North Dakota Man Claims His Attorney Failed to Contact Alibi Witness Who Placed Him in Fargo at Time of Grand Forks Robbery

According to a story by KFGO, 

One of the men found guilty of a violent Grand Forks home invasion in 2012 has appealed his conviction to the North Dakota Supreme Court. Allen Ratliff was sentenced to 30 years in prison for breaking into the mobile home of Sherman and Carmen Jones. The two were beaten with clubs, and their heads, hands and legs were duct-taped. The suspects stole prescription drugs, jewelry, cash and two tvs.

Ratliff claims his trial counsel was ineffective because he told them he was in Fargo at the time of the incident. He says his attorney failed to call an alibi witness, prepare arguments for a new trial, or object to jury instructions.

The robbery at issue took place between 5:30 and 6:00 A.M. Ratliff's appellate brief lays out his argument. According to Ratliff,

At the post conviction hearing, Ratliff testified that he stopped at his sister Nadine Garcia's (Garcia) home in Fargo, North Dakota, between 5:00-5:30 am on April 30, 2012, thus could not have travelled back to Grand Forks, North Dakota, by the time the crimes were committed....Garcia testified that Ratliff was at her home in Fargo, North Dakota, between 5:25-5:30 am, and was there for a brief five to ten minutes....

Ratliff testified that he informed Ogren, about an alibi defense from the very beginning....However, Ogren does not recall Ratliff mentioning “Nadine Garcia” as an alibi witness....As such, no alibi witness was ever called on behalf of Ratliff.

Given that Fargo is about 80 miles from Grand Forks, this alibi testimony would mean that Ratliff could not have committed the subject robbery. As such, Ratliff claims that his trial counsel's failure to contact Garcia was prejudicial to his case:

The “reasonable probability” of errors in the present case is that Ratliff was in Fargo, North Dakota, on April 30, 2012, at around 5:00-5:30 am. This information is corroborated by Garcia. Therefore, at the bare minimum, trial counsel should have investigated upon hearing of Garcia. However, no action was taken by trial counsel.

The State, however, counters that there is no evidence that Ratliff told his attorney about Garcia:

In the present case, defendant failed to prove that his trial counsel's performance was defective. Defendant contends that his defense counsel, Mr. David Ogren..., failed to investigate a potential alibi witness. However, defendant did not provide any evidence regarding this statement. Defendant was provided many opportunities during various hearings to raise this issue, and he never mentioned anything regarding an alibi witness. Mere assertion that he informed his attorney about the potential alibi witness is not enough to prove that his counsel's performance was deficient.

Moreover, defendant's trial counsel testified at the evidentiary hearing that he had no knowledge of the potential alibi witness....Trial counsel also testified that if somebody brings up a potential for an alibi witness, he would investigate further either through his office or he would hire somebody to go out and investigate for him. In addition to that, the trial counsel stated, “if you could have an alibi witness that would be able to take your client out of the case itself, that would be a very good defense and you would want to use it, if you had it.”...

Furthermore, in its Order Denying Post Conviction Relief, the district court said that it is unable to conclude that trial counsel was ever advised of the existence of an alibi witness...The district court also stated that as per trial counsel's testimony, he had reviewed his lengthy record of conversations including telephone calls, face-to-face meetings, court appearances, and group meeting held between the co-defendants and their counsels including himself and they did not disclose the name of ‘Nadine Garcia” as a possible alibi witness.

It will be interesting to see how the Supreme Court of North Dakota Rules. The defendant's argument is that Garcia was a vital alibi witness who was not contacted by defense counsel. In turn, defense counsel's response seems to be that Garcia was a vital alibi witness, which means that he would have contacted her if the defendant brought her to his attention. The question that the court has to answer is whether the defendant did indeed bring Garcia to his attorney's attention.

-CM