Argued: November 29, 2018
Circuit Court for Baltimore City Case No. 199103042 through
Barbera, C.J. Greene McDonald Watts Hotten Getty Adkins,
Sally D., (Senior Judge, Specially Assigned), JJ.
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
AND PROCEDURAL BACKGROUND
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
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 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. 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.
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. 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. 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).
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
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.
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.  Id. at 286, 181 A.3d at 919.
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,
Wyche v. State,  and Arrington v. State,
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 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. Id.
at 240, 181 A.3d at 892.
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.
Mr. Syed in his conditional cross-petition requested that we
[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?
granted certiorari on both issues. 460 Md. 3, 188
A.3d 918 (2018).
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).
Counsel's Failure to Investigate a Potential Alibi
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
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]
Counsel's Duty to Investigate
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."
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).
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:
(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.
Bar Ass'n, ABA Standards for Criminal Justice
(3rd ed. 1993). 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.").
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)).
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.
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.
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
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.
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]." 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.
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.
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
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. 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."
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)).
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.
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.
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.
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.
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.
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
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,
Trial Counsel's Deficient Performance Prejudiced Mr.
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.
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.
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.
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.
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. 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.
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.
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.
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. 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.
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.
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.
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.
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
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).
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.
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,  "[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."
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
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.").
Respondent Waived Argument Regarding Cell Tower Location