State v. Mann

.

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

. 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 that his trial counsel provided ineffective

assistance of counsel with regard to the other matter, the petitioner’s trial counsel rendered

ineffective assistance of counsel in not investigating the alibi witness or calling her at trial.

See

id. at 70-72

204 A.3d at 145-46

.

       This Court reversed the Court of Special Appeals’s judgment with instruction to

reverse the trial court’s order for a new trial. See

id. at 105

204 A.3d at 165

. This Court

concluded that, although the petitioner’s counsel was deficient in not investigating the alibi

witness, the lack of investigation did not prejudice the petitioner. See

id. at 104-05

204 A.3d at 165

. Addressing the prejudice prong, this Court determined that, even if the alibi

witness was truthful in stating that, from 2:30 p.m. to 2:40 p.m., she was with the petitioner

at a public library, that circumstance did “little more than to call into question the time that

the State claimed [that the victim] was killed[,] and [did] nothing to rebut the evidence


                                              - 19 -
establishing [the petitioner]’s motive and opportunity to kill” the victim.

Id. at 91

. This Court explained that, in other words, even if the petitioner’s trial counsel

had called the alibi witness at trial, and even if the jury had found her credible, “the jury

could have disbelieved that [the petitioner] killed [the victim] by 2:36 p.m., as the State’s

timeline suggested, yet still believed that [the petitioner] had the opportunity to kill [the

victim] after 2:40 p.m.”

Id. at 91-92

. This Court noted that the alibi

witness’s testimony could not have led to an acquittal because it would not have negated

the petitioner’s guilt, given that the alibi witness did not account for the petitioner’s

whereabouts after 2:40 p.m. See

id. at 92

.

                             Alibi Jury Instructions Generally

       Maryland Rule 4-325(c) states in pertinent part:

       [A trial] court may, and at the request of any party shall, instruct the jury as
       to the applicable law and the extent to which the instructions are binding. . .
       . The [trial] court need not grant a request[ for a jury] instruction if the matter
       is fairly covered by [the jury] instructions [that are] actually given.

This Court has explained that Maryland Rule 4-325(c)

       requires [a] trial court to give a requested [jury] instruction under the
       following circumstances: (1) the requested [jury] instruction is a correct
       statement of the law; (2) the requested [jury] instruction is applicable under
       the facts of the case; and (3) the content of the requested [jury] instruction
       was not fairly covered [by] the jury instruction[s that were] actually given.

McMillan v. State,

428 Md. 333, 354

51 A.3d 623, 635

 (2012) (cleaned up).

       In Pulley v. State,

38 Md. App. 682, 690-91

382 A.2d 621, 626

 (1978), the Court

of Special Appeals held that a trial court erred in denying a defendant’s request for an alibi

jury instruction. In that case, the defendant, his cousin, and his cousin’s wife testified that,



                                             - 20 -
on the date of the crime, the defendant spent the evening at his cousin’s and his cousin’s

wife’s house. See

id. at 686

382 A.2d at 624

. The trial court instructed the jury regarding

the presumption of innocence and the burden of proof. See

id. at 690

.

       The defendant was convicted, and the Court of Special Appeals reversed and

remanded for a new trial. See

id. at 684

382 A.2d at 622

. The Court of Special Appeals

concluded that the trial court should have granted the defendant’s request to give an alibi

jury instruction because the defense witnesses’ testimony, “if believed, would have been

sufficient to establish an alibi for the entire period during which the sequence of events

[that was] related by the State’s witness[] unfolded.”

Id. at 688

382 A.2d at 625

. The

Court of Special Appeals rejected “the State’s contention . . . that the requested alibi [jury]

instruction was ‘fairly covered’ by the [jury] instructions with respect to the presumption

of innocence and the burden of proving the [defendant] guilty beyond a reasonable doubt.”

Id. at 690

.

       In Smith,

302 Md. at 177

486 A.2d at 196

, this Court held that a trial court erred in

denying a defendant’s request for an alibi jury instruction. In that case, the defendant

testified that he was in Texas when the crimes were being committed in Maryland. See

id. at 177

486 A.2d at 196

. The defendant was convicted, and the Court of Special Appeals

affirmed, reasoning that, “for a defendant to be entitled to an alibi [jury] instruction, his [or

her] alibi testimony must be corroborated.”

Id. at 178

486 A.2d at 197

.

       This Court reversed and remanded for a new trial. See

id. at 183-84

486 A.2d at 200

. This Court concluded that a “defendant’s uncorroborated testimony[] that he [or she]

was at some other place at the time of the crime[] is sufficient to generate” an alibi jury


                                             - 21 -
instruction.

Id. at 180-81

486 A.2d at 198-99

. This Court “agree[d] with the holding of

the Court of Special Appeals in” Pulley,

38 Md. App. at 690

, that,

       when the evidence in a criminal case generates the issue of alibi, and when
       the defendant requests an instruction specifically addressed to the matter of
       alibi, the defendant is entitled to a[n] alibi [jury] instruction, and [] the [jury]
       instructions concerning the [] burden of proof, etc., are not deemed to “fairly
       cover” the matter of alibi.

Smith,

302 Md. at 180

486 A.2d at 198

 (citations omitted).

       In Robertson v. State,

112 Md. App. 366, 370

685 A.2d 805, 807

 (1996), the Court

of Special Appeals held that a trial court erred in denying a defendant’s request for an alibi

jury instruction. In that case, the defendant “premised his alibi [] on a [State’s] witness

who testified as to exculpatory statements” that the defendant made to him.

Id. at 378

685 A.2d at 811

. The defendant was convicted, and the Court of Special Appeals reversed and

remanded for a new trial. See

id. at 388

685 A.2d at 816

. The Court of Special Appeals

observed that Robertson was “readily distinguishable from” Pulley,

38 Md. App. 682

382 A.2d 621

, and Smith,

302 Md. 175

486 A.2d 196

, because, in Robertson, the defendant

“did not offer any evidence of alibi[,] either in the form of an alibi witness or with his own

testimony.” Robertson,

112 Md. App. at 378

685 A.2d at 811

. The Court of Special

Appeals, however, determined that, on request, a trial “court must give [an] alibi [jury]

instruction . . . where there is some evidence . . . to support the position that the defendant

was elsewhere when the crime occurred. . . . [T]he defendant, him[- or her]self, need not

introduce alibi evidence . . . to generate . . . an [alibi jury] instruction[.]”

Id. at 381-82

685 A.2d at 813

. The Court of Special Appeals explained that, in Robertson, the defendant was

entitled to an alibi jury instruction on request because “there was some evidence . . . from


                                              - 22 -
which a jury could have inferred that [the defendant] was not at the murder scene at” the

time of the crime.

Id. at 385

685 A.2d at 814

.

             Ineffective Assistance of Counsel and Alibi Jury Instructions

       In State v. Matthews,

58 Md. App. 243, 248

472 A.2d 1044, 1046

 (1984), the Court

of Special Appeals held that a petitioner’s trial counsel did not render ineffective assistance

of counsel by not pursuing an alibi or requesting an alibi jury instruction. In that case, the

victim testified that, at approximately 12 a.m., in Annapolis, a masked man attacked her;

afterward, he forced her to drive to a remote location in Anne Arundel County, raped her,

and then fled on foot. See

id. at 245

472 A.2d at 1044-45

. The evidence showed that the

abduction occurred near the petitioner’s workplace, and that the rape occurred near his

home. See

id. at 245-46

. After law enforcement officers made multiple

unsuccessful attempts for the victim to identify the rapist, she identified the petitioner in a

lineup after the men therein took off their shirts; although the victim did not see the rapist’s

face on the night of the crime, she identified the petitioner by his body. See

id. at 245-46

.

       The petitioner testified that, on the night of the rape, at 9 p.m., he left his workplace.

See

id. at 246

. According to the petitioner, afterward, he went home,

borrowed a vehicle from someone, and drove to Baltimore City, where he visited his

girlfriend of several months, who was a prostitute who worked on Baltimore Street. See

id. at 246

. The petitioner, however, did not know his girlfriend’s last

name or address, and law enforcement officers were unable to locate her. See

id. at 246

. Officers interviewed the person who had allegedly loaned a vehicle to


                                             - 23 -
the petitioner, and that person did not say anything that was relevant to the case. See

id. at 246

. No evidence corroborated the petitioner’s alibi testimony. See

id. at 246-47

.

       After being convicted and pursuing an unsuccessful direct appeal, the petitioner

petitioned for postconviction relief. See

id. at 244

472 A.2d at 1044

. A trial court ordered

a new trial on the ground that the petitioner’s trial counsel was ineffective in not requesting

an alibi jury instruction. See

id. at 244-45

472 A.2d at 1044

. The State applied for leave

to appeal. See

id. at 245

472 A.2d at 1044

.

       The Court of Special Appeals granted the application and vacated the trial court’s

order for a new trial. See

id. at 248

. The Court of Special Appeals

determined that, as a matter of trial strategy, it was reasonable for the petitioner’s trial

counsel not to pursue the alibi, and instead exclusively focus on the victim’s identification

of the petitioner by his body. See

id. at 247-48

. The Court of Special

Appeals pointed out that the person who had allegedly loaned a vehicle to the petitioner

essentially denied doing so, and that the petitioner’s “scanty knowledge of his ‘girlfriend’

must have raised a doubt as to whether she existed.”

Id. at 247

472 A.2d at 1045-46

. The

Court of Special Appeals explained that it was “possible that[,] rather than helping the

defense, the very questionable alibi [] may have actually weakened the [petitioner]’s case.”

Id. at 248

. The Court of Special Appeals noted that, by exclusively

focusing on the victim’s identification of the petitioner by his body, the petitioner’s trial

counsel “may have succeeded in diverting the jury from thinking about how weak the alibi

[] was.”

Id. at 247-48

.


                                            - 24 -
       In Schmitt v. State,

140 Md. App. 1, 37

779 A.2d 1004, 1024

, cert. denied,

367 Md. 88

785 A.2d 1291

 (2001), the Court of Special Appeals held that a petitioner’s trial counsel

did not provide ineffective assistance of counsel by not requesting an alibi jury instruction.

In that case, the State’s evidence showed that, between 1:45 a.m. and 2 a.m., the victim

was fatally shot across the street from a motel. See id. at 32,

. A purported

alibi witness testified that, between 1:30 a.m. and 2 a.m., he and the petitioner checked into

the motel; the witness went into their motel room’s bathroom and closed the door; while

he was in the bathroom, he heard gunshots; and, when he came out of the bathroom, the

petitioner was in their motel room. See

id. at 32-33

. The witness,

however, did not specify how much time had passed between him hearing the gunshots and

him coming out of the bathroom. See

id. at 33

.

       After being convicted and pursuing an unsuccessful direct appeal, the petitioner

petitioned for postconviction relief. See

id. at 6-7

779 A.2d at 1006

. A trial court granted

the petitioner’s request for a belated appeal as to certain issues but denied his request for a

new trial on the ground of ineffective assistance of counsel. See

id. at 6

779 A.2d at 1006

-

07. The petitioner noted the belated appeal, and separately appealed from the trial court’s

denial of his request for a new trial. See

id. at 6-7

779 A.2d at 1007

.

       In both appeals, the Court of Special Appeals affirmed. See

id. at 6, 48

779 A.2d at 1007, 1031

. In the appeal that pertained to ineffective assistance of counsel, writing for

the Court of Special Appeals, the Honorable Charles E. Moylan, Jr. addressed the

performance prong as follows: “Was an alibi defense generated in this case? It is a close

call, but technically it may have been. It was not, however, so unmistakably identifiable


                                            - 25 -
as an alibi defense from way down the glen as to brand the failure to recognize it as a mark

of lawyerly incompetence.”

Id. at 33

. Judge Moylan pointed out that

the petitioner’s trial counsel testified that he did not request an alibi jury instruction because

it would have simply directed the jury “to consider and apply the evidence along with any

other evidence in the case. To me that tells the jurors absolutely nothing.”

Id. at 34

(internal quotation marks omitted). Judge Moylan emphasized the need to

defer to the petitioner’s trial counsel’s strategic choice, explaining:

The entitlement to an instruction if you want one does not imply that
you are derelict for not wanting one. By analogy, a defendant is
constitutionally entitled to an instruction that his failure to take the stand will
not be held against him. It is perfectly sound trial strategy, however, to wish
to forego such an instruction so as not to draw the jury’s attention to the
inevitably suspicious failure to take the stand. In this case, counsel may not
have wanted to raise any specter possibly suggested by the word “alibi.”
Alternatively, he may not have wanted to clutter the minds of the
jurors with a lot of legal gobbledygook that he deemed meaningless. Some
attorneys, of course, like the scattershot approach: spray the jury with every
bit of verbal grapeshot you have in your arsenal. Other equally good
attorneys prefer to keep the attack simple and to hammer at one or two of the
enemy’s perceived weak points. It is quintessentially a matter of strategic
choice. It is George B. McClellan versus Ulysses S. Grant and who will
presume to post-mortem the battle?
Counsel had available to him Pulley v. State and Smith v. State but he
chose not to use them. They are, of course, opinions worthy of precedential
respect. In terms of what they accomplish in a courtroom, however, they are
not necessarily five-star decisions that inspire trial advocates to snap to
attention and salute. Counsel did not think they would help him. Who are
judges to second-guess such an on-the-spot assessment by a combatant on
the field?

Schmitt,

140 Md. App. at 34-35

 (cleaned up). Judge Moylan addressed

the prejudice prong as follows: “Having found no deficiency in the performance

component, it follows that there can be no prejudice flowing from a deficient performance.”



                                              - 26 -

Id. at 37

779 A.2d at 1024

.

                                           Analysis

       Here, we conclude 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, and the circuit court had given, an alibi

jury instruction. The circumstance that Mann’s trial counsel did not request an alibi jury

instruction did not prejudice Mann because none of the four purported alibi witnesses’

testimony led to the conclusion that Mann could not have been at the murder scene when

Whetstone shot Prince. Additionally, the trial court twice instructed the jury that the

burden of proving the defendant guilty beyond a reasonable doubt remains on the State

throughout the trial, thereby undermining Mann’s claim of prejudice with respect to trial

counsel’s failure to request an alibi jury instruction.9

       The question of whether prejudice resulted from Mann’s trial counsel’s failure to

request an alibi instruction involves a fact-specific analysis. In this case, Mann premised

his alibi on the testimony of four witnesses— Johnson, Jenkins, Peay, and Ms. Harper—

who purported to account for his whereabouts from 7:30 p.m. or 7:45 p.m. through the


       9
        As the Supreme Court explained in Strickland,

466 U.S. at 697

, “a court need not
determine whether counsel’s performance was deficient before examining the prejudice
[that was] suffered by the [petitioner] as a result of the alleged deficiencies.” Consistently,
in each of multiple cases, this Court concluded that a petitioner had failed to prove
prejudice, and thus did not address the performance prong. See Newton,

455 Md. at 366

168 A.3d at 15

; Gross v. State,

371 Md. 334, 355

809 A.2d 627, 639

 (2002); Yoswick v.
State,

347 Md. 228, 246

700 A.2d 251, 259

 (1997). We do the same here because the
State did not include a question presented as to the performance prong in the petition for a
writ of certiorari, and because, in its brief, the State indicates that it “does not challenge
the [performance] prong before” us.

                                             - 27 -
night of April 22, 2003. Even if the purported alibi witnesses’ testimony was deemed to

be credible and the circuit court had given an alibi jury instruction, that would have done

nothing to rebut the circumstance that Mann’s whereabouts from approximately 6:45 p.m.

or 7 p.m. on the evening of April 22—the time that he left McDonald’s with Whetstone

and Prince—to 7:30 p.m. or 7:45 p.m.—the time that he allegedly arrived at Johnson’s

house—was unaccounted for. Similarly, Mann’s whereabouts from 8:45 p.m.—the time

that Johnson left Mann at Mann’s mother’s house—to 9:30 p.m.—the time that Jenkins

picked him up from his mother’s house—was unknown. In other words, even if the circuit

court had given an alibi jury instruction and the jury had believed the purported alibi

witnesses, the jury could still have believed that Mann had the opportunity to participate in

the kidnapping and killing of Prince, and found Mann guilty.

       In evaluating whether Mann was prejudiced by the omission of the alibi instruction,

we must consider the totality of the evidence before the jury. See Strickland,

466 U.S. at 695

. The giving of an alibi jury instruction would not have contradicted the evidence that

Mann had a heated exchange with Prince at the McDonald’s restaurant about Prince having

been a “snitch” and left the premises before 7 p.m.10 together with Prince and Whetstone,

the person who was responsible for shooting Prince, and was not seen again until 7:30 p.m.

or 7:45 p.m. that evening, or that Mann’s whereabouts between 8:45 p.m. and 9:30 p.m.

10
Davis, Prince’s mother, testified that, at approximately 6:45 p.m., he telephoned
her and said that he had encountered Mann, and that someone had stolen her Corolla, which
Prince had borrowed. Davis testified that she telephoned 911 and reported the Corolla’s
theft. Officer Gardner testified that, at 7:03 p.m., he heard about the report of the Corolla’s
theft.

- 28 -
were unknown. Nor would an alibi jury instruction have undercut Mr. Harper’s written

statement that Mann told him he was present when Whetstone shot Prince. Nor would an

alibi jury instruction have changed the medical examiner’s testimony that the time of death

was during the evening of April 22, 2003, and that that was only an approximation as to

the time of death because there were too many factors to identify the exact hour. In sum,

the purported alibi witnesses’ testimony did little to harm the State’s case and the failure

to give an alibi jury instruction was not prejudicial.

Notably, the evidence includes inconsistent accounts of what Mann did immediately

after Fleet stole the Corolla. Detective D’Angelo testified that Mann said that he told

Prince that he would get the Corolla back for him, and that he and Whetstone went to

Mann’s father’s house, and then returned to the McDonald’s. But, Detective D’Angelo

also testified that, in his written statement, Mann wrote that he told Prince that all he knew

was that “Kane” was the name of the person who had gotten into the Corolla and driven

away, and that Mann and Whetstone went to Mann’s father’s house, and then to Johnson’s

house.11 And, Mr. Harper wrote that Mann said that Whetstone told Prince that he would

take Prince to the Corolla. According to Mr. Harper, Mann said that he, Whetstone, and

Prince got into the Caprice, which Whetstone drove away; and, at some later point,

11
It is worth observing that no evidence corroborated the two inconsistent statements
that Mann provided to Detective D’Angelo, given that neither Mann, his father, nor
Whetstone testified. And, unlike the defendant in Smith,

302 Md. at 177

486 A.2d at 196

,
who testified that he was in another state when the crime occurred, Mann gave no testimony
at all at trial, and his handwritten statement and Detective D’Angelo’s testimony
concerning his statements were not offered for the purpose of establishing an alibi for
Mann, but rather were offered by the State to demonstrate that Mann had been untruthful.

                                            - 29 -
Whetstone shot Prince.

       But most importantly, none of the purported alibi witnesses, including Johnson,

provided an alibi—i.e., none of them showed “the physical impossibility of [Mann]’s guilt

by placing [him] in a location other than the [murder] scene [] at the relevant time.” Alibi,

Black’s Law Dictionary. Simply put, the jury could have found all of the purported alibi

witnesses credible, and still found Mann guilty. Given this circumstance, the absence of

an alibi jury instruction did not prejudice Mann.

       This case is on all fours with Syed,

463 Md. at 104-05, 92

204 A.3d at 165, 157

, in

which this Court held that a petitioner was not prejudiced by his trial counsel not

investigating an alibi witness; this Court explained that the alibi witness’s testimony could

not have led to an acquittal because it would not have negated the petitioner’s guilt, given

that the alibi witness did not account for the petitioner’s whereabouts for the entire time

frame in which he had the opportunity to murder the victim. Similarly, here, none of the

purported alibi witnesses accounted for Mann’s whereabouts immediately after Fleet stole

the Corolla, but before Mann allegedly arrived at Johnson’s house in the evening; and, in

the interim, Mann had the opportunity to go with Whetstone and Prince, and be present

when Whetstone shot Prince. And, none of the purported alibi witnesses accounted for

Mann’s whereabouts between 8:45 p.m. and 9:30 pm. on the evening of the murder. Just

as there was no prejudice in Syed, there was no prejudice here.

       Our conclusion is also supported by Matthews,

58 Md. App. at 248

, and Schmitt,

140 Md. App. at 37

779 A.2d at 1024

, in each of which the Court of

Special Appeals held that a petitioner’s trial counsel did not render ineffective assistance


                                           - 30 -
of counsel by not requesting an alibi jury instruction. In each case, there was purported

evidence of an alibi, and, accordingly, the petitioner was arguably entitled to an alibi jury

instruction on request. See Matthews,

58 Md. App. at 246-47

; Schmitt,

140 Md. App. at 33

. But, as Judge Moylan aptly explained, “[t]he

entitlement to an instruction if you want one does not imply that you are derelict for not

wanting one.” Schmitt,

140 Md. App. at 34

. In each case, the Court of

Special Appeals determined that an alibi jury instruction had the potential to be ineffectual,

or even prejudicial. See Matthews,

58 Md. App. at 247-48

; Schmitt,

140 Md. App. at 35

. Similarly, here, an alibi jury instruction would have

been of little effect, given that none of the four purported alibi witnesses’ testimony

precluded guilt.

We are aware that during closing arguments Mann’s trial counsel proceeded on the

assumption that Whetstone would not have taken the beltway to reach the area behind

Fantasies and thus there was not enough time for Mann to be present at the murder and

return to Johnson’s house by 7:30 p.m. or 7:45 p.m. Detective Laslett testified that Mr.

Harper told him that the Caprice’s hood was defective, and would pop up when it reached

highway speed. During closing argument, Mann’s trial counsel pointed out that Mr. Harper

had told the detective that the Caprice could not go on the highway. Mann’s trial counsel

argued that, if one does not drive on the beltway, the trip from the McDonald’s to Fantasies

takes approximately an hour to an hour-and-a-half, and contended that Mann would not

have had time to go with Whetstone and Prince to the area behind Fantasies, and then arrive

at Johnson’s house by approximately 7:30 p.m. or 7:45 p.m. In any event, the jury was not

- 31 -
bound to proceed on the assumption that Whetstone would not have taken the beltway to

reach the area behind Fantasies. Indeed, the only evidence that Whetstone would not have

taken the beltway was Detective Laslett’s testimony that Mr. Harper told him that the

Caprice’s hood would pop up when it reached highway speed. Mr. Harper’s statement did

not establish that it was impossible for Whetstone to take the Caprice onto the beltway or

that Whetstone did not take the Caprice on the beltway.

Tellingly, the record demonstrates that Mann’s trial counsel pursued defenses other

than an alibi defense at trial. During Mann’s closing argument, among other things, his

trial counsel pointed out that there was no forensic evidence, such as DNA, that linked

Mann to Prince’s murder. Mann’s trial counsel also raised the possibility that Prince had

been murdered in a robbery gone wrong, given that, when his body was found, he had no

cash on him, he did not have the paycheck that he had told his mother that he was going to

get that day, and he was not wearing anything from the waist up. Alternatively, Mann’s

trial counsel suggested that Mr. Harper had murdered Prince, given that Mr. Harper knew

“Curtis Bay like the back of his hand,” that officers arrested Mr. Harper after encountering

him while he was driving the Caprice, and that one of Mr. Harper’s statements to the

officers was “suspicious.” Finally, in addition to Mr. Harper, Mann’s trial counsel

indicated that other individuals could have murdered Prince, stating:

How about . . . the names that are affiliated with [Sharp]’s group, as the
prosecutor said? . . . How about [Sharp’s brother] wanting to kill [] Prince
because [] Prince supplied the gun that was used to kill [Sharp]? Or Chase
Williams who was going to have his head busted open by [] Prince and []
Bazemore and others? Or Kurt Hamlet or Tavon Labertto? How about these
people wanting to get [] Prince? Madam Prosecutor, just as plausible a
motive as the one you suggest to this jury.

- 32 -
That Mann’s trial counsel pursued additional defenses undermines the impact of his not

requesting an alibi jury instruction.

Finally, the circumstance that the circuit court instructed the jury on the burden of

proof twice—once preliminarily at the start of the trial, and once at the conclusion of the

trial—undermines Mann’s claim of having satisfied his burden to prove prejudice under

Strickland. To be sure, jury instructions regarding the burden of proof and similar matters

“are not deemed to ‘fairly cover’ the matter of alibi.” Smith,

302 Md. at 180

486 A.2d at 198

 (quoting Pulley,

38 Md. App. at 690-91

). That said, in a direct appeal,

a trial court’s alleged error is reversible unless the State proves that it is harmless beyond

a reasonable doubt; by contrast, in a postconviction proceeding involving a claim of

ineffective assistance of trial counsel, the petitioner has the burden of proving that there is

a reasonable probability, or a substantial or significant possibility, that the petitioner’s trial

counsel’s alleged error would have resulted in an acquittal. Even were we to determine

that an error occurred that would have required automatic reversal on direct appeal, that

does not release Mann from the requirement to prove prejudice when raising an ineffective

assistance of counsel claim. See Weaver v. Massachusetts,

137 S. Ct. 1899, 1912

 (2017);

Newton,

455 Md. at 356-57

168 A.3d at 9-10

. Here, the jury instructions regarding the

State’s burden of proof militate in favor of a determination that there was no reasonable

probability, or substantial or significant possibility, that the omission of an alibi jury

instruction, containing essentially the same information, affected the outcome of the trial.

       For all of the above reasons, Mann has failed to satisfy the burden to prove that there



                                              - 33 -
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. Mann’s trial

counsel did not render ineffective assistance of counsel by not requesting an alibi jury

instruction.


                                   JUDGMENT OF THE COURT OF SPECIAL
                                   APPEALS REVERSED. CASE REMANDED TO
                                   THAT COURT WITH INSTRUCTIONS TO
                                   REVERSE THE JUDGMENT OF THE CIRCUIT
                                   COURT FOR BALTIMORE CITY AND REMAND
                                   WITH INSTRUCTION TO DENY THE
                                   SUPPLEMENTAL        PETITION      FOR
                                   POSTCONVICTION RELIEF. RESPONDENT
                                   TO PAY COSTS IN THIS COURT AND IN THE
                                   COURT OF SPECIAL APPEALS.




                                           - 34 -
Circuit Court for Baltimore City
Case Nos. 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.
                                   __________________________________

                                    Dissenting Opinion by Hotten, J., which
                                              Barbera, C.J., joins
                                   __________________________________

                                         Filed: December 19, 2019
       Respectfully, I dissent. The failure to request an alibi instruction, in light of the

testimony from four possible alibi witnesses, constituted deficient performance under

Strickland v. Washington,

466 U.S. 668

104 S.Ct. 2052

 (1984), in the absence or

acknowledgement on the record that the failure was rooted in trial strategy. I am persuaded

that the deficiency was prejudicial against Mr. Mann and his defense. Additionally, I am

persuaded that a general jury instruction regarding the burden of proof in a criminal case

is insufficient to ensure the jury does not improperly place the burden on the defense to

prove its alibi when an alibi defense is presented.

Trial Counsel’s Failure to Request an Alibi Instruction was Deficient and Prejudicial

       In Strickland, the United States Supreme Court outlined a two-prong test for

determining whether a criminal defendant received ineffective assistance of counsel in

violation of the Sixth Amendment of the United States Constitution.

466 U.S. at 687

104 S.Ct. at 2064

. The defendant must initially demonstrate that trial counsel’s performance

was deficient.

 If established, the defendant must then demonstrate that the deficiency

resulted in prejudice to the defendant.

 Under the prejudice prong of Strickland, a

reviewing court must ascertain whether “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. at 694

104 S.Ct. at 2068

. A “reasonable probability” is one that is “sufficient to

undermine confidence in the outcome.”

     This Court has further interpreted the

“reasonable probability” standard to mean that there existed “a substantial or significant

possibility that the verdict of the trier of fact would have been affected.” Bowers v. State,

320 Md. 416, 426

578 A.2d 734, 739

 (1990). While the Strickland standard for proving
prejudice is high, and decidedly deferential to trial counsel’s performance, it clearly

requires the showing of merely “a probability sufficient to undermine confidence in the

outcome.”

466 U.S. at 694

104 S. Ct. at 2068

.

         I agree with the majority that we do not have to dissect the deficiency prong in the

instant case. However, I am not persuaded that Mr. Mann was not prejudiced by trial

counsel’s failure to request an alibi jury instruction. I agree with the Court of Special

Appeals that “the record here is devoid of any strategic reason for not requesting an alibi

instruction.” State v. Mann,

240 Md. App. 592, 601

207 A.3d 653, 658

 (2019). In reaching

the conclusion that there was a Sixth Amendment violation, the Court of Special Appeals

stated

         there 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 trial counsel [did not]
         request it, there is a ‘substantial or significant possibility that the verdict . . .
         [was] affected.’”