Campbell v. State

• Decision Date: 25 October 1993
• Docket Number: No. 71S03-9310-CR-01157,71S03-9310-CR-01157
• Citation: 622 N.E.2d 495
• Court: Indiana Supreme Court
• Parties: Alvin CAMPBELL, Jr., Appellant, v. STATE of Indiana, Appellee.

Page 495

622 N.E.2d 495

Alvin CAMPBELL, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 71S03-9310-CR-01157.

Supreme Court of Indiana.

Oct. 25, 1993.

Eugene C. Hollander, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This cause comes to us on a petition to transfer from the Third District Court of Appeals. Following a jury trial in May, 1991, appellant, Alvin Campbell, Jr., was convicted of Count I, burglary, a class A felony, Ind.Code Sec. 35-43-2-1; and Count II, battery, a class C felony, I.C. Sec. 35-42-2-1. The trial court entered a judgment of conviction, and on May 31, 1991, sentenced appellant to thirty years imprisonment as to Count I, and eight years imprisonment as to Count II, to be served concurrently. In an opinion not for publication, the Court of Appeals affirmed appellant's convictions, but remanded the cause with instructions to vacate the sentence as to the class C felony battery and resentence appellant for battery as a class B misdemeanor. 590 N.E.2d 668. We grant transfer and vacate the convictions and judgment and remand the cause for retrial.

The facts most favorable to the verdict are as follows: On February 1, 1991, Donna Fritz was at the South Bend apartment of her best friend, Donna Boyce, preparing for a birthday party to be held the next day for one of Boyce's children. After spending the day cooking, cleaning, shopping for supplies, and decorating, it was decided that Fritz and her daughter would spend the night. Fritz fell asleep on the living room couch at approximately 1:30 a.m., but awakened at about 2:00 a.m. when she sensed someone standing over her. Fritz identified the intruder as Campbell, a man with whom she previously had a three-year relationship that ended in January 1991, and who is the father of her infant daughter. Appellant put his hand on Fritz's chest to hold her down and slashed her face with a sharp object. Appellant stated that he was going to kill Fritz for leaving him and taking away his daughter. Appellant ran out of the apartment when Fritz screamed. Fritz gave appellant's name to the police, then went to the hospital, where she received over 100 stitches to close her wounds.

Appellant raises several issues on appeal, which we restate as follows: 1) exclusion of defendant's own alibi testimony; 2) sufficiency of victim identification; 3) exclusion of evidence regarding a subsequent burglary at the same address; 4) admission of evidence of appellant's prior threats to the victim; 5) alleged trial court error in imposing sentence on Count II; 6) denial of motion for mistrial.

Appellant filed his notice of alibi on April 29, 1991, two days before his trial was scheduled to begin. The State moved to exclude appellant's alibi defense and witnesses, arguing that I.C. Sec. 35-36-4-1 requires notice of alibi to be filed twenty (20) days prior to the omnibus date. The trial court held a hearing on April 30 to address appellant's notice and the State's motion. The trial court directed appellant to make his alibi witness immediately available for interview by the State and took the motion under advisement. Later that day the trial court granted the State's motion and ordered that appellant would not be permitted to present alibi evidence, either through witnesses or by his own testimony. After presentation of the State's evidence, defense counsel offered to prove that if allowed to testify, appellant and Ruthe Stewart, appellant's sister with whom he was living at the time, would both testify that appellant was at the Stewart's home through the evening and early morning hours of February 1 and February 2, 1991, that they were sleeping on couches in the living room, and that at no time did appellant leave or did Stewart detect him leaving or returning. When arguing against the State's motion to exclude Campbell's alibi defense and witnesses, Michael Rehak, Campbell's defense counsel, stated his belief that limiting Campbell's ability to testify on his own behalf would implicate a Fifth Amendment right. In his initial briefs to this Court, appellant claimed that the exclusion of his own alibi testimony deprived him of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Recognizing that the limitation of appellant's own testimony implicated Article I, Sec. 13 of the Indiana Constitution, on April 29, 1993, this Court ordered the parties to prepare and file supplemental briefs addressing the state constitutional claim. Because of our resolution of this issue on state constitutional grounds, we do not address appellant's argument that his communication problems with his attorney constituted good cause for his late filing of notice of alibi under I.C. Sec. 35-36-4-3(b), nor do we examine the constitutionality of the exclusion of his alibi witness under the Compulsory Process Clause of the Sixth Amendment, as analyzed in Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

Before we address the merits of this issue, this Court must decide whether Campbell has properly preserved the alleged error for appellate review. In the past, alleged error in the exclusion of evidence was procedurally defaulted, unless the party contesting the exclusion reserved an exception to the ruling that excluded the evidence. See, e.g., Martin v. Youngblood (1937), 211 Ind. 647, 7 N.E.2d 997. Also, an offer to prove was necessary to preserve the substance of the testimony for appellate review. LaChance v. Ballard's Estate (1939), 106 Ind.App. 397, 20 N.E.2d 201. However, Indiana no longer requires a formal exception to a ruling or order of a court. Ind.Trial Rule 46. "It is sufficient that a party ... makes known to the court the action which he desires the court to take...." Id. During trial, in a conference before the court but out of the jury's presence, Campbell expressly stated his desire to the court to offer his own alibi testimony. After Campbell's direct examination, his trial counsel offered to prove that Campbell was asleep at his sister's house the evening that the crimes took place, and that Campbell's sister would corroborate his claims. We believe that Campbell's insistence that the trial court accept the alibi testimony, coupled with the specific offer to prove, were sufficient to preserve this issue for appeal, in accordance with T.R. 46.

The issue of whether or not a defendant must be permitted to give his own testimony of alibi, even though he has not properly filed his notice of alibi as required by statute, has been raised in several jurisdictions. Cases holding that the defendant has the right to so testify, even though he has failed to properly file notice, include: People v. Hampton, 696 P.2d 765 (Colo.1985); State v. Fechter, 397 N.W.2d 711 (Iowa 1986); People v. Merritt, 396 Mich. 67, 238 N.W.2d 31 (1976); People v. Rakiec, 289 N.Y. 306, 45 N.E.2d 812 (1942). See also United States v. Smith, 524 F.2d 1288 (D.C.Cir.1975); Walker v. Hood, 679 F.Supp. 372 (S.D.N.Y.1988); Alicea v. Gagnon, 675 F.2d 913 (7th Cir.1982). Cases holding that a notice requirement was applicable to a defendant offering his own testimony of alibi include: State v. Rider, 194 Kan. 398, 399 P.2d 564 (1965) (overruled on other grounds by Talley v. State, 222 Kan. 289, 564 P.2d 504 (1977)); State v. Wooten, 735 S.W.2d 30 (Mo.Ct.App.1987); State v. Francis, 128 N.J.Super. 346, 320 A.2d 173 (1974); State ex rel. Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177 (1968). In Lake v. State (1971), 257 Ind. 264, 274 N.E.2d 249, this Court adopted the reasoning of the Wisconsin Court in Simos precluding a defendant's own alibi testimony. We now reconsider our prior resolution of this issue.

Article I, section 13 of the Indiana Constitution provides, in pertinent part: "In all criminal prosecutions, the accused shall have the right ... to be heard by himself and counsel...." This language places a unique value upon the desire of an individual accused of a crime to speak out personally in the courtroom and state what in his mind constitutes a predicate for his innocence of the charges. The purpose of the alibi statute is to protect the State from facing surprise defenses, which purpose is amply satisfied by limiting the exclusionary remedy of the statute to alibi witnesses other than the accused. Surprise alibi testimony by the accused is rarely overwhelming, and should the accused choose to offer his own testimony as the lone evidence of alibi in the case, the State should be permitted a continuance to meet the situation. In Baxter v. State (1988), Ind., 522 N.E.2d 362, Justice Shepard, writing for the Court, recognized that the State may not deny a criminal defendant the right to a fair opportunity to defend against the state's accusations, although that right is not absolute. In Baxter, the defendant alleged error in the exclusion of his own alibi testimony, despite the fact that defendant had not complied with the alibi statute.

Where the defendant or defense counsel files a tardy or inadequate notice of alibi simply because neither has aggressively pursued that defense and their failure does not deprive the State of sufficient time and information to investigate and respond, the Constitution would seem to require the allowance of at least the defendant's testimony.

Id. at 369. Baxter also suggested that where the defendant purposely suppresses the alibi evidence to gain some advantage in the prosecution, the testimony should be precluded. Id. We affirmed the Baxter trial court decision to exclude the defendant's alibi testimony, due to the defendant's evasiveness with regards to the alibi testimony, the defendant's failure to make an offer of proof, and the high risk that the defendant had fabricated the story.

In light of the strong constitutional bias in favor of permitting such personal testimony of the accused and the...