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State v. Looper2/3/2003
and "non-responsive to the State's notice:"
I received by fax on May 3rd your letter as well as a copy of a pleading denominated Response To Request For Notice Of Alibi. It appears that this pleading does not meet the requirements of Rule 12.1. The last sentence of that rule states, "Such a notice by the Defendant shall state the specific place or places at which the Defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the Defendant intends to rely to establish such alibi."
Unless you can provide me with some authority to the effect that your response complies with Rule 12.1, I would have to find that it is non-responsive to the State's notice. Therefore, I extend to you an opportunity to provide such authority; it to be received not later than one week from today's date or by May 11, 1999. If no such authority exists, you will be required to comply with Rule 12.1 in order to assert alibi as a defense.
Copies of this letter from the trial court were provided to the State and the clerk. A copy of the letter bears the clerk's stamp and handwritten file date of May 5, 1999. Subsequently, counsel who provided the alibi response was replaced by other counsel who, in turn, were replaced by yet other counsel who then represented the defendant at trial. However, no other response was provided for the State's alibi demand.
On August 11, 2000, the matter of alibi was discussed as the jury was being selected in Sullivan County:
THE COURT: Now, I want to address something that is some concern to me, particularly before we begin voir dire, and that is, that in reviewing some of your jury requests, the ones that were forwarded to me by [defense counsel], there was some, if I read it correctly, there was - made some reference to an alibi charge, and I want to clarify that before we begin tomorrow, because we've had notice down since February of `99 on this issue.
[DEFENSE COUNSEL]: Your Honor, our position on that is, it would be an appropriate charge if and only if the defendant chose to testify. The defendant being the only alibi witness that we have.
[STATE]: And the state has some precedent that an alibi charge is not appropriate if it's just based on the sole testimony of the defendant.
THE COURT: I'll consider that. So - I mean, I'll consider and read that. But now, the rule appears to have been complied with, with the state, over a year ago, and there's been no response to it. So, I'd like to look at both authorities, and I don't want that referred to in jury selection[.]
Subsequently, in his opening statement to the jury, defense counsel stated, "You're going to hear from these witnesses who were undisputedly with Byron Looper days before October 19th, on October 19th at certain times, and after October 19th."
At trial, Rick Dodson, a truck driver who had been driving on Interstate 40 in Cumberland County at approximately 8:30 a.m. on October 19, 1998, testifying as one of the State's first witnesses, said that he had seen "a bright orange flash" "coming from a pickup truck" on a road near the interstate, and saw a "dark blue or black" car beside the truck. Later that morning, as he was traveling past that same point on his return trip to Knoxville, he saw that the pickup truck, now covered with a blue tarpaulin, was still sitting in the same place, "and the cops were all around." Although he had not been asked on direct examination about driving times between various locations, the following questions were asked by defense counsel during cross-examination:
Q: What kind of distances do you go?
A
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