Alibi

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Criminal Rule 12.1 -- Notice of Alibi.
R.C. 2945.58 -- Alibi.
 
State v. Sidibeth, 192 Ohio App. 3d 256, ¶28 – Excluding mother from testifying as an alibi witness was not the appropriate least severe sanction. Harmless error as defendant failed to establish alibi in his own testimony.
 
State v. Anderson, 191 Ohio App. 3d 110, 2010-Ohio-6234 – Prosecutor’s reference in closing to the defense not having presented an alibi deemed not to be a comment on the defendant’s failure to testify. Instead it is deemed a response to defense mention of possible alibi in opening statement.
 
Oregon v. Guzek (2006), 546 U.S. 517 -- Capital defendant was back for the third time for a new sentencing hearing. He wanted his mother to offer live testimony as to alibi. Though state law allowed introduction of transcripts of her testimony in this regard, the federal constitution does not prohibit a state from limiting innocence-related evidence a capital defendant may introduce at a sentencing proceeding to such evidence introduced at the original trial.
 
State v. Frost, 164 Ohio App. 3d 61, 2005-Ohio-5510, ¶33-38 -- Defendant filed a notice of alibi and presented alibi witnesses. The court refused to instruct on alibi, reasoning it was not an affirmative defense. While the failure to instruct on alibi would not rise to the level of plain error absent a request, the court finds the refusal to instruct cannot be considered non-prejudicial.
 
Clinkscale v. Carter (6th Cir. 2004), 375 F.3d 430, cert. denied 2005 WL 407121, 73 USLW 3363 -- It was ineffective assistance of counsel in a capital case to file a notice of alibi after the jury was empaneled. The trial judge refused to allow the testimony of three witnesses who would have placed the defendant in Youngstown at the time of a homicide in Columbus. The exhaustion requirement was satisfied by direct appeal and attempt at review by the Supreme Court. The court of appeals' suggestion the defendant pursue his claim in a postconviction action had no bearing on the exhaustion determination. The court of appeals refusal to address the constitutional claim on its merits means the merits are addressed de novo in federal court. AEDPA deference doesn't apply. Nullifies State v. Clinkscale (December 23, 1999), Franklin App. No. 98AP-1586.
 
State v. Carter, Franklin App. No. 03AP-778, 2005-Ohio-291 -- The defendant denied being present at the scene of the crime, but could not recall exactly where he was. Court finds such testimony was subject to the requirement a notice of alibi be filed.
 
State v. Kelly, Hamilton App. No. C-10639, 2002-Ohio-6246, ¶25-28 -- A notice of alibi may be an admission, by the attorney as agent, within the meaning of Evid. R. 801(D)(2), but may not be used to impeach an alibi witness with no knowledge of the alibi notice.
 
State v. Reed, 155 Ohio App. 3d 435, 2003-Ohio-6536 -- No abuse of discretion in barring alibi testimony where lack of timely notice was due to a last minute change in trial strategy.
 
State v. Thayer (1931), 124 Ohio St. 1, 4 -- The purpose behind the alibi rule is that "(i)t gives the state some protection against false and fraudulent claims of alibi often presented so near the close of trial as to make it quite impossible for the state to ascertain any facts as to the credibility of the witnesses called by the accused..."
 
State v. Sorrels (1991), 71 Ohio App. 3d 162, 167 -- "...(A)libi is not an affirmative defense and, as a result, the burden of persuasion is not on the defendant, but remains with the state...Alibi is an acquitting factor in a given case, but it is not the sole acquitting factor. Accordingly, any doubt arising from the defendant's alibi goes to the weakness of the state's case. If the doubt created by either the alibi, or by the weakness of the state's case, or by both, rises to the level of reasonable doubt as to the defendant's guilt, an acquittal is required." (Court had applied the wrong standard at a bench trial.) Also see State v. Robinson (1976), 47 Ohio St. 2d 103, 108; State v. Poole (1973), 33 Ohio St. 2d 18.
 
State v. Walker (1981), 2 Ohio App. 3d 483 -- Defendant does not have the burden of proving alibi. Also see Sabo v. State (1928), 119 Ohio St. 231; State v. Brown (1956), 102 Ohio App. 113; State v. Childs (1986), 14 Ohio St. 2d 57, 62-66; State v. Gladding (1990), 66 Ohio App. 3d 502.
 
State v. Focht (1974), 37 Ohio St. 2d 173 -- Where no alibi notice has been filed, court may, in the sound exercise of its discretion, exclude alibi testimony.
 
State v. Smith (1977), 50 Ohio St. 2d 51 -- Even when notice of alibi has not been filed, alibi testimony should be admitted when it does not surprise or otherwise prejudice the prosecution's case and if the defense operated in good faith in failing to give notice of alibi.
 
State v. Edwards (1975), 52 Ohio App. 2d 120 -- When no notice of alibi has been filed, testimony relative to alibi should be admitted when the question of the credibility of such evidence is at a minimum.
 
Williams v. Florida (1970), 399 U.S. 78 -- The Fifth Amendment privilege against self-incrimination is not violated by requirement defendant give notice of alibi before trial.
 
State v. Smith (1985), 17 Ohio St. 3d 98 -- Criminal Rule 12.1 is not unconstitutional. The rule "should be construed liberally and not be applied where no prejudice would accrue to the prosecution, where there is a demonstrable and excusable showing or mere negligence, or where there is good cause shown." (paragraph two of the syllabus)
 
State v. Cocco (1943), 73 Ohio App. 182 -- Error for prosecutor to comment on notice of alibi when no evidence in support of alibi was offered at trial. Also see State v. Crayton (1981), Cuyahoga County Court of Appeals (unreported), No. CR-53178.
 
State v. Tolbert (1990), 70 Ohio App. 3d 372, 380-381 -- It was improper for the prosecutor to imply alibi was a fraud based on date notice of alibi was filed. Notice had been timely.
 
State v. Billups (1990), 68 Ohio App. 3d 248 -- State was properly allowed to impeach defendant's denial he had discussed alibi with previous counsel by calling counsel who had filed notices of alibi in the past.
 
State v. Walker (1978), 55 Ohio St. 2d 208 -- State permitted to attempt to impeach jail records introduced to establish alibi.
 
State v. Sims (1981), 3 Ohio App. 3d 321, 327-328 -- When notice of alibi was not filed until two weeks before third trial date, it was not improper for court to allow cross-examination of defendant as to reasons for delay.
 
State v. Bridgeman (1977), 51 Ohio App. 2d 105, 113-123 -- When alibi is the sole defense and has been supported by testimony, the court is obligated to instruct on alibi, even absent a request from counsel.
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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