State v. Lewis, 85-817

• Citation: 391 N.W.2d 726
• Decision Date: 04 June 1986
• Docket Number: No. 85-817,85-817
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Phillip Randolph LEWIS, Defendant-Appellant.
• Court: Court of Appeals of Iowa

Page 726

391 N.W.2d 726

STATE of Iowa, Plaintiff-Appellee, v. Phillip Randolph LEWIS, Defendant-Appellant.

No. 85-817.

Court of Appeals of Iowa.

June 4, 1986.

John C. Wellman, Citizen Advocate Office, for defendant-appellant.

Thomas J. Miller, Atty. Gen., Ann DiDonato, Asst. Atty. Gen. and Catherine Thune, Asst. Co. Atty., for plaintiff-appellee.

SNELL, Judge.

At about 3:00 p.m. on December 16, 1984, three persons, one armed with a .45 caliber pistol, entered the home of Des Moines residents Mike and Shelly Gates and forced them to turn over $350 and a small quantity of marijuana. The Gates and their two-year-old child were then forced into a closet and the robbers threatened to shoot through it. The victims, who themselves were admitted drug dealers, did not report the incident to police. After a friend of the Gates family notified the police, both Shelly and Mike, in separate proceedings, picked out defendant Phillip Randolph Lewis's picture from a photo array at the police department and identified him as the armed robber.

On December 15, 1984, Lewis had been a resident of the Riverview Release Center in Newton, Iowa. He was granted a furlough for the weekend of December 15. At 4:01 p.m. on December 16, the day of the robbery, the Riverview Release Center contacted Lewis by phone at his parents' home. Lewis returned to Riverview at 10:47 p.m. that evening. Lewis was arrested on December 26, 1984.

Lewis appeared on December 27, 1984, on a preliminary count charging him with first-degree robbery. Lewis's counsel was appointed near that time. At the time of Lewis's arraignment on February 7, 1985, his trial date was set for April 15, 1985. The March 14, 1985, pretrial conference order required that motions be served on or before April 1, 1985.

On April 8, 1985, Lewis's parents called defense counsel and informed him that they had identified and located nine people who were with Lewis on December 16, 1984. On the evening of April 8, a police investigator interviewed the nine witnesses at the home of Lewis's parents. On April 9, 1985, Lewis filed a notice of alibi defense, listing the names of nine alibi witnesses. Arrangements were made by defense counsel for depositions of the nine witnesses by the assistant county attorney on the morning of April 11. All nine witnesses appeared at the courthouse at 9:00 a.m. on that date. However, the assistant county attorney declined to depose or informally speak with the witnesses.

A jury trial commenced as scheduled on April 15. Prior to jury selection, the State orally moved to exclude Lewis's alibi witnesses. During ensuing oral arguments before the court, defense counsel explained that the notice of alibi was not filed until April 9 because he had not been given the names of the witnesses by Lewis's parents until April 8, he didn't know about the defense until it was filed, and Lewis could not locate his witnesses earlier because he was in jail. The State argued that it was prejudiced because it had no opportunity to depose the alibi witnesses and fully investigate the alibi defense before the trial date. The State also argued that Lewis did not assert an adequate reason for his failure to give timely notice. The court ruled that the alibi witnesses would not be allowed to testify.

After trial, the jury returned a verdict of guilty. Lewis was sentenced to imprisonment for a term not to exceed twenty-five years.

On appeal, Lewis contends that although notice of alibi was not timely filed, the trial court abused it discretion under Iowa R.Crim.P. 10(11)(d) because exclusion of the alibi witnesses was unreasonable. Lewis also contends the trial court erred in overruling his motion for a mistrial. He argues that the State's redirect examination of the interrogating officer as to whether or not Lewis had mentioned his alibi was basis for mistrial. Lewis contends that this line of questioning constituted prosecutorial misconduct.

Alibi Defense. In a criminal action a defendant claiming an alibi defense is subject to the requirements of Iowa R.Crim.P. 10(11)(a) and (d), which provide:

a. Alibi. A defendant who intends to offer evidence of an alibi defense shall, within the time provided for the making of pretrial motions or at such later time as the court shall direct, file written notice of such intention. The notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. In the event that a defendant shall file such notice the prosecuting attorney shall file written notice of the names and addresses of the witnesses the state proposes to offer in rebuttal to discredit the defendant's alibi. Such notice shall be filed not less than ten days after filing of defendant's witness list, or within such other time as the court may direct.

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d. Failure to comply. If either party fails to abide by the time periods heretofore described, such party may not offer evidence on the issue of alibi, ... without leave of court for good cause shown. In granting leave, the court may impose terms and conditions including a delay or continuance of trial. The right of a defendant to give evidence of alibi ... in his own testimony is not limited by this rule.

What constitutes good cause for filing belated notice under rule 10(11)(d) is a discretionary decision of the trial court. State v. Taylor, 336 N.W.2d 721, 724 (Iowa 1983); State v. Christensen, 323 N.W.2d 219, 222 (Iowa 1982). The defendant has the burden to show that the trial court abused its discretion. Christensen, 323 N.W.2d at 222. We will not find an abuse of discretion unless it is shown that "such discretion was exercised on grounds for reasons clearly untenable or to an extent clearly unreasonable." Id. (quoting State v. Morrison, 323 N.W.2d 254, 256 (Iowa 1981)). "Rules requiring advance notice of such defenses as alibi and diminished responsibility are justified by the need to balance the interest of the defendant in a full and fair trial against the interest in protecting the state from unfair surprise and delays." Taylor, 336 N.W.2d at 724.

The United States Supreme Court justified the notice requirement of Florida's similar alibi rule as follows:

Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927, are now in existence in a substantial number of States. The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as "due process" is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.

Williams v. Florida, 399 U.S. 78, 81, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446, 450 (1970).

The preclusion sanction of rule 10(11)(d) is not to be imposed lightly. The interest of the defendant in obtaining a full and fair trial must be weighed against the interest of the State in avoiding surprise and unnecessary delays.

The Iowa Supreme Court in Christensen considered several factors in applying the "good cause" standard of the alibi notice rule including the adequacy of defendant's reason for failure to give notice and whether the lack of earlier notice prejudiced the State. We are satisfied that in this case good cause was shown for Lewis's failure to give earlier notice.

Defense counsel represented to the trial court that he had only learned of the alibi witnesses on April 8. It was only at this time that Lewis's parents were able to remember the gathering which occurred at their home on the date in question. The notice of alibi was then filed immediately on April 9, one week prior to trial. Furthermore, the witnesses were all made available to the State for informal interviews or depositions on April 11. From April 9 onward the State had the opportunity to investigate Lewis's defense. However, it chose to do nothing, even declining interviews with the witnesses.

We find that the purpose of Iowa's alibi notice rule is to give the prosecution time and information to investigate the merits of such defense. The rule is designed to avoid the sudden and unexpected appearance of a witness for the first time at trial where it is impossible for the State to make any investigation concerning the alibi defense or with respect to the witnesses. We will not allow the State to create prejudice by refusing to investigate the veracity of alibi witnesses when it is given an ample opportunity to do so. We can perceive of no reason to penalize Lewis for noncompliance with the alibi notice rule when any disadvantage the State might suffer at trial in this case was brought about by its own conduct. Furthermore, the record fails to demonstrate that a delay in proceedings would have been necessary to enable the State to fully prepare to combat the alibi defense. Notwithstanding, even if a continuance was required, the State would not have been prejudiced because Lewis had previously waived his right to a speedy trial.

To exclude Lewis's defense witnesses under these circumstances would offend the purpose for Iowa's alibi notice rule and Lewis's fundamental right to present witnesses in his defense. We therefore conclude that the...