mann said that he and Whetstone went to Mann’s father’s house,3 and then returned to the McDonald’s. While testifying, Detective D’Angelo read aloud a statement that Mann had handwritten and signed. In his written statement, Mann alleged the following events, which we summarize.

On April 22, 2003, at 11 a.m. or 11:30 a.m., Mann drove Jenkins to the Target. Afterward, Mann visited one of his friends, Jeffrey Johnson, at his house.4 At approximately 1:45 p.m. or 2 p.m., Mann left Johnson’s house. At approximately 4:30 p.m. or 5 p.m., Mann went to his mother’s house.5 Mann met with Whetstone and Fleet, who followed him to the Target. At approximately 6:30 p.m. or 6:45 p.m., Mann dropped Jenkins’s vehicle off at the Target.

Jenkins gave Mann six dollars, and he, Whetstone, and Fleet left the Target. At approximately 7 p.m., Mann, Whetstone, and Fleet arrived at the McDonald’s. There, Mann talked to Prince about Bazemore. While Mann was talking to Prince, Fleet got into Prince’s vehicle and drove away.

Mann and Whetstone went to Mann’s father’s house, where they stayed for at least five to ten minutes. Afterward, Mann and Whetstone went to Johnson’s house. After that, Mann and Johnson’s girlfriend went 3 Detective D’Angelo testified that Mann’s father lived at 3411 Kimble Road. Another law enforcement officer testified that Mann’s father’s house was approximately two blocks from the McDonald’s. 4 Johnson testified that he lived approximately a mile-and-a-half from the McDonald’s. 5 Detective D’Angelo testified that Mann’s mother lived at 1516 Lester Morton Court, in east Baltimore City. -5- to Mann’s mother’s house.

Mann requested a ride from Jenkins, who picked him up, dropped one of her friends off, and drove to Mann’s father’s house, where they spent the night. As a witness for the State, Detective Raymond Laslett of the Baltimore City Police Department testified that he recovered a recording that was made on April 22, 2003 by at least one surveillance camera at the Target where Jenkins worked. The recording was played during Detective Laslett’s direct-examination, and he testified that it showed the following events, which we summarize. In the Target’s parking lot, a black Ford Escort followed a black Chevrolet Caprice.

Afterward, Mann, Whetstone, and Fleet appeared together. Then, Mann and Jenkins appeared together. At 6:43 p.m., the Caprice left the Target’s parking lot. According to Detective Laslett, the Escort that appeared in the recording belonged to Jenkins, and the Caprice that appeared in the recording belonged to Whetstone’s girlfriend.

As a witness for the State, Jackie Davis, Prince’s mother, testified that, on the evening of April 22, 2003, Prince borrowed her burgundy Toyota Corolla so that he could pick up his paycheck from a Checkers. At approximately 6:45 p.m., while Davis was at her house, Prince telephoned her, sounding “anxious and talking fast[.]” According to Davis, Prince said that someone had “approached him and said that he had snitched” against Bazemore, and that someone had taken the Corolla. Prince also said that “one individual out there was” Mann. After hanging up, Davis telephoned 911 and reported the Corolla’s theft.

Two law enforcement officers arrived at Davis’s house and took her to a gas station on Liberty Road. Along the way, Davis and the officers passed by the -6- McDonald’s. Davis, who was looking for Prince, did not see him in the area of the McDonald’s. As a witness for the State, Officer Morris Gardner of the Baltimore County Police Department testified that, on April 22, 2003, at 7:03 p.m., he heard about a report of a theft of a burgundy Toyota Corolla in the area of the McDonald’s.

Officer Gardner drove to the area, saw a burgundy Toyota Corolla, contacted his supervisor, and confirmed that the license plate was that of the stolen Corolla. The Corolla pulled into a gas station, and the driver, Fleet, exited the Corolla. Officer Gardner parked his vehicle and arrested Fleet. Davis was brought to the gas station and said that she did not recognize Fleet.

As a witness for the State, Derrick Harper (“Mr. Harper”)6 testified that he had known Prince, Mann, Whetstone, and Fleet. On April 25, 2003, Whetstone asked Mr. Harper to move the Caprice (i.e., Whetstone’s girlfriend’s vehicle) because Whetstone did not want it to get towed and did not have a driver’s license. That was the first occasion on which Mr. Harper had seen the Caprice. Mr. Harper started driving the Caprice, and officers initiated a traffic stop and arrested Mr. Harper.

From the night of April 25, 2003 to the morning of April 26, 2003, officers questioned Mr. Harper, who handwrote certain answers on a document. The circuit court admitted the document into evidence, and the prosecutor read certain excerpts of it aloud while direct-examining Mr. Harper. The document indicated that Mr. Harper wrote that Mann had alleged the following events, which we summarize. When Mann was with 6 Derrick Harper was a witness for the State, and Rhonda Harper was a witness for Mann.

As far as the record reveals, Mr. Harper and Ms. Harper are unrelated. -7- Whetstone and Fleet at the McDonald’s, they encountered Prince. Fleet punched Prince twice, Mann kicked Prince, and Fleet got into Prince’s vehicle and drove away. Whetstone was afraid that he would get implicated in Fleet’s theft of Prince’s vehicle. Mann wanted to scare Prince into not telling anyone about Fleet’s theft of Prince’s vehicle.

Whetstone told Prince that he would take Prince to his vehicle. Mann, Whetstone, and Prince got into Whetstone’s vehicle, which was in the area of the McDonald’s, and Whetstone drove away. While Whetstone was driving, Mann tried to persuade Prince not to tell anyone about Fleet’s theft of Prince’s vehicle, and Prince promised not to do so. Mann was satisfied with Prince’s promise, but Whetstone was not.

Whetstone shot Prince in the head. During Mr. Harper’s cross-examination, Mann’s trial counsel asked: “If you don’t take the beltway[,] and you go from [the] McDonald’s on Liberty Road to the 5[5]00 block of Pennington Avenue,[7] it would take about an hour, would it not?” Mr. Harper responded: “Around. I mean, that’s past Cherry Hill, Patapsco[ Avenue], and all that.” As a witness for the State, Officer Mark William Rejrat of the Baltimore City Police Department testified that, on April 23, 2003, at approximately 4 p.m., he went to the area behind a nightclub called “Fantasies,” which is at 5520 Pennington Avenue in the Curtis Bay neighborhood of Baltimore City. Officer Rejrat explained that the area behind Fantasies is a former “city dump” that is “commonly known as . . . ‘bloody pond.’” In a ditch near the pond, Officer Rejrat found a deceased man’s body.

A detective found a driver’s license with Prince’s name inside a wallet on the deceased man’s person. 7 Prince’s body was found near 5520 Pennington Avenue. While cross-examining Mr. Harper, Mann’s trial counsel inadvertently referred to 5200 Pennington Avenue. -8- As a witness for the State, Jack Titus, M.D., the Deputy Chief Medical Examiner, was admitted as an expert in forensic pathology and postmortem examination. Dr. Titus testified that, on April 24, 2003, he autopsied Prince’s body. Prince had a gunshot entry wound on the back of the right side of his head, and a gunshot exit wound on the left side of his forehead.

Dr. Titus opined that the cause of death was a gunshot wound to the head, and the manner of death was homicide. Dr. Titus estimated that the time of death was the evening of April 22, 2003, “roughly.” Dr. Titus cautioned that he could make only a “[r]eal general approximation” as to the time of death because there were “just too many variables to say an exact hour.” As a witness for Mann, Johnson testified that, on April 22, 2003, sometime between 12 p.m. and 2 p.m., Mann arrived at Johnson’s house. For approximately fifteen minutes, Mann and Johnson talked; afterward, Mann left. At approximately 7:30 p.m. or 7:45 p.m., Mann returned to Johnson’s house and said that Whetstone had just dropped him off.

For approximately forty-five minutes, Mann and Johnson played a video game. At approximately 8:30 p.m., Mann and Johnson left Johnson’s house. At approximately 8:45 p.m., Mann and Johnson arrived at Mann’s mother’s house. Shortly afterward, Johnson left.

As a witness for Mann, Jenkins, his girlfriend, testified that, on April 22, 2003, she worked at the Target from 11 a.m. to 7 p.m. At approximately 6:43 p.m. or 6:44 p.m., Mann, Whetstone, and Fleet came to see Jenkins. Mann gave Jenkins the key to her vehicle. Shortly afterward, Mann left.

After leaving the Target, Jenkins went to her house, then picked up one of her friends, Nikita Peay. Afterward, Jenkins and Peay “just drove -9- around.” At approximately 9 p.m., Mann telephoned Jenkins and asked her to pick him up from his mother’s house. At approximately 9:30 p.m., Jenkins arrived at Mann’s mother’s house. For approximately two hours, Mann, Jenkins, and Peay “just drove around[.]” Afterward, Jenkins dropped Peay off and drove herself and Mann to his father’s house, where they spent the night.

As a witness for Mann, Peay testified that, on April 22, 2003, at 8 p.m., Jenkins picked her up. Peay and Jenkins “drove around for a while[.]” Mann telephoned Jenkins and asked her to pick him up. At 9:30 p.m., Jenkins picked Mann up. Afterward, Mann, Jenkins, and Peay “drove around.” At 11:15 p.m., Jenkins dropped Peay off at her house.

As a witness for Mann, Rhonda Harper (“Ms. Harper”), Mann’s cousin, testified that she lived with his father. On April 22, 2003, sometime after 7 p.m., Ms. Harper left Mann’s father’s house to give a friend a ride. At approximately 11:30 p.m. or 11:45 p.m., Ms. Harper returned to Mann’s father’s house, and saw Mann and Jenkins sitting outside. During the State’s initial closing argument, the prosecutor addressed the purported alibi witnesses, in pertinent part, as follows: Johnson [is] the one [whom] you should actually look for -- look at [] most closely, because this murder[ --] we know that [Prince] was taken right away from [the] McDonald’s, because we know that[,] when [Davis] gets there[,] [Prince is] not there.

Neither is [] Mann. Who had the motive and the opportunity? [Mann] and [] Whetstone. Who else was there at the time? And[,] ladies and gentlemen, this murder happened as soon as it -- as long as it takes to get from [the] McDonald’s to Curtis Bay; in that time period.

So[,] did [] Jenkins pick up [Mann] at 9:30[ p.m.]? Maybe. And ride around with [Peay] in the [Escort]? Sure.

Maybe. After the murder. Did [Ms.] Harper see [] Jenkins and [Mann] at [his father’s] house that night? Sure.

Maybe. Was [Mann] with [] Johnson at his house? I submit to you, no. - 10 - During Mann’s closing argument, his trial counsel addressed Mr. Harper’s and Johnson’s testimony, in pertinent part, as follows: [Mr.] Harper[] was arrested with the [] Caprice [] in [Baltimore C]ity. And he tells the police . . . that there’s a problem with the hood latch[,] and he can’t take it on the highway. . . . .

To go from [the] McDonald’s on Liberty Road and Rolling Road to Curtis Bay, [twenty] miles on the [b]eltway[,] will take you probably a half[-]hour. If you have to go to the side streets[,] it will take you probably an hour to an hour[-]and[-]a[-]half. Why is that important? Because the time doesn’t fit. . . . [Mann] was at [] Johnson’s house.

During the State’s rebuttal closing argument, the prosecutor alleged the following events, which we summarize. At 6:43 p.m., Mann, Whetstone, and Fleet left the Target. Afterward, Mann, Whetstone, and Fleet arrived at the McDonald’s and encountered Prince. Mann, Whetstone, and Prince got into a vehicle, and it took an hour to drive through Baltimore City and reach Curtis Bay.

At approximately 8 p.m., Prince was killed. Afterward, Whetstone drove Mann to Whetstone’s house,8 and Mann walked a short distance to his mother’s house. At 9 p.m., Mann telephoned Jenkins and asked her to pick him up from his mother’s house. Mann’s trial counsel did not request, and the circuit court did not give, an alibi jury instruction.

While preliminarily instructing the jury at the start of the trial, the circuit court stated in pertinent part: “[T]he defendant may or may not call witnesses. The defendant has no obligation to call witnesses. The State has the burden of proving the defendant’s guilt beyond a reasonable doubt. The defendant does not have to prove innocence.” While instructing the jury at the conclusion of the trial, the circuit court stated in pertinent part: Mr. Harper testified that Whetstone lived on Lester Morton Court, “around the 8 Caroline and Monument area[,]” in Baltimore City. - 11 - “The State has the burden of proving the guilt of the Defendant beyond reasonable doubt.

The burden remains on the State throughout the trial. The Defendant is not required to prove his innocence.” After instructing the jury at the conclusion of the trial, the circuit court initiated a bench conference and asked counsel: “Is there anything [that] you want me to add or subtract?” Mann’s trial counsel responded: “No exceptions.” The jury found Mann guilty of first-degree felony murder, kidnapping, and conspiracy to kidnap. Mann appealed, and the Court of Special Appeals affirmed. Petition for Postconviction Relief On June 9, 2014, almost ten full years after his conviction, in the circuit court, while representing himself, Mann filed a petition for postconviction relief.

On October 6, 2015, on Mann’s behalf, his postconviction counsel filed a supplemental petition for postconviction relief. Both the petition and supplemental petition included the contention that Mann’s trial counsel rendered ineffective assistance of counsel by not requesting an alibi jury instruction. On September 27, 2017, the circuit court conducted a hearing on the petitions. At the hearing, as a witness for Mann, his trial counsel testified that, at trial, on Mann’s behalf, he pursued an alibi defense.

Mann’s postconviction counsel asked: “If you [did not] request an alibi [jury] instruction, is that something that you would have had reason for not requesting?” Mann’s trial counsel responded: “No. I mean, the defense was alibi.” Mann’s postconviction counsel asked: “It would have been your expectation that there would have been an alibi [jury] instruction in this case?” Mann’s trial counsel responded: “Irrespective of whether or not it was requested, yes. Because that was the - 12 - defense.” At the conclusion of the hearing, the circuit court took the petition under advisement. On February 12, 2018, the circuit court issued a Statement of Reasons and Order of Court in which it granted the supplemental petition in part, granted Mann’s request for a new trial, and denied his requests for other forms of postconviction relief. The circuit court granted postconviction relief on the ground that Mann’s trial counsel rendered ineffective assistance of counsel by not requesting an alibi jury instruction, and denied postconviction relief on all other grounds.

Addressing the performance prong, the circuit court stated: [F]our defense witnesses[—i.e., Johnson, Jenkins, Peay, and Ms. Harper— ]and [Mann]’s [] statement[s to Detective D’Angelo] supported an alibi jury instruction[,] and [Mann’s] trial counsel was objectively deficient in [not] request[ing an alibi jury] instruction[, which] fully encapsulated [Mann]’s theory of the case. . . . [I]t cannot be said that [Mann’s trial] counsel’s actions were [the] result of any [] trial strategy, and [Mann’s trial counsel] testified as [m]uch. . . . [Mann’s] trial counsel’s omission . . . could not have been a result of reasonable professional judgment[.] (Citation omitted). Addressing the prejudice prong, the circuit court reasoned: Without the [alibi jury] instruction, . . . it is reasonably possible that the jury might have placed the burden of proof on the defense with respect to “proving” the alibi. . . . Alternatively, it is reasonably probable that the jury may not have considered, as they were not instructed to, the defense theory of the case at all. . . . [T]rial courts commit reversible error [in] failing to give an alibi jury instruction when there is evidence [] to support it. . . . [I]t follows that . . . it [was] prejudicial to [Mann] when [his] trial counsel [did not] request a[ jury] instruction that epitomize[d] the only theory of the defense. (Cleaned up).

Addressing both the performance prong and the prejudice prong, the circuit court concluded: Based on the number of alibi witnesses, the substance of their - 13 - testimony, [Mann’s] trial counsel’s [] testimony that he did not have a strategic reason for not requesting an alibi [jury] instruction, and the State’s lack of direct and circumstantial evidence linking [Mann] to [Prince’s murder], . . . [Mann’s] trial counsel was deficient in [not] request[ing an alibi jury instruction], and there is a reasonable probability that the omission influenced the verdict[s.] (Footnote omitted). Opinion of the Court of Special Appeals The State filed an application for leave to appeal, which the Court of Special Appeals granted. On May 1, 2019, the Court of Special Appeals affirmed the circuit court’s judgment, stating: “Given the heightened sensitivity [that has been] expressed by Maryland courts concerning the importance of [an] alibi [jury] instruction, we hold that the failure (not the disinclination but the failure[]) of [Mann’s] trial counsel to request the [alibi jury] instruction in this case constituted ineffective assistance of counsel.” State v. Mann, 240 Md. App. 592, 606 , 207 A.3d 653, 661 (2019) (emphasis in original). Addressing the performance prong, the Court of Special Appeals determined that Mann’s trial counsel not requesting an “alibi jury instruction fell below the ‘broad range of reasonable professional judgment’ standard . . . and therefore constituted deficient performance.” Id. at 602 , 207 A.3d at 658-59 (citation omitted).

The Court of Special Appeals stated that “there [was] no question [] that Mann generated an alibi[.]” Id. at 600 , 207 A.3d at 658 . The Court of Special Appeals observed that the State conceded that Mann’s trial counsel did not request an alibi jury instruction because of an oversight, as opposed to strategy. See id. at 601 , 207 A.3d at 658 . The Court of Special Appeals reasoned that “the record here is devoid of any strategic reason for not requesting an alibi - 14 - [jury] instruction[,]” and that Mann’s trial counsel not requesting an alibi jury instruction was not because of a “‘disinclination’ to request [an] alibi [jury] instruction[.]” Id. at 601 , 207 A.3d at 658 (citation omitted).

Addressing the prejudice prong, the Court of Special Appeals concluded that “Mann was prejudiced because he did not receive the benefit of [an] alibi [jury] instruction as a result of his [trial] counsel[ not] request[ing] it.” Id. at 606 , 207 A.3d at 661 . The Court of Special Appeals reasoned: [T]here exists a strong concern that a jury will assume that a criminal defendant bears some burden of proof by introducing alibi evidence, even if the word “alibi” is never uttered in the courtroom. . . . By providing an alibi [jury] instruction, [a] trial court sufficiently relieves these concerns. Here, where an alibi [jury] instruction was not given because [Mann’s] trial counsel [did not] request it, there is a substantial or significant possibility that the verdict[s were] affected.

Id. at 605-06 , 207 A.3d at 661 (cleaned up). Petition for a Writ of Certiorari On May 29, 2019, the State petitioned for a writ of certiorari, raising the following issue: “Did the Court of Special Appeals err when it held that [Mann’s trial] counsel[ not] request[ing] an alibi jury instruction was prejudicial . . . when the presence of [an alibi jury] instruction would not have presented a likelihood of a different outcome of the trial?” On July 12, 2019, this Court granted the petition. See State v. Mann, 464 Md. 588 , 212 A.3d 396 (2019). DISCUSSION The Parties’ Contentions The State contends that an alibi jury instruction would not have significantly - 15 - affected the jury’s verdict, as it would have simply reminded the jury that it had heard testimony that Mann was not at the murder scene, that the jury should consider that testimony along with the rest of the evidence, and that the jury should not find Mann guilty unless the State proved guilt beyond a reasonable doubt.

The State asserts that, contrary to the circuit court’s reasoning, Mann’s trial counsel pursued multiple defenses in addition to an alibi—specifically, Mann’s trial counsel indicated that the forensic work was insufficient; that Prince could have been murdered in a robbery gone wrong; that Mr. Harper could have murdered Prince; and that people other than Mann had a motive to murder Prince for being a witness against Bazemore. Mann responds that he was prejudiced by his trial counsel not requesting an alibi jury instruction. Mann contends that, if his trial counsel had requested an alibi jury instruction, the circuit court almost certainly would have given it, and, if not, the circuit court not giving an alibi jury instruction would have been reversible error. Mann argues that it is reasonably possible that, in the absence of an alibi jury instruction, the jury believed that he had the burden to prove the alibi or did not consider the testimony of the purported alibi witnesses at all.

Standard of Review In reviewing a trial court’s ruling on a petition for postconviction relief, an appellate court reviews for clear error the trial court’s findings of fact, and reviews without deference the trial court’s conclusions of law, including a conclusion as to whether the petitioner received ineffective assistance of counsel. See Newton v. State, 455 Md. 341, 351-52 , 168 A.3d 1, 7 (2017), cert. denied, ___ U.S. ___, 138 S. Ct. 665 (2018). - 16 - Ineffective Assistance of Counsel Generally In Strickland, 466 U.S. at 687 , the Supreme Court set forth a two-prong test for resolving a claim of ineffective assistance of counsel. “The first prong is known as ‘the performance prong,’ and the second prong is known as ‘the prejudice prong.’” Ramirez v. State, 464 Md. 532, 560 , 212 A.3d 363, 380 (2019) (cleaned up). “Generally, where a petitioner alleges ineffective assistance of counsel, the burden rests on him or her to satisfy both the performance prong and the prejudice prong.” Id. at 562 , 212 A.3d at 381 (cleaned up). To satisfy the prejudice prong, a petitioner “must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, [i.e.,] a trial whose result is reliable.” Strickland, 466 U.S. at 687 .

More specifically, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability [that is] sufficient to undermine confidence in the outcome.” Id. at 694 . In State v. Syed, 463 Md. 60, 86-87 , 204 A.3d 139, 154 (2019), cert. denied, No. 19-227, ___ S. Ct. ___ (Nov. 25, 2019), this Court stated: “We have interpreted [‘]reasonable probability[’] to mean ‘there was a substantial or significant possibility that the verdict . . . would have been affected.’” (Quoting Bowers v. State, 320 Md. 416, 426 , 578 A.2d 734, 739 (1990)) (emphasis omitted). In Strickland, 466 U.S. at 695-96 , the Supreme Court explained how to assess prejudice as follows: [A] court [that is] hearing an ineffectiveness claim must consider the totality - 17 - of the evidence [that was] before the . . . jury.

Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences [that were] to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict [that is] only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court [that is] making the prejudice inquiry must ask [whether] the [petitioner] has met the burden of showing that the decision [that was] reached would reasonably likely have been different absent the errors.

In Syed, 463 Md. at 104-05 , 204 A.3d at 165 , this Court held that, although a petitioner’s trial counsel’s performance was deficient for not investigating an alibi witness, trial counsel’s deficient performance did not prejudice the petitioner. In that case, the petitioner, who was a high school student at the time of the crime, was convicted of murdering a fellow student, his former girlfriend who had recently broken off the relationship and begun dating another person. See id. at 89, 67 , 204 A.3d at 156, 143 . On the date of the murder, at 2:15 p.m., the school day ended.

See id. at 92 , 204 A.3d at 157 . A witness for the State testified that, on that date, while he and the petitioner were in a parking lot, the petitioner showed him the victim’s body. See id. at 89 , 204 A.3d at 155 - 56. The State’s witness testified that, later on that date, at approximately 7 p.m., he saw the petitioner bury the victim’s body at a certain park, where her body was ultimately found.

See id. at 88 , 204 A.3d at 155 . Consistently, the State offered evidence that, at 7:09 p.m. and 7:16 p.m., the petitioner’s cell phone received calls while it was in the area of the park. See id. at 88 , 204 A.3d at 155 . After being convicted and pursuing an unsuccessful direct appeal, the petitioner - 18 - petitioned for postconviction relief.

See id. at 68 , 204 A.3d at 143 . The petitioner contended that, among other things, his trial counsel was ineffective in not investigating a certain alibi witness or calling her at trial. See id. at 68-69 , 204 A.3d at 144 . In an affidavit, the alibi witness averred that, on the date of the murder, from 2:30 p.m. to 2:40 p.m., she was with the petitioner at a public library.

See id. at 91 , 204 A.3d at 157 . A trial court vacated the petitioner’s convictions and ordered a new trial, concluding that, although the petitioner’s trial counsel’s conduct in not investigating the alibi witness or calling her at trial did not constitute ineffective assistance of counsel, the petitioner’s trial counsel had rendered ineffective assistance of counsel with regard to another matter. See id. at 70 , 204 A.3d at 144-45 . The Court of Special Appeals affirmed the order for a new trial, reasoning that, although the petitioner waived his contention