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State v. Looper2/3/2003
day, defense counsel advised the court that the defendant's brother and the brother's girlfriend also would testify that the defendant had been at his own girlfriend's house the afternoon of the crime, continuing to assert, however, that he was not presenting alibi proof. He explained that he had not given notice of these witnesses "because the testimony was vague." Id. at 186.
On appeal, the court analyzed the defendant's reasons for wanting to deny that he was presenting alibi evidence:
In this case, appellant's decision not to give alibi notice was a clear tactical decision. Defense counsel wanted the benefit of alibi evidence, that is, to create a doubt, without the burdens of giving notice by supplying witnesses' names and an alibi instruction. Counsel, in fact, largely succeeded. Duncan testified she had been with appellant all day until at least 2:00 p.m. Her brother and his girlfriend corroborated her testimony at least to 1:30 p.m. That testimony was inconsistent with the other facts, a robbery between 1:30 and 2:00 p.m. It conflicted with the testimony of Howell who said he had played basketball with appellant, until noon on the day in question. Id. at 187.
To conclude our consideration of this issue, we will trace the manner in which evidence of alibi was sought by the prosecution and later presented at trial. The State filed its alibi demand on February 17, 1999; and on March 8, 1999, the defendant asked that he have until June 23, 1999, to respond, because " ince the Defendant has been incarcerated, it makes it difficult to fully comply with the notice as to exact times and witnesses who are available." The State opposed this request and alleged that the defense was attempting to obtain "false testimony." On March 19, 1999, denying this allegation, the defendant again asked for an extension to time to file his alibi response, explaining that the defendant was having a difficult time investigating his alibi because he had "very limited resources," because he was incarcerated, and explaining that " he only time a person would remember exactly where they were is if they were committing a crime. When someone is at a place different than where a crime was committed, it takes some time to investigate witnesses who can recall having knowledge of the Defendant's presence at some place other than the scene of the crime." The attorney who filed this response was replaced by two other attorneys who, themselves, were replaced by counsel who represented the defendant at the trial. This changing of counsel was recounted by the trial court in the order denying the motion for new trial:
Mr. Looper has been represented by five different attorneys during this Court's effort to get this case tried. These five attorneys are in addition to different attorneys that represented him in the General Sessions Court. Every time the case appeared to be nearing a trial, Mr. Looper would become dissatisfied with his attorneys and would seek to replace them. In one instance the attorney found it necessary to withdraw from representation of Mr. Looper because of ethical reasons. After that withdrawal this Court appointed experienced trial attorneys to try the case. Those attorneys worked diligently in the preparation of the case and identified numerous experts and made a thorough investigation. As the trial date neared, Mr. Looper refused to cooperate with those attorneys and ultimately hired his current attorneys insisting that Mr. Poston and Mr. Cordova were attorneys with which he could cooperate. The Court allowed the dismissal of the appointed attorneys and permitted their replacement by the current retained attorneys three months prior to the trial of this case in August of 2000, at Mr
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