Failure to call alibi witnesses was ineffective assistance  



A man who spent nearly a decade in prison after being a convicted of several violent crimes will get a new trial because his trial lawyer declined to call alibi witnesses that could have called his guilt into question, the South Carolina Court of Appeals has unanimously ruled. 

The attorney who represented Victor Weldon during his 2012 trial—a real estate attorney who said he’s tried one or two criminal cases in more than 20 years of practicing law—testified at a post-conviction relief (PCR) hearing that he didn’t know why he didn’t call Weldon’s mother and sister as alibi witnesses, and that the outcome may have been different had he done so. In hindsight, he said, he should have. 

Instead, the trial attorney attacked the DNA evidence linking Weldon to the crimes. The argument didn’t persuade the jury, and Weldon was convicted of first-degree burglary, armed robbery, grand larceny, kidnapping, and possession of a weapon during the commission of a violent crime when he and two other men allegedly assaulted and robbed the victim in his own garage. Weldon was sentenced to consecutive 30-year sentences, a concurrent 20-year-sentence, and two concurrent five-year sentences. 

The PCR court determined that despite trial counsel’s change of heart, he had made clear, tactical, strategic decisions during the trial and was at least reasonably competent. But in its Oct. 6 decision, hearing the case on a petition for a writ of certiorari, the appeals court overturned the PCR court’s denial of relief, finding that Weldon had been prejudiced by his attorney’s decisions. 

“We find no evidence supports the PCR court’s findings that trial counsel provided effective assistance or implemented—much less articulated—any valid trial strategy with respect to the alibi witnesses,” Judge Stephanie McDonald wrote for the court. 

A sticky situation 

Between 6 and 6:30 am on May 15, 2010, the victim was preparing to leave his home when three masked men attacked him, bound him with duct tape, robbed him, and made their getaway in his vehicle. 

Police soon arrested another man, Michael Pearson, after lifting his fingerprint from the stolen vehicle. Weldon was arrested when detectives discovered his DNA on a piece of duct tape recovered from the crime scene. A forensic scientist with the South Carolina Law Enforcement Division (SLED) testified that the probability of randomly selecting an unrelated individual matching the DNA sample is approximately one in 670 billion. 

No one implicated Weldon in the robbery, and Weldon denied knowing Pearson, although the two once worked in the same wood shop. 

The trial counsel filed an alibi defense, but opted to attack the state’s DNA evidence because investigators couldn’t say where on the tape Weldon’s DNA was found. (DNA on the inside of the tape would more strongly suggest that it was handled rather than merely picked up or touched.) 

The PCR court found trial counsel’s strategy “reasonable,” and that Weldon had failed to meet his burden of showing prejudice in light of the “overwhelming evidence of his guilt,” despite the DNA evidence being the only direct evidence tying Weldon to the crime. (The PCR court also noted, incorrectly, that Weldon’s fingerprints were on the duct tape; the fingerprints were Pearson’s.) 

The trial counsel later testified that he found himself “scratching [his] head” trying to figure out why he didn’t call to the stand the two witnesses who possibly could’ve placed Weldon at his Sumter home at the time of the robbery. 

You must know why 

In order to establish ineffective assistance of counsel, a petitioner must show that the counsel failed to render “reasonably effective assistance under prevailing professional norms,” and that the petitioner’s case was prejudiced by the counsel’s deficiency. McDonald said that a court will uphold a PCR court’s finding of facts where any evidence supports them, but that no evidence in this case showed any valid trial strategy regarding alibi witnesses. 

McDonald noted the similarities to the Supreme Court’s 2019 decision in Martin v. State, which held that the petitioner’s trial attorneys had been deficient because they didn’t elicit specific alibi timeline testimony from the defendant’s mother showing that he was at an Atlanta bus stop when the alleged crime was committed. 

“We recognize trial counsel agreed with the State’s suggestion that he may have declined to call the witnesses because the State might have then called rebuttal witnesses to challenge the alibi testimony and because he wanted to have the last closing argument,” McDonald wrote. “Still, trial counsel repeatedly testified he did not know why he chose not to call the witnesses. Thus, we can find no support … for a strategic reason for choosing not to call alibi witnesses.” 

In rare cases, the appeals court held, “overwhelming evidence” can serve as a categorical bar to preclude a finding of prejudice, but it found that the evidence in this case didn’t meet that bar. 

Weldon wasn’t a person of interest until the DNA evidence came back, he had challenged that DNA evidence, and he could have raised a reasonable doubt of his guilt had he presented an alibi, McDonald wrote, saying that the overwhelming evidence that would preclude a finding of prejudice must be conclusive, such as a confession, DNA evidence demonstrating guilt, or a strong combination of physical and corroborating evidence. 

The appeals court dismissed the PCR court’s finding that DNA on a single piece of duct tape constitutes “overwhelming evidence” where other reasonable explanations exist. 

Appellate Defender Taylor Gilliam represented Weldon. Gilliam said that while PCR appeals are often a steep hill to climb, Weldon’s PCR attorney, Lance Boozer, passed along a comprehensive record, laying the foundation for Gilliam to argue for a reversal. 

“I’m pleased with the ruling, and the case is one I felt strongly about,” Gilliam said. “As much as I wish that Mr. Weldon would be released from state prison today and sent to the county jail to await trial, I anticipate the state will petition for a rehearing.” 

Attorney General Alan Wilson, Senior Assistant Deputy Attorney General Megan Jameson, and Assistant Attorney General Brianna Schill represented the state. None of the state’s attorneys responded to a request for comment. 

The 13-page decision is Weldon v. State (Lawyers Weekly No. 011-085-21). The full text of the opinion is available online at 

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