Stapp v. State, 971S277

• Decision Date: 15 September 1972
• Docket Number: No. 971S277,971S277
• Citation: 259 Ind. 330,287 N.E.2d 252
• Parties: Rollin STAPP. Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 252

287 N.E.2d 252

259 Ind. 330

Rollin STAPP. Appellant, v. STATE of Indiana, Appellee.

No. 971S277.

Supreme Court of Indiana.

Sept. 15, 1972.

Rehearing Denied Nov. 21, 1972.

Hall Cochrane, Indianapolis, for appellant.

Theodore L.Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

DeBRULER, Justice.

Appellant here was convicted of first degree burglary on May 14, 1971, in the Marion County Criminal Court, Judge John T. Davis presiding, and was subsequently sentenced to serve ten to twenty years at the Indiana State Prison. He appeals his conviction on the following grounds: (1) Alibi evidence which appellant sought to have admitted on trial should not have been excluded despite his failure to comply with the requirements of the alibi statute. (2) The prosecution's failure to establish a specific time of the offense shows insufficient evidence to convict for burglary. (3) An alleged lack of a preliminary hearing after arrest on a municipal court warrant, as provided for by I.C.1971, 35--4--1--1, being Burns § 9--704a, requires reversal of the conviction.

Appellant first urges that the court's exclusion of evidence tending to show alibi is reversible error. Evidence in the record of this case reveals that a State's witness, Russell Wheeler, testified that he and the appellant, Rollin Stapp, broke into a house in Marion County by forcing the door of the house with a screwdriver. He further testified that property was taken from the house by them that night, some of which was later sold to a third party and some of which was disposed of by throwing it into a lagoon at Long Acre Park in Marion County. Officer Harold Young of the Indianapolis Police Department further testified that this property was later located and recovered from the lagoon at the location where Mr. Wheeler told them he and the appellant had disposed of it.

The appellant testified that on October 9th, he was at his sister-in-law's house preparing for his nephew's birthday party to be held the next evening. He further testified that he attended that party on the 10th of October. On cross examination the prosecution asked appellant where he was on the 9th and 10th of October. Appellant repeated his assertion that he was at his sister-in-law's house on both nights. Appellant's sister-in-law next took the stand and began to testify as to the whereabouts of the appellant on the nights in question. The prosecuting attorney objected to such testimony on the grounds that it constituted alibi evidence and the requirements of the alibi statute had not been fulfilled by the appellant. The judge sustained the objection and the testimony was excluded.

The alibi statute of this State reads as follows:

'Whenever a defendant in a criminal case in a court other than that of a justice of the peace shall propose to offer in his defense evidence of alibi, the defendant shall, not less than ten days before the trial of such cause, file and serve upon the prosecuting attorney in such case a notice in writing of his intention to offer such defense. The notice shall include specific information in regard to the exact place at which defendant claims to have been at the time stated in the indictment or affidavit as the time of such offense. The provisions of this statute shall not apply in case the court sets the trial for a date less than fourteen days ahead.' I.C.1971, 35--5--1--1, being Burns § 9--1631.

Further I.C.1971, 35--5--1--3, being Burns § 9--1633, provides that:

'At the trial, if it appears that the defendant has failed to file and to serve upon the prosecuting attorney the defendant's original notice of alibi as described herein, the court shall, in the absence of showing of good cause for such failure by the defendant, exclude evidence offered by the defendant to establish an alibi.'

It is conceded by the appellant that the requisite notice was not filed here nor was any excuse for such failure offered at any time during the trial, but he nevertheless urges that the exclusion of the alibi evidence offered by appellant's sister-in-law was error because the prosecution had 'opened up' the area by asking the appellant on cross examination where he was on the 9th and 10th of October. Appellant had previously testified on direct examination without objection that he was at his sister--in-law's house. To hold that attempts by the prosecution to place the appellant at the scene of the crime 'opens up' the area to admission of alibi witnesses would rob the alibi notice requirements of any meaning.

It cannot be held that attempts by the State in its case-in-chief to place the appellant in the vicinity of the alleged crime 'opens up' are area of admission of alibi evidence. In the case presented here the appellant himself was permitted to testify as to his whereabouts in spite of the fact that the alibi statute was not complied with. It would like wise be contrary to the purpose of the alibi statute to hold that when the appellant has testified on direct examination without objection that he was at another location than that of the alleged crime, any questions by the prosecution testing the veracity of that statement 'opens up' the area to a parade of corroborative alibi witnesses, in spite of the failure of the appellant either to notify the prosecution as required by statute or submit any explanation at all for his failure to do so.

Appellant further asserts that because the court failed to...