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State v. Syed

Court of Appeals of Maryland

March 8, 2019

STATE OF MARYLAND
v.
ADNAN SYED

          Argued: November 29, 2018

          Circuit Court for Baltimore City Case No. 199103042 through 199103046

          Barbera, C.J. Greene McDonald Watts Hotten Getty Adkins, Sally D., (Senior Judge, Specially Assigned), JJ.

          OPINION

          GREENE, J.

         In the present case, we are asked to reconsider the decision of a post-conviction court that granted the Respondent, Adnan Syed, a new trial. That decision was affirmed in part and reversed in part by our intermediate appellate court with the ultimate disposition- a new trial-remaining in place. The case now stands before us, twenty years after the murder of the victim, seventeen-year-old high school senior Hae Min Lee ("Ms. Lee"). We review the legal correctness of the decision of the post-conviction court and decide whether certain actions on the part of Respondent's trial counsel violated Respondent's right to the effective assistance of counsel.

         FACTUAL AND PROCEDURAL BACKGROUND

         We shall not endeavor to replicate the thorough, carefully-written and well-organized Opinion, penned by then-Chief Judge Patrick Woodward, of the Court of Special Appeals in this case. For a more exhaustive review of the underlying facts, evidence presented at trial, and subsequent procedural events involving Respondent's (hereinafter "Respondent" or "Mr. Syed") conviction of first-degree murder of his ex-girlfriend, we direct readers to the Opinion of that court. Syed v. State, 236 Md.App. 183, 181 A.3d 860 (2018) ("Syed"). For purposes of our review of the issues before us, we shall include relevant facts as necessary as well as an abbreviated recitation of the significant procedural markers in this case's sojourn.

         On February 25, 2000, a jury sitting in the Circuit Court for Baltimore City convicted Mr. Syed of first-degree murder, robbery, kidnapping, and false imprisonment of Ms. Lee. Mr. Syed challenged his conviction on direct appeal. In an unreported opinion, the Court of Special Appeals affirmed his conviction on March 19, 2003. Syed v. State, No. 923, Sept. Term 2000. On May 28, 2010, Mr. Syed filed a petition for post-conviction relief, which he supplemented on June 27, 2010. In that petition, Mr. Syed alleged that he received ineffective assistance of counsel and in so alleging lodged claims against his trial counsel, sentencing counsel, and appellate counsel. In the post-conviction petition, Mr. Syed argued nine bases for his claim that he had received ineffective assistance of counsel. Syed, 236 Md.App. at 206-07, 181 A.3d at 872-73 (listing the nine bases on which Mr. Syed claimed his trial counsel or appellate counsel were ineffective). Of relevance to our inquiry is that none of the nine bases was a claim that his trial counsel failed to challenge an alleged Brady[1] violation regarding the admission of evidence that potentially undermined the reliability of cell tower location evidence that was used as part of the State's case.[2] Mr. Syed did raise and argue that his trial counsel was ineffective for failing to investigate or call Asia McClain ("Ms. McClain") as an alibi witness. After a two-day hearing on October 11, 2012 and October 25, 2012, the post-conviction court issued an order and memorandum in which it denied post-conviction relief on January 6, 2014.

         Thereafter, Mr. Syed filed a timely application for leave to appeal, which presented the issue of his trial counsel's failure to interview or investigate Ms. McClain as a potential alibi witness.[3] Subsequent to his filing of an application for leave to appeal, Mr. Syed supplemented his application for leave to appeal and requested that the Court of Special Appeals remand the case for the post-conviction court to consider an affidavit from Ms. McClain.[4] The intermediate appellate court granted Mr. Syed's request and issued a limited remand order in which it afforded Mr. Syed "the opportunity to file such a request to re-open the post-conviction proceedings" in the Circuit Court. See Syed, 236 Md.App. at 210, 181 A.3d at 875 (reciting the Remand Order in relevant part).

         Upon remand by the Court of Special Appeals and as part of his request to the Circuit Court to reopen his post-conviction proceedings, Mr. Syed filed a request for the Circuit Court to consider, for the first time, a new basis for his claim of ineffective assistance of counsel related to a purported Brady violation concerning the cell tower location evidence. Mr. Syed continued to maintain his argument that his trial counsel's failure to pursue Ms. McClain as an alibi witness amounted to ineffective assistance of counsel. The Circuit Court granted Mr. Syed's request to reopen his post-conviction proceedings to review both of the aforementioned issues.

         After a five-day hearing, the post-conviction court issued an order, accompanied by a thorough memorandum, in which it denied relief to Mr. Syed on the issue of his counsel's failure to investigate Ms. McClain as an alibi witness. The post-conviction court concluded that although Mr. Syed's trial counsel was deficient for not contacting Ms. McClain, counsel's failure to investigate Ms. McClain's claim did not prejudice Mr. Syed. Next, the post-conviction court concluded that Mr. Syed waived his claim of a Brady violation with respect to the cell tower location evidence because he had not raised the claim in his post-conviction petition. Finally, with respect to Mr. Syed's claim of ineffective assistance of counsel concerning his trial counsel's failure to challenge the cell tower location evidence, the post-conviction court first determined that Mr. Syed did not knowingly and intelligently waive this claim. Then, the post-conviction court reasoned that Mr. Syed's trial counsel's failure to challenge the cell tower information was in fact deficient and that this deficiency prejudiced Mr. Syed. As a result, the post-conviction court vacated the convictions and granted Mr. Syed a new trial.

         In its review of the post-conviction court's order, the Court of Special Appeals reversed the rulings in two respects. With regard to the claim that Mr. Syed suffered ineffective assistance of counsel due to his trial counsel's failure to investigate a potential alibi witness, the Court of Special Appeals applied the tenets of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and concluded that Mr. Syed's trial counsel's performance was deficient and that this deficiency resulted in prejudice. Specifically, the intermediate appellate court determined that Mr. Syed was prejudiced by the absence of Ms. McClain's testimony because of the State's timeline of the murder and the fact that the State was required to prove that Mr. Syed caused the death of the victim in order to secure a conviction for first-degree murder. 236 Md.App. at 281, 181 A.3d at 916. The court explained that, "the State had to establish that [Mr.] Syed 'caused the death' of [Ms. Lee], and the State's theory of when, where, and how [Mr.] Syed caused [Ms. Lee's] death was critical to proving this element of the crime." Id. The court characterized the State's case as a circumstantial one that "did not directly establish that [Mr.] Syed caused [Ms. Lee's] death sometime between 2:15 p.m. and 2:35 p.m. in the Best Buy Parking lot on January 13, 1999." Id. at 282, 181 A.3d at 916. By contrast, according to the intermediate appellate court, Ms. McClain's testimony would have been evidence that could have supplied "'reasonable doubt' in at least one juror's mind leading to a different outcome[.]" Id. at 284, 181 A.3d at 918. The Court of Special Appeals, thus, determined that Mr. Syed was entitled to a new trial. [5] Id. at 286, 181 A.3d at 919.

         In addition, the Court of Special Appeals considered whether Mr. Syed had waived his right to a claim of ineffective assistance of counsel on the basis that his trial counsel failed to challenge the cell tower location evidence. Id. at 230, 181 A.3d at 886. Heeding the collective guidance of the reasoning in Curtis v. State, [6] Wyche v. State, [7] and Arrington v. State, [8] the intermediate appellate court ruled that because Mr. Syed had previously raised the issue of ineffective assistance of counsel in his petition for post-conviction relief, he was precluded from raising the issue again on a totally different ground, namely, the cell tower location ground. Id. at 237, 181 A.3d at 890. Specifically, the intermediate appellate court explained that Mr. Syed's post-conviction petition, "advanced seven claims that trial counsel's representation[9] was constitutionally inadequate, each on a separate ground. The cell tower ground was not one of those grounds. Consequently, the question of waiver regarding the failure to raise the issue of ineffective assistance of trial counsel is not present here." Id. at 236-37, 181 A.3d at 890. The Court of Special Appeals further held that the theory relative to the reliability of the cell tower location evidence was a non-fundamental right, and, as such, Mr. Syed's failure to assert this ground in his post-conviction petition constituted a waiver. Id. at 239, 181 A.3d at 892. In short, because Mr. Syed could have raised his ineffective assistance of counsel claim on the basis of the cell tower location evidence in his post-conviction petition and did not, he waived the claim by failing to do so.[10] Id. at 240, 181 A.3d at 892.

         Upon the issuance of the Opinion of the Court of Special Appeals, the State filed in this Court a petition for writ of certiorari. Mr. Syed filed a conditional cross-petition for writ of certiorari. The State requested that we review

[w]hether the Court of Special Appeals erred in holding that defense counsel pursuing an alibi strategy without speaking to one specific potential witness of uncertain significance violates the Sixth Amendment's guarantee of effective assistance of counsel.

         Whereas, Mr. Syed in his conditional cross-petition requested that we review

[w]hether the Court of Special Appeals drew itself into conflict with Curtis v. State, 284 Md. 132 (1978), in finding that [Mr.] Syed waived his ineffective-assistance claim based on trial counsel's failure to challenge cell-tower location data, where the claim implicated the fundamental right to effective [assistance of] counsel and was therefore subject to the statutory requirement of knowing and intelligent waiver?

         We granted certiorari on both issues. 460 Md. 3, 188 A.3d 918 (2018).

         STANDARD OF REVIEW

         Our review of a post-conviction court's findings regarding ineffective assistance of counsel is a mixed question of law and fact. Newton v. State, 455 Md. 341, 351, 168 A.3d 1, 7 (2017) (citing Harris v. State, 303 Md. 685, 698, 496 A.2d 1074, 1080 (1985) ("[T]o determine the ultimate mixed question of law and fact, [we ask] namely, was there a violation of a constitutional right as claimed."). The factual findings of the post-conviction court are reviewed for clear error. Id. The legal conclusions, however, are reviewed de novo. Id. at 351-52, 168 A.3d at 7 The appellate court exercises "its own independent analysis" as to the reasonableness, and prejudice therein, of counsel's conduct. Oken v. State, 343 Md. 256, 285, 681 A.2d 30, 44 (1996).

         DISCUSSION

         Trial Counsel's Failure to Investigate a Potential Alibi Witness

         Parties' Arguments

         Mr. Syed urges this Court to affirm the Court of Special Appeals's holding as to the issue of whether his trial counsel's failure to investigate a potential alibi witness was violative of Strickland. According to Mr. Syed, it was a dereliction of duty for trial counsel to make no effort to contact Ms. McClain. This is so because, according to Mr. Syed, trial counsel did not raise an alibi defense. Moreover, Mr. Syed argues that because Ms. McClain's alibi was offered for a precise time it was even more crucial for trial counsel to investigate her, and there is no tactical consideration that could have justified a failure to contact Ms. McClain. Finally, Mr. Syed suggests that Ms. McClain was a disinterested witness whose testimony would have "punctured both the 'when' and the 'where' of the State's core theory[, ]" and, therefore, would have created reasonable doubt as to Mr. Syed's involvement to satisfy the prejudice prong of Strickland.

         The State, of course, seeks a reversal of the Court of Special Appeals on the issue of trial counsel's efforts to investigate Ms. McClain as an alibi witness. According to the State, the record here is silent as to trial counsel's reasons or motivations for not investigating Ms. McClain and, without more, Mr. Syed cannot satisfy his burden under Strickland. The State contends that a proper application of Strickland in the face of a silent, ambiguous or incomplete record as to trial counsel's reasons requires that a court deny relief based on the presumption that trial counsel acted reasonably. Here, according to the State, there were several plausible explanations for why Mr. Syed's trial counsel did not need to investigate Ms. McClain's purported alibi. Ultimately, the State concludes that Mr. Syed has failed to show that his trial counsel's performance satisfied the second prong of Strickland because the State presented "overwhelming evidence of [Mr. Syed's] guilt."

         Trial Counsel's Duty to Investigate

         The Sixth Amendment affords an individual accused of a crime the right to effective assistance of counsel. The Supreme Court has cautioned that "a person who happens to be a lawyer [who] is present at trial alongside the accused [] is not enough to satisfy the constitutional command." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). When a defendant advances an ineffective assistance of counsel claim, and requests that his or her conviction be reversed, he or she must meet a two-part test to succeed on his or her claim. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674. This test, referred to as the Strickland test, guides a reviewing court's consideration of the claim of ineffective assistance of counsel. Id. Under the first prong, the defendant must show that his or her counsel performed deficiently. Id. Next, the defendant must show that he or she has suffered prejudice because of the deficient performance. Id. In the absence of satisfying both prongs of the test, "it cannot be said that the conviction [] resulted from a breakdown in the adversary process that renders the result unreliable." Id.

         The United States Supreme Court settled on an objective standard of reasonableness for determining whether an attorney's performance was deficient. Id. The Supreme Court declared, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d 674. In light of that objective standard, "[j]udicial scrutiny of counsel's performance is highly deferential, and there is a strong (but rebuttable) presumption that counsel rendered reasonable assistance[.]" In re Parris W., 363 Md. 717, 725, 770 A.2d 202, 207 (2001). This Court has required that a defendant, when alleging that counsel's performance was deficient, "must also show that counsel's actions were not the result of trial strategy." Coleman v. State, 434 Md. 320, 338, 75 A.3d 916, 927 (2013). A strategic trial decision is one that "is founded upon adequate investigation and preparation." Id. (quoting State v. Borchardt, 396 Md. 586, 604, 914 A.2d 1126, 1136 (2007)) (cleaned up).

         Whether the attorney's performance was reasonable is measured by the "prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d 674. In the context of this case, we look to the American Bar Association's Standards for Criminal Justice to inform our understanding of the prevailing professional norms of a criminal defense attorney's duty to investigate a potential alibi witness. Specifically, the ABA Standards for Criminal Justice 4-4.1 provided at the time of Mr. Syed's trial, in relevant part:

         Duty to Investigate

(a) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.

         American Bar Ass'n, ABA Standards for Criminal Justice (3rd ed. 1993).[11] See also Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d 674 ("A fair assessment of attorney performance requires . . . [a court] to evaluate the conduct from counsel's perspective at the time.").

         Pertinent to our analysis is the definition of an alibi witness and the contours of an alibi defense. An alibi witness is one "whose testimony 'must tend to prove that it was impossible or highly improbable that the defendant was at the scene of the crime when it was alleged to have occurred.'" McLennan v. State, 418 Md. 335, 352, 14 A.3d 639, 649 (2011) (quoting Ferguson v. State, 488 P.2d 1032, 1039 (Alaska 1971)) (cleaned up); see also Maryland Rule 4-263(e)(4) ("Without the necessity of a request, the defense shall provide to the State's Attorney: [i]f the State's Attorney has designated the time, place, and date of the alleged offense, the name and . . . address of each person other than the defendant whom the defense intends to call as a witness to show that the defendant was not present at the time, place, or date designated by the State's Attorney."). When a criminal defendant asserts an alibi defense, he or she does so not as an affirmative defense but to "den[y] the claim of the prosecution that he was present at the scene of the crime at the time it was committed." Simms v. State, 194 Md.App. 285, 308, 4 A.3d 72, 85 (2010) (cleaned up); see also In re Parris W., 363 Md. 717, 728, 770 A.2d 202, 208 (2001) ("An alibi is not an affirmative defense[.]"). An alibi defense is a defendant's claim "that he [or she] was at another place at the time when the alleged crime was committed[.]" Simms, 194 Md.App. at 308, 4 A.3d at 85 (internal citations omitted). Importantly, to establish an alibi that negates the defendant's criminal agency, "the [alibi] testimony must cover the whole time in which the crime . . . might have been committed." Id. (citing Floyd v. State, 205 Md. 573, 581, 109 A.2d 729, 732 (1954)).

         As the Court of Special Appeals and the post-conviction court observed, an analysis of counsel's duty to investigate a potential alibi witness starts with our decision In re Parris W., 363 Md. 717, 770 A.2d 202 (2000). There, it was nearly a foregone conclusion that counsel's failure to subpoena corroborating alibi witnesses for the correct trial date constituted deficient performance. Id. at 727, 770 A.2d at 208. ("That counsel's performance was deficient, even under the highly deferential standard of Strickland, seems clear."). We explained that "counsel's single, serious error . . . did not constitute the exercise of reasonable professional judgment and that such failure was not consistent with counsel's primary function of effectuating the adversarial testing process in this case." Id. In reaching the conclusion that counsel's deficiency prejudiced the defendant, we cited a number of cases, which we shall discuss forthwith, that held that trial counsel's failure to investigate a potential alibi witness fell short of reasonable professional standards.

         For example, in Griffin v. Warden, Maryland Correctional Adjustment Center, the defendant provided his attorney with a list of five alibi witnesses that would have accounted for his time on the day of a robbery and shooting at a drug store. 970 F.2d 1355, 1356 (4th Cir. 1992). The attorney failed to conduct any investigation of the witnesses and failed to respond to the State's discovery requests, which included failing to provide notice of intent to rely on an alibi and the identities of the alibi witnesses. Id. Upon transferring the case to another attorney, Mr. Griffin's first trial attorney counseled his successor that Mr. Griffin should plead guilty. Id. Although the second attorney accepted the case at least five months before Mr. Griffin's trial, he failed to conduct any investigation of the alibi witnesses or confirm his predecessor's compliance with the State's discovery requests. Id. Moreover, the attorney knew that Mr. Griffin refused to plead guilty. Id. A jury convicted Mr. Griffin of robbery and use of a handgun in connection with a crime of violence. Id.

         Mr. Griffin sought relief in the state court on an ineffective assistance of counsel claim but was ultimately unsuccessful. Id. On a request for habeas relief, the United States Court of Appeals for the Fourth Circuit applied the Strickland two-prong inquiry. Id. at 1357-58. As to the first prong, that court determined that Mr. Griffin's trial counsel's statements, in which he admitted that he did not conduct an investigation of the alibi witnesses because he expected his client to plead, were "unambiguous admissions of unpardonable neglect." Id. at 1358. Given the facts in Griffin, counsel's performance was deficient because his lack of preparation for trial fell below the standard of "prevailing professional norms[.]" See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d 674; see also Griffin, 970 F.2d at 1357-58.

         In Grooms v. Solem, the defendant, William Grooms, was accused of selling a stolen Native American artifact between 5:00 and 5:30 p.m. in Scenic, South Dakota on May 15, 1984. 923 F.2d 88, 89 (8th Cir. 1991). During the second of his three meetings with his appointed counsel, Mr. Grooms explained that he had an alibi. Id. On the morning of his trial, Mr. Grooms informed his counsel that on the day of the alleged crime, he, his wife, and a friend were in Rapid City, South Dakota, a town fifty miles away from Scenic, South Dakota. Id. Mr. Grooms produced for his counsel a cancelled check as well as a work order, both of which supported Mr. Grooms's alibi that he was in Rapid City, South Dakota getting his truck's transmission repaired until well into the evening hours. Id. The cancelled check was dated for May 15, 1984 and the work order reflected the same check number as that of the cancelled check. Id. In subsequent proceedings, two witnesses from the repair shop testified that the repairs lasted until sometime between 7:00 p.m. and 7:30 p.m. Id. at 89-90. Mr. Grooms's trial counsel failed to investigate the repair shop for corroboration, failed to notify the trial court as to a possible alibi witness, and failed to request a continuance in light of his client's claims. Id. at 90. The Eighth Circuit advised that, "[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." Id. Accordingly, the court concluded that even accepting as true that Mr. Grooms's trial counsel learned of the alibi on the first day of trial, counsel should have taken efforts to convey to the court that an investigation of the alibi was necessary. Id. at 91. "Once [trial counsel] discovered the potential alibi, [] trial counsel had a duty to attempt to investigate and to argue on the record for the admission of the alibi witnesses' testimony." Id. The Eighth Circuit affirmed the grant of habeas relief to Mr. Grooms on the basis that his trial counsel's performance was deficient and that the deficiency prejudiced Mr. Grooms. Id.

         In Montgomery v. Petersen, a defendant was charged and tried for burglary in two different jurisdictions for separate acts occurring on the same day. 846 F.2d 407, 408 (1988). In Macon County, Illinois the defendant was acquitted of burglary, whereas in Moultrie County, Illinois the defendant was convicted of burglary. Id. "The only difference between the evidence presented in the two trials was the testimony-presented in the Macon County trial but not in the Moultrie County trial-of a disinterested witness[, a store clerk]."[12] Id. at 408-409. The State's evidence in both trials consisted of witness testimony that the defendant had spent nearly twelve hours attempting to or committing burglaries. Id.

         In Moultrie County, the defendant moved for post-conviction relief on the basis of ineffective assistance of counsel. Id. at 409. At the hearing on his motion, trial counsel, who had tried both cases, admitted that he did not investigate the store clerk as a potential alibi witness due to his "inadvertence" and because he "simply didn't believe the defendant[.]" Id. at 410. The post-conviction court concluded that the store clerk's testimony, as that of a disinterested alibi witness, was significant. Id. at 411. The store clerk's testimony would have not only "greatly enhance[d] the defense['s] case if it stood alone" but it would have served to corroborate "the otherwise impeachable testimony of 12 additional alibi witnesses." Id. The post-conviction hearing judge determined that, "the failure to investigate the only available disinterested alibi witness fell below the standard of reasonably effective assistance required by Strickland." Id. (emphasis in original). The Seventh Circuit affirmed. Id. at 416. In doing so, the court observed that the neutral, unbiased store clerk was the linchpin for the alibi defense. Id. at 413-14. The testimony was particularly impactful because, without the disinterested witness testimony, the case was "a straightforward credibility choice" between twelve defense witnesses and four prosecution witnesses, all of whom had family ties to each other. Id. at 414.

         As was consistently true in the cases cited in In re Parris W., a trial attorney's failure to investigate a potential alibi witness ordinarily will fall below the standard of reasonable professional judgment because it undermines the adversarial testing process inherent in a contested case. See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d 674 ("In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case."). Counsel's duty is "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d 674. Counsel cannot form a sound trial strategy without an "adequate investigation and preparation." Coleman, 434 Md. at 338, 75 A.3d at 927.

         The post-conviction court's factual findings indicate that Mr. Syed's attorney had ample notice of the existence of Ms. McClain as an alibi witness. The post-conviction court found, for example, that on July 13, 1999 "[Mr. Syed] informed trial counsel's law clerk that [Ms.] McClain saw [Mr. Syed] at the Woodlawn Public Library at around 3:00 p.m. on January 13, 1999." The notes in defense counsel's file also included the notation that "[Ms. McClain] and her boyfriend saw [Mr. Syed] in [the] library." Those notes in the attorney's files did not indicate that counsel or her staff investigated Ms. McClain's statements or evaluated the two letters in which Ms. McClain offered herself as an alibi. The post-conviction court found that sometime "prior to trial" Mr. Syed gave to his attorney two letters from Ms. McClain, one dated March 1, 1999 and the other dated March 2, 1999. In the letters, Ms. McClain claimed to have seen Mr. Syed on the afternoon of January 13, 1999 at the Woodlawn Public Library at 2:15 p.m. and offered herself as a witness to his whereabouts for part of that day.[13] Finally, the post-conviction court found that "[a]lthough trial counsel had notice of the potential alibi witness, neither she nor her staff ever contacted [Ms.] McClain."

         We uphold the factual findings of the post-conviction court unless those findings are clearly erroneous. See Newton v. State, 455 Md. 341, 351, 168 A.3d 1, 7 (2017). Notwithstanding that principle, the parties do not dispute that Mr. Syed's counsel failed to investigate Ms. McClain as a potential alibi witness. Trial counsel's failure to investigate or inquire into whether Ms. McClain might aid Mr. Syed's defense did not meet the standard of reasonable professional judgment. Mr. Syed's trial counsel failed to even contact Ms. McClain. This lack of exploration of Ms. McClain, whom trial counsel learned of as early as July 13, 1999 and for whom trial counsel had contact information, falls short of the tenets of a criminal defense attorney's minimum duty to investigate the circumstances and facts of the case. See American Bar Ass'n, ABA Standards for Criminal Justice, 4-4.1 (3rd ed. 1993) ("Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case[.]"); see also Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 2466, 162 L.Ed.2d. 360 (2005) ("We long have referred to these ABA Standards as guides to determining what is reasonable." (internal quotations and citations omitted)).

         The Court of Special Appeals explained that, "no reasonable evaluation of the advantages or disadvantages of [Ms.] McClain's alibi testimony, as compared to an alibi defense based on [Mr.] Syed's habit or routine, could be made without first contacting [Ms.] McClain." Syed, 236 Md.App. at 272, 181 A.3d at 911. We agree.

         At a minimum, due diligence obligated Mr. Syed's trial counsel to contact Ms. McClain in an effort to explore her potential as an alibi witness. An attorney cannot be said to be carrying out the ABA's requirement of due diligence without conducting a factual investigation of an alibi witness who claims to have knowledge of the defendant's whereabouts on the day of the crime in question. Even if Mr. Syed's trial counsel knew what facts Ms. McClain would present about seeing Mr. Syed on January 13, 1999, trial counsel should have nevertheless made a bona fide effort to investigate Ms. McClain. An investigation could have verified Ms. McClain's assertions as well as revealed whether Ms. McClain was a disinterested witness. Our conclusion does not change in spite of the "heavy measure of deference to counsel's judgments" required by Strickland. 466 U.S. at 687, 691, 104 S.Ct. at 2064, 2066, 80 L.Ed.2d 674. Where a defendant provides his or her counsel with information about an alibi witness, the attorney has an affirmative duty to make reasonable efforts to investigate the information that was provided. Thus, the performance of an attorney who clearly failed to effectuate her duty to investigate a potential alibi witness, or provide a reasonable explanation for not investigating the witness, would be deficient under Strickland.

         In the present case, Mr. Syed gave trial counsel the name and address along with facts about the testimony the potential witness would offer. Mr. Syed's trial counsel had received this information and, therefore, had a duty to investigate Ms. McClain as a potential alibi witness. By all accounts, trial counsel did not conduct any inquiry of Ms. McClain. Trial counsel neither confirmed Ms. McClain's statements, nor indicated in her case file the reasons why she did not investigate Ms. McClain's background or alibi. Mr. Syed's trial counsel's task list dated September 4, 1999 indicated that one task was to "[m]ake determination regarding alibi[, ]" and a hand-written "urgent" appeared next to this entry. We are mindful of Strickland's wisdom that "[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another." 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d 674. Documentation, though, is not an art. To the extent that an attorney documents the steps of his or her investigation is a reflection of that attorney's minimal competence and not a reflection of trial strategy. If trial counsel had interviewed Ms. McClain and decided that the information Ms. McClain had about Mr. Syed's whereabouts on the afternoon of January 13, 1999 was not helpful to Mr. Syed's case, a notation in the file indicating as much would have plainly defeated Mr. Syed's argument on his claim of ineffective assistance of counsel. Without some indication to the contrary, we cannot conclude that trial counsel's failure to interview a potential alibi witness was the result of a reasonable trial strategy.

         We hold that trial counsel did not satisfy her duty "to make [a] reasonable investigation[] or . . . make a reasonable decision that makes a particular investigation[] unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d 674. Under the circumstances, trial counsel knew in advance of trial the identity of and how to contact Ms. McClain. Trial counsel also knew the nature of her potential testimony, yet still failed to contact the witness prior to trial or make an effort to communicate with her. Moreover, trial counsel's failure to attempt to contact the witness prior to trial did not constitute a reasonable tactical or strategic decision because it was not based upon an adequate investigation of the facts. See State v. Borchardt, 396 Md. 586, 604, 914 A.2d 1126, 1136 (2007). Although trial counsel was not available, as a result of her death, to testify at the post-conviction proceedings to explain why she did not attempt to make a reasonable investigation of Ms. McClain's background or alibi, her case file notes were admitted into evidence during those proceedings. Her notes, however, did not explain why the investigation of Ms. McClain was unnecessary or why she failed to ascertain whether Ms. McClain's testimony would aid the defense.

         Our holding is limited to the narrow question of whether trial counsel was deficient for failing to investigate Ms. McClain as an alibi witness. Because we conclude that counsel was deficient for failing to investigate Ms. McClain, we need not and do not hold that trial counsel was deficient for failing to call Ms. McClain as an alibi witness at trial.

         The State strongly advocates that we adopt a broad bright-line rule that would never allow a defendant to prevail on the deficiency prong of the Strickland test in the absence of trial counsel's reasoning for his or her failure to investigate an alibi witness. According to the State, "where the record is silent-or even just incomplete or ambiguous-proper application of Strickland's presumption of competence requires that a court deny relief." Applied here, the State's reasoning is grounded in the fact that Mr. Syed's trial counsel was unable-due to her death-to explain why she did not contact Ms. McClain as part of trial preparations. Therefore, according to the State, Mr. Syed could not have met, and did not meet, the high burden that Strickland demands. The State would have this Court rule that whenever a record is silent as to the reasons why trial counsel failed to investigate a potential alibi witness, the defendant may never prevail on an ineffective assistance of counsel claim because a reviewing court could not declare trial counsel's performance deficient. A ruling such as this would divorce this Court from its obligation to review the totality of the circumstances of ineffective assistance claims through the lens of an "objective standard of reasonableness." Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d 674 ("When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. More specific guidelines are not appropriate."). We are not persuaded that such a sweeping mandate accomplishes the goal that Strickland sought to achieve, namely, that of a just result.

         Additionally, the State argues that any attempt by this Court to rely on cases where the record was not silent as to counsel's reasoning, such as Griffin, is a means of "turning Strickland on its head." We resist this siren call, as well. A silent record cannot be the sole determinant in our reasonableness assessment. Such a result would betray Strickland's decree that a "court must [] determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d 674 (emphasis added). Whether trial counsel's omission was due to neglect, an intentional strategic decision, or some other reason altogether, we hold that Mr. Syed's trial counsel's performance fell below the standard of reasonable professional judgment and was, therefore, deficient.

         Whether Trial Counsel's Deficient Performance Prejudiced Mr. Syed

         The second-prong of the Strickland standard requires the defendant to show prejudice. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674. A showing of prejudice is present where "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, 80 L.Ed.2d 674. We have explained that under this standard a defendant "must show either: (1) a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; or (2) that the result of the proceeding was fundamentally unfair or unreliable." Newton v. State, 455 Md. 341, 355, 168 A.3d 1, 9 (2017) (quoting Coleman v. State, 434 Md. 320, 340, 75 A.3d 916, 928 (2013) (cleaned up)). The Strickland Court described a reasonable probability as "a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d 674. We have interpreted reasonable probability to mean "there was 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). A reviewing court's determination of prejudice to the defendant "must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d. 674.

         Important to the present case is the principle that even if a court has found that an attorney's performance was deficient, the court does not presume the defendant suffered prejudice as a result of the deficient performance. See Weaver v. Massachusetts, 582 U.S. __, __, 137 S.Ct. 1899, 1910, 198 L.Ed.2d 420 (2017) ("The prejudice showing is in most cases a necessary part of a Strickland claim. The reason is that a defendant has a right to effective representation, not a right to an attorney who performs his duties 'mistake-free.'") (internal citation omitted). In other words, every mistake made by trial counsel does not cause prejudice to the defendant's case. See, e.g., St. Cloud v. Leapley, 521 N.W.2d 118, 128 (S.D. 1994) (holding that attorney's failure to investigate the defendant's tribal court file offended reasonable professional judgment but that the failure did not prejudice the case); see Brewer v. Hall, 603 S.E.2d. 244, 247 (Ga. 2004) (holding that appellate counsel's failure to present the testimony of trial counsel at an evidentiary hearing was deficient but that, ultimately, trial counsel's performance was not deficient; thus, appellate counsel's performance caused no prejudice); see also Moreland v. Robinson, 813 F.3d 315, 329 (6th Cir. 2016) (holding that even if counsel's failure to use police reports at trial to challenge a discrepancy was deficient performance, the defendant was not prejudiced). A court's evaluation of the prejudice prong under Strickland asks, "whether it is 'reasonably likely' the result would have been different" if not for counsel's deficient performance. Harrington v. Richter, 562 U.S. 86, 111, 131 S.Ct. 707, 792, 178 L.Ed.2d 624 (2011); see also Bowers v. State, 320 Md. 416, 426, 578 A.2d 734, 739 (1990) (holding that the Strickland prejudice standard is best described as "a substantial or significant possibility that the verdict of the trier of fact would have been affected."). More succinctly, "[t]he likelihood of a different result must be substantial, not just conceivable." Harrington, 562 U.S. at 112, 131 S.Ct. at 792, 178 L.Ed.2d 624.

         Our analysis begins with the State's theory of Mr. Syed's involvement in the murder of Ms. Lee. The State focused primarily on Mr. Syed's actions on the evening of January 13, 1999. During the six-hour period from approximately 2:00 p.m. after school dismissed to approximately 8:00 p.m., the State's strongest evidence against Mr. Syed related to the period of time Mr. Syed was involved in burying Ms. Lee's body in Leakin Park and the subsequent abandonment of Ms. Lee's car. The State relied on the testimony of Jay Wilds ("Mr. Wilds") to establish that Mr. Syed buried the victim in Leakin Park at approximately 7:00 p.m. Mr. Wilds testified that Mr. Syed received two calls to his cell phone during the time that Mr. Syed was preparing the burial site for the victim's body. The State introduced Mr. Syed's cell phone records to corroborate Mr. Wilds's testimony. The cell phone records showed that Mr. Syed's cell phone received two incoming calls, one at 7:09 p.m. and one at 7:16 p.m. The State's expert testified that the cell towers where the calls were received connected with cell sites that encompassed Leakin Park, which is where Ms. Lee's body was discovered. The State also relied on the testimony of Jennifer Pusateri ("Ms. Pusateri"). Ms. Pusateri's testimony served to corroborate the fact of the incoming call at 7:09 p.m. or 7:16 p.m. as well as to place Mr. Syed and Mr. Wilds together at the time of that call. Ms. Pusateri testified that she received a message from Mr. Wilds to call him, so she tried to reach him using the number that was on her caller I.D. from his message. When she called and asked to speak with Mr. Wilds, the person who answered the phone responded that Mr. Wilds was busy and would call her back. The State proved that the number Ms. Pusateri called was the number for Mr. Syed's cell phone. About ten to fifteen minutes after that call, according to Ms. Pusateri, she met Mr. Wilds in a parking lot where she saw Mr. Wilds get out of a car that Mr. Syed was driving.

         Additionally the State presented evidence that this was a crime of premeditation and deliberation. For example, through Mr. Wilds's testimony, the State established that Mr. Syed told Mr. Wilds on January 13, 1999, hours before the murder, referring to Ms. Lee, "I'm going to kill that bitch." According to Mr. Wilds, while he and Mr. Syed were standing near the victim's car in the Best Buy parking lot, Mr. Syed showed Mr. Wilds the victim's body in the trunk and boasted, "I killed somebody with my bare hands." Also at that time, Mr. Wilds observed Mr. Syed wearing red gloves. Following this conversation, Mr. Syed directed Mr. Wilds to follow him, in Mr. Syed's car as Mr. Syed drove the victim's car, to a Park and Ride on Interstate 70. Thereafter, according to Mr. Wilds, Mr. Syed said that he needed to return to school so that he could be seen at track practice. They left the victim's car parked at the Park and Ride and drove back to Mr. Syed's school in his car.

         In her discovery responses, Mr. Syed's counsel presented a theory that Mr. Syed had a routine of attending track practice after school followed by attending prayer service at his mosque. On October 4, 1999, Mr. Syed's trial counsel issued an alibi notice to the State, in which she stated:

On January 13, 1999, Adnan Masud Syed attended Woodlawn High School for the duration of the school day. At the conclusion of the school day, the defendant remained at the high school until the beginning of his track practice.[14] After track practice, Adnan Syed went home and remained there until attending services at his mosque that evening. These witnesses will testify as to the defendant's regular attendance at school, track practice, and the Mosque; and that his absence on January 13, 1999 would have been noticed.

         The notice also included the names of over eighty individuals who would testify as to Mr. Syed's routine involving track practice and the Mosque. See Md. Rule 4-263(e)(4) (explaining that defendant is required to furnish to the State's Attorney "the name and . . . the address of each person other than the defendant whom the defense intends to call as a witness to show that the defendant was not present at the time, place, or date designated by the State's Attorney[.]"); see also McLennan v. State, 418 Md. 335, 352, 14 A.3d 639, 649 (2011) (adopting the definition of alibi witness as "a witness whose testimony 'must tend to prove that it was impossible or highly improbable that the defendant was at the scene of the crime when it was alleged to have occurred.'" (quoting Ferguson v. State, 488 P.2d 1032, 1039 (Alaska 1971))); see also Jackson v. State, 22 Md.App. 257, 260, 322 A.2d 574, 576 (1974) ("Proof of an alibi, like any other defense testimony, is simply a means of controverting the State's effort to establish criminal agency."). This alibi notice to the State was consistent with the statements Mr. Syed had made to the police on prior occasions.

         On the evening of January 13, 1999, Officer Scott Adcock spoke with Mr. Syed inquiring about Mr. Syed's knowledge of the whereabouts of Ms. Lee. At that time, Mr. Syed told Officer Adcock that "he was suppose[d] to get a ride home from the victim, but he got detained at school and felt that she just got tired of waiting and left." Mr. Syed did not provide Officer Adcock with an explanation of what detained him or what he did after school. Two weeks after the initial conversation with Officer Adcock, Mr. Syed was interviewed by Detective O'Shea on January 25, 1999. At that time, Mr. Syed said that he had attended track practice after school on January 13, 1999. Detective O'Shea spoke with Mr. Syed again on February 1, 1999 to ask him if he remembered telling Officer Adcock that Ms. Lee was waiting to give him a ride after school. At that time, Mr. Syed told Detective O'Shea that "[Officer Adcock's information] was incorrect because he drives his own car to school so he wouldn't have needed a ride from her." When Mr. Syed was interviewed on February 26, 1999, he told investigators that he could not remember what he did on January 13, 1999. Although Mr. Syed offered conflicting statements to law enforcement about needing a ride after school, the conflict in those statements was not inconsistent with whether he attended track practice that day.

         In his post-conviction petition, Mr. Syed relied on Ms. McClain's contention that she observed him in the Woodlawn Public Library on the afternoon of January 13, 1999. Specifically, Ms. McClain averred in her 2015 affidavit that she saw Mr. Syed between 2:30 p.m. and 2:40 p.m. and had a conversation with him at that time. In assessing Ms. McClain's value as an alibi for Mr. Syed, her letters tended to show that Mr. Syed and the victim were not together between 2:30 p.m. and 2:40 p.m. on January 13, 1999.[15] Even taking Ms. McClain's statements as true, her alibi does little more than to call into question the time that the State claimed Ms. Lee was killed and does nothing to rebut the evidence establishing Mr. Syed's motive and opportunity to kill Ms. Lee. Thus, the jury could have disbelieved that Mr. Syed killed Ms. Lee by 2:36 p.m., as the State's timeline suggested, yet still believed that Mr. Syed had the opportunity to kill Ms. Lee after 2:40 p.m. Ms. McClain's testimony, according to her affidavit, failed to account for Mr. Syed's whereabouts after 2:40 p.m. on January 13, 1999. Likewise, Mr. Syed's statements to the police fail to account for his whereabouts after 2:15 p.m. when school let out. Therefore, even if the alibi testimony had been admitted into evidence it could not have affected the outcome of the case because that evidence did not negate Mr. Syed's criminal agency.

         To conclude that Mr. Syed allegedly suffered prejudice as a result of his trial counsel's deficient performance, we must determine in light of all of the evidence before the jury, that "there was a substantial or significant possibility" that the jury's verdict would have been affected by the deficient performance. See Bowers, 320 Md. at 426, 578 A.2d at 739. The Court of Special Appeals provided a thorough recounting of the evidence that the State established in its case in chief, which included a combination of witness testimony, cell phone technology evidence, and some forensic evidence. See Syed, 236 Md.App. at 196-06, 181 A.3d at 867-72. The State, however, "adduced no direct evidence of the exact time that [Ms. Lee] was killed, the location where she was killed, the acts of the killer immediately before and after [Ms. Lee] was strangled, and of course, the identity of the person who killed [Ms. Lee]." Id. at 284, 181 A.3d at 917. Whether the State's case was "a strong circumstantial case," as the Court of Special Appeals described it, or a case built upon a combination of direct and circumstantial evidence, is of no consequence under the Strickland analysis. Compare Hebron v. State, 331 Md. 219, 226, 627 A.2d 1029, 1032 (1993) ("Maryland has long held that there is no difference between direct and circumstantial evidence.") with Strickland, 466 U.S. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d 674 ("[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support."). Our analysis considers the totality of the evidence before the jury. See Strickland, 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d 674.

         With that in mind, we highlight some of the more crucial evidence the State relied on to prove its case. Mr. Wilds testified that Mr. Syed had complained of Ms. Lee's treatment of him and said that he intended "to kill that bitch." Mr. Wilds claimed to have seen the body of Ms. Lee in the trunk of her car at the Best Buy parking lot. Ms. Pusateri, a friend of Mr. Wilds, told police, and testified at trial consistent with those statements, that Mr. Wilds told her that Ms. Lee had been strangled. At the time Ms. Pusateri relayed this information to the police, the manner of Ms. Lee's death had not been publicly released. Mr. Syed's cell phone records showed him receiving a call in the vicinity of Leakin Park at the time that Mr. Wilds claimed he and Mr. Syed were there to bury Ms. Lee's body. Mr. Wilds directed the police to the location of Ms. Lee's abandoned vehicle, which law enforcement had been unable to find for weeks. Mr. Syed's palm print was found on the back cover of a map book that was found inside Ms. Lee's car; the map showing the location of Leakin Park had been removed from the map book. Various witnesses, including Ms. Pusateri, Nisha Tanna, and Kristina Vinson, testified to either seeing or speaking by cell phone with Mr. Wilds and Mr. Syed together at various times throughout the afternoon and evening on January 13, 1999.

         Given the totality of the evidence the jury heard, we conclude that there is not a significant or substantial possibility that the verdict would have been different had trial counsel presented Ms. McClain as an alibi witness. Ms. McClain would have been an alibi witness who contradicted the defendant's own statements, which were themselves already internally inconsistent; thus Ms. McClain's proffered testimony could have further undermined Mr. Syed's credibility. Moreover, Ms. McClain's account was cabined to a narrow window of time in the afternoon of January 13, 1999. Her testimony would not have served to rebut the evidence the State presented relative to Mr. Syed's actions on the evening of January 13, 1999. At best, her testimony would have highlighted Mr. Syed's failure to account precisely for his whereabouts after school on January 13, 1999. Trial counsel's deficient performance, therefore, could not have prejudiced Mr. Syed in light of the totality of the evidence presented to the jury.

         Ultimately, the post-conviction court reached the same conclusion as we do here. That court viewed Ms. McClain's testimony in light of "the crux of the State's case" which "did not rest on the time of the murder." The post-conviction court reasoned that the State placed Mr. Syed in Leakin Park at approximately 7:00 p.m. on January 13, 1999 through the testimony of Mr. Wilds and the cell phone location evidence. With this theory in mind, the post-conviction court concluded that Ms. McClain's testimony "would not have been able to sever this crucial link" between Mr. Syed burying Ms. Lee's body and the State's evidence supporting that allegation. The Court of Special Appeals, however, disagreed with the post-conviction court.

         The intermediate appellate court suggested that the post-conviction court failed to consider that in order to convict Mr. Syed of first-degree murder, the State needed to prove that Mr. Syed "caused the death" of Ms. Lee. 236 Md.App. at 281, 181 A.3d at 916. According to the intermediate appellate court, "[t]he burial of [Ms. Lee] was not an element that the State needed to prove in order to convict [Mr.] Syed." Id. Accordingly, "the State's theory of when, where, and how [Mr.] Syed caused [Ms. Lee's] death was critical to proving this element of the crime." Id. To that end, the Court of Special Appeals concluded that Ms. McClain's alibi testimony would have "directly contradicted the State's theory of when [Mr.] Syed had the opportunity and did murder [Ms. Lee]." Id. at 284, 181 A.3d at 917-18. The Court of Special Appeals insisted that it did not consider Ms. McClain's testimony in isolation. Id. at 282, 181 A.3d at 917. Nevertheless, clearly that court analyzed Ms. McClain's testimony exclusively against a backdrop of what evidence was absent from the State's case with respect to the timing of Ms. Lee's death. See id. at 283-84, 181 A.3d at 917 (listing evidence that might have been used to establish the State's timeline of the murder but was not). In light of the absence of evidence by the State relative to the time of Ms. Lee's murder and the fact that the evidence against Mr. Syed was circumstantial, the Court of Special Appeals surmised that one piece of evidence in the form of Ms. McClain's alibi would have "altered the entire evidentiary picture." Id. at 284, 181 A.3d at 917-18 (citing Strickland, 466 U.S. at 696, 104 S.Ct. at 2069).

         A reviewing court's rejection of significant circumstantial evidence in the face of a singular piece of potential evidence undermines the evidentiary value of circumstantial evidence. We have previously opined:

Circumstantial evidence need not be such that no possible theory other than guilt can stand. . . . It is not necessary that the circumstantial evidence exclude every possibility of the defendant's innocence, or produce an absolute certainty in the minds of the jurors. . . . While it must afford the basis for an inference of guilt beyond a reasonable doubt, it is not necessary that each circumstance, standing alone, be sufficient to establish guilt, but the circumstances are to be considered collectively.

Hebron v. State, 331 Md. 219, 227, 627 A.2d 1029, 1033 (1993) (citations omitted) (cleaned up). A reviewing court must consider the entirety of the evidence against the post-conviction petitioner who has made a claim of ineffective assistance of counsel, rather than separately weigh the circumstantial evidence against the direct evidence. See Strickland, 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d. 674.

         In the case sub judice, the State's case against Ms. Syed was based, inter alia, on the testimony of Mr. Wilds, the cell tower location evidence, as well as the testimony of individuals who not only corroborated Mr. Wilds's testimony but also corroborated the cell tower location evidence. Furthermore, the State proved that Mr. Syed had the motive and the opportunity to take Ms. Lee's life on January 13, 1999. As the post-conviction court noted in its first Memorandum Opinion, [16] "[a]s a motive, the State presented evidence that [Mr. Syed] was jealous and enraged at the victim's new romantic relationship with another man." The medical examiner determined that Ms. Lee had died by strangulation. The post-conviction court observed that the State established through Mr. Wilds's testimony that Mr. Syed "called Mr. Wilds from a payphone . . . at 2:36 p.m. on January 13, 1999 to request a ride." According to Mr. Wilds's testimony, Mr. Syed "opened the trunk of the victim's car, revealing the victim's lifeless body . . . told Mr. Wilds that he had strangled the victim and bragged, 'I killed someone with my bare hands.'" The post-conviction court found that the "State corroborated [Mr.] Wilds['s] testimony with [Mr. Syed's] cell phone records."

         Finally, the post-conviction court observed that, "the crux of the State's case did not rest on the time of the murder. In fact, the State presented a relatively weak theory as to the time of the murder because the State relied upon inconsistent facts to support its theory." In other words, the State did not rely on the time of the victim's murder as much as it relied on the substantial circumstantial evidence that pointed to Mr. Syed's motive and his transportation and burial of the victim's body to establish his guilt. In reaching its conclusion that Mr. Syed was not prejudiced by his trial counsel's failure to investigate Ms. McClain, the post-conviction court identified the State's testimonial evidence and the evidence used to corroborate that testimonial evidence, which, taken together, established Mr. Syed's motive and his opportunity to fatally strangle Ms. Lee. Ms. McClain's alibi provided evidence of Mr. Syed's whereabouts for a narrow period of time, whereas the State's case covered a much more expanded period of time on January 13, 1999. We agree with the post-conviction court, and in doing so, depart from the view of the Court of Special Appeals that the State's evidence failed to establish Mr. Syed's criminal agency.[17]

         Given our task of determining whether there is a "substantial or significant" possibility that the jury's verdict would have been affected, we consider the totality of the evidence. Under the circumstances, the State's case against Respondent could not have been substantially undermined merely by the alibi testimony of Ms. McClain because of the substantial direct and circumstantial evidence pointing to Mr. Syed's guilt. See Harrington, 562 U.S. at 112, 131 S.Ct. at 792, 178 L.Ed.2d 624 (noting that the prejudice standard under Strickland means "[t]he likelihood of a different result must be substantial, not just conceivable.").

         Whether Respondent Waived Argument Regarding Cell Tower Location Evidence

         Parties' ...


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