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State v. Looper2/3/2003
0, because the prosecution, wrongly believing the offense date was August 31, had sought alibi information only as to the latter date:
In this case the appellant was not limited by the Rule 12.1 request for notice-of-alibi to alibi witnesses for August 31, 1980. He was free to bring forth any alibi witnesses he deemed appropriate for the other days encompassed by the charges against him. The Government could not, for those days, claim unfair surprise because it had not invoked Rule 12.1 as to those days. Id. at 1499.
The defendant in the present appeal seeks to use this and other language from Dupuy to argue that, because the State had limited its alibi notice to the period from 6:00 a.m. to 8:45 a.m., Central Daylight Time, on October 19, 1998, he was not required to identify witnesses who would testify as to times outside of this period:
The State demanded notice as to a specific, discrete, two hour and forty-five minute period. The State made no demand as to any other time. The "alibi" witnesses which the defense thereby became obligated to disclose included those persons (other than the Defendant), and only those persons, that would be offered to establish Byron Looper's whereabouts from 6:00 to 8:45 a.m., Central Standard Time, on October 19, 1998. Here, as in United States v. Dupuy, supra, Mr. Looper was free to bring any witness he deemed appropriate for the other hours of October 19, 1998; as in Dupuy, the Government could not, for those hours claim unfair surprise because it had not invoked Rule 12.1 as to those hours.
We respectfully disagree that Dupuy supplies that which the defendant seeks to extract from it. In fact, the court held that if the prosecution requests alibi information for a discrete period, as alibi notice provisions require, yet proves that the criminal offense occurred during a different period, it cannot seek to exclude alibi testimony as to the second period because the disclosure requirement is only for the period set out in the state's pleading. The Dupuy holding might be relevant to the present appeal if, for instance, the State mistakenly had set out October 20, 1998, in its alibi demand as the date of the crime. The defendant then could argue that the Flowery Branch testimony was not subject to disclosure, since it proved the defendant's whereabouts only on October 19. However, the State did not make this mistake, and Dupuy is not relevant to the defendant's argument.
No authority exists to support the defendant's efforts to explain how the same proof can be alibi for evidentiary purposes but non-alibi for disclosure purposes. If his restrictive version of alibi proof were correct, it then would follow that an accused would not have to reveal, in response to an alibi demand, the identity of a witness testifying that, fifteen minutes after the period in an alibi demand for a crime occurring in Tennessee, the defendant was camping in the Australian outback. By the arguments in the present appeal, this testimony would not be subject to disclosure, regardless of its implications, because the witness could speak only to the defendant's location outside of the period in the alibi demand. We do not believe that such a result was intended by the drafters of Rule 12.1.
We conclude that, without question, the defendant was attempting to establish an alibi through the testimony of the Flowery Branch witnesses. We now will determine whether the trial court erred in excluding this testimony.
The defendant argues that, in excluding the Flowery Branch witnesses from testifying, the trial court abused its discretion and violated his right to due process of law. Our supreme court explained in State v. James,
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