Barnett v. State, 181 So. 3d 534

Barnett was convicted of first-degree murder and attempted armed robbery for the fatal shooting of McFaline; two co-defendants testified the three planned a robbery and Barnett fired the shots.
Barnett admitted being with co-defendant Vann earlier that day but testified he left around 3:00 p.m. and spent the rest of the afternoon playing basketball at a park with his cousin, producing three alibi witnesses.
Defense filed a notice of intent to present an alibi, presented alibi witnesses at trial, and argued alibi to the jury, but defense counsel did not request the standard jury instruction on alibi.
The trial court instead instructed the jury on excusable and justifiable homicide; the jury convicted Barnett on both counts.
On appeal Barnett argued (1) failure to request the alibi instruction was ineffective assistance of counsel apparent on the face of the record, and (2) omission of the instruction was fundamental error. The court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to request alibi instruction was ineffective assistance apparent on the face of the record	Barnett: omission had no conceivable tactical justification and caused prejudice because alibi was primary defense	State: counsel may have had strategic reasons (e.g., securing excusable/justifiable homicide instruction inconsistent with alibi); record doesn’t show indisputable prejudice	Court: Not ineffective on the face of the record — tactical reasons plausible and an evidentiary hearing would be needed
Whether omission of alibi instruction was fundamental error permitting review despite no contemporaneous objection	Barnett: missing instruction deprived him of right to have jury instructed to acquit if reasonable doubt about presence at scene	State: jury received presumption of innocence, evidence and argument presented alibi; instruction omission viewed in context was not dispositive	Court: Not fundamental error — other instructions, evidence, and defense argument preserved alibi defense

Shedd v. State, 137 So.3d 456 (Fla. 4th DCA 2014) (failure to give instruction on an affirmative defense)
Capiro v. State, 97 So.3d 298 (Fla. 4th DCA 2012) (omission of instruction on good-faith affirmative defense)
Martinez v. State, 761 So.2d 1074 (Fla. 2000) (failure to request alibi instruction not necessarily ineffective on direct appeal)
Occhicone v. State, 768 So.2d 1037 (Fla. 2000) (strategic decisions by counsel are not ineffective if reasonable)
Moyer v. State, 558 So.2d 1045 (Fla. 5th DCA 1990) (alibi and justifiable-use-of-force instructions can be inconsistent)
Garzon v. State, 980 So.2d 1038 (Fla. 2008) (contemporaneous objection rule; fundamental error exception)
Wyche v. State, 170 So.3d 898 (Fla. 3d DCA 2015) (omission of alibi instruction did not constitute fundamental error where alibi adequately presented)
McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010) (alibi instruction omission not fatal when defense preserved alibi through evidence and argument)
Morales v. State, 170 So.3d 63 (Fla. 1st DCA 2015) (standard for ineffective-assistance-on-the-face-of-the-record)
Smith v. State, 76 So.3d 379 (Fla. 1st DCA 2011) (review of jury instruction omission requires context of instructions, evidence, and arguments)