Can an attorney's failure to call alibi witnesses constitute ineffective assistance of counsel? State v. Bryant Explained

In State v. Bryant, the Utah Court of Appeals addressed whether defense counsel’s failure to subpoena and call alibi witnesses after filing a notice of alibi constitutes ineffective assistance of counsel. The case provides important guidance on the standards courts apply when evaluating attorney performance challenges.

Background and Facts

Wilbert Bryant was convicted of aggravated robbery, aggravated sexual assault, and aggravated burglary after attacking a 71-year-old motel manager. Defense counsel filed a notice of intention to offer evidence of alibi, naming Marie Sellers, Yolanda Sellers, and a Domino’s Pizza delivery person as potential witnesses. During voir dire, counsel identified the Sellers sisters as potential witnesses but did not subpoena them. Only Bryant testified for the defense, claiming he was with the sisters at the time of the crime. After conviction, the sisters submitted affidavits stating Bryant was with them during the incident.

Key Legal Issues

The primary issue was whether counsel’s failure to use compulsory process to secure the alibi witnesses’ testimony constituted ineffective assistance under the Strickland standard. The court also addressed challenges to jury instructions on aggravated robbery and sexual assault, hearsay objections, and various plain error claims.

Court’s Analysis and Holding

The Court of Appeals affirmed, holding that counsel’s performance was not deficient because conceivable tactical bases supported the decision not to call the alibi witnesses. The court noted that one sister’s affidavit revealed she had previously told police that Bryant discussed robbing “the old lady,” suggesting the witnesses might have been harmful rather than helpful. The court also found that the witnesses may have been unavailable despite reasonable efforts to locate them.

Practice Implications

This case demonstrates the strong presumption of competence that courts apply when evaluating counsel’s tactical decisions. Appellate practitioners challenging attorney performance must overcome the presumption that counsel’s actions fell within the wide range of reasonable professional assistance. The decision reinforces that failure to call witnesses—even alibi witnesses—will not constitute ineffective assistance when the record supports any conceivable strategic justification for counsel’s choices.