Lee v. Kemna, 534 U.S. 362, 7 (2002)

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Opinion of the Court

Ventura, California, in July 1992 and stayed through the end of October. Lee's mother and stepfather would say they picked him up from the airport at the start of his visit and returned him there at the end. Lee's sister would testify that Lee resided with her and her four children during this time. All three would affirm that they saw Lee regularly throughout his unbroken sojourn. Ibid.

During the prosecution case, two eyewitnesses to the shooting identified Lee as the driver. The first, Reginald Williams, admitted during cross-examination that he had told Lee's first defense counsel in a taped interview that Rhodes, not Lee, was the driver. Tr. 285. Williams said he had given that response because he misunderstood the question and did not want to be "bothered" by the interviewer. Id., at 283, 287. The second eyewitness, William Sanders, was unable to pick Lee out of a photographic array on the day of the shooting; Sanders identified Lee as the driver for the first time 18 months after the murder. Id., at 413-414.

Two other witnesses, Rhonda Shelby and Lynne Bryant, were called by the prosecutor. Each testified that she knew Lee and had seen him in Kansas City the night before the murder. Both said Lee was with Rhodes, who had asked where Steven Shelby (the murder victim) was. Id., at 443- 487. The State offered no physical evidence connecting Lee to the murder and did not suggest a motive.

The defense case began at 10:25 a.m. on the third and final day of trial. Two impeachment witnesses testified that morning. Just after noon, counsel met with the trial judge in chambers for a charge conference. At that meeting, the judge apparently agreed to give an alibi instruction submitted by Lee. Id., at 571.1

1 That Lee had submitted an alibi instruction during the charge conference became apparent when the trial judge, delivering the charge, began to read the proposed instruction. He was interrupted by the prosecutor

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