Tubbs v. State, S03A0935.

• Decision Date: 10 July 2003
• Docket Number: No. S03A0935.,S03A0935.
• Citation: 583 S.E.2d 853,276 Ga. 751
• Parties: TUBBS v. The STATE.
• Court: Georgia Supreme Court

583 S.E.2d 853

276 Ga. 751

TUBBS v. The STATE.

No. S03A0935.

Supreme Court of Georgia.

July 10, 2003.

C. Nathaniel Merritt, Hinesville, Lloyd D. Murray, Richmond Hill, Therese M. Day, for appellant.

J. Thomas Durden, Jr., Dist. Atty., Lewis M. Groover, Jr., Asst. Dist. Atty., for appellee. CARLEY, Justice.

The grand jury indicted Keiotta Tubbs for two counts of malice murder and four counts of felony murder involving two victims. The District Attorney is seeking the death penalty. Tubbs opted for discovery pursuant to OCGA § 17-16-2(a) and, in response to the State's demand, gave written notice of his intention to offer a defense of alibi, listing only two witnesses. See OCGA § 17-16-5(a). According to the notice submitted to the prosecution, Tubbs was traveling with the two witnesses in Louisiana on May 12, 1998 between 9:00 and 9:30 p.m., the time that the offense allegedly occurred in Midway, Georgia. The case proceeded to trial and a jury was selected and sworn. During opening statement, defense counsel began listing several additional witnesses who allegedly saw Tubbs in Louisiana in May, two of whom saw him on May 12 in the late afternoon. The trial court granted a continuance on the State's motion, and thereafter declared a mistrial sua sponte and ordered Tubbs to disclose any witnesses who would testify as to his whereabouts on May 11, 12, or 13, 1998. In its order, the trial court found that Tubbs did not comply with OCGA § 17-16-5, that placing him in Louisiana late in the afternoon of May 12 is an alibi, that the two additional witnesses would place Tubbs in Louisiana as late as 10:30 p.m. on that date, that the improper conduct of defense counsel was responsible for any delay or mistrial, and that there was so strong a necessity for mistrial that a manifest injustice would occur otherwise. Thereafter, Tubbs filed a plea in bar, which the trial court overruled based upon the findings in its previous order granting the continuance and declaring a mistrial. Tubbs directly appeals pursuant to Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982).

1. Tubbs contends that the trial court erred in finding that he failed to comply with OCGA § 17-16-5. "Upon a demand by the state, OCGA § 17-16-5(a) requires the defendant to disclose in writing an intention to rely upon an alibi defense." White v. State, 271 Ga. 130-131(1), 518 S.E.2d 113 (1999).

Such notice by the defendant 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, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.

OCGA § 17-16-5(a).

Contrary to Tubbs' argument, a defendant does not comply with the statute by listing only those witnesses who will testify as to the defendant's location at the specific time of the alleged offense. Instead, the statute prescribes notice in two parts: first, a statement of the alibi defense and, second, a list of witnesses in support thereof. Only the former refers to the particular time of the alleged offense. The latter portion is concerned with "witnesses who will testify regarding the alibi defense." (Emphasis supplied.) White v. State, supra at 131(2), 518 S.E.2d 113. Even if the witnesses do not testify that the defendant was at a certain location at the exact time of the offense, their testimony may still support such a finding. In that instance, they do come within the parameters of the statute because they are witnesses "upon whom the defendant intends to rely to establish such alibi ...." OCGA § 17-16-5(a). Requiring specific disclosure of all witnesses upon whom the defense plans to rely in establishing an alibi defense "furthers the act's purpose of preventing surprise and promoting fairness." White v. State, supra at 131(2), 518 S.E.2d 113. A review of the transcript reveals that Tubbs' counsel clearly knew that some of the witnesses not listed in the notice would testify that Tubbs was in a specific location in another state at a time which would make it impossible for him to be at the crime scene at the time of the murders.

Furthermore, Tubbs may not utilize his general witness list as a substitute for compliance with OCGA § 17-16-5. White v. State, supra at 131(2), 518 S.E.2d 113; Hayes v. State, 249 Ga.App. 857, 862(4), 549 S.E.2d 813 (2001). Tubbs also relies on subsection (c) of OCGA § 17-16-5, which allows supplemental notice under certain circumstances. However, that portion of the statute applies only where, unlike here, a party does not learn of the existence and identity of an additional alibi witness until after the statutory deadline to give notice passes.

Accordingly, the trial court correctly found that Tubbs' alibi notice did not comply with OCGA § 17-16-5.

2. Remedies for failure to comply with OCGA § 17-16-5 are found in OCGA § 17-16-6. White v. State, supra at 131(3), 518 S.E.2d 113. Thus, if the defendant has violated the requirements of OCGA § 17-16-5(a) by failing to disclose the identity of an alibi witness, the court may order the defendant to permit interview of the witness, "grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from ... presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances." (Emphasis supplied.) OCGA § 17-16-6. Tubbs urges that the remedy of a mistrial is not available in the absence of a showing of bad faith and prejudice. Under the disjunctive language of the statute, however, such a showing is necessary only to justify an exclusion of the defendant's alibi evidence. That exclusionary remedy, along with its limitation to instances of prejudice and bad faith, is separate from the trial court's general authority to enter such other orders as it deems just. See Romero v. State, 247 Ga. App. 724, 725, 545 S.E.2d 103 (2001). The final general clause of OCGA § 17-16-6 is part of a legislative scheme which avoids a rigid formulation of the remedy for failure to comply with discovery mandates. Romero v. State, supra at 725, 545 S.E.2d 103. Therefore, even if there is no showing of bad faith and prejudice, the trial court may declare a mistrial upon a determination that it is just under the circumstances.

3. The trial court's ruling regarding a remedy under OCGA § 17-16-6, including a decision to grant a mistrial, is generally subject to review for an abuse of discretion. See White v. State, supra at 131(3), 518 S.E.2d 113. Tubbs contends, however, that the trial court's sua sponte grant of a mistrial violated his right against double jeopardy and did not meet the constitutional standard of "manifest necessity."

"[I]t is true that the defendant has a valuable right to be tried by the original impaneled jury. But that right is not paramount to the state's equal right to a fair trial." Putnam v. State, 245 Ga.App. 95, 97, 537 S.E.2d 384 (2000). The existence of manifest necessity is determined by weighing the rights of both parties in light of the totality of the surrounding circumstances. Putnam v. State, supra at 96, 97, 537 S.E.2d 384.

Manifest necessity exists when the accused's right to have the trial completed by a particular tribunal is subordinate to "`the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.'" [Cit.]

Laster v. State, 268 Ga. 172, 173(1), 486 S.E.2d 153 (1997).

"Manifest necessity can exist for reasons deemed compelling by the trial court, especially where `"`the ends of substantial justice cannot be attained without discontinuing the trial....' (Cit.)" (Cit.)' [Cit.]" Pleas v. State, 268 Ga. 889, 890(2), 495 S.E.2d 4 (1998). The Supreme Court of the United States "in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), held that a trial court's judgment about whether there was manifest necessity to grant a mistrial is entitled to great deference." Putnam v. State, supra at 96, 537 S.E.2d 384. Under OCGA § 16-1-8 as well, "the trial court's decision to grant a mistrial and reject lesser alternatives is entitled to great deference. [Cits.]" Putnam v. State, supra at 96, 537 S.E.2d 384.

"A trial judge has acted within his sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition, even though `(i)n a strict, literal sense, the mistrial (is) not

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