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XV.

PROCEDURE A. ALIBI, NOTICE OF See also DEFENSES – ALIBI, above

Rembert v. State, 324 Ga.App. 146, 749 S.E.2d 744 (October 7, 2013). Armed robbery conviction affirmed; trial court properly excluded evidence of defendant’s alibi defense, first disclosed on day of trial. OCGA § 17-16-5(a) requires at least ten days’ notice of an alibi defense and authorizes trial court to exclude such evidence “upon a showing of prejudice or bad faith.” “Rembert presumably knew of his alibi at the time of his arrest in March 2011. Yet by his own admission, he failed to mention that alibi to the arresting officer or the investigating officer. Nor did he assert his alibi at the evidentiary hearing held on the issue of his probation revocation, and he admitted that he did not inform his attorney of his alibi until the morning of trial. [Cit.] Moreover, during the approximately six months that elapsed between Rembert's arrest and trial, neither of his alibi witnesses (who were his mother and his brother) came forward to inform either the prosecution or Rembert's lawyer that Rembert was with them at the time of the robbery. [Cit.] These facts support a finding that Rembert acted in bad faith when he failed to provide the State with timely notice of his alibi.” “With respect to the element of prejudice, a court may infer that the State is prejudiced when the prosecution ‘does not have the full ten days to investigate alibi evidence.’ (Citations omitted.) Huckabee v. State, 287 Ga. 728, 732(3) (699 S.E.2d 531) (2010). This is because where ‘[t]he State is denied the ten days authorized by law in which to investigate and refute the alleged alibi, ... the development of ... evidence [to refute the alibi] is clearly hampered, if not rendered impossible.’ (Citations and punctuation omitted.) Freeman v. State, 245 Ga.App. 384, 385(2) (537 S.E.2d 776) (2000). Thus, the fact that the State did not learn of Rembert's alleged alibi until the morning of jury selection supports the trial court's implicit finding that the prosecution was prejudiced by Rembert's failure to comply with the State's discovery request.” Trial court, in its discretion, could exclude the evidence rather than grant defendant’s request for continuance. State v. Charbonneau, 281 Ga. 46, 635 S.E.2d 759 (October 2, 2006). Reversing 275 Ga.App. 495, 621 S.E.2d 514 (September 13, 2005); Court of Appeals erred in reversing conviction for robbery by intimidation. After opting in to reciprocal discovery, defendant failed to respond to State’s demand to disclose any alibi defense, but tried to testify to an alibi at trial. Trial court prohibited defendant from testifying to any alibi other than denying that he had ever been at the scene of the crime. Held, Court of Appeals erred in holding that no notice of alibi was required where the only evidence would be defendant’s own testimony. “OCGA § 17-16-5(a) states in relevant part that ‘[u]pon written demand by the prosecuting attorney ..., the defendant shall serve ... upon the prosecuting attorney a written notice of the defendant’s intention to offer a defense of alibi.’ Thus, the plain language of the statute required Charbonneau to give notice of his alibi defense even if he was the only witness planning to testify to such defense .” Distinguishing Johnson v. State , 272 Ga. 468, 532 S.E.2d 377 (2000): “In Johnson, unlike the present case, the defendant responded to the State’s written demand for notice of any alibi defense and indicated that he would be the only possible witness in support of that defense. Consequently, the salient issue was not whether the defendant was required to give notice in response to the State’s demand for notice of intention to offer an alibi defense under OCGA § 17-16-5(a), but rather whether the defendant had to disclose the substance of his alibi testimony prior to trial. And certainly he did not. Johnson v. State supra. But this is a far cry from interpreting the statutory provision as exempting the defendant from giving the State any notice at all of the intent to offer a defense of alibi.” Benham and Hunstein dissent, arguing that Johnson holds that no pretrial disclosure of defendant’s own testimony is required by the code section. Freeman v. State, 245 Ga.App. 384, 537 S.E.2d 776 (July 27, 2000). Aggravated assault and firearms convictions affirmed; trial court properly granted State’s motion in limine to exclude defendant’s alibi witness, not disclosed until day of trial. “The prosecutor pointed out, and the record shows, that the State had presented defense counsel a written demand pursuant to OCGA § 17-16-5(a) for notice of alibi witnesses nearly a year before trial. … Freeman had nearly a year before trial in which to inform his attorney about the existence of the alleged alibi witness, and he offered no justification or valid excuse for his failure to do so. Under these circumstances, evidence was presented authorizing a finding that Freeman acted in bad faith and that his actions prejudiced the State. We therefore cannot say the trial court abused its discretion in granting the State's motion in limine. See Todd [ v. State, 230 Ga.App. 849, 854(3)(b), 498 S.E.2d 142 (1998), overruled on other grounds, Johnson v. State, 272 Ga. 468, 532 S.E.2d 377 (2000)]; Davis v. State, 226 Ga.App. 83, 84-85(1), 485 S.E.2d 508 (1997).” Prejudice shown in State’s inability to investigate witness’s claim that defendant was with her “around the clock” while she was in the hospital during the week of the incident in question. White v. State, 271 Ga. 130, 518 S.E.2d 113 (May 3, 1999). Reversing 233 Ga.App. 24, 503 S.E.2d 26 (1998); where defense gives notice of alibi evidence pursuant to OCGA § 17-16-5(b), State can’t rest on general witness list but “‘shall serve upon the defendant ... a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses ... upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied.’