State v. Smith

• Decision Date: 15 May 1985
• Docket Number: No. 84-1146,84-1146
• Citation: 477 N.E.2d 1128,17 Ohio St.3d 98,17 OBR 219
• Parties: , 17 O.B.R. 219 The STATE of Ohio, Appellant, v. SMITH, Appellee.
• Court: Ohio Supreme Court

Page 98

17 Ohio St.3d 98

477 N.E.2d 1128, 17 O.B.R. 219

The STATE of Ohio, Appellant, v. SMITH, Appellee.

No. 84-1146.

Supreme Court of Ohio.

May 15, 1985.

Syllabus by the Court

1. Crim.R. 12.1, the notice-of-alibi rule, is not unconstitutional.

2. Crim.R. 12.1 should be construed liberally and not be applied where no prejudice would accrue to the prosecution, where there is a demonstrable and excusable showing of mere negligence, or where there is good cause shown.

This is an appeal from the reversal of appellee's conviction of two counts of aggravated robbery. A divided court of appeals held that the trial court's refusal to permit the presentation of alibi testimony on the grounds that the appellee had failed to comply with Crim.R. 12.1 was a violation of appellee's constitutional rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The concurring judge found that defense counsel's failure to comply with the rule as noted above was a violation of defendant's rights in that he was deprived of his right to effective assistance of counsel and that the exclusion of the alibi testimony was an abuse of the trial court's discretion.

James N. Winston, Jr. and his brother, Lloyd E. Winston, were robbed by two men at gunpoint at approximately 12:45 a.m. on April 13, 1982. The assailants then forced their way into the Winston automobile and the four men drove away from the scene of the crime. Shortly thereafter, the Winstons were ordered out of the car. They then reported the crime to the police and gave a description of the stolen vehicle. Between 1:00 a.m. and 1:30 a.m. on the same night, Cleveland police officers Edward Starks and Leon Goodlow followed an automobile matching the description of the Winston vehicle. A chase ensued and the suspects lost control of the car, which crashed into a nearby house. After both men jumped out of the vehicle, the driver fired one shot at Officer Starks, and then fled. The suspects escaped.

On April 20, 1982, James Winston entered a gameroom on Cleveland's east side and spotted one of the men who had robbed him. Winston immediately informed the police and took them to the gameroom where he identified the appellee as his assailant. Winston later identified the appellee, Norman W. Smith, at a formal police lineup. At this time, Officer Starks also identified the appellee as both the driver of the stolen vehicle and the man who had shot at him.

The matter proceeded to trial. After the state had rested, counsel for the appellee announced his intention to call his client and other alibi witnesses, to establish that Smith was elsewhere at the time of the offense. Counsel had not filed a notice of alibi pursuant to Crim.R. 12.1, nor had he informed the prosecution of his planned use of an alibi defense. The trial court ruled that the appellee would not be permitted to testify as to his alibi, and that he could not call any alibi witnesses. The appellee was convicted of two counts of aggravated robbery, and the judgment of conviction was reversed upon appeal.

This cause is now before the court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and George J. Sadd, Asst. Pros. Atty., for appellant.

Hyman Friedman, County Public Defender, Marillyn Fagan Damelio and Patricia Walsh, Cleveland, for appellee.

WRIGHT, Justice.

The following three propositions of law are presented for our review.

"Proposition of Law No. I.

"Defense counsel's failure to timely file a notice of alibi pursuant to Criminal Rule 12.1 does not per se constitute a violation of the Sixth Amendment right to effective assistance of counsel."

"Proposition of Law No. II.

"The exclusion of alibi testimony first offered by an accused after the close of the state's case in violation of Criminal Rule 12.1 does not offend any right to testify or the Sixth Amendment right to compulsory process."

"Proposition of Law No. III.

"A trial court does not abuse its discretion in precluding a defendant or other alibi witnesses from testifying when the defendant fails to file a notice of alibi as required by Criminal Rule 12.1 and then attempts to establish an alibi defense after the close of the state's case."

We shall address each proposition of law separately. First, we do not believe that defense counsel's failure to timely file a notice of alibi pursuant to Crim.R. 12.1 constitutes ineffective assistance of counsel under the facts of this case.

Crim.R. 12.1 (and its statutory predecessors) has been in effect in this state since 1929 and provides:

"Whenever a defendant in a criminal case proposes to offer testimony to establish an alibi on his behalf, he shall, not less than seven days before trial, file and serve upon the prosecuting attorney a notice in writing of his intention to claim alibi. The notice shall include specific information as to the place at which the defendant claims to have been at the time of the alleged offense. If the defendant fails to file such written notice, the court may exclude evidence offered by the defendant for the purpose of proving such alibi, unless the court determines that in the interest of justice such evidence should be admitted."

A review of the record demonstrates that, aside from his failure to comply with Crim.R. 12.1, counsel conducted the defense in an acceptable manner. In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the United States Supreme Court adopted a two-pronged analysis for determining whether counsel's assistance was so defective as to require reversal of a conviction:

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

The court also noted that counsel is "strongly presumed" to have rendered adequate assistance, and "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. --- U.S. at ---- - ----, 104 S.Ct. at 2065, 2066, 80 L.Ed.2d at 694-695 (quoting Michel v. Louisiana [1955], 350 U.S. 91, at 101, 76 S.Ct. 158, at 164, 100 L.Ed. 83).

The test enunciated in Strickland is essentially the same as the one we adopted in State v. Hester (1976), 45 Ohio St.2d 71, 79, 341 N.E.2d 304 , and State v. Lytle (1976), 48 Ohio St.2d 391, 395, 358 N.E.2d 623 . A properly licensed attorney in Ohio is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301, 209 N.E.2d 164 . Thus, the burden of proving ineffectiveness is on the defendant. State v. Smith (1981), 3 Ohio App.3d 115, 444 N.E.2d 85.

We believe that the appellee has failed to meet this burden and are unconvinced that counsel's performance was so deficient as to prejudice the appellee's right to a fair trial. Counsel presented cogent arguments to the court and jury, he challenged the testimony of state witnesses by vigorous cross-examination, and he made numerous objections when appropriate. This illustrates counsel's thorough understanding of trial tactics. The record further reveals counsel's knowledge of both the facts of this case and the applicable law. The dissenting judge below noted that counsel has had extensive trial experience as a criminal defense attorney, had served as Chief Police Prosecutor for the city of Cleveland and had acted as an assistant county prosecutor in the criminal division of the Cuyahoga County Prosecutor's office.

In light of the foregoing, we cannot accept the premise that counsel was unaware of Crim.R. 12.1. Although there was no formal hearing which established counsel's reasons for failing to abide by this rule, we cannot help but conclude that counsel's noncompliance was an intended, self-serving trial tactic. ¹

We agree, therefore, with appellant's first proposition of law.

We next turn to appellant's assertion that the exclusion of alibi testimony offends neither the right to testify nor the right to compulsory process in the present case. Crim.R. 12.1 empowers a trial court to exclude alibi testimony where notification thereof has not been served on the prosecuting attorney, "unless the court determines that in the interest of justice such evidence should be admitted." The following colloquy between the court and counsel substantiates our belief that defense counsel's failure to supply proper notice of alibi was a trial tactic and that the trial judge was justified in holding that the interests of justice would not be served by the admission of alibi evidence:

"MR. CHANDLER [defense counsel]: You know, you keep claiming something about an alibi. I don't know. I have always, although I don't admit--I have been a member of the bar for a few years now, I really don't know much about law, but I try to learn some of the things * * *.

"Now, I don't know that anybody could pass any type of statute, ordinance or whatever, to say that a person cannot get up and say where they were at a certain time.

" * * *

"MR. SWEENEY [assistant prosecutor]: If you'd sit down and read Rule 12.2 [sic ]--

"MR. CHANDLER: I don't give a damn about a rule. I am talking about the fact that this man has a right to get on that witness stand and testify in his own behalf.

"You are saying that because he is going to tell the truth about where he was, then that is an alibi.

"MR. SWEENEY: I am going to say he is lying.

"MR. CHANDLER: Okay. I know you are going to say he is lying.

"MR. SWEENEY: I am going to tell you that Rule 12 is based on reason and fair play. Tell the people in the hallway that you...