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State v. Looper2/3/2003
he argues that the State "assiduously avoided asking questions [of these two witnesses] which could have developed exculpatory information." Finally, he asserts that the record does not show that the investigation and prosecution "would have proceeded one whit differently had the existence of the three witnesses . . . been disclosed." The defendant presents neither legal authorities, where appropriate, nor citations to the record in support of these claims.
We can imagine no reason why the State would not have wanted to know that witnesses would claim the defendant was in Flowery Branch on the day of the crime . Although the defendant argues that the State did not want to develop "exculpatory information" as to his whereabouts, it would not appear necessary that the State discover where the defendant was at the time of the crime so that his location then could be revealed to him. Given the immediate and massive investigation that followed this crime, it would be illogical to conclude that an equal effort would not have been devoted to investigating an alibi disclosed by the defendant.
In fact, the proof developed by the State following the crime would not appear to suggest that the defendant later would claim that he was in Flowery Branch on October 19, 1998. Joe Bond told the prosecutor's office, shortly after the crime, that the defendant had come unannounced to his residence in Hot Springs, Arkansas, the late evening of the crime. Also, according to Michelle Henson and her ex-husband, Douglas Henson, the defendant said only that he was "south" on the day of the crime. Thus, there appears to have been no reason for the State to single out Flowery Branch to determine whether the defendant was there the day of the crime, especially since neither his mother, his brother, nor Paul Voelker told investigators of this alleged fact when questioned shortly after the crime.
To assess the degree of prejudice to the State, we will review the situation of the State as the result of the nondisclosure of the claim that the defendant was at his mother's home in Flowery Branch, Georgia, shortly after the crime .
The homicide occurred on October 19, 1998, and the State filed its alibi notice request on February 17, 1999, four months later. On August 14, 2000, presentation of proof began at the trial in Cumberland County, with a sequestered jury which had been picked in Sullivan County. Substantial barriers would have affected the State's ability to begin investigating, on August 21, 2000, after resting its case in chief on August 17, whether the defendant had been at his mother's house in Flowery Branch, Georgia, on October 19, 1998. Obviously, a trial recess would have been required so that investigators could go to Flowery Branch to investigate the alibi. The investigative trail would have long since gone cold; and the time for the investigation would have been severely compressed, given the fact of the sequestered jury waiting in Cumberland County for the return of the State's investigators. Additionally, because the defendant argued through his attorneys that the Flowery Branch testimony both permitted and prevented his being in Monterey during the period in the alibi demand, the State could have deemed it necessary to investigate travel possibilities between the two locations. Given that the trial in this matter followed a massive investigation occurring in at least three states, and that the State had rested its case four days earlier, it requires some imagination as to how the prosecution could have been maneuvered into a more difficult situation than that achieved by the defense.
Although the defense argued at trial that the State could be given time to interview th
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