Dew v. State, 280S37

• Citation: 416 N.E.2d 1245,275 Ind. 304
• Decision Date: 03 March 1981
• Docket Number: No. 280S37,280S37
• Parties: Aaron DEW, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1245

416 N.E.2d 1245

275 Ind. 304

Aaron DEW, Appellant, v. STATE of Indiana, Appellee.

No. 280S37.

Supreme Court of Indiana.

March 3, 1981.

Robert E. Stochel, Griffith, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a conviction after a jury trial of one count of criminal confinement, class B felony, Ind.Code § 35-42-3-3, one count of robbery, class B felony, Ind.Code § 35-42-5-1, and one count of burglary, class B felony, Ind.Code § 35-43-2-1. The court sentenced appellant to concurrent twenty year terms of imprisonment on each count.

The evidence supporting the verdict shows that on February 18, 1979, appellant was driving a car which struck a car being driven by Brenda Evans. Mrs. Evans' daughter was a passenger in the car. After the two drivers emerged from their cars to discuss the incident, appellant pointed a gun at Evans' head, forced her into the front seat of her car and ordered the daughter into the car he had been driving. He then drove to the Evans home, his companion following in the other car.

While at the Evanses' house, appellant tied up Mrs. Evans, her daughter, and her husband, and left the house about one hour later in the Evanses' car, taking their television set, stereo equipment, and other items.

The appeal raises the sole issue of whether it was reversible error for the trial court to allow the State, over appellant's objection, to introduce evidence in conflict with appellant's notice of alibi when the State had failed to answer the notice as it was required to do.

The appellant filed and served a timely notice of intention to offer evidence of alibi, pursuant to Ind.Code § 35-5-1-1. He included, as provided by Ind.Code § 35-5-1-2, a request for a specific statement of the date, time, and place the prosecution proposed to present at trial as the date, time, and place the appellant was alleged to have committed the crimes. The State never filed the specific statement.

Under the provisions of Ind.Code § 35-5-1-3, if the prosecution fails to file the requested statement, the court, absent a showing by the prosecution of good cause for the failure is required "to exclude evidence offered by the prosecuting attorney to show that the defendant was at a place other than the place stated in the defendant's original notice and that the time was other than the time stated in the original notice."

Appellant argues that since the State showed no good cause for the failure, the evidence was improperly admitted and the convictions should be reversed, citing Pearman v. State, (1954) 233 Ind. 111, 117 N.E.2d 362, and Shelton v. State, (1972) 259 Ind. 559, 290 N.E.2d 47. In Pearman this Court reversed a conviction because the State failed to comply with the then applicable statutory provisions on the defense of alibi, sections 9-1631 to 9-1633, Burns' 1942 Repl., which are virtually identical with our present statute. The Court said:

"The alibi statute, which is of material assistance in enabling the State to detect and disprove a fraudulent alibi, puts duties upon the State as well as the defendant. The defense of alibi is a legitimate defense, and if the accused takes the proper steps pursuant to the statute, the State must be required to discharge its duties, unless good cause be shown for failure so to do." 233 Ind. at 119, 117 N.E.2d at 366.

Shelton, a case in which the alibi statute was not properly invoked by the defendant, recites the Pearman language quoted above, and holds that defendant's failure to comply strictly with the statute foreclosed his assertion of rights created there. Strict compliance was held to be a condition precedent for such an assertion.

The State's response to the Pearman decision is that it is old and that since the time it was decided, the thinking of this Court has changed "a bit," citing Reed v. State, (1963) 243 Ind. 544, 188 N.E.2d 533; Owens v. State, (1975) 263 Ind. 487, 333 N.E.2d 745; and Hampton v. State, (1977) 172 Ind.App. 55, 359 N.E.2d 276. The State misstates the ruling in Reed. In that case the appellant had properly served his notice of alibi under the same statutory provisions as in Pearman, and requested the specific statement as to exact time and place of the alleged offense. The prosecuting attorney did not file the requested statement within the statutory eight-day period before trial but filed a motion on the sixth day before trial for leave to file the statement. The court granted the motion and the specific statement was served on the appellant on that day. Error in Reed was based on the trial court's overruling of appellant's motion to strike the State's motion for leave to file the specific statement out of time. This Court held that there had been no error because another section of the alibi statute provided that in the event of the failure of the prosecuting attorney to file the requested...