 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
State v. Looper2/3/2003
>
We note that between the time of the State's filing its alibi demand and the trial, the defendant was represented by at least five attorneys, with numbers four and five representing him at the trial. Neither the record on appeal, nor the defendant's attorneys at trial, explained why the previous three attorneys representing him had not supplied the State with the names of at least some of the alibi witnesses presented at the trial, whether they had been told that the defendant, supposedly, was in Flowery Branch the day of the crime, or whether they, also, concluded that this was not "alibi" proof. Although Russell Looper said that he had spoken with one of the defendant's previous counsel about the alibi, he could not recall with whom he had spoken or when the conversation took place.
The attorneys representing the defendant at trial came into the case only in June 2000. Apparently, they learned of Barbara Reed in July 2000, the month before the trial began, but the record does not reflect when they learned of the other alibi witnesses. Obviously, the defendant's trial counsel decided that they would not disclose the alibi witnesses to the prosecution. The defendant argues on appeal that " t is evident from any fair reading of the record that trial counsel firmly believed that Ms. Reed, Mr. Voelker and Mr. Russell Looper were not alibi witnesses in the first place." That may be. However, we note that during the lengthy arguments to the trial court as to whether Flowery Branch witnesses would establish an alibi, the defendant's trial counsel never explained their basis for believing that an exception to the alibi notice requirement excused them from having to reveal the identities of these witnesses. They cited no legal authorities supporting such a restrictive view of "alibi," except to argue that the prosecution was "misreading" cases which the State cited to the court.
We note that, under circumstances similar to these where the defendant, himself, had known of the identities of at least some of his alibi witnesses since he was charged, he has been held responsible for the late or nondisclosure even to his attorney of his alibi witnesses. In United States v. Pearson, 159 F.3d 480 (10th Cir. 1998), the court considered the claim that the trial court had erred in excluding alibi testimony from the defendant's mother, after she and the defendant had not revealed, until four days before the trial was to begin, that the defendant was with her the night of the robbery-murder for which he had been charged:
Defense counsel "became aware that an alibi defense may exist" on June 12 because that is the first date Mr. Pearson or his mother bothered to tell counsel of her alibi testimony--that she had seen her son standing in her kitchen at the exact time and on the exact date of the robbery and killing--despite its obvious importance. Nor had Mr. Pearson's mother exculpated her son on the several occasions when she was questioned by the government during its investigation. As the very nature of Mr. Pearson's alleged alibi confirms that he and his mother would have known of it long before the deadline for submitting his alibi defense, he cannot show good cause, as required by Fed. R. Crim. P. 12.1(e), for failure to comply with Rule 12.1(a). The district court did not abuse its discretion in excluding Mr. Pearson's alibi testimony. Id. at 484 (footnote omitted).
In the present appeal, the prosecution was placed into an even more difficult position than that which occurred in Pearson, for here the jury was sequestered and the State had rested its case in chief before learning that four alibi witnesses would place the defendant in another state at the time of the crime. Thus, the
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Tennessee Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|