In Walker v. State, decided March 19, 2014, the S.C. Supreme Court upheld the circuit court’s grant of post-conviction relief (PCR) to the applicant where defense counsel failed to investigate and interview a potential alibi witness.
The applicant had been convicted of criminal sexual conduct 1st degree and kidnapping, based on allegations that he had kidnapped a woman at a convenience store, held her captive and sexually assaulted her. The applicant stated that, although he had been at the gas station on that day, he spent the night with his girlfriend’s home that night. Trial counsel did not contact or interview the girlfriend, although trial counsel’s notes referenced her as a person that needed to be interviewed.
The girlfriend testified at the PCR hearing that no-one had contacted her and she did not know what had happened until she was contacted by PCR counsel, and that, although she could not testify as to the exact dates in question, she spent every weekend with the applicant up to the time he was arrested. The Court found that, had the girlfriend testified at trial, there was a reasonable probability that the outcome would have been different.
The Court distinguishes Glover v. State, where an alibi witness would have testified that Glover was in Florida at 8:00 am, and the crime was committed at 8:30 pm the same day. The drive from the location of the crime to the location in Florida was approximately 6 and a half hours, which means, if the jury believed the alibi witness, it still would not have precluded the defendant’s having committed the crime. In Walker’s case, if the jury had believed that Walker was with the girlfriend the night of the alleged crime, it would have been physically impossible for him to have committed the crime.
Counsel has a duty to conduct an independent investigation, which means contacting and interviewing any alibi witnesses proffered by the defendant. Failure to contact potential witnesses to determine if their testimony would help the defendant is not reasonable, and if the testimony would have resulted in a reasonable probability that the outcome would have been different, PCR should be granted.