Webster v. State

• Decision Date: 20 October 1981
• Docket Number: No. 980S371,980S371
• Citation: 426 N.E.2d 1295
• Parties: Odie WEBSTER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1295

426 N.E.2d 1295

Odie WEBSTER, Appellant, v. STATE of Indiana, Appellee.

No. 980S371.

Supreme Court of Indiana.

Oct. 20, 1981.

John L. Kelly, Jr., Gary, for appellant.

Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Odie Webster, was convicted following a trial by jury on two counts of murder and was given two forty-five year sentences to be served consecutively. In this appeal he claims entitlement to relief upon three bases:

1. the trial court erred in overruling his motion in limine and objection to evidence of the prosecution of any date other than the date alleged in the indictment;

2. the trial court erred in admitting photographs of the bodies of the alleged victims; and

3. the evidence was not sufficient.

A.

Appellant Webster, together with three others, was indicted for killing Betty DeBowles and Robin Thomas. Both counts alleged that the murders took place on December 18, 1977. Appellant filed a notice of alibi that he was at work at his plant from 11:00 p. m., Saturday, December 17, 1977, until 7:00 a. m. Sunday, December 18, 1977. The State filed an answer to the notice of alibi that it would present evidence that the offense occurred between 5:00 p. m. Friday, December 16, 1977, and 10:00 a. m., December 17, 1977. Appellant filed no second notice of alibi in response as he was entitled to do. Ind.Code § 35-5-1-3. He, having no alibi for the time frame in the State's answer, then filed a motion in limine seeking to restrict the proof by the State to show that the offense occurred on December 18, 1977, the date in the indictment, for the purpose of giving vitality to his alibi for that time frame. The motion was overruled and the State at trial restricted its proof to the time frame within its answer to the notice of alibi, the defense presented its alibi evidence for the eighteenth and appellant was permitted to present his own testimony in support of an alibi for the time shown by the State's proof.

Appellant contends that the ruling of the court upon his motion in limine operated as an approval of an amendment in substance to the indictment, and that such an amendment was unlawful following the filing of his notice of alibi. When the ruling is viewed in this manner, it was not error. Indiana Code § 35-5-1-2, governs here wherein it provides:

"if the prosecuting attorney proposes to present at the trial as the specific date when the defendant committed or participated in the offense a date other than the date stated in the defendant's notice, the prosecuting attorney shall file and serve such statement upon the defendant or upon his counsel not later than eight days before the trial. If the prosecuting attorney's statement to the defendant names a specific date other than the date which is stated in the indictment or information and in the defendant's notice, the defendant shall not later than four days after the filing of the prosecuting attorney's statement file and serve upon the prosecuting defendant's second notice presenting for such changed date the same details required for the original notice." (Emphasis added.)

Here the State's answer was filed months before trial. It named a specific date other than the date stated in the indictment. A changed date is permissible when the alibi statute is invoked by the accused. Evans v. State, (1946) 224 Ind. 428, 68 N.E.2d 546.

The effect of the State's answer to the notice of alibi is ordinarily to restrict it, not to proof of the date in the indictment, but to proof of the date in the answer. Quillen v. State, (1979) Ind., 391 N.E.2d 817. However, when as here the answer gives an entirely different date from that in the charging document, and the defendant does not respond "with a second notice ... for such changed date" as provided in the statute, then the question arises as to whether such restriction upon the State's proof continues. And we believe that it must continue, for to relieve the State of it entirely as though the statute had never been invoked would be to subject the defendant to generalized testimony at trial regarding the time of the offense which could "bleed" over into the time frame for which he has an announced alibi, and at the same time deny him the right to place evidence of his alibi for that time frame before the trier of fact.

Appellant also argues that the State transgressed the restriction imposed upon it by its answer and the alibi statute. In support of this claim appellant points to testimony of the State's primary witness against him, a codefendant, who after specifically testifying that the killings occurred within the time frame given in the State's answer, equivocated under cross-examination and stated that he could not remember which night it was. To the extent that this testimony could be deemed affirmative evidence that the offenses occurred other than within the State's time frame, it was not produced by the State, but by defense counsel who drew it out in furtherance of a strategy to give viability to his alibi evidence. Thus, it was not the State, but the defense, that brought out evidence at variance with the State's time frame. Thus, there was no violation by the State of the restriction. The restriction operates in limitation of the State and not the defendant. Neither do we regard this same testimony as indicative of an insufficiency of evidence on the time element, as appellant also argues. The witness testified expressly that the killings occurred on...