Griffin v. State

• Decision Date: 16 April 1996
• Docket Number: No. 55A05-9505-CR-159,55A05-9505-CR-159
• Parties: Jeffrey GRIFFIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 373

664 N.E.2d 373

Jeffrey GRIFFIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 55A05-9505-CR-159.

Court of Appeals of Indiana.

April 16, 1996.

Appeal from the Morgan County Court The Honorable Jane Spencer Craney, Judge; Cause No. 55E01-9401-CF-9.

Stuart T. Bench, Bench Law Office, Indianapolis, for appellant.

Pamela Carter, Attorney General of Indiana, Janet L. Parsanko, Deputy Attorney General, Indianapolis, for appellee.

OPINION

BARTEAU, Judge.

Jeffrey A. Griffin appeals his conviction for hunting deer after hours, ¹ a Class C misdemeanor, and driving after having been found a habitual traffic offender, ² a Class D felony, raising two issues on appeal, which we restate as:

1. Whether the trial court incorrectly excluded alibi witnesses due to the timing of the filing of Griffin's alibi notice?

2. Whether the State presented sufficient evidence at trial to sustain Griffin's convictions?

We reverse and remand.

FACTS

The State filed charges alleging that on November 17, 1993, Griffin was driving after having been found a habitual traffic offender, and hunting deer after sunset. On December 1, 1994, a jury found Griffin guilty, and the judge entered convictions for the two offenses.

I. NOTICE OF ALIBI

A. Timeliness of Filing

Griffin contends that the trial court incorrectly excluded from trial defense witnesses regarding Griffin's alibi. On February 24, 1994, the court conducted an initial hearing at which time the court set a pretrial conference for April 11, 1994, formal pretrial conference for May 2, 1994, and jury trial for May 11, 1994. On April 6, 1994, Griffin's first attorney filed a Notice of Alibi Defense. On April 28, 1994, the State, through its Motion to Strike Defendant's Notice of Alibi, asserted that Griffin's notice was untimely because he filed it only four days before an April 10, 1994, omnibus date. However, the record does not reveal that such an omnibus date was set, although the judge at the alibi hearing, ³ held on July 27, 1994, implied that the court had scheduled an initial omnibus date. The judge, at the July 27 alibi hearing, expressly decided not to rule on the State's objection to the April 6, 1994, notice of alibi.

On April 28, 1994, Griffin's first attorney withdrew because of a conflict of interest. On May 2, 1994, the court granted the motion to withdraw, and set the omnibus date for May 30, 1994. ⁴

On May 12, 1994, Griffin's new attorney ⁵ filed a Pre-Trial Notice of Alibi Defense, and a Motion for Extension of Time to File Pre-Trial Notice of Alibi Defense, which the court denied as untimely on May 13, 1994. To correct a witness's name, and to add three witnesses, on June 1, 1994, Griffin filed a Correction and Clarification of Pre-Trial Notice of Alibi Defense. On June 1, 1994, Griffin also filed his witness list. On July 12, 1994, Griffin filed a Motion to Reconsider Defendant's Request for Extension of Time to File Notice of Alibi Defense. The court heard evidence on the notice of alibi issue on July 27, 1994, and on October 5, 1994, again denied Griffin's Motion for Extension of Time to File Notice of Alibi Defense. During his trial, Griffin proffered five witnesses' testimonial evidence of the alibi after the trial judge excluded their testimony.

Indiana's Notice of Alibi statute provides in relevant part:

Whenever a defendant in a criminal case intends to offer in his defense evidence of alibi, the defendant shall, no later than:

(1) twenty (20) days prior to the omnibus date if the defendant is charged with a felony; ...

....

file with the court and serve upon the prosecuting attorney a written statement of his intention to offer such a defense. The notice must include specific information concerning the exact place where the defendant claims to have been on the date stated in the indictment or information.

Ind.Code § 35-36-4-1 (West 1986). The State charged Griffin with a felony. Thus, the statute required Griffin to give notice of his alibi defense twenty days prior to the omnibus date.

Our legislature enacted the alibi statute, including its time requirements, to serve two main purposes: first, to protect the defendant's ability to establish the defense by requiring the State to commit to a particular place and time that it intends to prove at trial as being the particulars of the crime, Brown v. State, 436 N.E.2d 285, 287 (Ind.1982); and second, because the law recognizes that some defendants will fabricate an alibi, the statute allows the State to receive notice before trial regarding the place that the defendant claims to have been at the time of the commission of the crime. Id. Thus, this notice allows the State to investigate the alibi to discover its truthfulness, in which case the State should drop the charges, or its falsity, in which case the State can seek evidence to prove the falsity. Id.; e.g., Wilson v. State, 536 N.E.2d 1037, 1041 (Ind.Ct.App.1989), trans. denied. The alibi statute "is not intended 'to compel the exclusion of evidence or mandate retrials for purely technical errors.' " Wilson, 536 N.E.2d at 1041 (quoting Baxter v. State, 522 N.E.2d 362, 369 (Ind.1988), reh'g denied, citing Williams v. State, 273 Ind. 547, 550, 406 N.E.2d 241, 243 (1980).

If a trial court moves an omnibus date, which effectively creates at least a twenty-day period between the initial notice of alibi filing date and the subsequent omnibus date, then the purposes of the alibi statute are served by treating the initial notice as timely filed. Here, Griffin filed his initial notice of alibi on April 6, 1994. Because a new omnibus date was set for May 30, 1994, Griffin effectively filed his notice twenty days before the omnibus date and thus it was timely filed.

B. Amendment of Notice of Alibi

Griffin's Correction to the Pretrial Notice of Alibi on June 1, 1994, contained amendments to the April 6, 1994, notice of alibi. The Correction contained the times, date, and addresses consistent with the original filing of notice of alibi. Such information met the requirements of the Notice of Alibi statute. Griffin's April 6, and May 12, 1994, pleadings named his mother as "Rose Griffin," while the June 1, 1994, pleading named her as "Betty Griffin." Also, the June 1, 1994, amendment adds Griffin's father and two grandparents as witnesses to Griffin's presence at his mother's residence. Griffin also listed these people on his witness list filed June 1, 1994. At no time did the State object to the amendment of names as a basis to try to keep the named witnesses from testifying to the alibi. And, we see no reason for excluding the additional named witnesses. Thus, the trial court should have allowed Griffin's wife, mother, father and two grandparents to testify regarding Griffin's alibi as delineated in his initial notice of alibi.

C. Harmless Error

1. Standard of Review

We use the harmless error standard to analyze cases in which a trial court erroneously excludes or admits evidence. Fleener v. State, 656 N.E.2d 1140, 1141 (Ind.1995). This standard applies when a court excludes a defendant's alibi testimony. Preston v. State, 644 N.E.2d 585, 589 (Ind.Ct.App.1994) (citing Campbell v. State, 622 N.E.2d 495, 499 (Ind.1993)). Thus, we use the harmless error standard when analyzing cases, such as the case at bar, in which the defendant testified to an alibi, but the trial court excluded other alibi evidence, including alibi witnesses. After reviewing various appellate court decisions, the Indiana Supreme Court recently stated the standard as: an error is "harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties." Fleener, 656 N.E.2d at 1142; see Ind.Trial Rule 61.

2. Cumulative Evidence

Typically, excluded cumulative evidence does not necessitate a new trial. Schwartz v. State, 177 Ind.App. 258, 264, 379 N.E.2d 480, 486 (1978). Where some alibi evidence, other than the defendant's own testimony, is admitted to provide support to the defendant's alibi theory, but other alibi evidence is excluded, the excluded evidence is generally considered cumulative, and its erroneous exclusion is harmless. See, e.g., Royal v. State, 272 Ind. 151, 396 N.E.2d 390 (1979) (When defense attorney presented several alibi witnesses' testimony, and chose not to present an additional alibi witness, the Court found that such additional evidence was merely cumulative, thus defendant was not denied effective representation.); Jackson v. State, 264 Ind. 54, 339 N.E.2d 557 (1975) (When defense attorney presented the defendant's and three witnesses' alibi testimony, but not two additional alibi witnesses' testimony, the Court determined that because such additional evidence was cumulative the defendant was not denied effective representation.); Foster v. State, 262 Ind. 567, 320 N.E.2d 745 (1974) (When defense attorney presented the testimony of only two of three alibi witnesses, the Court determined that such additional evidence was merely cumulative, and thus defendant was not denied effective assistance of counsel.); Keyton v. State, 257 Ind. 645, 650, 278 N.E.2d 277, 279 (1972) (Excluded "newly discovered evidence ... would not have reasonably and probably resulted in a different verdict, as the newly discovered evidence was merely cumulative and corroborative of other alibi evidence."); Smiley v. State, 649 N.E.2d 697 (Ind.Ct.App.1995), trans. denied, (Although the trial court improperly excluded an alibi witness's testimony, the error was harmless because the testimony was cumulative to three other alibi witnesses' testimony.); Williams v. State, 181 Ind.App. 526, 392 N.E.2d 817 (1979) (Because it was cumulative of other witnesses' testimony, the trial court did not abuse its discretion in denying a request for a new trial based on newly discovered alibi evidence.); Schwartz, 177 Ind.App. 258, 379 N.E.2d 480 (Excluded newly discovered...