Maurice S. Hope v. Cartledge, Warden (4th Cir, 5/22/17): Denial of habeas relief when trial counsel fails to request alibi instruction; important dissent by Judge Thacker who offers lesson in due process first principles.

May 30th, 2017
Elizabeth Franklin-Best

In January 2008, Hope and his co-defendants allegedly robbed a Bi-Lo in my hometown, Rock Hill, South Carolina.  It was early, EARLY, in the morning, between 6:00-7:00am. Hope was arrested, along with two others. The co-defendants pleaded guilty, but Hope went to trial on armed robbery, conspiracy to commit armed robbery and possession of a firearm during the commission of a violent crime.

At trial, the State offered the testimony of three Bi-Lo employees who saw the crime.  They testified that two guys entered the store, wearing ski masks and carrying guns.  One guy held a gun on the employees while the other stole money from the bookkeeper’s station.  The employees could not see the faces of their assailants, but they did describe the robber with the gun as a black male of medium or stocky build (which apparently also describes Hope).  The co-defendants got deals (of course) and testified for the State.  One co-defendant testified that he and Hope, along with the third, robbed the store.  According to him, he entered the store with Hope while the third guy stayed in the car as a getaway driver. The third guy testified that he overheard Hope and the first guy planning a robbery and agreed to join them. He corroborated what Guy #1 testified to.  The State also presented evidence showing that Hope’s wallet was found in the trunk of Guy’s #3’s car when the police searched it nearly 2 weeks later. There was also a videotape of the robbery which confirmed these events. Also, the State called a third party who testified she saw a suspicious car containing a minimum of three people enter the Bi-Lo parking lot shortly before the burglary. Apparently this car resembled the car driven by Guy #3.

Hope called a number of witnesses, including his then-girlfriend-now-wife, three of his roommates, and a witness who is a roommate’s friend. In all, he called 6 witnesses who essentially testified that Hope had an alibi.  According to these witnesses, Hope got home around 12:00am- 1:00am on January 1, 2008 for a party. They stayed up talking until the sun came up.  Hope never left the house. Around 7:00am, Hope and his girlfriend went to bed. They accidentally broke their bed, and it took approximately 30-60 minutes to fix it. Therefore, Hope could not have robbed the store. Hope also testified that he went to Detroit after finding out he was wanted for armed robbery. He came back to SC for his kid’s birthday, and that’s when the cops picked him up.

The State offered a reply case, and called a detective who testified that when we went to Hope’s residence, three of Hope’s alibi witnesses were there. They did not tell the detective of Hope’s alibi at that time.

Hope’s defense was alibi, and in South Carolina the law requires an alibi charge be given under these circumstances.  See State v. Robbins, 271 S.E.2d 319, 320 (S.C. 1980); State v. Bealin, 23 S.E.2d 746, 756 (S.C. 1943).  Hope’s lawyer, however, failed to request one, nor did the court, of its own accord, provide one. Hope was convicted and sentenced to 30 years.

The South Carolina Court of Appeals denied his appeal.  He then filed an application for post-conviction relief and argued, among other things, that his lawyer was ineffective for failing to request the alibi instruction. The PCR judge denied the claim, and the South Carolina Supreme Court denied certiorari. Hope then filed his federal habeas petition. The State moved for summary judgment arguing that Hope did not suffer any prejudice from his lawyer’s failure to request the instruction. The federal court dismissed the habeas petition, but granted a certificate of appealability on the question of whether Hope was prejudiced from the lack of an alibi instruction.

On appeal, both parties conceded that trial counsel’s performance was deficient.  The question was whether Hope was prejudiced– in other words, if the instruction had been given, was there a reasonable probability that the outcome of the proceeding would have been different?  United States v. Luck, 611 F.3d 183, 189 (4th Cir. 2010) (great case, by the way). The Court essentially found that Hope was not prejudiced because the trial court repeatedly instructed the jury that the State must prove Hope guilty beyond a reasonable doubt. The Court also defined reasonable doubt and told the jury that Hope was presumed innocent. Also, the Court noted, the crucial issue was witness credibility and the parties presented the jury with two very different, and factually irreconcilable, situations. The Court found that the jury clearly did not credit Hope’s witnesses, therefore the jury would not have been swayed by the inclusion of an alibi instruction. Hope argued that his co-defendants’ testimonies were suspect because they received deals, but the Court found their potential bias to have been adequately covered in counsel’s closing argument.   In short, the Court found the case against Hope to be pretty solid.  The Court found that Hope failed to demonstrate that the PCR court unreasonably applied federal law, as required by habeas review, and therefore denied him relief…

Now for the interesting part.  Judge Thacker’s dissent.

“Jurors are not experts in legal principles; to function effectively, and justly, they must accurately instructed in the law.”  Carter v. Kentucky, 450 U.S. 288, 302 (1981). In this case, South Carolina’s alibi instruction would have educated the jurors that the State was required to disprove Maurice Hope’s alibi defense in order to convict him (emphasis in original).”

Judge Thacker takes this all back to first principles– the State is constitutionally obliged, as a requirement of due process– to prove the element of every crime beyond a reasonable doubt. In re Winship, 397 U.S. 358 (970); Sandstrom v. Montana, 442 U.S. 510 (1979). “Following Winship, the Supreme Court recognized the importance of accurate, explicit, and complete jury instructions where laymen are required to understand the government’s burden.” Judge Thacker notes that South Carolina’s alibi instruction specifically states that the burden is on the State to disprove the alibi.  She also notes that it is black-letter South Carolina law that the failure to request an alibi instruction is deficient, and that the failure to give it upon request requires reversal.  See State v. Burriss, 513 S.E.2d 104 (S.C. 1999). Judge Thacker also seems to take a different view of the strength of the State’s case. “And where, like here, a trial is “essentially…a swearing contest” with “skeletal instructions” and the risk of “harmful inferences,” there is a “heightened” risk that incomplete jury instructions will affect the outcome of a trial.”  Taylor v. Kentucky, 436 U.S. 478, 487-88 (1978). Judge Thacker proclaims the State’s case “incredibly weak.” Judge Thacker then proceeds to detail the evidence which shows, truly, just how weak the State’s case was.  I certainly hope the full court decides to take a look at this case. Jury instructions can fairly be considered sacrosanct. They are the statements of law that we require our juries to apply to the facts of a case.  It is simply not too much to ask that trial counsel get it right, especially when the instruction at issue is the very defense that a defendant offers to preserve his liberty. The Fourth Circuit’s majority opinion takes too cavalier an attitude towards this issue, in my humble opinion.

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