### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Septem ber 24, 200 2 Session STATE OF TENN ESSEE v. BYRON L OOPER Direct Appeal from the Criminal Court for Cum berland County No. 5346 J. Steven Daniel, Judge

No. E2001-01550-CCA-R3-CD February 3, 2003
The defendant , Byron

Looper, was convicted of first degree murder and sente nced to life imprison men twithout the possibility of parole. He timely appealed, presenting as issues: (1) the trial court erred in excluding the testim ony of witnes ses who wo

uld have t estified as to his location following the homic ide, viola ting his right to due process; (2) the trial court err ed in keeping under seal the psychological records of one of the State’s witnesses; and(3) the evidence did not support application of the aggravating factor that the homicide was committed because the victim

was a sta te officia l. Follo wing o ur re view, we affirm the conviction and the imposition of life without the possibility of parole. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OSEPH M. T IPTON , J., joined.
John E. Herbison, Nashville, Tennessee (on appeal); McCra cken Poston, Chattanooga, Tennessee (at trial); and Ron Cordova, Newport Beach, Califor nia (at trial), for the appellant, By ron Looper.
Paul G. Summers , Attorney Genera l and Repo

rter; Ma rk E. Dav idson, Ass istant Atto

rney Genera l; William E. Gibson, District Attorney General; and D avid A. Pat ter son and Ant hon y J. Craighead, Assistant District Attorneys Gener al, for the appellee, State of Tennessee.
OPINION
To the extent possible, we will review the evidence in an order which is chronological to the offense.
STATE’S PROOF
The victim, Tommy Burks, had lived in Cumberland Count y w ith his wife Charlotte for approxima

tely thirty y ears. He first had been

a state representative and then a state se nator, being-2-

in the latter position for approx imately tw enty y ears prior to his death on October 19, 1998. The defendant, By

ron Looper, was the Putnam County Tax Assessor at the time. Sergeant Joseph H. Bond, a Marine recruiter residing in Hot Springs, Arkansas, testified that he had known the defendant since they were about

14 years old a

nd in the ninth grade. They did not see each other “for quite a while” af ter high school, Bond joining the Marines and the de fendant entering the United States Military Acade my. He next saw the defendant around Christmas of 1985, two ye ars after they

had graduated from high sc hool, and, following that, in 1986, when the defendant enrolled at the University of Georgia. He did not see the def endant again until approxima

tely ten year s later. The defendant called him in May or June 1998 and said that he wanted to stay in touch with B ond, and, about three weeks later, again t elephoned Bond, a sking if he could visit him in Arkansas. Bond agreed, and the de fendant came to Hot Spring s shortly after that, visiting in June 1998. Together they went to a bar and

drank throughout the nig

ht. During

this eveni ng, the defe ndant said that he was “either a senator or a congressman,” in Tennessee a nd, ac co rd in gl y, Bondintroduced him as “Senator Looper .” Eith er lat er that night or the next morni ng, the defendant admitted to Bond that he was “actua lly just running for off

ice.” During this weekend visit to Hot Springs, the defendant spoke of his intere st in fire arms, saying that he had “been thinking about getting one.” He questi oned Bond about the specifics of firear ms, “different calibers, how accur ate they we

re, the ranges on them, and a sked . . . ab out silencers,” as well as “ [c]o ncealibi lity, what would be conce alable in a crowd.” L ater during the visit, speaking

of the el ection, t

he defe ndant sai d that “he had thought about killing [his opponent].” Ad di ti on al ly, he said that “if there were only two people on the ballot, if one of th em di ed 30 da ys before the election, that he would automatically win.”
The defendant

then came unannounced to Bond’s apartment in July or August 1998, whe re he stayed for “ a couple

of day s.” During this vis it, the defendant “was mor

e intent o n gettin g a weapon,” saying tha

t “since the election was coming up, he nee ded on e quick.” Although he had no intention of doing so, Bond agreed to obtain a pistol for the de fendant. Bond said he thought “the election would

go ahead and happen, and that would be it, and I wouldn’t hear a nything else a

bout it.” After his departure, the defendant telephoned Bond “about every da y, sometimes two, three, four times a d ay, ” want ing “to know if [Bond] had got him a pistol yet.” B ond made excuses for not doing so, and did not obtain a pistol for the defendant. The defendant sent Bond a

money order

for $150. The telephone calls from the defendant continued “ [i]nside of a week of him leaving.”
William Lindsay

Adams, Jr., testified that he re sid ed in Baton Rouge, L ouisiana, and periodic ally

worked “as a staff

person for political campaigns around the country and in [his] own state.” He would become affiliated with candidates by wor

d of mouth or

through trade pu blication s. In the July 1998 edition of Campaigns and Elections , he had seen a notice seeking “ a campai gn staff or manager for a first tier ca mpaign.” Theadverti sement pr ovided a f acsimile number to

which to respondbutnot the name or other information about the candidate. About three days afte r he had faxed his résumé to the number, Adams rec eived a t elephone call fro m a

person id entify ing himse lf as “By ron Looper,”who said

that he “had changed his name to L ow Tax Looper.” Adams told of-3-

his “credentials,” which included working “ for a conservative governor who had just recently pa ssed somelaws in

Louisiana that [the caller] seemed interested in.”The caller asked about “[c]oncealed weapons laws” and the “ details of the law, a

nd how it wa s passed, and what was [Adam s’] role in the legisl ation , or th e campa ign to get this law elected.” The caller sa id thathe was a candidate for the state senate; and, Adams “wanted to know how much he thought it would take to run a race” to find out “if he was serious or not.” Thecaller said that the race would cost “[t]hirty -five cents,” but Adams did not ask for

an explana

tion beca use the conversation was “very awkward” with “[a] lot of pauses.” Adams testifie d how the c aller sa id that he would win the ra

ce: “He had seve ral idea s, but he suggested that may be if a candidate wasn’t in the race at the end, if some

thing ha ppened to the candidate, that the race wouldn’t cost that much to run, which wa s my concer n, the money.” Adams decided against going to work for the caller.
Russell Duke testified that he had been a friend of Russell

Looper, the defenda

nt’s brother, for “[a]t leas tfive, six, seven, eight years.” Duke said that he resided in Oakwood, Georgia, which was located

in the nor

theast pa rt of the s tate , “[ a]bout [a] four-and-a-half, five hours” drive from Crossville, Tennessee. He t estified that he a nd Russell L

ooper ha d planned to go out with some friends on October 17, 1998; but, because L ooper “had something that he had to do” with hi s girlfriend in Atlanta, Duke then agreed to “run s ome err ands for By ron,” at Loope r’s req uest. Prior to that, he ha d met the d

efenda nt on two oc casions. Duke and the defe ndant we re to mee t at t h e Flowery Branch, Georgia, home of the defendant’s mother, which was “[w]ith in five to s even mile s” of Duke’s residence. Duke arrive d there at about 7:30 p.m. a

nd allowe d the def

endant to use his ce ll phone to make tw o or thre e calls a bout car adverti sements he had seen in an Auto Trader magazine. The defendant owned a

Berett a automob ile which he left at his mother’s residence as Duke dr ove him to look at cars for sale. With the defendant driving, they took one of the cars for

sale, a black, four-door “older b ody -sty

led Audi, ” on a tes t drive. T he defe ndant pur

chase d the Audi for “somewherelike twelve ($1200) or twelve, fifty ($1250).” In his own vehicle, Duke followed the defend ant, driving the Audi, back toward the home of the def endant’s mother. Five or t en mile s before his mother’s house, the defendant and Duke stopped at a car wash, where the

defenda nt said that “he wanted to find somewhere that was well lit to leave the car.” It wa s then par

ked at a shopping mall about ten miles from the house of the defendant’s mother, with Duke returning the defendant to her residence. The defendant explained that he wanted to park the car at a place other than his mother’s house “because cars had been following [him] since he had ca me [sic] from here down to his mother’s.” Duke had not spoken with the defendant since that night. However, he later identified to Tenne ssee Bu reau of Inve stigatio n (“TBI

”) age nts the seller of th

e Audi.
On cross-examination, Duke sai d that it had taken “[a]pproximately four-and- a-half to five hours” to drive f

rom his home

in Georg ia to Cross ville, whe

re the tr ia l was being cond ucted. He agreed that to drive from his residence in Georgia to C rossville by t h e expressway, it would be necessary to go south to Atlanta. To avoid this, a driver would have to take “[c]ountry back roads.” Regar dless of which route was taken, the drive from his residenc e to Cha ttano oga would take “probab ly two and a half hours.” Duke said that the tires on the Audi, when it was purchased by the defendant, were “pretty

worn.”-4-

Michael R. Levy

testified that

in October 1998, he had been living in L ilburn, Georgia, and had advertised a 1987 Audi 4000-S in the Auto Trader for sale . He said

that the defendant responded to the advertisement on October 17, arriving with a friend at Levy ’s residence about 6:00 p.m. The defendant told Levy that he bought cars, repaired them, a nd then sold them. Levy

received $1200 in cash fr om the def

endant f or the ve hicle, givin g him the title a nd a bill of

sale. I dentify ing his receipt for a tire purchase, L

evy said that he ha

d fourteen-inch NTW Viper tires put on the vehicle on October 19, 1996, and had driven the car 30,000 miles since installing the tires, wh ich “we re in good condition, though.” He said that the car had ignition problems and would not start all of the time.
On the morning of Monday , October 19, 1998, the victim and his wife slept later

than usua l; and the victim did not go to a local Hardee’s restaura nt for biscuits for

himself and his grandson, as was his custom. A group

of childr en were coming t o the pumpkin patch on

their farm between 9:00 and 9:30 a.m. that morning. As the victim was preparing to leave fo r the pumpkin pa tch, his daughter telephoned, and, after th

ey talked, h is wife spoke with their daughter, who was ce lebrating her birthday that day . The victim left for the pumpkin patch, and his wife left to join him at about 8:30 a.m.
As the victim’s wife was on her way to meet her husband, she saw their farm hand, Wesley Rex, as he drove “real fast” out of the fa rm road. She jumpedout of her car to meet him as he pulled over. He jumped out of his truck and said, “Som ething’s bad wrong with [the victim]. He’s got blood coming out

of his ear.” She instructed him to telephone 9-1-1 and then proceededdown the farm road to her husband. She saw his truck and got out and touched him. She explained that, “I didn’treally re alize what – I didn’t know what had happe ned to him until I – I wa s holding him, and I felt the back of his head, and he had a big knoton the back of his head, and I looked at his face, and I could see the hole.”
The victim’s daughter, Kim, and emer gency medical workers soon arrived at the scene

. D etective Gary

Roach, of

the Putnam

County Sheriff ’s Depa rtment, f ollowed b y Ch

ief Detecti v e David Andrews , arrive d at about 9:00 a.m. A nu mber of other law enforcement offic ers subseque ntly arrived. Roach went to the victim’s truck, seeing that the driver’s side door was open and that the victim’s body was inside. Wesley Rex said he had seen a black car coming down the farm road, aw ay

from the v

ictim’s t ruck, before Rex had found the victim’s body . After Rex had shown Roach the place where the black car had turned around, offic ers secured the area and covered the tire tracks with tarpaulins to preserve the evidence . Photographs and a videotape were made of the cr ime scene. The following morning, Detective Roach was informed that someone a t th e victim’s farm wa

nted to spe ak with

him, a nd, up on hisarri val, lear

ned t hat it was We sley

Rex. He met Rex at the hog barn where Rex said that he had seen on television the person who had been driving the black car, and that his name was B yron L ooper. Wesley Rex testified that he was 24 ye ars old and had lived on the Burks’ farm since he was three. He had gr aduat ed from high school in Cookeville, where he had attended special education classes and received a special educa tion d iplo ma. He sa

id that he had troub le in scho ol with “my-5-

reading, writing, and

my math.” He ha

d no trouble with his vision. He described his duties at the farm as “tak[ing] care of the animals, and feeding the cows , and just

different stuff.” On the morning of October 19, 1998, he had gone to the Hardee’s re staurant in Monterey for breakfast, and then returned to the barn to feed the animals and prepare f or a group of children com in g that day

for a hayride to the pumpkin patch. As he was on the farm roa d, he “saw a black car come in, so [he] pulled over , and

[he] se en [the victim] coming in behind it.” He described the single occupant of the black automobile as “a white male, had glasses on, had a black jacket on with a pair of gloves on.” The vehicle proceeded down the roa d and then turned around. The victim stopped his truck beside Rex an d asked “who w as in the black car.” Rex replied that he did not know who the occupant was. As Rex drove off, he looked back and saw the black car pull alongside the victim’s gray Dodge pickup truck. Rex continued and when he had gone about 100 y ards, going to the hay trailer, he heard

a “pop,” and thought he had run over gravel or had a blowout. As he looke d in the mirror, he saw “ the black car co ming in be hind” him “

pretty fast.” The black car turned on Highwa y 70 toward Monterey . Not realizing that anythin g was wrong, Rex fixed the hay wagon before returning to the barn. About five minutes later, he passed the victim’s truck, and it appeared that the victim “was re ading so me thing in hi s lap.” Returning on the tractor, Rex again ca me beside the victim’s truck:
An d, so, I went on through and g ot the tractor. I come bac k

outthe same

road on th

e tracto r, and I got up the

re to [the v

ictim’s] truck, and I

seen that there was some blood on his ear, and I thought there was something

wrong, so I g ot off the

tractor and che cked him. I sort of touched him, and I noticed – I said, “Well, I

need to g o tell Kim.”
He then went to the victim’s daughter’s house located at the end of the roadand told he

r to call9-1-1. Next, he found the victim’s wife and told her that “there was something wr ong with [the victim],” and asked an acquaintance who worked a t the fire department come to the scene.
Rex testified that, before that day , he hadnever seen the defendant. He late r told the police that the black car “looked like a Toy ota,” but he was not certain that this was the case. L ooking at a photograph of a black Audi automobile, he said that it appeared to be of “the car that was on the farm that morning,” recognizing it partly because of “the circles on it . . . the seat covers, the top of the seats.” Later

that morning, Rex assisted a police officer in preparing a computer sketch of the man he had seen driving the black car. The following morning, he we nt to the residence of Moe, a fellow farm worker, to see if he was going to work that day and sat with him to watch the news. As he watch ed a mo rning n ewsc ast, he was “[a] hundred percent” certain that a photograph of the defendant being shown was the man he had seen driving the black car on the farm roa d the morning of the ki llin g. Rex then went to Mrs. Burks’ house and told the two deputies there that he “needed to get a hold of Gary

Roach,” who was the only investigator he remembered from

th e p re vi ou s d ay. He told Roach

that he ha

d recogniz ed the ma

n, although he could not remember the man’s name. Rex then identified in court the defendant as being the man dri ving the black car he had see n that morning on the farm road.-6-

At the crime scene, TBI

Agent Don

Carman observed the victim’s body a nd took inventory of the contents of the victim’s pockets. Inside the victim’s pockets were $43, a white handkerchief, a brown wa llet contai ning a driver’s license, a pocketknife , two sets of keys, and some c hange. Carman insp ected t he vic tim’ s truc k but did n ot fin d any fired bull ets or cartri dge cases. The driver’s side window of the victim’s truck had been rolled down and was not broke n. Agent Carman, who was qualified as a firearms identifica tion expert at trial, testified that he examined the bullet recovered from the victim’s body and determined it to be a nine-millimeter c lass jacketedbullet. Carman also received a Smith and Wesson Sigma Series Model SW9V ninemillimeterpistol, as well as a Smith and Wesson nine-millimeter magazine, for examination. After examining test-fired bullets from the pistol and comparing them with the bullet recovered

from the victim, he determined that the bullet was fired from the barr el of the pistol. He testified that the magazine was restricted for law e nforcement use and was banned for nor mal practice.
Dr. Sullivan Smith, an emergency physician at

the Cookeville Regional Medical Center and the Putnam County Medical Examiner, testified that he arrived at the crime scene at appro ximately 9:30 a.m. The victim’s body was still in

his truck, and Dr. Smith observed that he had a bleeding wound from his f

ace. L ater, he signed t he death certifi cate, whic h listed the caus e of dea th as a gunshot wound to the head.
Dr. Charles Harlan testified that he performed the autopsy on the victim’s body on October 19, 1998. The cause of the victim’s death was a g unshotwound to the head. Dr. Harlan stated that the bullet entered the victim’s body “ at the junction of the left side of the br idge of the nose and the left eyebrow

. . . and then trave led through the brain and was recove red in the posterior right calvarium.” The victim’s wound wa s a “dis tant gunshot wound,” meaning that the barre l of the weapon was at least twenty -four inches from the victim’s body when it was fired.
The morning that the victim was killed, Jenny Conley , the manager at the Hardee’s restaurant in Monterey, wa s working at the drive-through window whe re her first customer that morning “seemed like he was in a hurry

and nervous, upset that he had to wait for the correct food.” As she corrected his order, he “slapped t

he money on the counter,” from where the wind blew it into the store. She described the customer, who was wearing a white Oxford shirt

and black, wire-rimmed glasse s, as “[k]ind of s lender, average he ight . . . [d]ark hair that’s kind of feathered on the side.” The custo mer was drivi ng a black, four-door car with gra y interior. Ms. Conley

later identified

the defendant from a photographic lineup a s this customer.
The defendant appeared, ag ain unannounced, at Sergeant Bond’s apartment between 11 p.m. and 1 a.m. the night of October 19, 1998. After being admitted into the apartment, the defendant’s first words were, “I

did it, man, I did it.” When questioned by Bond, the def

enda nt said, “I killed that dude. . . . That guy

I was ru nning against. . . . I busted a cap in that dude’s head.” The defendant was “[n]er

vous, fidgety , pacing all over [Bond’s] livingroom [sic], pacing behind the couch, couldn’t

be still.” The defendant said that he had used a nine-millimeter pistol he had gotten from “a guy he kne w that eithe r had a b usin ess or went t o pol ice auc tion s, wen t to gu n show s, th ings-7-

like that.” He said that, after he shot the victim, “he drove for

about 10 or 15 minutes and threw [the pistol] out the window. ” Disclosing the details of the killing, the defendant said that it had been “kind of foggy

” that morning and he had gone to the victim’s house and shot him. Concerned that he had left tire tracks at the scene, he asked if Bond “knew a place whe re he could get . . . new tires.” He said that, at the shooting, “hepassed a guy on the road that either knew him or might have known him, and – but he didn’t

know whe

ther he s aw him or not, or could tellwho he was.” The defendant questioned Bond, “Y ou’llcover my a ss on this, won’t you?” Bond replied that he would provide an alibi for the defendant, who then said, “I f y ou walke d in in

you r dress b lues with a

ll of those medals you’ve g ot, that would be the best alibi I could ever ha ve.”
The defend ant le ft Bon d’s ap artme nt th e foll owing m ornin g, exc hangin g s uitcases with Bo nd because “he didn’t want any

thing on his suitcase.” As the defendant went to leave, his “car w ouldn’t crank,” so Bond pu shed the d efenda nt’s car withhis own. Bond identified a photograph of an Audi 4000-S a s being the vehicle the defendant was driving. The defendant left Bond’s apartment on Tu es da y, and Bond ’s brothe r tele phoned the following Friday or Saturday to inform him that the defendant’s opponent had been killed. Concerned about what might happen to him, and after advice from others in this regard, Bond telephoned the district a ttorney’s offic e where the killing had occurred.
Gerhard Noll testified that he owned and operated an auto repair shop in Tucker, Georgia. He said that “[s]omewhere between the 11th to 20th” of October 1998, a man broug ht a black, fourdoor Audi 4000-S to his shop, complaining of several problems with the vehicle. The repair order for this vehicle, which had been partially filled out by

the custo mer, bor

e the nam e and signature of “Anthony Loope r” and th e addre ss “Creek Stone Court ” in S tone M ount ain, G eorgia. The cha rge for the repairs was $575. The repairs did not includereplac ing the t ires. The customer , whom Noll said he could no longer identify , told him that he was going to be out of town and leave the c ar for “acou ple of weeks.” However, the vehicle remained there for several months. After rec eivin g a telephone call notifying

him that the person who had left the car no longer wanted it, Noll utilized the vehicle’s paperwork, which he foun d in t he glove compartment, and sold it. The title named “Michael Levy” as the seller and “Joann Milligan,” to whom No ll sold the vehicle, as the buy er. Milligan testified that she had purchased the vehicle from Noll for

$1,700. Because the tags on the car had not expired, she did not change them, and, subsequently , was met by police of ficers as she was about to get into the vehicle. She had not replace d the tires after purchasing it from Noll.
Robert J. Muehlberger, the manager of the forensic labo ra tory of the United States Postal Inspection

Service and a

forensic document examiner, testified that he had examined the signature “AnthonyLoop er” on the original Gerhard A uto House form and on a quitclaim deed and t w o campai gn financi al disclos ure state ments bea

ring the si g nature “By

ron A. Looper,” as w ell as an appointment

of political treasurer form also bearing the signature “By

ron A. Looper.” He testified that, in hisopinion, th

e same pe rson had s igned e ach of th ese docu ments. Nancy Bowman, the administrator of elections for Putnam County , test ified that the candi dates for the 1998 election for the Fifteenth Senatorial District we re Tommy Bur

k s, th e-8-

Democra tic nominee, and By

ron Looper, the Republ i can nominee. Because Senator B urks died fifteen da ys prior to the election, his name was covered over on the voting machines and marked out on the paper ballots, in accord with Bowman’s interpretation of the election law. She said that the defendant had signed his qualify

ing petition as “By

ron Low Tax L

ooper.” Since Senator

Burks died less than for

ty d ay s prior to t

he elec tion, only

the defe ndant’s n ame appe ared on t he ballot

. However, Charlotte Burks, the victim’s widow, won the election, as a write-in ca ndidate, in each of the eight countie s in the dist rict.
TBI Agent Lar

ry O’Rea r testified that he participated in the execution of a search warrant at the residence of the defendant. He ide ntified a shoulder

holster which was found hanging on a c oat rack in one of the bedrooms; however, no pistolor other type of firearm was found in the residence. He did not have an opinion as to whether theholster was desig ned for a particular ty

pe of pist ol, revolver, or semiautom at ic. During his testimony, he pla ced, alternately , in the holster, a .45 automatic and a nine-millimeter Smith and Wesson. Jimmy Hamlet testifiedthat in

March 1999, while employ ed by Meadow s Construction, he was working with a crew “picking up litter along the interstate and the exits.” On March 1, they had startedat Monterey on I

-40 West and were wor

king to ward Cook

eville. H e testifi ed that wh ile “walking up the exit ramp” at Exit 288, he found a n ine-millim eter Smith

and Wesson

pistol. Hamlet su

bsequen tly g ave the p istol to Ran dy M aynard of t he Tenne ssee Hig

hway Patrol.
James Sparkman, an employee of Averitt Express, testified that the weekend f ollowi ng Thanksgiving 1998, he was “four-wheeling” ne ar his grandparents’ proper ty by the Calfkiller River and came “across something shiny in the road.” He said that the object, which was a g un magazine, “had mud on it” and

was on the river bank between two bridg es. Later, his mother telephoned the White County Sheriff’s Depa rtment, informing them of the clip, and was told it would be picked up. However, this did not o ccur and Sparkma n then tel e phon ed the Cumberland County Sheriff ’s Department

because of his concern

in having the clip upon which was imprinted “law enforc ement use only .” Subs equently , he ga ve the cl ip to a TB I ag ent. He s aid that he found th e clip “approximately 20 to 25 miles” south of the intersection of Highway 111 and I-40.
John Kenneth Stansell, Jr., the general manage r for G.T. Distributors in Rossville, Georgia, test ified that his company, located nine ty-six miles from Crossville, Tennessee, sold la w enforcement

equipment. He said that on March 7, 1997, he sold two Smith andWesson SW9V ninemillimeterpistols, bearing serial numbers PAM8264 and PAM7629, to Officer Tim Murphy of the Monterey Police De

partmen t, after Murphy had pres ented him

with a let

ter from the Ci tyof Monterey a

uthorizing Murphy to make the pur chase.
Officer Tim Murphy of the Montere y Police Depar

tment testified that on March 7, 1997, he met withJohn Bowden, Mayor of Monte rey, at City

Hall where Bowden ga

ve him $700 in cash to purchas e two Smith and Wesson Sigma nine-millimeter pistols for him. Thatda y, M ur ph y and Officer BruceCantrell drove to G.T. Distributors in Rossville, Georgia, where Murphy purchased the pistols Bowden had requested, as well as two .40 ca liber pistols, while Cantrell purchased a .45-9-

caliber pistol. Upo n their re

turn to Mon

terey , Murphy

deli vered Bowden ’s pistols t o him at his of fice, where th

e pistols w ere pas sed arou nd and “d ry -fir[ed]”by B owden, Mu rphy , City

Council Member Walt Phillips, and Assistant Chief of Police Terry Rizor. When Mur ph y left Bow den’s office that day , both nine -milli me ter pistols were in Bowden’s possession. However, he la ter learned that Walt Phillips was the recipient of one of the pistols and assumed that Bowden had kept the other one. Su bs eq ue nt ly, in March 1999, after the murder wea pon had been found

and associated wit

h the victim’s death, Murphy wa s twice interviewed by TBI Ag ent Bob Krofssik about his purch ase of the nine-millimeter pistols. Murphy admitted that he lied about “[ a] lot of things” in t he first interview, specifically tha t he originally boug

ht the pistols for himself, not disclosing that he had in fact purchased them for Bowden. He said that he lied during the interviews beca use of fear that he had used his position as a po lice officer “for something other tha n it was meant to be.” Murphy admitted that he ha

d untruthf ully comp leted the F ederal Firearms Transaction Form on March 7, 1997, by answer

ing “y es” to the ques ti on: “I a m the actual buye r of the firearm indicated below. I understand that if I

answer no to this question, the dealer cannot transfer the f irearm to me.”
Sheila Johnson, a secretary in the Putnam County Tax Assessor’s office who also had done housecleaning for the defendant at his residence, testified that the de fendant did not come to the office during October 19-22, 1998. She said that John Bowden also worked in the assessor’s office and was there on October 19, 1998. She noticed that the defendant “seem[ed] a little more quiet” than usual during the three weeks prec eding the victim’s death.
While c leaning the defendant’s residenc e about a month to a month and a half before the victim’s murder, Ms. Johnson saw a handgun under a cushion on the couch. She was contacted by law enforcement officials on October 21, 1998, and g ave a statemen t to TBI Agent D avid

Emerin about the handgun which she said had a “two-tone to it . . . dar ker on the bottom and lighter on top.” After she was shown an array

of gun illustrations in an effort to identify the type of handgun she had seen, Ms. Johnson initialed the illustration of a Model SW9V pistol. However, she felt she had been “[ s] om ew ha t” di re ct ed to ce rt ai n t ype s o f g un s t o i de nt if y. On cross-examination, Ms. Johnson testified that she “felt intimidated. . . like I was the one being tried for this” when she gave her statement. She was not allowed to write her statement, and, to her knowledge, her statement was ne ither tap e-record ed nor vid eotaped . She said t

hat she to ld the assistant districtattorney bef ore trial that the gun illustration shehad initialed was not the gun she had seen at the defendant’s house.
TBI Agent David Emerin testified that the victim’s farm employee, Wesley Rex, came to the Putnam County Justice Center on October 20, 1998, and said that he had seen the man he saw the morning the victim wa s killed on televisio n in a political advertisement. The defendant beca me a suspect and, the next day, October 21, 1998, the TBI called the Putnam County Tax Assessor’s Office and asked employees to come to the justice center three at a time for inter vi ews. Dur

in g Em erin’s interv iew with Sheila Johnson, she told him that once when she was cleaning the-10-

defendant’s house, she

saw the handle area of a g un which was “a gray

on the upper

top area, and

. . . darker on the bottom lower area.” He showed Johnson two gun catalogs which she reviewe d th or ou gh ly, immediately discounting the r evolvers and any

type of rifle or shotg un as the gun she had seen at the defendant’s house. After Johnson was unable to identify a

ny weapon in the

catalog s, Emerin contacted Tommy He

fland, a senior forensic scientist with the TBI Laboratory , Ide

ntific ation Division for Firearms, and gave him Johnson’s description of the gun : “different colored material on it, the ridges onthe slide were from the center of it, all the way back.” Hefland told him that the descrip tion sounded like “so mething from the S igma

series” and

faxed him a photocopy which he showedto Johnson. Johnson identified the gun on the photocopy as the type she had seen at the defendant’s house. At

the time of

Johnson’s in

terview , Emerin d

id not know

what the m urder weapon looked lik

e; he only knew tha t it was a nine-mill imeter because

that was the type of

bullet recovered from the victim. He reduced Johnson’s statement to writing, and the two of them went over the statement “line by

line, periodto period,” with Johnson initialing all corrections and the top and bottom

of each page f or authe ntication purposesand also s igning an affi davit. Agent Emerin was contacted by Joe Bond who express ed a desi re to com e forward with the information he had. Subsequently, on November 3, 1998, Agent Emerin met with Bond in Georg ia where Bond gave him the defendant’s ba g which had a Delta Airlines identification tag bea ring the defendant’s name. Two days later , he met with Bond again, this time at Bond’s apartment in Hot Springs, Arkans as. Th ere, Bo nd gave him an other bag, containing nume rous itemsof clothing and personal items, that belonged to the defendant. Agent Emerin individually bagged the contents of the bag and took photo graph s of th e bag , Bond’svehicle , and Bond. At that t ime, he a

lso interviewed Candace Hill in the presence of he r parents because she was a minor. Georg ia State Representative Michelle Henson testified that the defendant, a friend of hers and her ex-husband, came toher home on Creek Stone Court in Stone Mountain, Georgia, on October 21, 1998, after 10:00 p.m. The defendant was driving a dark-colored Audi automobile. The defendant told her that his opponent had been shot, but she did not ask him for details and he gave none
. At her invi tati on bec ause o f the l atenes s of th e hour , the d efenda nt sp ent th e nigh t at he r ho me. The defendant asked to use her telephone a nd said he wanted to use a secure phone a s opposed to a cord

less phone

but did not say why . The following morning, October 22, 1998, she read a newspaper

article about the victim’s mu

rder wh ich state d that the

authoriti es wante d to talk to the defendant. She spoke to her ex-husband and expressed concern about the defendant’s being a t her r esidence. She asked the defendant wher e he was the day

of the murder, to which the defendant replied“down south.” The defendant told her “[s]omething to [the] effec t” that she did not“need to know any

more information.” After the defendant spoke to her ex-husband on the telephone, she loaned the def endant some money whic h was later reimbursed by her ex-husband. She described the defendant’s demeanor when he was at

her home as “nervous . . . not being calm and j ust sitting

ther e ca lmly [.]” Douglas Henson te stified th at he wa s former ly ma rried to Representative Michelle Henson. He said he had been acquainted with the defenda nt, whom he described as so me wh at “q ui rk y” and known to exagg erate s ituations a t times, fo

r over te n ye ars. On October 22, 1998, Representative-11-

Henson telephoned him whil e he was reading a newspape r article about the victim’s murder. He also spoke to the defendant who was at Representative Henson’s home. The defe ndant asked him if he cou ld borrow $200 to $300, which Representative Henson ga ve to the defendant, Henson later reimbursing her. Henson asked the defe ndant if he was in town at the time of the murder, and the defendant said he w as not. Whe

n Henson a sked the d

efenda nt where he was, t he defe ndant sai d “[s]outh.” Henson asked, “South where?” and the defendant said, “[T]hat’s fact s, an d we’re not going to talk about the facts.”
Randall Kirk Nelson, an employee of the TBI Crime L aboratory assigned to the trace evidence section, identified a series of photographs which he had taken and castings he ha d made of the tire tracks at the scene. Two of the tracks he identified a s having been made by a far m tractor locatednear the victim’s truck and a pickup truck driven by Wesley Rex. He said that he found an unidentified track on the road near the victi m’s ve hicle and at a nearb y turnaro und ar ea. Cas tings were made of

the unidentified tracks, and he turned over these, a s well as the photographs of the tire tracks, to Sandy Evans, the tire tra ck examiner

at the TBI L

aboratory . He said that he had not taken any measure ments to de

te rmin e the stance or wheel base of the ve hicle which had left the tracks because the tracks did not provide him with the information he needed to makethose mea suremen ts. He defined

“stance ” as “a m

easure ment of the

center of a pass enger

sid e tire to the center of a driver’s side tire, the front, and also in the back” and “whee l base” as “a measurement of the center of the back tire to the center of the front tire.”
TBI Speci al Age

nt Sandra Evans, a ssigned

to the micr

oanaly sis sectio n of the c rime la bo ra to ry, testifie d that she compared the tire

track photogra

phs an d castings with those in The Tread Design Guideand utilized Tread- Assist Software to try

to identify the ty

pe of tire which left the tracks. Her conclusion wa s th at the tracks were consistent with a 1997 National Tire and Warehous e “Viper-TR P assenger Tire,” a 1 998 Nation al Tire and Ba ttery “ Viper Radial-T Passenger Tire,” and a 1998 Sears “Viper-T Passenge r Tire,” which are manufactur ed by the Cooper Tire and Rubber Company. Upon cross-e xamination, Evans testified that she had examined the defendant’s Audi automobile on July 1, 1999, and, based upon that examination, concluded that the tir es then on the Audi had no t left the impressions at the crime scene. She said that she had examined the Berett a aut o mobile on November 4, 1998, and that the tires from the Beretta, likewise, were inconsistentwith the tire tracks at the crime scene. After Cooper Viper-TR tires were mounted on the Audi, it produced a “track similar to” that left at the scene of the homicide.
BruceCurrie te stified th at he wa s m anager of technical standards for the Cooper Tire Company and was a

ccepte d as an “e

xpert in his f

ield as a tire engineer.” B ased upo n his examination of

the tire castings from the crime scene, he determined that “the measurements from the three tire castings [were] consistent with the dimensions of a P19560R14 Viper-TR Radial GT tire manufactured by

Cooper Tire & Rubber Company .” He said that between the introduction of this tire in 1996 and the time of the homicide, approximately 15,000 of these tires were manufactured out of the 105,000,000 tires his company manufactured during that period.-12-

Dorothy Henry testified tha

t she had been employ ed in the Putnam County Tax Assessor’s Office from approximately two weeks after the defendant bega n his term as tax assessor in 1996 and workedthere until his successor had taken office after the defendant’ s arrest. The defendant did not come to the office much, “may be once or twice a week

a couple of hours, or something like that,” and employee turnove

r was high. John Bowden came to work in the assessor’s of fice in 1998 and was a friend of

the defe ndant. She

said that, althoug

h Bowde n was supp osed toperform field work, “he didn’t know anything a boutfield work.” She knew no function that he performed. On the day that the victim wa s killed, Bowden was in the office, but the defenda nt was not. Another former employee of the Putnam County Tax Assessor’s Office , Robert Michael Nail, said that

the defendant had hired him in 1997, and he had worked there for fifty

weeks. He said that John Bowden “handed outwork assignments” and “was about first in command.” Bowden “might work . . . about ten hours outof the week, but most of the time, he sat there and was on the computer play ing solitary [sic].” Bowdenwas paid $19,000 per y ear. Oncross-e xamination, Nail said

that he had filed a $1.2 million wr ongful termination lawsuit against the defendant after he was terminated. Because of Na il’s duties in “the field,” he was in the office “may be an hour a day .”
DEFENSE P

ROOF Virgini a Hill, the mother-in-law of State’s witness Joe Bond, testified that she was present in November 1998 when TBI Agent David Emerin interviewed her da ughter, Candace Hill Bond, who was a minor at

the time. Her daughter told Emerin that she had bee n molested that summer by the defendant at Bond’s apar tment. Virg inia Hill a sked Emer in to omit thisinformat

ion from h

is report because her “daug

hter was already

traumati zed,” and

Hill “did not want it drug through the courts, and for the defense to make [her daug hter] look bad.” The next day, she a sked Bond if he knew about the incident. He replied that the day his wife told him that the defendant made her “feel uncomfortable, ” he h ad asked the defendant to leave. When told of the matter, Virg inia Hill’s husband became

more ang ry than had B ond, and, further , had bec ome angry at Bond for not doing more about the inc ident.
Elizabeth Howard, an emergency medical tec hnici an with the Putnam County Ambulance Service, testified that

she had been called

to the crime scene the morning of October 19, 1998, and saw a man, whom she later learned was Wesley Rex, talking with apolice officer. Rex told the officer th at th e b la ck ve hi cl e a t t he sc en e “ co ul d h av e b ee n p os si bl y a Toy ota” and

that Rex did

not know who had been driving.
The former may or of Monterey , Tennessee, John Henry Bowden, testified that the defendant had hired him to work for the Pu tn am County Tax Assessor’s office. He said that his initial statement was untruthful that he had purchased a Smith and Wesson nine-millimeter pistol from a flea market. In fact, he had

obtained two Smith and Wesson Sigma nine-millimeter pistols in March 1997, while

mayor, throug

h a purchase he had authorized for the Monterey

Police Department. He kept one pisto l for h imself and gave the other one to Walter Phillips. After keeping the pistol for “around two or three months,” he sold it at a Crossville flea market to a man, whom he did not know, of “medium build.” However, during cross-examination, Bowde n acknowledged that he

had been-13-

in pos session of

the pistol when he was arrested in December 1997, and that he had owned the weapon until “[s]ometime after the first of the y ear” of 1998.
BruceCantrell testified that, as a Monterey police officer in March 1997, he had gone wi th Officer Tim Murphy

to G.T. Distributors in northwest Georgia to purchase handg uns. He purchased a Colt .45 but did not kn ow what w eapons Mu rphy had boug ht or wha t he did wit

h them.
BruceBuckner, who lived approxima

tely two miles f

rom the victim’s far

m, testified that he had purchased in May

1998, a n ine-millimet er pistol f rom Walter

Phillips. B uckner s aid that h is pistol was “on the end table by the bed at

[his] home” t

he day that the victim

was kille d. Sometime after that, his pistol was stolen from his truck. Angela Clark Harris said that she had been working at the Hardee’s restaurant in Montere y on the morning of the shooting and had talked with Jenny Conley about the behavior of a customer at the drive-through window.
Walter Phillips, the vice-mayor of Mo nterey whe n John Bowden was the mayor , testified that in March 1997 he purchas ed a Si gma nine -millimete r pistol thr

ough B owden’sarrang ement wit h Officer Tim Murphy . He said

that he ha

d sold the pistol, which ca

me with a p lastic carry

ing case, to Bruce Buckner about two months afte r he had purchased it but kept the case. The serial number on the case, PAM8264, was the same serial number on the murder weapon. During cross-e

xamination, Phillips sai d that whe n the pisto ls were de li vered by O fficer Mu rp hy, he was one of the five people at Monterey City Hall whowere passing the guns around, a nd there was a “very

good chance” that he did not leave with the c ase the p istol had c ome in. He did notlater compare the serial number of the pistol he had with that on the case and did not record the serial number of the pistol when he sold it to Buckner.
Reba Looper, the defendant’ s mother, testifie d that the defenda nt arrived at her home in Flowery Branch, Georg

ia, on Wednesday , Octobe r 14, 1998 , and that she had last seen him there “[p]robab ly

Sunday afternoon.” Af

ter he ha d left, she discove

red in he r bathro om that “[t]ow els were on the floor, the shower was in disarray, so I could immediately tell By ron had been there and taken a shower.” This would have occurred during the day on October

19, 1998, while she was at work. Georgia Bureau of Identificat

ion Agen t Loggins conta cted Reba Looper to asc ertain the wherea bouts of her son. She said that she had not known where the defendant was at the time that Agent Log gins was looking for him or for two day s thereafter.
John Dillon, who was qualified as an expert witness in

firear ms identific ation, te stified th at, in his opinion, the bullet recovered from the victim had been fire d from the Smith and Wesson ninemillimeterpisto l fou nd at Interstate 40, Exit 288. He said that three bullets rec overed from the backya rd of the hom

e of Walte

r Phillips ha

d class charact

eristicsconsiste

nt with the ba rrel of the same pistol used to kill the victim, but he could not say for cer tain that this was the case.-14-

John Riley, an expert witness in gunshot re sidue analy sis , testifi ed that he revi ewed TBI laboratory

results of the gunshot residue examinations conducted on the 1989 Chevr ole t Beretta. According to those examina ti ons, gunshot residue was found on the interior and exterior of the Beretta.
Frank Sorrells, a resident of Bonner d ale, Arkansas, whose son had been rec ruited for the Marines by State’s witness Joe Bond, testified, as to the re pu tation of Bon d for truthfulness and veracity, tha

t “[w]ith the people I knew, it wasn’t very good.” Amy Orr testified that she had a relationship with Joe Bond, beginning in May 1997. Bond instructed her not to reveal their relationship to anyone, threatening her fa mily if she did so. Ho we ve r, sh e s ai d s he di d n ot ac tu al ly fee l t hr ea te ne d a nd di d n ot ta ke th e t hr ea t s er io us ly. Tony Richards, the maintenance supervisor at the apar tment complex where Joe Bond lived in 1998, testified that Bond had teenagers in and out of his apartment. He saw two rifles in Bond’s apartment but no handguns. Bond once told him that he had some automatic w eapons for sale.
Lieutenant

Mark Webb of the Cookeville Police Department testified that, after learning on October 23, 1998, t

he defe ndant had returne d to his hous e inCookeville , he went to the residence and spoke with

the defe ndant, who was calm but

“a little bit nervous, too.” The defendant did not allow Webb to enter his residence but agreed to remain visible through the windows.
Brilla Garrett, who had been hired by the defendant and had been the office manager of the Putnam County Prop erty Ass essor’s office, said that she “hardly ever saw [the defendant] in the office.” She said that

she sent and received political faxes for his campaign against the victim. The defendant referred to the sheriff’s depa rtment and the district attorney ’s office as the “g ood old

boy s’ s ystem.” She said th at she ha d told the d

efenda nt that he could not win the election ag ainst th e victim, and he responded, “You think, y ou think.”
Peter McDonald, testifying a s an expert witness regarding trea dprintidentification, said that the tire tracks at the crime sce ne did not match the tireson the def endant’ s Audi. Dur

ing cro ssexamination, he said that he had not considered that the tire prints at the crime sce ne were made by an automobile moving in reverse. He utilized “stance measurements,” although TBI agents testified that such measurements could not be made from the tire trac ks at the crime scene.
PROOF AT THE SENTENC ING PH ASE
Two witnesses were presented by the State. Horace Burks, the brother of the victim, testified that the victim always had been the “leader” in the family , looked to for “advice” and “help.” He s aid that his son, who was “really

close” to the victim, had undergone counseling because of the victim’s death. Kim Blaylock, the oldest of the victim’s three daughters, said that, when she arrived at the crime scene, her mothe r was a t the victim’s truck, holding him. She said that the killing had occurred on the bir

thday of the victim’s middle daughter. The victim’s youngest daughter had-15-

anxiety attacksas the re sult

of her f ather’ s death. Her own da ughter had troub le sleeping

because of the deat h of her g randfa ther. She said that, in taking

her fat her’s lif e, the defendant

“took my grand ma and my mama. Becau se my grand ma, it’s ju st –

it took eve

rything out

of her. My ma

ma has lost 40 pounds.” Testifying

on behalf

of the defendant

were hiscousin, Ca

roly n Wilson, and his moth er. Wilson said that after the defendant’s parents had divor ced when he was a teenag er, his father had begundrinking , which tr

oubled the

defenda nt. She said the defendant had called her “many

times,” saying that “he was afr aid for h is life.”He said, “They ’re all . . . out to get me , all the people in Cookeville .” She believed the defendant wasparanoi d and in need of tre atment. The defenda

nt’s mothe

r, Reba L ooper, sa id that he had bec ome distra

ught af ter she a nd his father were divorced. The de fendant felt that

“every body was following him, and . . . hated him.” She said that the defendant was “really nervous.”
ANALYSIS
I. Exclusion of Defense Witnesses During the defendant’s pre sentation of proof, he attempted to call as witnesses his mother and brother , his mother’s hairdresser, and one of his mother’s neighbors to testify that he had been in Flowery

Branch, Georgia, later during the mor ning of October 19, 1998, the day that the victim was killed in

Cumberland County. After a n objection from the State and extended arguments on the issue, the trial court

allowed only the def

endant’s mother to testify a s to his whereabouts following the crime. T

he exclusi on of the other thre e witness es was a ssig ned as error, as explained by the defendant in his brief:
The Def endant’ s princip al compla int as to the

guilt phase of the trial relates to the trial court’s exclusion of the testimony of three witnesses who would have testified as to Mr. Looper ’s presenc e in Flowery Branch, Georgia[,] a few

hours af ter [the vi ctim] was fata

lly shot. This exclusion raises issues under Rule 12.1 of the Tennessee Rules of Criminal Procedure, and it further implicates the Defendant’s due process right to offer the testimony of witnesse s in his favor.
We will consider the de fendant’s claims after first reviewing the manner in which the exclusion is sue deve

loped in the trial c ourt.
On Februa

ry 17, 1999, f

our monthsafter th

e crime, the Sta

te filed its demand that the defenda nt provide

informat ion as to hi s alibi, if

this defe nse was to

be asser ted at tri al:-16- Comes now the State of Tennessee, by and through the District Attorney Gene

ra l for the Thirteenth Judicial District, William E. Gibson, and make s demand u pon the de

fendant as follow s: A. Notice of whether an alibi defense will be asse rted.
B. The specific

place or places the defendant claims to have been at the time of the alleged offe nse. C. The names and addres ses of the wit nes ses the defendant will use to

support sa

id alibi.
Said offen se be ing as stated in the indictment and occurring on October 19, 1998, between the hours of 6:00 a .m . and 8:45 a.m. Central Standard Time at the farm of [the victim] located next to I-40 near the point w

here the countiesof Putnam a

nd Cumber

land join in Cumberland County, Tennessee

. Alth ough the matter was not raised either at trial or on appeal, we take judicial notice of the fact that Day light Savings Time

was in effect at

the time of the offense. Therefore, f or the purposes of our analysis, we will proceed as if the alibi demand had expressed the period as “between 6:00 a.m. and 8:45 a.m. Central Day light Time.”
On March 8, 1999, the defendant filed a motion r equ esting an extension of time to file a notice of alibi:
Comes the Defe ndant, By ron Looper, b y a

nd throug h counsel, Dougla s A. Trant, to move the Court to permit the Defendant additional time within which to file hi s notice of alibi. Since the Defendant

has been incarcerated, it makes it difficul t to fully comply withthe notice as to exact time s and witnesses who are available. The Defendant

would ask to have until June 23 , 1999, wh ich is a fu ll six ty (60) day s before

trial and

leaves t he State a

mple time to investig ate the witnesses, in order to file hisnotice of

alibi.
On March 17, 1999, the State filed its opposition to the t ime extension requested by the defenda nt, reciting that the deadline already had been exten ded s ixt y day s to April 23, 1999. Additionally, the State alleg ed that there were attempts to obtain “false testimony on beha lf of the defendant.” Denying th at an ef fo rt ha d b ee n m ad e t o o bt ai n f al se te st im on y, the defendant, on March 19, 1999, ag ain aske d for an e xtension of

time to file

a notice of alibi:-17- Comes the Defendant, By

ron Looper, by and

through counsel, Douglas A. Trant, to reply to the State’ s response to the Defendant’s motion for additional t ime within w hich to fil e its notic e of alib i. Ini ti al ly, the Defendant and his counsel vehemently de ny any allegationby t

he State t hat ther e is any effort t o fabric ate an a

libi in t his case. T o investig ate whe re a per son was a

t a partic ular time is notas easy

as the Sta

te tries t o sugg est. That

is espec ially

true when the Defendant, unlike theState, has very limited re sources . The only tim e a per son would remember exactly w here they were is if they were committing a crime. When someone is at a place different than where a crime was committed, it take s some t ime to inve stigate witnesses wh o can recall having knowledg e of the Defendant’s presencea t s ome plac e other t han the sc ene of th

e crime. That is particularly

difficul t when the

Defend ant is in c arcer

ated. The State would suffer no prejud ice in having this notice served 60days befor e trial because

that would

giv e them plenty of time to do their own investigation.
The attorney then r

epresenting the defendant filed a response on May

5, 1999, but with copies both to the

State and the trial court on M ay

3, 1999, st

ating a s follows:
Comes the Defe

ndant, Byron L

ooper, by a

nd throug h counsel, Do ug las A. Trant , to state t hat Mr. L ooper did not kill [the

victim] and was not pr

esent at [the victim’ s] farm the day that he was killed. In that regard, pursuant to Tennessee Rule of Criminal Proced ure 12.1(d), Mr. Looper reser

ves the right to testify

at trial as to where he was at the time that [the victim] was killed. By letter dated May

4, 1999, and filed May

5, 1999, the trial court informed defense counsel that the a libi respo nse was in adequa te and “nonrespon sive to the State’s n otice:”
I received by f ax on May

3rd y our lette

r as well as a copy of a pleadin g denom

inated Re sponse To

Request F

or Notice Of Alibi. It appears that this pleading does not meet the require ments of Rule 12.1. The l ast sente nce of that rule states, “Such a notice by the Defendant

shall state the specific place o r places at which the Defendant

claims to h ave bee

n at the tim

e of the alleged offense and the names andaddresses of the witnesses upon whom the Defendant intends to rely to establish such alibi.”
Unless you can provide

me with som

e authority to the effe

ct that you r respon se complies with Rule 12.1, I would have to find that it is nonresponsive to the State’s notice. Therefore, I exten d t o yo u-18- an opportunity to provide such a uthority; it to be received not late r t han one week from today ’s date or by Ma y 11, 1999. I

f no suc h authority exists, y ou will be r

equired to comply

with Rule 1 2.1 in order to assert alibi as a defense. Copies of this letter

from the trial court were provided to the State and the cle rk. A copy of the letter bears the clerk’s stamp and handwritten file date of May 5, 1999. Subsequently, counsel who prov id ed the alibi response was replaced by other counsel who, in turn, were replaced by yet other counsel who then repres ented the defenda nt at tria l. Howeve

r, no othe r respon se was provided for the State’s alibi demand.
On August 11, 2000, the matter of alibi was discussed as the jury was being selecte d in Su ll iv an Co un ty:

THE COURT: Now , I wa nt to addr

ess somet hing tha

t is some concernto me, particularly be fore we begin voir dire, and that is, that in reviewing some

of your jury

requests, the ones that

were forwarded to me by [defense coun se l] , t he re wa s s om e, if I re ad it co rr ec tl y, there was – made some reference to a n alibi charge, a

nd I w ant t o clarify that before we begin tomorrow, be caus e we’ve had notice down since February

of ‘99 on this issue. [DEFE NSE COUNSEL

]: Your Hon or, our po sition on tha t is , i t would be an ap propria te char ge if and only if the defendant

chose to testify. The def

endant being the only

alibi witness that we have. [STATE ]: And the state

has some p

recede nt that an alibi cha rge is notappropr

iate if it’ s just base d on th e sol e testimony of the defenda nt.
THE COURT: I’ll consider that. So– I mean, I ’ll consider and read that. But now, the rule appears to have bee n complied with, with the state, over

a yea r ago, and there’s been no r esponse to it. So, I’d like to look at bot

h authorities, and

I don ’t want th at referred to in jury sele ction [.]
Su bs eq ue nt ly, in his opening statement to the jury, de fense counsel stated, “You’re g oing to hear from these witnesses who were undisputedly with Byron L

ooper days be

fore October 19th, on October 19th at certain times, and after Octobe r 19th.”
At trial, Rick Dodson, a truck driver w ho had be en drivin g on I

nterstat e 40 in Cumberland County at approximately 8:30 a.m. on October 19, 1998, te stifying as one of the State’s first witnesse s, said that he hadseen “a bright orange flash” “coming from a pickup truck” on a road near-19-

the int erstate, and s aw a “dark blue or black” ca r beside the truck. Late

r that morning, as he was traveling past that same point on his return trip to K noxv ille, he saw that the pickup truck, now covered with a blue

tarpaulin, was sti ll sitting in the same place, “and the cops were all around.” Alth ough he had not been asked on direct examination about drivi ng times between various locations, the following questions were asked by defense counsel during cross-e xamination: Q. What kind of distances do you g o?
A. Well, at that ti me, I worked normally 150 miles out of Bowling Green, Kentuck

y, a nd now I go 48 sta tes. Q. Ok ay. From – I

guess y ou main ly s tic k to the freeway s, don’t you?
A. Well, what

ever ro ad that is l egal f

or me to tr

avel. Q. Ok ay. How far , in y our exper ience, o r how long

in time, in

your experi ence – w ell, maybe y ou’ve never driven this route, from here to Chattanooga?
A. Yeah, I

have in th

e past. Q. What kind of

times are we lookin g at?
A. Oh, I don’t know. I

don’t know wh at the exact miles are. I’m guessing, prob ably

two hours

. Q. Ok ay. And then, have y ou d riven the Chattanoo ga-At

lanta corridor?
A. Sure. Q. And what do you recall that could be done in?
A. It d ep en ds on wh at ti me of th e d ay. Q. Yeah. With

Atlanta, that’s es pecially true, isn ’t it?
A. Right. Q. At the bes t time of da y, w hen it’s a bsolutely optimal?
A. Two, two a

nd a half hours.-20- Q. This scen

e was we ll exposed to

the inter state, wa sn’t it?
A. It wa s, y es. Q. And pretty close, this little road was pr etty close to the interstate, wasn’t it ?
A. It wa s. These estimates of the travel time between Flowery Branch and Monte

rey are con sistent wit

h the testimony

of Russell

Duke , who testi fied as a State’s w itness an d said tha t the drive

from his homein Oakwood, Georgia, about five to seven miles fr om Flowery B ranch, to the c ou rthouse t o testify had bee n four and a half t

o five hou

rs. During the defense proof, Reba L ooper, the defendant’s mother, was called a nd testif ied extensively

about his background. She said that the def endant had come to her home in Flowery Branch, Georgia, on October 14, 1998, a week that she was on vacation. At the time, her other son, Russell, had “just

finished colleg e” and w as living with he r. She said that she had told her hairdresser, Barbara Reed, during a n appointment on Thursday, October 15, that the defendant

was visiting her. Dur

ing her testimony , she prod

uced a c heck, e ntered into evidence over the objection of the State , which ha

d not prev

iously seen the check, and said that she had told Bar bara Reed of a house for rent near the L

ooper residence. She had last seen the defendanton Sunday after noon, October 18, 1998, probably ar

ound “4 :00 or 5:00” p.m. After the defendant left the house that afternoon, she “went in [his] room and cleaned it up, changed the bed, changed the sheets.” She said that she aros e at abou

t 6:00 a.m. on Monday , Octobe r 19, and , after

awaken ing Russe ll and taking the defendant’s puppy , “Low Tax,” for a wa lk, went to work.
Reba Looper said that she arr

ived home from work at about 6:00 p.m. on October 19, 1998, and, while watching the news on anAtlanta t elevision station, heard the

word “Mo nterey .” She did notkn ow if

th e c om me nt ar y wa s a bo ut Mo nt er ey, Tenness ee, or a town of the

same nam

e inanother state, and asked her son, Russell, who k new of n o news ab out “Monte rey .” La ter, af ter Russell Looper had left to have dinne r with his girlfriend, she looked outside and saw a man who then identified himself as Paul Log gins o f the Georgia Burea u of Investigation. He inquired about the defe ndant, and she “told him Byron had been there.” She then told of going into the defe ndant’s room afte r Agen t Log gins lef

t: Q. And what state did you find B yron’s room in, particu larl y the bed?
A. Well, when the G BI c ame, I had only

been in my

bedroom, changed my clothes. I had not even g one to the bathroom. I had not done anything. So, af

ter he left, I went to the ba throom. Towels were-21- on the floor, the shower

was in disa

rray , so I could immediate

ly te ll Byron ha d been there and taken a shower. Q. Well, how do you distingu ish a By ron showe

r from a R

ussell shower?
A. It takes thr ee towels for By

ron to tak e a showe r; two to wa

lk on, an d o ne to dr y on . T he sh ow er is qu it e d is or de rl y. Q. Well, what is the condition when Russell takes a shower?
A. He’s a lot neater. Q. Will you tell the jury

. . . A. No towels.
The State then objected to Ms. Looper’s testimony , asserting that it was presented as alibi proof: [THE STA TE]: Your Honor, may we object at this point, enter an

objection and approach the bench? THE COURT: Yes, sir. (The following proceedings were had at the bench by the

Court and counsel o ut of the h

earing of the jur y:) [THE STATE]: Your Honor, the state has previous ly requested and the Court has ruled as to an alibi defense. THE COURT: Uh-huh (ye s). [THE STATE]: At this point, the state i s conten ding that they a re presenting alibi test

imony from this witness as to the defendant’s wherea bouts at the time of the murder based on wha t she observed, and we’ re objecting to it. [DEFENSE

COUNSEL]: Your Honor, she’s g one nowhe re near this. They reque sted a sp ecific time in their alibi defense. She’s talking about something

that c ou ld have ha

ppened Su

nday night. I t could have ha ppened M onday

night.1 W e take j udicia l noti ce that Flowery Branch is northeas t of At lant a.

-22- THE COURT: Overrule the objectio n at this po int, and I ’ll allow you to ask all of those questions in cross. Continuing her testimony bef ore the jury, Ms. L

ooper said that she had “made” the defendant’s bed on Sund ay , but that it w as “[u]nmade” when she went into his bedroom on the afternoonof Monday, October 19, 1998. Additionally, she said that Russell had left the house that morning before she did, and that the bathroom was in “[g]ood shape” when sheleft. Amplifying he r description of the bathroom, she said that “[t]he shower curtains were closed, the

towels were all put up. Everything

was neat. There

was nothing out of order.” When TBI agents interviewed her the following Wednesday at her workplace, she did not tell them about“the bathroom and the bed in the stat es of condition that they wer e in” because she was “very upset” that her supervisor was not allowedto be with her during the questioning. She said that Flowery Br an ch wa s “ [a ]p pr ox im at e[ ly] 50 miles” from Atlanta. 1 Following the testimony of the defe ndant’s mot her, the trial court addressed, out of the presenceof the jury, the State’s c omplaint that the def endan t was attempting to present alibi te st im on y:
THE COURT: You know, I raised this before w e even began, and I let this la st

witness testify

on this issue , but this no tice that the state filed on this – under Rule 12 of alibi , was produced and presented better th an a y

ear and a half a go. The re’s be en no res ponse to it

. [DEFENSE

COUNSEL]: Nor will there ever be, YourHonor. It’s time specific. We have no way to account, other thanthe defendant himself, a s to his whe

reabout s.
THE COURT: And they’re e ntitled to the notice, as it’s requ este d under the rules, as to who it will be that will vouch for those periods of time. [DEFENSE COUNSEL]: That’s correct. We have no . . .
THE COURT: We haven’t hadt hat. So, wh at y ou’re do ing is circumstantially coming

in the back door here. [DEFENSE

COUNSEL

]: That is co

rrect. THE COURT: And I don’t know that that’s appropria te.-23- [DEFENSE

COUNSEL]: They

limited a time. We d idn’t, Your Honor. THE COURT: Well, they were r equired to, under the rule. [DEFENSE

COUNS EL]: And they g ave the time. And we are explaining his whereabouts after the time specified.
THE COURT : So, y ou will not b e able to discuss th ose times. [DEFENSE

COUNSEL]: We understand that , Y our Honor, nor do we intend to. [THE STATE ]: Your Hon or, may I re spond to tha

t? THE COURT: Yes, sir. [THE STATE]: You

r Honor, if the sta

te was req uired to g

ive time frames that were . . . THE COURT: And you did. [THE STATE]: The time that we have given there is the time of Byron Looper upon the murder sce ne, but the defendant

would have to respond, if he wer

e in Puert o Rico at that time, for instance, that he were there, or that he were traveling , and that he could not

have been at that place at that specific time. [DEFENSE

COUNSEL]: He would only have to respond if hehad witnesses to testify

to that. We have no one to testify to whe re he was at that time, and that is what [the State] is making refer ence to . I agree with him one hundred percent, but we have no witnessto speak to Byron’s pr

esence at that particular time. [THE STATE]: But

what Reba

Loope r has tes tified to will be tied to the fact that he c ould not have been in Cookeville, because he was taking a shower in her home, and that is not proper when this notice is given.

. . . .-24- THE COURT: I ’m goin g to agree as to that respect. So, if we continue down that line, I’m going to sustain the objections on those time fra mes. [THE STATE]: And there will be . . . [DEFENSE

COUNSEL

]: On those t

ime fram es, we understand that, Your Honor.
THE COURT: Y es, sir. Or circumstantially any other wa

y associated with their notice. [THE STATE]: As to any time that would make him . . . [DEFENSE COUNSEL]: (Inte rposing) Your Honor, . . . [T HE STATE] : Your Honor, if he was in Japa

n, the time

frame might be two day s because . . . [DEFENSE

COUNSEL]: Thefallacy of the prosecution’s argument is the following : If notice is g iven, the defenda nt has an o

bligatio n to respondand give the names of any witnesse s who would

testify to his location anywher

e other than the crime scene at the time specified. We have no one to speak to that issue.
THE COURT : “A”. Th

ere hasbeen no r

esponse t o it. [DEFENSE

COUNSEL

]: But that i s previou s counsel

. THE COURT : Call y our next wit ness. [DEFENSE

COUNSEL]: Your Honor, we’ll do it collaterally on some other way

. The parti es con tinu ed to p resent argumen ts on this issu e, wit h the d efense expl ainin g tha t they were presenting no witnesses as to the def endant’s whereabout s a t the time the victim was killed: [DEFENSE C OUN SE L] : [A]ny speaking to where Byron L ooper was during the hours delineated in the state’s demand

for notice can only come from

Byron L ooper, b ecause

we have no witness es to speak to those pa

rticular hours. Th

e state d idn’t ask an accounting of Mr. Looper’s ent

ir e day . It a sked for

where he was dur

ing specific-25- hours. The issue of his not being in Monter ey is specif

ically a ddressed. His prese

nce else where c annot be a

ddresse d by

th e witnesses we’re p

roffer ing bec ause

they don’t know wher

e he was at that time. Only Mr. L

ooper knows that, and

if he cho oses to te st if

y, he will sha

re that w ith us.
THE CO URT: But the last witness was presented to estab lis h circumst antially a fact which would be i n effec t an assertion of an alibi, and that a

ppears to ci rcumvent, or attempt to circumvent the clear mandate of Rule 12. [DEFENSE

COUNSEL]: Your Honor, we don’t s hare the Court’s view.
THE COURT: Well, do y ou have a ny a uthority that would support your view? [DEFENSE

COUNSEL

]: I thin k we can look to ca ses prev

io u sly cited by the prosecution. I had the opportunity to walk through the Howa rd Baker, Jr., Senator Howard Baker , Jr., r[o]tunda, th e Universi ty of Tennessee La

w School this weekend, and after marveling at its beauty, I

went to research

the cases previously

cited by the prosec

ution, or I should say , miscited by the prosecution.

. . . . An alibi defense is invoked by the defenda nt himself if he chooses to take the stand, and c orrobora tion may be nece ssary bef ore the Courtsua sponte must give the instruc tion. But t here is n othing to sugge st in those cases that

anything tha

t Mr. Trant did was outside the rule. If Mr. Trant di d something outside the rule, I fe ar for the prosecution, because should they be so fo rtunate

as to ge

t a conviction, despite th

e paucit y of evidence they

have produced, then we will be re

visiting t his issue th

rough h abeas c orpus, and the competence of Mr. Trant will well become the foc us and the issue.
THE COURT: Okay. Yes, sir, y ou h ad someth

ing you want to present ? [THE STATE ]: No thin g fu rther, just a letter from this Court dated May 4th to Mr. Tran t, and it ma kes a fin ding, a nd I q uote fro m it: “Unless you can provide

me with some authorit

y to the effect that your response complies with Rule 12.1, I would have to find that it’s2 We note th at two oth er a tt orne ys had r epre sen ted th e def enda nt in th e i nt eri m. -26- nonresponsive to the state’s notice,” and y ou extended to him an op po rt un it y to fi nd so me au th or it y. So, what they have

filed is something that has been determined to be nonresponsive as an alibi notice.
THE COURT: Oka

y. I want tomake you file that – make sure we’ve got . . . Oh, you f

ound it for me, have y ou?
DEPUTY CL

ERK SMI

TH: Yes.
THE COURT: Oka

y, g ood. Where

is my letter? Do y

ou have it there, in response to this? Apparently, he’s rea ding a letter that I sent Mr

. Trant. Wha

t was the d ate of the letter ? I’m sur e it’s in th e correspondence file at the clerk’ s office. [THE STATE ]: It’s dated May 4th. I was reading

from paragraph 2. And there is a reply

fro m Mr. Trant the next date that addresses the defendant’s right to testify in his own behalf. [DEFENSE

COUNS EL]: Your Hon or, that’ s not a document to which we are privy

. Mr. Trant ap parentl y ha s not felt it appropr

iate or necessa ryto give u s documen

ts that he w ould have

receiv ed in return. 2
THE COURT : Here, I ’ll let y ou look at it. (Counsel for the defense reviews document.) [DEFENSE

COUNSEL]: It appea

rs to be a restatement

of what Mr. Tr an t h ad fi le d p re vi ou sl y. DEPUTY CLERK SMITH : Be May 4th of ‘99?
THE COURT: Yes, uh-huh. And May 5t h, the response from Mr. Trant. Here are the

two documents. I

want to make sure the record has that in there. [THE STATE]: We’d just like to requ es t an order that, before they go into it in the pre sence of

the jury , they

have a ju ry -out.-27- TH E COURT: Yeah. And I’m g oing to have to say to you that, I don’t find that Rule 12 has beencomplied withhere, and I’m g oing to cut that testimony off, so. And I agree with you, if Mr. Looper takes the witness stand, he may a ssert it, butthe state wa s fair in t heir notice under

Rule 12, and there has n’t been a reply that comp lies with Rule 12. [DEFENSE

COUNSEL

]: Y our Honor , I c an’t spe ak for Mr . Trant, thou gh I ca

n imagine his rea soning. I susp ect, and the state has narrowed its param eters, s urely

Mr. Tran t has prop erly

responded to those parameters. I understand the Court’s ruling. I would make certain offersof proof

. I wo uld alsoask the Court for guidance in the following fa shion: Should Mr. Looper take the stand, is the Court then saying tha

t that which would be physically corroborative, but not testimonial corroborative, of the – I shouldn’t

say that. Phy sically corroborative, but not direct testimony of his whe

reabout s at the time of the mur

der, is the Court g oing to pr eclude t hat?
THE COURT: I’m g oing to ha ve to liste n to each one of those issues

. . . [DEFENSE COUNSEL]: Well, Your Honor, . . .
THE COURT: Be ca us e c le ar ly, the notice requirement here is to put the state on e

ven footing so that they

can respond to what efforts that are being made in the furthera nce of the alibi defense.
Su bs eq ue nt ly, the three witnesses whose testimony placed the defendant in Flowery

Branch, Georgia, as early

as an hour and fifteen minutes after the per iod set out in the State’s Rule 12.1 alibi re qu es t, te st if

ie d o ut of th e p re se nc e o f t he ju ry. [DEFENSE

COUNSEL]: Yo ur Honor, before the jury comes back in, we’d like to call in a

witness, two witnesses, actually, pe rhaps three, and make an offer o f proo f of the type of testimony that the Courthas prel

iminarily indicate d it’s not g oing to a llow, and just out of an abu ndance of cauti on so that we don’t have tha t brough t up in examinatio n before

the jury , we’d lik

e to offe r it at this p oint.
THE COURT : Are y

ou talking about on th

e alibi? [DE FENSE

COUNSEL]: It’s not clea rly alibi, Your Honor, an d that’s my point. I

t concerns periods of time not in the state’s b racket s3 Flowery Branc h, Georg ia, is loc ate d in th e Eas ter n Time Zone. Alt

hough the witn esses from Flower y Branch did not so s pecify , we pres ume that the various times t o which they test ifi ed were expres sed as Eastern D aylight times. -28- of requirement. None of the three witnesses have anything to do with those periods of time.

. . . . THE COURT: All right, I’ve been hand ed the case of State versus Coury , 697 S.W.2d 373, which is annota ted behind the rule . I re ad it at lunch pri or to this being id entified , and I ’ve had m

y la w clerk a lso engaged in doing some research

on the issue as well. So, I’m willing to hear the offer of proof. I ’d say this is as good a time as any other.
Barbara Reed testifiedthat she was a hairdresser in Flowery Branch, Georgia, 3 and had “been doing Reba[] [Looper’s] hair about 20 years.” On Octobe r 15, 1998 , Ms. Looper tol d her abo ut a house for rent

in her neighborhood, and she went on Monday , October 19, a day off from wor k, to look at the house. She described wh at she sa w as she a

rrived a t the house , which wa s off Par adise Point Road: Q. On the way to the Paradise Point location, at 11:00, or somewhere aroundthat time, what time was it when you passed Reba Loo per’s house?
A. About 11:00, 11:00. Q. All ri ght. Di d you obse rve anyone or anythi ng?
A. Yeah, I just saw By

ron playing

with his dog in the front ya rd. Q. And that’s 11:00 or . . .
A. Uh-huh (ye s). Q. That time?
A. Yeah, c lose to it. Q. Okay. On the 19th of O ctober, 1998?
A. Uh-huh (ye s).4 As to this testimo ny, the de fenda nt argue s that he “is the refore entitled to the missing w itness infere nce – this

Court may infe r that had the age nts bee n called , they wo uld no t have c ontr adicted Rus sel l Looper.” However, we disagr ee with this asse rtion. A s exp lained in Ne il P. Co hen et a l., Tennessee Law of Evidenc e § 4.01[ 14][a] (4th ed. 2000), the permissive i nference result ing from a missi ng witness permit s either a mi ssing wit ness inst ru cti on or (con tinued ...) -29- During cross-e

xamin ation, Re ed said that in June 1999 she and Ms. Looper had “started talking about things” and, up on being reminded of learning a bout the rental house from Looper , Reed then “told her that [she] had saw [sic] Byron” on O ctober 19, 1998. At the time of this conversation, the two were

in the beauty shop whe

re Reed worked, and no one was with Ms. Loope r. She said that another reason she knew “it was the 19th, because we’d had a birthday party

on the 18th” for

herself and her nephew.
Paul Voel ker testi fied tha

t he was a neighbor of Reba L

ooper in Flowery

Branch, Georgia. He specifically r

emembered theweekend of October 17, 1998, two y ears earlier, be ca us e o n t ha t d ay, “which was the start of [his] vacation, [he] came home from work around noonish in a reallypissedoff mood. ” He wor

ked at Kr oger st ore numbe

r 324 in Dunwoody, Geor

gia, on the midnight

shift. The following morning, Sunday , October 18, he noticed a blue Bere tta automobile, which he had never seen before, parked

on the g rass in fr ont of Ms. Looper’s house. On Monday , October 19, he saw that the car was still parked in Ms. Looper ’s yard. As he was sitting on his porch, “[s]omewhere between11:00 and noon,” he saw two men, one of whom he recog nized a s Russell L

ooper, c ome outof Ms. Looper’s house. He saw the second man again that da y as the man was driving away from Ms. Looper’s house around 2:00 p.m. Voe lker identified the second man as the defendant. Voe lker said that “[i]t’s like 63 feet” from his porch to that of Ms. Loop er, and t hat he had observed the defendant by

using a monocular.
Voel ker said that he had not spoken with Reba Looper a bout this matter until July 2000, when “she told [him] that she was – they just needed to find someone in the neighborhood that had seen [the defendant].” At the end of July 2000, lessthan two weeks before jury selection began, he told the attorneys re

presenting the defendant

at the trial that he had seen the defendant the day

of the homicide. He said that

he had no t told

TBI ag ents who had interviewed him on October 21, 1998, about seein g t he defe ndant tw o days ear lier because they

asked if he “had seen a car that they described sitting in the front lawn of the house.” However, the name “By ron Looper” was not mentioned by them; and he wa s asked by an a gent of the Georgia B ureau of Inve stigatio n, in November 1998, only to re port if he saw the cocker spaniel dog, “ Low Tax.”
Russell Looper, the defenda

nt’s brother, testified that in October 1998, he was living at his mother’s house in Flowery Branch, Georgia. He said that on Monday, O ctober 19, 1998, he had seen the defenda

nt “going out whe

n [he] was c oming in ” for lunc h “[a ] little bit before noon.” He returned to the residence after

work, between 4:00 and

5:00 p.m., and did not see the defendant. On Friday or Saturd ay

of that week, he le arned th at his bro ther had been ch arged

with the vict

im ’s murder. He said

that he talked with two TBI agents on October 21, but did not remember telling themthat he had last seen the defendant the Thursday or Friday of the previo us week, explaining “that was a relatively

stressful time in our lives.” 44 (.. .cont inu ed) app rop riate clos ing argu ment “not [in g] the abs ence of the witnes s and ask[ing] t he jury to dr aw a ne gati ve i nfe rence fr om the absence.” In the present appeal, the matter arose during a hearing on whet her t he undi scl osed al ibi witnesse s wou ld be allowed to test ify bef ore the jury. Since the wit nesses were not all owed to tes tif y, t he inf erence i s not appl icable. Fur ther, we not

e tha t d ur in g the St at e’ s p re se nt at io n o f pr oof , n ei th er Li sa Li ng wa ll no r Ge ra ld Pre sl ey , t

he tw o TBI agents who had ques tioned Russe ll Loo per, tes tified. Sinc e the S tate had rested four d ays be fore R ussell Looper was call ed to tes tif

y, an d the St ate had no re ason to kno w that he would be p resen ting an a libi for the defen dan t, there wo uld not appear to hav e bee n any re ason for the S tate to ha ve these two ag ents ava ilable to ref ute that whi ch t hey c ould n ot have a nti cipated. -30- During cross-examination, Russell Looper was questioned about when he first revealed that the defendant had been in Flowery Branch the day

of the homicide: Q. And at what point did you come for ward and make that information known?
A. As I said – to wh om are you a skin g? Q. Well, let me

step back. That wa s importan t, wasn’t it?
A. Yes, it wa s. Q. And it’s important – the importance is clear here today . You’re an alibi w itness for

him; righ t?
A. Right. Q. You cam e to th e preli minar y hearing?
A. Yes, I did. Q. And did you talk to his attorney s that day and say , “He y, I sa w Byron this morning , the morning of this murder”?
A. I don ’t remem

ber whe n the firs t day

was that I

was with th

em. Q. But you learne d the facts at th e p reliminary hea ring when the murder took place?
A. Yes, wha

t – what da

y it t ook place , ye s. Q. And you knew in y

our mind at that time you had seen him. . .
A. Yes, I knew it.-31- Q. . . . in Georgia?
A. Yes. Q. And he couldn’t have been at the murder sce ne?
A. If –to the best of my knowledg e, when that took place, there was no time frame established with when that had taken place. Q. At the preliminary he aring, . . .
A. Yeah, I don’t. . . Q. . . . you didn’t understand the time fr ame?
A. I don’t – I don ’t reca

ll there b eing a s pecific

time frame stated, no, sir. Q. But you – y

ou’re – what kind of education do you have?
A. Well, I have a high school education, and a majority of a bachelor’s degree. Q. Ok ay. And you rea

lized that you

had seen your

brother at noon, 11:00 central time on the date that he w a s accused of killing [the victim]?
A. Right. Q. Bu t yo u n ev er ca me fo rw ar d t o t el l a nyb od y?
A. Right. Q. Until when?
A. Until late

r that – a couple of months, I

guess. Q. A coup le of m onth s afte r the k illi ng?
A. That’s when – when – th e next time

that I saw his attorney s, that’s when I spoke with

them. Q. Wh at at to rn ey?-32- A. I don’t recall which one it was, to be honest with you. Q. Not these?
A. No. They we

ren’t on the case at that time. Q. Was it Mr. Tr

ant?
A. I don’t know, to be honest with y ou. Q. Was i t at or about the ti me of t he prel imin ary hearin g?
A. I believe it w as afte

r that poin

t. Q. How much after?
A. I don’t remember, to be hone st with you.
On redi rect examinati on, he was asked to identify which of the defendant’s previous at to rn eys he had told of the fact that the defendant had bee n in Flowery B ranch the day of the homicide: Q. Mr. Looper, when y ou spoke to the attorney

that represented y our brother before Mr. Cordova and I , do you remember his name?
A. I do n’ t. I’m so rr y. Q. Did you speak to him in person or ove r the telephone?
A. I can’t rec all, to be honest with you. Q. Does the name Doug Trant from Knoxville. . .
A. I rememb er Mr. Tr

ant, but I

can’t, y ou know, sp ecifica

lly re me mb er if

it wa s h e o r a no th er at to rn ey. Q. Larry Warner, Howard Upchurch, Jerry Burge ss, Lione

l Barre tt? Do any of those n ames ring

a bell?
A. You know, there was [sic] conversations between several an d different ones, y ou know. I

spoke with

Mr

. Burgess on several occasions.-33-

Following the testimony of Russell L ooper, the attorne

ys a rgued at gre at length as to whether the three witnesses should be permitted to testify bef ore the jury. The defense noted that both Paul Voelker and Russell Looper were known to the State because both had been i nte rviewed by TBI agents

. Additionally, they contended that a proper response had bee n made to the State’s alibi notice demand:
In the caseat bar, there is a demand narrowly specified, p arameters are limited. We’re told that the state has interest in th e alibi as to the hours 6:00 A.M. to 8:45 A.M. Central Time, and that would be transliterated to 7:00 A.M. to 9:45 A.M. Eastern Time. The response in the case at bar, and the r espon se itself differs from the situation in Coury , is to ans wer that time spec ific que stion. (A) is answered, (B) is answered, an d (C) is an swered . At the ve ry least, Your Honor, andI re spectfully s ugge st that todo otherwise would be to risk reversal of

the conviction we believe will never occur, at the very least, Pa ul Voelke r’s testimo ny must be admitted, because the state had knowledge of the witness’s existence at least, at lea st 20 months before the defense.
The State responded that the defense had “known about this [testimony] for months, and they made an intentiona

l strateg ic decis ion to not di sclose it t o the state :”
Your Honor, in this particular situation, in this case a t bar the prejudice that would result to the government from the defend ant’s failure to disclose is great. It’s a n ambush. They’ve

brought in three witnesse s. At least one of which was interviewed in the past, he’s changed his story. T he prejudice suffered by the defendant if the san ction of exclusion is employed is minimal. The reasons fo r nondisclosure in this case, Your Honor, are obvious. They’ve known about this for months, and they made an intentional strategic decision to not disclo se it to the state, and the purpose, the only reason for that strategic decision

would be to ambush the state with this information. We had some discussion of alibi even as late as the jury sel ectio n pro c ess in Sullivan County. The defense wa s well aware they were going to call

these witnesses, and they made no mention of it. It was in the context of whether

or not an alibi charge would be given by the Court based solely

on the tes timony

of the de fendant

. The defense

responded that if the State had been adversely affected by not having a

dvance no ti ce of th e t hr ee wi tn es se s, it sh ou ld be gr an te d t im e t o r ef ut e t he ir te st im on y: If the state truly believes that it has suff ered a detriment, then let the state interview the witnesses, let the state have as much tim e as it-34- needs to refute

the witne sses, if r

efute the witness es it ca n. Most im po rt an tl y, these wit

nesses sp eak not to

alibi in its literal and legal sense. They spea

k to an issue pennon-braided [sic] by McCra cken Poston in his opening statement, when McCracken Poston said: “The defendant By ron Looper did

not kill Senator Burks, could not have killed Senator Burks, and

would not have killed Senator Burks.” We mean to establi sh the first by rea son of the latter two. We’ve already attempted, I believe succeeded in establ i shing the one, there is no rea so n. We now show that he could not physically have done so. That is not alibi. Whatwe are providing

through these wit nesses is , that he could not have been in Tennessee . . .
THE COURT : Is th at not an a libi? [DEFENSE

COUNSEL

]: That is not

alibi, Your

Honor. That is not an alib i. An alibi is, th at he wa s elsewhe re, not th at he wa s not in Tennessee. It is a person speaking to . . . where hewas at the time of the murder, and there is no one other than the defe ndant who can speak to t hat.
The trial court concluded that the defense wasattemptin g to present alibi proo f and rul ed that, because the defe nse had n ot proper

ly r esponde d to the alibi notice request, the testimony of Bar bara Re ed , P au l V oe lk er , a nd Ru ss el l Lo op er co ul d n ot be pr es en te d t o t he ju ry:

All right, let’s talk about the last avenue of y our attack, in which you ba sica lly a

re plac ing this r

esponsibi lity

on Mr. Tra

nt. H is to ri ca ll y, you have to point out that this record will demon strat e the proper notice under Rule 12, Februar y t he 17th, 1999, an opportuni ty to extend the period of time for Mr. Trant to respond, and later that year, a

response from Mr. Trant, which has been identified earlier, which this Court found to be not satisfactory, a n d tha t response communic ated toMr. Trant. But the more important issue here is, that

I re cognize d the req

uest of the defen se team for an alibi in their re sponse

to my inquiry

about jury instructions, and I queried the defense, current defense te am, in Blountville about this issue, and was giventhe response, as previously been a dvanced, that this didn’t deal with alibi. If it was to be advanced, Mr . Looper would be the sole witne ss. So, it appe ars to me

that this current defense team was knowledg eable

in all respects of the peril assoc iated wi th Rule 12, and Rule 12 is very specific . T he state has met its re quireme nt to notice over a ye ar ago. Thi s defendant, his current team, as well as-35- his predecessor team, has known of the particula r notice, and they have not responded to it. Knowledge of a particular witness does not equate to knowledge that witness will be used for an alibi. And if I were to construe Rule 12 in the very limited way that is advanced by the defense

team, this rule would have no value, or purpose, or reason whatsoever. It ca

nnot be read in that manner. So, for all of those reasons, y our reques t i s denied, and these witnesses are excluded.
The trial court allowed defense counsel to make a statement for

the record as the defense was prepar ing to pr esent an other wit

ness: Your Honor, be

fore we do, I ’d like sim

ply to put on the record two observations. And if my recollection differs from the Cou r t, I apologize.
But the question that was propounded to counsel was couched as if the defendant

were to take the stand. I ndeed, we submitted to the Court, and therefore we ga ve the Court notice, that if the defenda nt did take the stand, he would be entitled to an alibi instruction.
With regar

d to the issu e of whe

ther or n ot the pro ffere d witness, particularly

Paul Voelker, spoke to an alibi or to some other aspect of the case, I would point out to the Court t hat which might not seem obvious, it is no t impossible for By ron Looper to h ave bee n in Monterey at 8:30 in the morning

and bee n in the Ga

inesville , Georgia area at 11:30 that same morning. Thus, during arguments to the trial court as to Georgia witnesses who would testify that the defendant was in Fl owery

Branch late on t he mornin g of the crime, th e defen se asser

ted that th

is testimonywould show

both that he could ha

ve been near the crime scene du rin g a portion of the periodin the alib i demand, “it is not imp ossible for By ron Looper to

have been in Monterey

at 8:30 in the morning and

been in th

e Gaine sville, Ge orgia a

rea at 1 1:30 that s amemorning,” and that he could not, “[w]hat we are providing throug h these w itn esses is, that he c ould not ha ve been in Tennessee.”
We do not understand the purpose of counsel’s asserting the de fense testimony of the Flowery Branch witnesses would have allowed the def endant to have been

in “Monterey”

at about the time the victim was killed at his farm. First, the alibi notice specified that the crime occur redat the victim’s farm; and, the defendant’s response stated that he was not at the victim’s farm on the date of the crime. It is not clear w hether the defendant’s trial counsel was contr a dictin g this response, believing these two locations to be the same, or whe ther he was claiming that, while the-36-

defendant was not a

t the victim’s farm

the day of the hom

icide, he could have been in Monterey during a portion of the period i n the alibi demand and later that morning in Flowery Branch. Ad di ti on al ly, we are not certain of the significa nce of “8:30” and “11:30” or of the three-hour gap in these times, and whether both are expresse d as being

in the same time zone. Although 8:30 a.m., Central Daylig

htTime, was the approximate time of the shooting, the defendant’s Georgia witnesses placed him in Flowery B ranchas early as 10:00 a.m., Central Daylig ht Time, approximately an hour and a half after the crime. To review the issue of exclusion of the witnesses, we will presume that successor counsel was speaking of the scene of the crime by

referring to “Monterey .”
The benefit

to the def endant of these co ntradic tory

argume nts is apparent. Claiming that he was in Mo nt er ey f or only a portion of the pe riod set out in the alibi demand notice enabled the defendant then to argue that proof of his being in Flowery B ranch later that same morning was not proof of alibi, because such proof must cover the entire period in which the crime wa s committed. Yet, by then arguing the reverse, that being in Flower y Bra nch made it “impossible” for the defendant to have been in Monterey to commit the crime, the non-alibi had the evidentiary effect of an alibi.
To assess the defendant’s vary ing claims that the trial court erred in excluding the testimony of Barbara Reed, Paul Voelker , and Russell Looper, we will review the applicable law.
The circumstances under which a defenda nt must informthe State

that an a libi defe nse will be prese nted are set out in T ennesse e Rule of Criminal Pr ocedure 12.1, whic

h provide s: (a) Notice by

Defend ant. Upon

written d

emand of the district attorney general stating the time, date, and placeat which the alleged offense was committed, the defendant shallserve within ten day s, or at such diff

erent tim e as the c ourt may direct, upon the district attorney gener al a written notice of an intention to offer a defense of alibi. Such notic e 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 and addre sses of the witnesses upon whom the d

efenda nt intendsto rely

to establi sh such al

ibi. (b) Disclosure of Information and Witness. Within ten day s thereafter, but in no event less than ten days be fore trial, unless the court otherwise directs, thedistrict attorney g eneral shall serve upon the defendant or

the defendant’s attorney

a written notice stating the names and addr

esses of the witne sses upon w

hom the sta

te intend s to rely to establish the defendant’s presence at the sc ene of the alleged offense and any other

witnesses to be relied on to rebut testimony of any of the defendant 's alibi

witnesse s.-37- (c) Continuing

Duty to Disclos e. If prior to

or during trial a pa rty learns of an additional witness whose identity, if known, should have been included in the information furnished under subd ivi sion (a) or (b), the part

y sh all prompt

ly notify the other

party or t he oth er part y's attorne y of the existence and id

entity of such a dditional witness. (d) Failure

to Comply . Upon the

failure of eithe r party to comply withthe requirements of this rule, th e court may e xclude the testimonyof any

undisclos ed witnes s offered by such party a s to the defendant’s absence from or pre sen ce at, the scene of the alleg ed offense. This rule

shall not limit

the right of

the defendant to testify in his or her own behalf. (e) Exceptions. For g oo d cause shown, the court may grant an exception to any of the requirements of this rule. (f) Inadmissibility of

Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in con nection w ith such intention, is not admissible in any civil or criminal proceeding against the pe rson who gave n otice of the intention. Reviewing the intendedtestimony of the three excluded witnesses, the defendant on appeal argues that “[f]or purposes of Rule 12.1, ‘alibi’ t

estimony should be c onstrued

to encomp ass only that specific time period designated by the State in its demand for notice.” Thus, by this view, the State’s alibi demand did not require disclosure of

these wit nesses. I n reviewing the e

fficac y of this claim, we first will ascertain whether the exclude d witnesse s were, as the trial court determined, “alibi” witnesses.
Barbara Reed, Reb a Loo

per’s ha irdresse r, testif ied as to th

ese main poin ts: on Mo nd ay, October 19, 1998, (1) she was looking for a house to rent and looked at an available house in Reba Looper’s nei ghborhood ; and (2) while looking at the house at 10:00 a.m., Central Day light Time, she saw the defendant, play ing with his dog, in the front y ard of Reba Looper ’ s house in Flowery Branch, Georgia. Paul Voelker, a neighbor of Re ba Loo pe r, te st if

ie d a s t o t he se ma in po in ts : ( 1) on Mo nd ay, October 19, 1998, between 10:00 and 11:00 a.m., Central Daylig ht Time, he saw Russell Looper and another man on Reba Looper’s fr ont porch in Flow ery B ra nch, Georgia; (2) at about 1:00 p.m., Central Daylig

ht Time, later that day, he saw the same man get into a car and drive awa y; and (3) the man he

saw on bot

h occasi ons was the defendant.5 On a ppe al, the def endant r epeats t

his ar gument, applyi ng the pr inci ple th at an ali bi mus t cov er the ent ire peri od in which the cri me was comm itted, asserting “the presenc e of the sh oote r quite o bvio usly was n o lon ger re quire d to acco mplish the crim e after the fatal wou nd wa s inflicted.”

6 As we ha ve no ted, am ong th e argu men ts of trial defense counsel as to why the wi tnesses f rom Flowery Branch, Georgia, should be al lowed to t est if y, couns el s aid of

the ir t est imony , “ We now show that he could not physi cally have [killed the victim].” -38- Russell Looper, the defenda

nt’s brother, testified as to this main point: he went home for lunch in Flowery B ranch, Georgia, a “little bit before noon”on Monday , October 19, 1998, and, as he entered the house, the defendant wa s leaving. Thus, various items of

information, much of it unrelated, were presented by these wit nesses. However, the commo n elemen t in their offered testimony was that on October 19, 1998, as early as 10:00 a.m., Central Daylight Time, one hour and fifteen minutes after the period set out in the State’s alibi demand, the defe

ndant wa s in Flowery

Branch, Georgia, a

four-and-a-half- to five-hour dr ive from the crime scene. The practical e ffect of this claim, if true, would be t o establis h the geo graph

ic impossibilit

y of the defendant’s killing the victim. However, this evidence wa s not “alibi” proof, according to the defendant, for two reasons: (1) it estab lished his whereabouts only outside the periodin the State’s alibi demand, saying nothing of

where he was during

the period; and (2) since being in Flowe

ry Branch also allo wed him to have been in Monterey

during a portion of theperiod in the alibi de mand, h is proof w as not of a libi which

must cove

r the ent ire per iod when t

he crime was committed. 5 Thus, by the defendant’s argument, witnesses establishing his wherea bouts outside the peri od in an al

ibi deman d were n ot requir ed to be di sclosed b ecause it was not p

roof of a libi.
To support th

is view of what is not required to be disclosed pursuant to an alibi demand, the defendant relies upon several sources. He points out that in Christian v. State , 555 S.W.2d 863, 866 (Tenn. 1977), our supreme court defined alibi as “e vidence which if

believed would establish that the defendant was not present at the scene of the alleged crime wh en it allegedl y occurr ed.” Ad di ti on al ly, he notes that in 11 David Louis Ray bin, Tennessee Pra ctice: Cr iminal Practice and Procedure § 28.20, at 15 (1985), it is said that “[a]libi is a claim by the defendant that he was elsewhereat the time of the offense and therefore c ould not be the person who committed the offense.” Utilizing these definitions of “alibi,” the defendant argue s that“[t]he proffered testimony of Barbara Reed, Paul Voelker and Russell Looper wa s not ‘alibi’ evidence,” because they testified only as to a time following the period set out in the alibi demand.
The defendant’s view of an alibi, used to avoid the disclosure requir ement , igno res the function of an alibi. Black’s Law Dictionary

72 (7th ed. 1999) defines “alibi” as “[a] defense based on the physical

impossibilit

y of a defendant's g

uilt by placing the defe ndant in a location other than the scene of the crime at the relevant time.” 6 To e stablish t he materiality of the testimony, and resulting harm because of its exclusion, the defendant, in fact, utilizes the “geog ra ph ic im po ss ib il it y” of his having committed the crime, which the excluded witnesses would have established.-39-

If the distan

ce and me ans of tr

avel would have pe

rmitted the defendant both to have been at the victim’s farm to commit the crime and, later that morning, to have bee n in Flowery B ranch, the proof would not have estab lished an alibi. However, since the trial testimony established the impossibilit

y of his being in both places at the rele vant times , proof th at he wa s in Georg ia would have established an alibi, contrary to the refusa

l of one of the defe ndant’s a rgumen ts to so recognize. The time and distance components of alibi proof were explained in Owens v. State , 809 So. 2d 744, 746-47 (Miss. Ct. App . 2002):

Black’s Law Dictionary

suggests that the defense requires ev i dence that the defendant’s location at the relevant time w a s “so removed therefrom as to render it impossible f or him to b e the guilty pa rty.” Black’s Law Dictionary

71 (7th ed . 1999). T

hus, a defendant

in close enough physical

proximity to have committed the crime may deny the criminal activity and may affirmatively a ssert that he was elsewhere at the critical time. However, if the asserted alternate location is such that, b as ed on the v ersion of events c ontended

for by the defe nse, it would r emain within the realm of phy sical possibility for the defend ant to ha ve committed the crime, then the defense is nothing more than a denial and would not rise to the level of alibi.
Alth ough a rguing that we should not apply its holding, the defendant recognizes what , ap pa re nt ly, is the only

Tenness ee deci sion consi derin g p roof of alibi by infe rence or implication, Statev. Coury , 697 S.W.2d 373 (Tenn. Crim. App. 1985), wherea defense witness testified that he had seen Coury in M esa, Ar izona, bet ween 7:0 0 a.m. and

7:30 a.m. t

he mornin g of the

5:15 p.m. sniper shooting in Williamson County, Tennessee. As to this witness, the issue raised on appeal was whether the trial co urt had erred in allowing the State to question him about his 1956 Tennessee convicti on for g

rand lar ceny : Ini ti al ly, we note that the State objected to Francis’s testimony on the grounds that no alibi notice was g iven, as such is required by Tenn. R. Crim. P. 12.1. Coury’s counsel ar gued th at he mer

ely wantedt o show t hat Coury was in Arizona on the morning of June 15, 1981, and

that he wa s not attempt ing to set up an alibi defense. If, as argued by

Coury’s counsel, the testimony was not forthe purpose o f an alib i defens e, then su ch testimo ny w as irrel evant.
At any rate, it i s obviou s that the import of Francis’s testimony was to leave the inference with the jury that if Cou

ry was in Arizona on the morning of the shooting, then he could not have been present in Tenne ssee at the time of the shooting that afternoon. Thus, th e clear purpose of the testimony of F rancis was to alib i Coury. As such, none of F

rancis’ s testimony

sh ould hav e been admitted by-40- reason of Coury’s failure

to comply

withthe alibi notice mandate of Tenn. R. Crim. P. 12.1.
Id. at 379-80.
The defenda

nt, repor ting tha t Coury had not been cited sub sequentl y by any court on the issue of alibi, argues this part of the holdingis dicta a nd that it “ is an aberrant decision which should not be followed as to what is or is not ‘alibi’ evidence.” Although this portion of the Coury holding may be dicta, it certainly

is not an aberration, for the essence of an alibi is the phy sical impossibility of a defendant’s having been a t the scene when the crime was committed.
The holding in Coury

demonstrates one of the problems created by the defendant’s arguing boththat the evidence of his being in Flowery Branch the late morning

of the crime did and did not establish an al ib i. If

it did not, as one claim asserts, then the proof was not admissible, Coury explaining that

evidence of a defendant’s loca tion, if not used to establish an alibi, is “irrelevant.” If it did estab lishan alibi, as his othe r claim c ontends, R

ule 12.1 r equired timely disclosure of the identitie s of the F

lowery Branch witnesse s. Contrary to the defendant’s view, the holding in Coury is notan aberration. Rather, time and distance considerations are essential components of an alibi, as explained in Gr eenho w v. United States , 490 A.2d 1130 (D.C. Ct. App. 1985):

“[Alibi] involves the impossibility of accused’s prese nce at the scene of the offense at thetime of its commission. . . . The defense of alibi is designed to prove that accused, during the w hole time that the crime wa s b eing committed, was so far from the place w here the crime occurr ed that he could not h ave par

ticipate d in it, or that he was so far away

that he could not, with ordinary e xertion, have reached the place in

time to have so partic ipated in the crime ; and in or

der to be legall y effectiv e it

m ust cover the entire time during which the crime is alleged to have been committed.”
Id. at 1134 (quoting 22 C.J.S. Criminal Law § 40, at 130-31 (1961)).
Other cases de monstrate th e universal recognition of the time and distance components of alibi and show that i

tmay be prove

n inferentially, a s recognized in Coury . The defense attempted to prove an alibi in this fashion in State v. Nunn , 27 3 A.2d 366 ( N.J. Super. Ct. App. Div. 1971), wherein the two Nunn brothers were alleged to have ca rnally abused a

fourteen-y ear-old girlafter 2:00 a.m. on November 7, 1968, in a field behind their house. Although a New Jersey st atu te required that ad v ance notice of alibi proof be provided to the prosec ution, the defendants did not advise until the beginning of the trial of their intention to call their mother and siste r as witne sses, withboth to testify

that the brothers had gotten home at 11:30 p.m. on November 6 and gone to bed. The trial court granted the state’s motion to exclude this testimony , because notice had not been-41-

givento the prosecution. Following their convictions, the brothers arg ued on appeal “that they

were not obliged to specify

witnesses who had only cir cumstantial knowledge of [their] whereabouts at the moment of the commission of the offense.” Id. at 368. However, the appellate court explained that discl osure wa s requir ed also of circumst antial ev idence o f alibi:
Whether the testimony of

the proposed

witness shows directly that a defendant was not phy sically present a t the preci se time a nd place of the alleged

offense, or does so only

inferentially, its purposes and objectives are the same. The differe nce is the weight and degree of persuasiveness attributed to that testimony by

the jury. There

is no less reliance by

defendant on such

testimony

nor less need for notice by the State that it will be offered.
Id. at 370.
Other cases ill ustr ate the re quire ment t hat an alibi canno t be es tabli shed b y showing a defendant’s location

before or afte r a crime unless the

time and distance were such that the defendant could n ot have committed the crime. Establishing geogra phic impossibility by

showing the defendant’s wherea

bouts prio

r to the crime wasutilized fo r an alib i c laimin Commonwealth v. Blystone , 617 A. 2d 778 (Pa. S uper. Ct. 1 992), altho ugh disclosure of the proof was not an issue. The defenda nt, charged with arson for setting fire to a farmer’s milkhouse, argued that the state’s proof was insufficient

because, at the time the fire bega n, he was working at

Domino’s Pi zza, a ten- minute drive from the scene of the arson. Affirming the c onviction, the court recognized that the defendant had attem pted t o esta blis h an al ibi b y proving t ha t, sh or tl y b efore the crime, he was at a loca tion sufficie ntly distant fr om the sce

ne of the crime tha

t he could not have c ommitted it:
“Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render

it impossible

for him to b e the gu il t y party .” Commonwea lth v. Gainer , 397 Pa.Super. 348, 353, 580 A.2d 333, 336 (1990). Here, several defe nse witne sses testified that on February 14, 1990, B lys tone wasat work until 2:00 in th e morn ing. Base d on this test

imony , Bly stone ar

gues tha t he did not

h av e sufficient time to dri ve to the f

arm and s et t

he milkhou se on fire before 2:15 a.m. w hen t he owners of the farm telephoned the fire departm ent. Id. at 780. However, a witness saw the defenda nt’s automobile, with a Domino’s pizza sign on the roof, in the vicinity of the fire f orty-five minutes bef

ore the victims reported the blaze to the fire departm ent. See State v. Hubbard , 711 So. 2d 393, 396 (La. Ct. App. 1998) (t estimony that the defendant was in Houston, Texas, a s ix-and-one-half-hour drive fro m Rayville, L ouisiana, on Sunday and Monday, did not provide an a libi for the charge that

he had sold illegal drugs in Louisiana on Saturday); Glover v . State , 458 S.E.2d 538 , 540 (S.C. 1995) (defendant did not establish an alibi-42-

withtestimony that he was in Florida be tween 8:00 a.m. and

8:30 a.m. t

h e morning of the crime, which occurred eleven hours later in Williamsburg County, South Carolina, a six-and-one-half-hour drive from the place of the crime, the distance not making it phy sically impossible for him to have driven from Florida to South Carolina to commit the crime)

. Alth ough the defendant

relies up on a numbe

r of cas es to suppo

rt his cla imthat he was not attempting to prese

nt proof o f alibi, w e respe ctfully disagr ee with hi s interpr

eta tions of t hese authoriti es. From the

cases, h e extrac ts language to arg ue his restrictive view of alibi proof, but, as we will explain, none of the cases support his arguments.
In State v. Horenberger, 349 N.W.2d 692, 695-96 (Wis. 1984), the defendant was alleged to have aided two men in planning the robbery of a woman whom the defendant was dating. One of the cod efendants, t estifying f or the state, said that earlier in the day the group, including the defenda nt, ha d p la nn ed th e l at e n ig ht ro bb er y, with the de fendant waiting in the car while one of the codefe ndants robbed the victim andthe oth er burglarized her apartment. When the def endant attempted to present proof that he had been at work during the day and, thus, could not have aided in planning the crime, theState objected that he was attempting to present previously undisclosed alibi proof. The court on appeal concluded that proof the defe ndant was not present at the planning stage of the crime did not constitute alibi proof, which would focus solely on his whereabouts at the time of the crime itself:

[T]he notice of alibi statute focuses on the def endant’ s where abouts a t the tim e the off

ense wa s committe d. The sta tute, by its terms, makes no reference to acts other than the a ctual offense. In this ca se, then, the actual offenses to which the s tatute refers would be the criminal acts which occurred at approxima

tely 11 p.m. The crimes withwhich the defendant was charg ed did not occur at the time they were planned. Rather, the crime s occurr ed at the time the plan was ex ecuted by robb ing a

nd fa lsely impri sonin g Ze ss an d bur gla rizi n g her apartment. The de fend ant’s acts in planning the crimes, which might have led to crim inal li ability as a party

to the crime, were separa te in time and location from these offenses. We conclude that the testimony concer

ning the defendant’s wherea bouts earlier

in the day on Ju ly 2 was not an alibi defense within the meaning of [the statu te].
Id. at 696. Thus, in Horenberger , the offered proof was not of alibi because it sought to show only that the defendant was elsewhere whe n the crime was planned, but not that he c ould not have been present when it was committed. Acco rding ly, its holding is irrelevant to the c laim in the present appeal that inferential proof of alibi is excused from disclosure.7 The cou rt not ed that Dupuy’s trial counsel had known, from the inf ormant’s grand jury t estimony, t he discrepan cies in the da tes but w aited e ighteen days b efore bringin g it to the court’ s att enti on in movin g for a c ontin uance. A s it was, Dupuy presented testimony from his wife and mother-in- law that he was at a party i n Nogales, Mexi co, o n August 30, 1980, until lat e in the evening. -43- In another case relied upon by the defendant, State v. Berg , 6 97 P.2d 1365 (Mont. 1985), Berg admitted that he hadarrived at the residence in question at 8:10 p.m. but denied that he there had assaulted the baby sitter, as she claimed. Because alibi notice had not been given, the trial court excluded the testimony of a witness who would have testified that he was with the defendant from approxima

tely 7:30 p.m. until 8:10 p.m. thatsame night. On appeal, the court determined that since this witness would have testified as to being with the defendant ea rlier in the evening than when the crime was committed, he did not provide an alibi. Accordingly , “the testimony by this witness was not relevant, and it was therefore within the discretion of the c ourt to strike it.” Id. at 1367.
The holding in B erg illustr ates the dilemma the defendant creates by asserting conflicting claims as to whe

ther the Flower y B ranch te st imony

is evidence of alibi. As explained by 21 Am.Jur.2d Criminal Law § 225, “Requirement That A ‘True’ Alibi Be I nvolved” (2002), citing the holding in Berg , “[a] statute o r rule requiring that special notice be g iven to the state of the defendant’s intent to pr

esent an alibi def ense does not apply where

the evidence to be offered by the defendant does not relate to a truealibi.” In the usual situation, it is the State which argue s thatthe defenda ntis not pre senting a “true ” alibi. I

f the test imony is that a de

fendant was in anothe r location, but the time

and dista nce wer e such tha t he still could have committed the crime, he is not presenting a “true” alibi and, as explained in Berg , the testimony is irrelevant. B y contrast, in the present appeal, it is the defendant who is arguing he is not presenting a “true” alibi, as he claims it was not “impos sible” fo

r him to hav e been in

“Monter ey ” and, la

ter that m

ornin g, in Flowery Branch. This claim, of course, ignor es that the testimony

estimate d the tra

vel time by

automobile to have been, at best, four and one- half to fi ve hours, but frees the defendant to make his corollary argument that since he did not offer a “true” alibi, as the Berghol ding would sup port, he was not require d to reve al his witnesses. He then ti es toge ther the se conflicting arguments, claiming ther e would have been “a more nearly level playing

field” if the jury le arned

of the defendant’s “presence hundreds of miles away f

rom the crime scene within a few hours after the fatal shooting.” Howeve r, these conjoined arguments ignore the fa ct, explained in Berg , that if th e testimon

y isnot alibi, i

t, also, is not relevant. Thus, Berg does not su pport the defenda nt’s arg ument. Ad di ti on al ly, the defend a nt cites, in support of his view of what constitutes “alibi” proof, United States v. Dupuy , 760 F.2d 1492 (9th Cir. 1985), where the prosecution had requested that Dupuy disclose any alibi defe

nse he had for August 31, 1980. Ho we ver, at trial, the informant testified that the criminal acts occurred on the previous day , August 30, 1980, while the indictment alleged they occur

red on yet a

third date, September 1, 19 80. 7 Id. at 1498. Apparently, Dupuy argued at trial that the prosecution should be allowed to present proof only as to August 3 1, the dat

e set outin the alibi demand. However, the court, distinguishing a motion for bill of particulars, which would have had the limiting effect sought by the defendant, determined that the differing dates meant that the defe ndant cou ld present testimony

from undi sclosed a

libi witnes ses for A

ugust 30 , becau se-44-

the prosecu

tion, wrongly

believin g the of

fense da te was Au gust 31, had soug ht alibi inf ormatio n onl y as to the latter date:

In this case the appellant was not limited by the Rule 12.1 request for notice-of-alibi to alibi witnesses for August 31, 1980. He was free to bring forth any

alibi witnesses he deemed appropriate for the other da ys encompa ssed by

th e charg es against him. The Government could not, for those days, c laim unfair surprise because it had not invoked Rule 12.1 asto those da ys. Id. at 1499.
The defendant in the present appeal seeksto use this a nd other l angua

ge fro m Dupuy

to argue that, because

the State had limited its alibi notice to the period from 6:00 a.m. to 8:45 a.m., Central Daylig htTime, on October 19, 1998, he was not required to identify witnesses who would testify as to times outside of this period:

The State demanded notice as to a specific, discrete, two hour and forty-five minute pe

riod. The Statemade no de

mand as to

any other time. The “ali

bi” witne sses which the def ense the reby became obligated to disclose

included

those per sons (othe

r th a n the Defendant), and only

those per sons, that would be offe red to es tablish Byron Looper’s where abou t s from 6:00 to 8:45 a.m., Central StandardTime, on October 19, 1998. Here, as in United St a tes v. Dupuy , supra , Mr. L

ooper wa s free to

bring a ny witness he deemed appropr iatefor the other hours of October 19, 1998; as in Dupuy , the Government

could not, for

those hour s claim

unfair s urprise

because it had not invoked Rule 12.1 as to those hours.
We respec tfully

disagr ee that Dupuy

supplies that which the defendant seeks to extract from it. In fact, the court held that if the pr osecution request s alibi inf ormation f

or a disc rete period, as alibi notice provisions require, ye t proves that the criminal offense occurred dur ing a different period, it cannot seek to exclude alibi testimony as to the second pe riod beca use the di sclosure requirement

is only for the p eriod se

t out in the s tate’s plea ding. The Dupuy holding might be relevant to the present appeal if, for instance , the State

mistakenl

y ha d set out October 20, 1998, in its alibi demand as the date of the crime. The defendant then could argue that the F lowery B ranch testimonywas not subject to disclosure, s i nce it proved the defendant’s wherea bouts only on October 19. However, the State did not make this mistake, and Dupuy is not relevant to the defendant’s argument.
No authority exists to support the defendant’s eff orts to explain how the same proof can be alibi for evidentiary

purposes but non-alibi for disclosure purposes. I f his restrictive version of alibi proof were correct, it thenwould follow that an accused would not have to reveal, in re sponse to an8 He asser ts al so that we should apply the considerati ons set out in State v. Brown , 29 S.W .3d 427, 431 (Tenn.), cert. denied , 531 U.S. 916, 121 S. Ct. 275, 148 L. Ed. 2d 200 (2000), in deciding whether the t rial court vi olated the defen dan t’s due process rights i n excluding the t estimony. However, in Brown , the que stion wa s wheth er a d efend ant’s rightto due process could requi re tha t hearsa y testimo ny be a dmitte d. T he vio lation o f a disclo sure ru le was not an issue (con tinued ...) -45- alibi demand, the identity of a witness testifying that, fifteen minutes after the period in an alibi demandfor a crime occurring in Te nnessee, the defendant was camping in the Australian outback. By the arguments in the present appeal, this testimony would not be subject to

disclosur e, reg ardless of its implications, because the witness could speak only to the defendant’s location outside of the periodin the

alibi dema nd. We do notbelieve

that such a result w as intend

ed by the draf ters of Rule 12.1.
We conclude that, without question, the defendant was at tem pting to establish an alibi through the testimony of

the Flowery

Branch witnesses. We now will determine whether the tria l co ur t e rr ed in ex cl ud in g t hi s t es ti mo ny. The defendant argues that, in excluding the F lowery B ranch witnesses from testifying, the trial court abused its discretion and violated his right to due process of law. Our supreme court explained in State v. James , 81 S.W.3d 751, 760 (T enn. 2002 ), the ro le of the appella te court in reviewing evid

entiary rulingsof the tri al court : Rulings on the admissibility of evidence a re lar gely within the sound discreti on of the t

rial cou rt, an d on appellate review, a trial court’s ruling t

o admit or e

xclude evi dence w ill not b e disturbed unless it appears that such a ruling amounts to an abuse of that discretion. [State v.]DuBose , 953 S .W.2d [649, ] 652 [T enn. 1997]

.

. . . “‘[A ]n appellate court should find an abuse of discretion when it appear s that t

he trial court applied an incorrect lega l standard, or reached a decisi on which i s against logic or reasoning that caused

an injustice to the party complaining .’” State v. Stevens , 78 S.W.3d 817 (Tenn. 2002) (quot ing State v. Shuck , 953 S. W.2d 66 2, 669 (Tenn. 1997)).
The defendant argues that the trial cour tabused it s discretion in excluding the testimony of three of the witnesses from Flowery Branch because the cour

t “inexplicably made no

finding s with regard to these fa

ctors, de spitethe prosecuting attorney ’s having cited the same six factors [set out in United States v. Wood , 780 F.2d 555 (6th Cir. 1986)] during argument.” He ar gu es , a dd it io na ll y, that we cannot determine w he ther the trial court abused its discretion in excluding the testimony withoutconsider

ing, als o, whethe

r the exclu sio n violated hi s right to due process. Rely ing upon United States v. Hamilton , 128 F.3d 996, 1002 (6th Cir. 1997), the defendant argues that on appeal a de novo standard of review is utilized in determining whether a trial cour tproperly c onsidered the factors set out in Tay

lor v. I llinois , 484 U.S. 400, 4 10, 1 08 S. Ct. 646, 653-54, 98 L. Ed. 2d 798 (1988). 8 Other co urts, howev er, do not make this distinction, and simply apply an abuse of8 (.. .cont inu ed) and , therefo re, Brown is not ap plicab le to the p resen t app eal.

9 Th is asserti on is true. However, neither the defendant’ s mother, brothe r, nor Paul Voelker, revealed to the State, until the presentati on of defense proof at tri al, that the defendant had been in Flowery Branch the morning of the crime. Thus, before there was any reason t o provide an alibi, none of hi s wit nesses reveal ed that he had been in Flowery Branch the morni ng of t he cri me. -46- discretion analysis in asce rtaining whether

a trial court erred in excluding alibi proof. See United States v. Henderson , 241 F.3d 638 , 650 (9th Cir. 2000), cert. denied , 532 U.S. 986, 121 S. Ct. 1634, 149 L. Ed . 2d 494 (2 001); United States v. Pearson , 159 F.3d 480, 483 ( 10th Cir. 19 98); Lawson v. State , 994 P.2d 943, 946 (Wyo. 2000). We believe that the appr opriate standar d of revi ew is whether the trial court abused its discretion in excluding the t es timony of three of the F lowery B ranch witnesse s. Following its previous holding in United Sta tes v. White , 583 F.2d 899, 902 (6th Cir. 1978), which, in turn, cited United States v. Myers , 550 F.2d 1036, 1041-42 (5th Cir. 1977), the cour t, in Wood , set out fa

ctors to be consid

ered in determin ing whe ther a tr ial cour t abused its discre

tion in excluding undisclosed alibi proof:

(1) the amount of prejudicethat resulted from the failure to disclose, (2) the reason for nondisclosure, (3) the extent to which the harm caused by nondisclosure wasmitigated by subseque nt events, (4) the weight of the properly

admitted evidence supporting the defendant’s guilt, and (5) other relevant factor s arising out of the case.
780 F.2d at 560-61.
Before the trial court, the State argued that these factor s should be

consider ed, as do the State and defendant on appeal. Accordingly, we will utilize them in our review. A. Prejudice to the State
The defendant

argues that any

prejudice to the State was the result of its “own investigative ineptitude,” and that the defendant’s alibi response, althoug h “incomp lete and

theref ore technically insufficient,” nonetheless “placed the prosecution on notice” by denying that the defendant

had been at the crime scene on October 19, 1998. Additionally , the defendant notes that state investigators had interviewed two of the witnesses before he ha d been charged, befor

e there was “any

reason to fabric atean alibi.” 9 Further, he argue s that the S tate “a ssiduously avoided a sking qu estions [of these two witnesses] which could have developed exculpatory information.” Finally, he asserts that

the record does not show that the investigation and prose

cution “w ould have

procee ded one w

hit differe ntly had the existence of the thr ee witne sses . . . been d isclosed .” The de

fendant present s neither legal authorities, where appr opriate, nor citations to the record in support of these claims.-47-

We can imag

ine no re ason why

the State would not have wa

nted to know that witnesses would claim the defendant was in Flowery Branch on the day

of the crime. Although the defendant argues that the Sta

te did not w ant to dev elop “exculpatory informat ion” as to his whereabouts, it would not appear necessary

that the State discover where the defendant was at the time of the crime so that his location then could be revealed to him. Given the immediate and massive investiga tion that followed this crime, it would be illogical to conclu de that a n equal e ffort wouldnot have been devoted t o investig ating a

n alibi disc losed by

the defe ndant.
In fact, the proof developed by the State following the crime would not appear to sugg est that the defendant later would claim that he was in Flower y Bra nch on October 19, 1998. Joe Bond told the prosecutor’s office, shortly after the crime, that the defendant had c ome unannou nced to hi s residencein Hot Springs, A rkansas, the late eve ning of t he crime . Also, ac cording to Michell e Henson and he r ex-husb and, Douglas Henson, the defendant said only that he was “south” on the day of the cr im e. Thus, there a

ppears to have been no reason for the State to single out Flowery Branch to determine whether

the defendant was there the day of the crime, especially

since neither his mother, his brother, nor Paul Voelker told investigators of this alleged fact when questioned shortly after the

crime.
To assess the degree of prejudice to the State, we will review the situation of the State as the result of the nondisc lo sure of the claim that the defendant was at his mother’s home in F lowery Branch, Georgia, shortly

after the crime.
The homicide occurre d on Octob er 19, 1998, and the State filed its alibi notice request on February 17, 1999, four months later. On August 14, 2000, presentation of proof began at the trial in Cumberla

nd County , with a sequeste re d j ur y w hi ch ha d b ee n p ic ke d i n S ul li va n C ou nt y. Substantial barriers would hav e af fected the State’s ability

to begin investigating, on August 21, 2000, after resting its case in chief on Aug ust 17, whether the defendant had been at his mother’s house in Flowery

Branch, Georgia, on October 19, 1998. Obviously , a trial recess would have been required so that investigators could go to Flowery Branch to investigate the alibi. The investiga tive trailwould hav e long since go ne cold; a nd the time

for the investigation would have been sev erely compressed, given the fact of the sequestered

jury waiting in Cumberla nd County for the return of the State’s investigators. Additionally, bec ause the defendant argued throug h his attorneys that the Flowery Branch testimony

both permitted and prevented his being in Monter

ey during t he perio d in the alibi dema

nd, the Sta

te could have de emed it necessar

y to investigate travel possibilities between the two locations. Given that the trial in this matter followed a massive in

vestiga tion occu rring i n at least three states, and that the State had rested its case four days ear lier, it require s som e imagination as to how the prosecutioncould have been maneuvered into a more diff icult situation than that achieved by

the defense.
Alth ough the defense argued at tria l that the State could be given time to interview the alibi witnesse s, given the situation, it is difficult to envision what could have been done by the trial cou

rt, other than exclude the t estim ony or allow it. Even under less difficult circumstances for the prosecution, a rece ss to in ve st ig at e a n u nd is cl os ed al ib i m ay n ot be a r ea so na bl e r em ed y. In United-48-

States v. White , 583 F.2d 899 (6th Cir. 1978), the court determined on appeal that the trial court had noterred in excluding the testimony of an alibi witness who wa s revealed after both sides had rested, but before the matter had been submitted to the jury . The court explained why a continuan ce, t o allow the prosecution to in vestiga te the undisclosed alibi witnesses, would have been unreasonable: [T]he Government would have been seriously prejudiced if Wa lker had been permitted

to testify because the Government would not have had an opportuni

ty to intervi ew Walker

and inves tigate

the vera city of his representations regarding appellant’s whereabouts onthe date of the robbe

ry . Beca use Walke

r’s testimony

was not of

fered u ntil bothparties had re sted at t he close of a three day jury trial, a co nt in ua nc e for th is pu rp os e w ou ld no t h av e b ee n s at is fa ct or y. Id. at 902.
Likewisein United States v. Hamilton , 128 F.3d 996 (6th Cir. 1997), the court concluded that a continua nce, to allow the prosecution to investigate and attempt to rebut certain records which the defendant did not reveal until the trial, was not a reasonable option:
In th e prese

nt case, allowing

the surpr ise admiss ion of the

receip ts would have delay ed the trial, and worse. Theprosecution would have been entitled t

o a contin uance to conduct an investigation and to call a dditio nal witnesses. As the court in Tyson v. T rigg , 50 F.3d 436, 446 (7th Cir. 1995), cert. denied , 516 U.S. 1041, 116 S. Ct. 697, 133 L. Ed. 2d 655 (1996), pointed out, “ Delay in a jury trial is a ser

ious matter

. . . a nd th e p ro se cu ti on ’s ab il it y t o rebut t he surpr ise [evidence] effec tively

[is usually

] less than its ability . . . during the case in chief.” In the pre sent case, t he di strict court was f

aced with either having to continue the tr ia l, wh ic h w as in it s s ix th da y, in a case that was over two y ears old, or to sanction defendant for his actions by prec ludi ng defendant from introducing the rece ipts. The court’s alternat iv e choice of a continuance would have disrupted the tr ial sc hedule and harm

ed the g overnme

nt, which had pres ented, in

its case-in- c hief, a wealth of evidence through many witnesses involving complicated financial dealings.
Id. at 1004.
In the pres ent appe al, the pr osecutio n would ha

ve been pushed int

o a positio n as l east as difficul tas would have resulted in Hamilton , had the defenda nt there been pe rmitted to use the la te revealed receipts. Here, the pressures of time, both because of the nearly two

years since

the crime, and the waiting, sequestered jury , would have dampened substantially the ability of the S tate to-49-

investig atethe alibi. We conclude that the prejudice to the State would have been ver y gr eat had the three e xcluded wit

nesses been allowed to prese nt an alib i for the d

efenda nt. B. Prej udice to t

he Defense
The defenda

nt argues that

“[t]he prejudice to the Defendant from the exclusion of the proffered wi tnesses is monumental.” However, this assertion is true only because the proof established an alibi f

or th e defe ndant, which, as we have stated, he denies for pur poses of ascertaining his disclosure responsibility yet relies upon to establish pre judice.
The true prejudice to the defense is somewha t dif ficult to a ssess bec ause the State had

to cross-examine, without advance notice, witne sses clai ming that the defendant was in Flowery Branch, Georgia, the

morning of the crime. Even with no preparation by the State, however, obvious questions were apparent as to the veracity of the alibi witnesses. Neither

the defendant’s mother nor his brother

told investigators that he had been in Georgia at the time of the crime and may not have reveal ed the al

ibi even t o the vari ous lawy

ers rep resenting him unti l shortly before the trial began. His broth er, alt hough attending the preliminary hearing, said that, while there was testimony about the shooting, “there was no time frame established with when tha t had taken pl ace.” However, a transcript of the preliminary he aring shows that Dr. Sullivan Smith, a st aff physicia

n at the Cookeville

General Em er ge nc y D epartment, testified that he arrived at the scene at 9:30 a.m. on October 19 and examined the victim’s body, which wa s still in the truck. Additionally, Joe Bond testified at the pr

eliminar y he arin g, much as he did at the trial, that the night the shooting of the victim had “hit the pres s,” the de

fendant came to h is residence in Hot Springs, Arkansas, say ing that he had “killed that dude,” that he had “busted a cap in his head,” explaining that he had killed “[t]hat guy [he] was running against.” Given this testimony, a reasona ble jury might have

been skeptical of Russell Looper’s claim that, although a ttending the preliminary he aring, hehad not understood the sign ificanc e of the d

efenda nt’s bein g in

Georgia at 11:00 a.m. the day of the killing, as well as his explanatio n for not e arlier r evealin g that his brother, who had remained in jail for nea rly two years w hile awaiting trial, actually had been in Flowery

Branch shortly

after the crime.
In assessing prejudice

to the defendant, we

note that the trial court, over the objection of the State , per mitted his mother to testify, circumstantially , that he had used his bed in her home on October 18-19 andhad showered there on October 19, 1998, between approximately 6:00 a.m. whe n she left for work and about 5:00 p.m. when she arrived bac k at her home . Since thi s testimony , in th eo ry, would have allowed t he defe ndant both

to have c ommitted the crime in Monterey and the

n driven to her home

in Flowe ry Branch to showe

r, use hisbed, and

depart, before

his mother arrived homefrom work, her testimony w a s not a “t rue” alibi, as the defense arg ued but, as they do not acknowl edge, could hav e been e xcluded by

the trial court asirrelev ant.
The value of the testimony of Ba rbara Reed and Paul Voel

ker is some

what more

difficul t to assess. Both explained their abilities to remember occurrences on a day nea rly two y ears earlier by keying the day to specif ic event s. Reed said that she had been to a birthday par

ty the day before the crime and was looking for a rental house when she observed the defenda nt in the fr

ont y ard of hi s-50-

mother’s house. Voelker

said that h

e rememb ered the

day because of his wor

k schedule and eve

nts at work. Reed said that she had told the defend a nt’s mother in June 1999 of having seen the defendant in Flowery B ranch on the day of the crime, and

Voelker said he had done so in July 2000. Since the State was not able to investigate the claims of either of these witnesse s, or thei r backgrounds including

their criminal record s, if any , as well a s their re lationship with the L

oopers, it is difficult to ass ess fai rly the evidentiar y value of their

testimony. Jurors might have been skeptical of their

ability to remember, with such seeming precision, events of two y ears earlier. Of course, the evidentiary impact of these witnesses would havebeen boosted by the f act that, had they be en al lo we d t o t es ti fy, the State would have been required to cross-e xamine them

with little

time for pre paratio n or knowl edge o f their ba ckgrounds.
C. Reason for Nondisclosure
We note that between the time of the State’s filing it s alibi demand and the trial, the defendant was rep resented by

at least five attorne

ys, with numbe

rs four a nd five r eprese nting him at the trial. Neither

the record on appeal, nor the defe ndant’s attorneys a

t trial, explained why the previous three a

ttorney s repre senting

him had not

supplied t

he State with the names of at

least some of the alibi witnesses presented at the trial , whether they had bee n told that t

he defe ndant, su pp os ed ly, was in Flowery Branch the day

of the crime, or

whether they , also, co ncluded t

hat this was not “alibi” proof. Although Russell Looper sa id that he had spoken with one of the defendant’s previ ous counsel a

bout the alibi, he could not recall with whom he had spoken or when the conversation took place.
The at tor neys repr

esenting the defendant at trial came into the c ase only in June 2000. Appar en tl y, they

learne d of Bar

bara Re ed in July

2000, the

month bef

ore the t rial beg an, but t

h e record does not reflect when they learned of the other alibi witnesses. Obviously , the defendant’s trial counsel d

ecided t hat they would not d

isclose th e alibi witnesses to

the prosecuti on. T he defendant argues on appeal

that “[i]t is evident from anyfair reading of the rec ord that trial counsel firmly believed that Ms. Reed, Mr. Voelker and Mr. Russell Looper were not alibi witnesses in the first place.” That

may be. However, we note that during the le ngthy a rguments to the trial court as to whether Flowery

Branch witnesses would establish an alibi, the defendant’s trialcounsel never explained their ba sis for be lieving that an e xceptio n to the alibi notice requirement excused them from having to reveal the identities of these witnesses. They cited n o legal authorities supporting such a rest ricti ve vie w of “al ibi, ” exce pt to argue th at the prose cutio n was “m isrea ding” cases which the State cited to the court.
We notethat, under circumstances similar to these where the defendant, himself, had known of th e identities of at least some of his alibi witnesses since he was charg ed, he has been hel d responsi ble for the late or nondisclosure even to his attorney of his alibi witnesses. In United States v. Pearson , 159 F.3d 480 (10th Cir. 1998), the court considered the claim that the trial court had erred in excluding alibi testimony from the defe ndant’s mother, after she

and the defendant had

not revealed, until four days be fore the trial was to begin, that the defenda ntwas with her the night of the robbery -murder for which he had been cha rged:-51- Defens e counsel “

became aware that an a libi defe nse may exist” on June 12 bec ause that is the first date Mr. Pearson or his mother botheredto tell cou

nsel of her alibi testimony--that she had seen her son standing in her kitc

hen at the exact time

and on the exact date of the robbery

and killing--despite its obvious importance. Nor had Mr. Pearson’s mother exculpated her son on the several occasions when she was qu estio ned by the go vernmen t during its investigation. As the very nature o f Mr. Pea

rson’s a lleged alibi con firms that he a

nd his mother would have known of it long before the deadline for submitting his alibi defense, he cannot show good cause, as required by Fed. R. Crim. P. 12.1(e), for failure to comply with Rule 12.1(a). The district c ourt did not abuse itsdiscreti on in exclu d ing Mr. Pe ar so n’ s a li bi te st im on y. Id. at 484 (footnote omitted).
In the present appeal, theprosecution was placed into an even more difficult position than that which occurred

in Pearson , for here the jury was sequestered and the State had rested its case in chief before learnin g that f

our alibi witnesses w ould plac e the def endant in another state at the time of the crime. Thus, the challenge to investigate this alibi would have bee n substantially gre ater than was the case in Pearson

. D. Weight of the Evidence
The strength of the State’s case i s another con siderati on in whet her the t rial cou rt erre d in excluding testimony of

the alibi witnesses from Flowery Branch. Contrary

to the defendant’s view, we believe the evidence to have been strong. Befor

e the mur der, the defenda nt told Joe B ond of his intention to ki ll t he victim and, then, confessed to Bond the evening of the crime. Wesley Re x identified the defe

ndant as t he perso n at th e crime sce ne wit h the v icti m jus t befo re the s hoot ing. The tire tra

cks made by t he Audi, w

hich the d

efenda nt had pur

chase d just befor e and abandoned shortly after the crime, were consistent with the tire tracks left at the scene. The pistol used for the shooting was in the possession of John Bowden, a friend and empl oyee of the de fendant , shortly before the shooting. Jenny Conley identified the defendant as her first customer at the Ha rdee’s restaurant in Monterey on

October 19, 1998, say

ing that he was driving a black, four -door car. The defendant abandoned

a black, four-do or Audi 40 00 at the a uto repa ir shop of Gerhard Noll in Tucker, Georgia. William Lindsay Adam s, res ponding to an advertisement for assistance in a political campaign, telephoned the defendant , who said , in respo nse to a question about the political race, that it would cost “[t]hirty-five cents,” and that “if a candidate wasn’t in the race at the end, if something happened to the candidate, that the race wouldn’t cost that much to run.” F ro m a ll of this, we concl ude th at the proof

agains t the d efenda nt was stron g.-52- E. Exclusion of Alibi Proof
The defenda

nt argu es on app eal that, if the excluded proof was of alibi, as we have concluded was the case, the trial court abused its discretion by not allowing the testimony and, f urther, that

his right to due process was violated by the trial court’sexcluding the testim

ony of these three wi tnesses, explaining this argument in his brief:

None of the governmental interes ts mentioned in the Taylor balancing test is substantial enough to outweigh the Defendant’s right to compulsor

y pr ocess and his right to present witnesses in his favor. The integr

ity of the adversary

process would have been enhanced by admission of

the proffered testimony . Proof that the accused was not present when the decedent was killed, if believed, would mandate an acquitta l. W he re the pr

oof ag ainst the a

ccused i s wholly circumst antial, it is importa

nt that the

questio n of th e accused’s presence vel non at the scene of the offense should be fair ly left to the ju ry. Others, however, have

taken a more skeptical viewof alibi proof, especially that kept hidden until the elev enth hour , as explained in the much quoted langu age: “[A]libi is a ‘hip pocket’ defense, easil y prepared for introduction in the final hours of trial and there fore more likely

to catch th e prosecutor

by surprise.” McKoy v. United States , 518 A.2d 1013, 1018, n.10 (D.C. Ct. App. 1986) (citing LaFave &

Israel, Criminal Procedure § 19.4(b), at 743 (1982)). Likewise, in State v. Edwards , 368 N.E.2d 302, 304 (Ohio 1975), the court explained the rationa le for the alibi notic e requir

ement: “Records are replete with alibi testimony from relatives, girlfriends and bar companions and, as to these, the rule pertaining to prompt notice is based on sound rea soning.”
The defendant argues that, “[a]s for indicia of re liability, the profe

rred witn esses ar

e of cour se presumedto be t ruthf

ul,” c itin g Hull v. Stat

e , 553 S.W.2d 90, 93 (Tenn. Crim. App. 1977). As part of this ar gument, the defe

ndant als o assert s as follow s: Two of the witnesses had been interviewed by law enforcement agentsbefore the Defendant was charg ed, such that the need for alibi testim ony ha d not yet arisen. The State, despite having an opportunity for unlimited cross-examination on the proffe rs and the opportuni ty to proffer rebuttalevidence thereto, adduce d no reas on to di sbelieve any of the pr oferred witnesses. Two of the proferr e d witnesses had not [sic] interest in the outcome, and there is no evidence that Russell Looper’s familial relation to the Defe ndant would have caused him to lie under oath.
We disagr

ee with th e presum ption of tr

uthfulne ss claims a

tta ched b y the defe

ndant to the Flowery Branch witnesses. I

n fact, the State’ s “opportunity” to question the unreve aled alibi-53-

witnesses consisted of engag ing in a “cold” cross-examination, without advance prepa ration. Ad di ti on al ly, an y re bu tt al ev id en ce wa s s ev er al hu nd re d m il es aw ay, in another state, itsavailab ility dimmed with the nearly two- year pa ssage of time since the crime. The defendant asserts, also, that the State’s cross-examination “adduced no reason to disbelieve any of the proferred witnesses,” that two had no interes t in the outcome, and there was no showing that Russell L ooper’s “familial relation to the Def

endant w ould

have caused him to lie under oath.” These arguments, however, beg the question. Having

forced the State into a position of being unprepared to cross-examine the alibi witnesses or prese

nt rebutta l proof becau se of his ignoring Rule 12.1, the defendant ca nnot now legitima te this tactic by the fact that, in his view, the State was unsucce ssful in its cross-examination and failed to present alibi rebut tal proo f. In fact, the jury was instructed as to how to assess the credibi lity

of witnes ses:
In forming y our opinion as to the c redibility of a witness, y ou may look to the proof, if any, of

his general character , the evidence, if an y, of the witne ss’ reputation for truth and veracity, the

intelligence and respec tability

of the wi tn ess, his interest or lack of interest in the outcome of the tri al, his feelings, his appar ent fair ness or bi as, his means of knowle dge, the reaso nablene ss of his sta tements, h

is appear ance and demeanor while testify ing, his contradictory statemen ts as to material matters, if an y are shown, and all the evidenc e in the c ase tend

ing to co rrobora te or con tradict h im.
Since the alibi witnesses were presented without advance notice, the State would have been unprepared

to cross-examine the witnesses in these areas. While we cannot foresee what the State might have developed for cross-examination or rebuttal purposes, had they had the opportuni

ty to investig atethe alibi witnesses, it is clear that they were de nied the r ight todo so, and the jury, in turn, was denied in

formatio n which wo

uld have a ssisted in

determin ing the c redibilit y of these wit nesses. We now w ill review the defendant’s claims that the trial court er red in excluding the testimony of three of the

Flowery Branch witnesses.
The United States Supreme Court explained in Tay lor v. I llinois , 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d

798 (1988), the matters which the trial court must consider in determining whether countervailing public interests outweigh the defe ndant’s right to present a defense:
It is elemen tary , of course, that a trial court may not ignore the fundamental character

of the defend ant's right to offer the testimony of witnesses in his favor. But the mere invocation of that right cannot automati cally and invaria

bly outwe igh counte

rvailing public inte

rests. The integrity of

the adversary

process, which depends both on th e presentation of relia

ble evide nce and the rejecti on of unrel

iable evidenc e, the interest in the fair and efficient administration of-54- justice, and the potential prejudice to thetruth-determining function of the trial process must also weigh in the balance.
Id. at 414-15, 108 S. Ct. at 656 (footnote omitted).
The defenda

nt prese nts a number of arguments as to why the trial court erred in excluding the testimony of his alibi witnesses. As we will explain, we find none of these argumen ts to be persuasive, for all ig

nore the purpose for the alibi notice statutes . Additionally, while the authorities cited by t he defe ndant pro vide ge

neral le gal principles w

hic h super ficially support his claims, the factual situationsin those

cases, resulting in the appellate courts’ affirming exclusion of late revealed alibi witnesses, do not support his argument that the trial court erred in excluding the testimony of the thre e Flowe

ry Branch witnesse s. In United States v. Hamilton , 128 F.3d 996, 999 (6th Cir. 1997), cited by the def endant for the propositio n that the

appella te court revie ws trial c ourt evid entiary rulingsinvolving

Sixth Amendment

claims using a de novo , rather than abuse of discretion, standard, the defendant was charged with failing to include in his gr oss income , set out in

his tax returns, the proceeds of sales of certain coal. On the sixth day of the trial, after the government had re sted its ca se in chief , the defendant announc ed that he

intended to prese nt as exhibit s cash

receip ts, totaling $240,000 to show that he had used

receip ts from the sale of coal to purchase coal. The trial court barred this evidence, and, following

its de novo review, the appellate court determined that

the rec eipts wer

e excluda ble because the circumstances under which they appeared indicated the defenda ntwas trying

to gain an advanta ge by not reve aling them until the last possib le moment: [T]his is a case, like Taylor , in which defendant could have satisfied th e applicable discovery

rules with ease. This was not a situa tio n where the defense had no way o f knowing of the existence of the receip ts or their neces sity in corroborating defendant’s a libi. Nor was it a sit

uati on where the rules in question were abstruse or onerous. The directives of the district court's discovery order were explicit. We find that even if the receipts were not fabricate d, failure to make any mention of them for two y ears until after the prosecution had restedit s case-in-chief, and then springing them on the prosecution, unawar

es, indic ates an a

ttempt tounfairly g ain a

tactical advan tage at trial. In Michigan v. Luca s , 500 U.S. 145, 111 S. Ct

. 1743, 114 L. Ed. 2d 205 (1991), the Supreme Court re ite rated its holding in Taylor

and stated that

when a di scovery

violation a

mounts to willful misconduct and is designed to obtain a tactical advantage, regar dless of whether prejud ice to the prosecution could have been avoided b y a

lesser p enalty , the seve

rest sanction is appropriate. Id. at 152, 111 S. Ct. at 1747-48.
Hamilton , 128 F.3d at 1004.-55-

Addi ti on al ly, th e court found on appeal that the sudden appear ance of the receipts was “prejud icial to the gove

rnment’slitigati on stance :”
As the Supreme Court has stat ed, the “ ‘State’sinterest in protecting itself ag ainst a n eleventh hour defense,’ is . . . one component

of the broader pu blic int erest in a full and truthful disclosure o f critical facts.” Taylor , 484 U.S. at 412, 108 S. Ct. at 654, citing Williams v. Florida , 399 U.S. 78, 81-82, 90 S. Ct. 1893, 1895-96, 26 L. Ed. 2d 446 (1970). We believe that in the pre sent cas e these efficie ncy and fair ness conc erns, in combination with the other factors discusse d, outwei gh def endant’ s right to

compulsor

y pr ocess. Id. Thus, in Hamilton , upon de novo review, the appellate court found that the d efenda nt had hel d back the receipts in order to gain a tactical advantage. Noting that Chappee

v. Vose , 843 F.2d 25 , 31 (lst Cir. 1988), stated that “[e]xclusionary sanction s must appr

opriately b e reser

ved for h ard-co

re tran sgress ions,” the

defenda nt argu es:
In light of trial counsel’s earnest contention that the testimony of the proferred witnesses was never within the scope o f what Te nn. R. Crim. P. 12.1 requires to be disclosed, there is nothing willful nor defiant about any insufficie

ncy of the notice of alibi. To char

acte rize t his as e ven approaching the gr avity of a “ha

rd-core transgression” would be beyond the pa

le. However, wh ile the defendant may seek assistance from this language in Chappee , its example of a “ha rd-cor e transg ression”does not a

dvance his argument that

the present appeal does notpresent a violation of equal magnitude. I n Chappee , the appellate court overruled the trial court in a federal habeas corpus appe al, concluding on appeal that the state trial judge ’s precl usio n of three defense expert witnesses was appropria te. This issue

arose when, in

the drug prosecution of the defendant, the defense attorney asked, as the testimony of the state’s chemist was nearing an end, that the defendant be a

llowe d to prese

nt three expert wit

nesses “ who came

from dista

nt points outside New England [and] were ensco nced in the back of the courtroom.” Id. at 27. The se witnesses had not been disclo sed ear lier in spite of a sta

te requi rement f or reci procal disco very

in criminal cases. Concluding that the defense had withheld the na mes of the witnes ses to g ain an advantage, the state

trial cou rt exclude d their te stimony . On appe al, the F ir st Ci rcuit, likewise, concluded

that the defense experts had not been revealed be cause the d efendant

sought a tactical advantage:
In this matter, as in Taylor , the “truth-deter mini ng function” of the trial proc ess was grievously at risk. Although Chappee argues that Ta ylor, unlike himself, desired to pre sent testimony of dubious provenance, the dis ti nction is n ot a criti cal one. Telling the truth-56- seems a simple

exercise . Yet dete

rmining the truth i s a complicated business, and its achievement can be thw arted as easily by “spri nging” surprise testimony on an unsuspecting oppo nent – espe cially s urprise testimony of a hig hly technical na

ture – as by presenting perjured te stimony. Cf. Tay lor v. I llinois , 108 S. Ct. at 654 ( pretria

l discovery “minimizes the risk that a judgment will be predicated

on incomplete [or] misleading

. . . testimony ”); id. at 655 ( court may rea sonably “pre sume that there is something suspect about a defense witnes s who is not identified until after the eleventh hour has pa s sed”). Here, perhaps more e vidently than in Taylor , concealing the witne sses’ identities could only be thought “motivated by a desire to obtain a tacti cal advantage that would minimize the effec tivenessof cross-examination and the a bility to adduce rebuttal evidence.” Id. Chappee , 843 F.2d at 31.
The court in Chappee further det ermined t hat a con tinuance to allow the prosec

ution to prepare to rebut the testimony of the three defense experts was not a rea sonable option: To be sure, petitioner argues that the prejudic e which in hered to the pr osec ution could have been minimized to some extent by jockeying the trial schedule – say , by gr anting a lengthy

continuance, permitting the prosecution to enlist new experts of its own, declaring a mistrial, or the like. Yet we will not engage in suc h Monday morning quarterbacking. A defenda nt who elects willfully to subvert the rules is in

a peculi arly

awkwar d position to

insist that

t he t rial court must engage in extravag ant contortio ns to attempt to extricate him from a self-dug hole.
Id. at 32.
A similar result was reached in Tyson v. T rigg , 50 F.3d436 (7th Cir. 1995), also an appeal of a federal habeas corpusmatter, wherein the defendant had been convicted in an India na state court of rape. Soon before the trial bega n, the defense had been ordere d to identify the witnesses who would testify on the issu e of cons ent. After three day s of jury selection, beginning on a Monday , and one day of

the state’s presenting its proof, the defense le arned of three women who claimed to have relevant information; and, on Friday night, one of the defense attorney s metwiththem. The women claimedto have seen the defendant and the victim kissing in the back of a limousine and holding hands the night of the rape. The defense attorney s obtained a court order on Saturday , which a

lso was a trial da y, to inspect th e vehicl e and de

termine i f the witnesses could have s een this a ctivity throu gh its tinted windows. Ascertaining that this could be done, they telephoned the prosecutor on Sunday, identify

ing the witnesses and providing a summary of their expected testimony.-57-

The following day, the par ties presented arguments as to whethe r the three witness es should be allowed to testify. Althoug h not concluding that the defense had delibera tely violated the continuing order to identify witnesse s, the trial cou rt ruled, nonethel ess, that because the witnesses had not been identified on Saturd ay, the day after the defense had met with them, the witnesses would not be allowed to testify.
O n appeal, the cour

t recognized that, althoug h the disc losure vi olation wa s not willfu l, it caused s ubstantial problems for the prosecution and, thus, preclusion of their testimony was the ap pr op ri at e r em ed y:

We must distingui s h betwee n sanctio ns as punis hment des igned to prevent future violations of similar orders, and sanctions as means of achieving the specific objective of the specific order

. Allowing the surprise witnesse s to testify

would hav e delay

ed the tr ial, and worse. As Tyson conce des, the prosecution would havebeen en titled to c all additional rebutta

l witn e sses in an effort to offset the impact on the jury of the three ne w witnes ses; or to b e gran ted a con tinuance to conduct an additional investigation, for example to determine whe ther it was possible to see into the limousine's interior at night . Delay

in a jury trial is a serious ma tt er, especially

when, as in this case, the jury is seques tered. T

he prose cution' s abili ty t o rebut the surpri se witnesses effectively

would, moreover, have been less than its ability to have pulled their fangs by adroit questioning of W__ and other prosecution witnesse s during the case in chief. W__ could have been askedhow dark it was and whether there wer e people standing on the sidewalk when she and Ty son walkedinto the hotel together and how close their hands were--might an o nlo oker have thought they were holding hands? She could have testified to this on rebuttal, too, had the witnesses been allowed into the case. But to have recalled her to the s tand on rebuttal for the express purpose of reply ing to the surpri se witnesse s would ha ve magn ified the impact of

their testim on y; w ould have made it seem that the prosecution had been--sur prised. Which it would have been. The purpose of the discovery order was to prevent surprise; and the purpose of e xcluding evidence whose introduction would have violated the order was not merely to punish violators but also to achieve the objective of t he order by keeping surprise out of the case.
Id. at 445-46.
In Watley v. Williams , 218 F.3d 1156 (10th Cir. 2000), cert. denied , 531 U.S. 1089, 121 S. Ct. 809, 148 L. Ed. 2d 695 (2001), the appea l of a federalhabeas corpus claim, the court concluded that the New Mexico state court had not violated the petitioner’s due process rights in excluding the10 The court on a ppeal deter mined tha t, s ince t he parti es tr eated this testi mony as providing an alibi, it li kewise wou ld do so, al though i t did not preclude t

he defendant ’s ha ving “ left the p art y, rape d the victi m, and returned to the party b efore sunrise,” and th en be ing seen by the e xclud ed w itness. W atle y , 218 F.3d at 11 57 n .1. -58- testimonyof a witness who had not revealed , until a meeting with the defense attorney and prosecutor

following the eleventh day of trial, that he had seen the defendant at a party after the rape had occurred: 10

Unlike the attorney in Taylor , Petitione r’s coun sel did not

willfully hide Baca’s testimony

from the State. See Watley [v. State] , 788 P.2d [3 75,] 3 76-77 [(N.M. Ct. App. 1989)]. Nevertheless, Petitioner’s counsel violated New Mexico’s alibi witness rule by not listing Baca as an alibi witness. See id. at 377. Because prepar ing a re buttal to Baca’s testimony would require a continuance to re-int

erview t en to fifteen witnesses, the N ew Me xico Court of Appealsreasona

bly co nclu ded that allowing Baca to testify about Petitioner’s wherea bouts would have prejudiced the State. Id. Also, bec ause of its late discovery , Baca’s testimony calls into question the integrity of the judicial process. See id. at 377-78.
Id. at 1159. Likewise, the court in State v. Maestas , 815 P.2d 1319 (Utah Ct. App. 1991), concluded that the trial court did not violate the defendant’s right to due proce ss by not allowing his girlfriend, who had not been disclosed as an alibi witness, t o testify what time

he alleg edly

had left her house the day of th e b ur gl ar y:

Defendant

had the opportunity to present a l ib i testimony. All he needed to do was comply with the timing requirements of [UtahCode Annotated] section 77-14-2. The witness, whose testimony was excluded in this case, did not suddenly materialize during the tria l. She was known to defendant from the outset of the case. Defendant has not shown any g ood cause why the requirement of

notice should be waived. Since he d

id not provide notic e of his alibi witne ss, he did notcomply with section 77-14-2, and the tri al cou rt properly e

xcluded th e a li bi wi tn es s’ s t es ti mo ny. Id. at 1325 (footnote omitted).
In Peo ple v. Walker , 743 N.Y.S.2d 403, 404 (N.Y. App. Div. 2002), the court determined that the trial court did not abuse its discretion or v iolat e the defendant’s due process rig hts by excluding the testim

ony of his alib i witness:-59- Here, defenda

nt could ha

ve provid ed timely alibi notice long before the cl ose of the

People' s case since he w ould have known fr om th e time of his ar

rest whet her he was with any one at the time he was accused of making a series of

dr ug sa le s. Ac co rd in gl y, it is immaterial when substitute defe nse counsel le arned of the witne ss's whe

reabout s. The emergence of the alibi witness at the eleventh hour

indicated that her proposed testi mony

was a product of recent fabrication . . . and warran ts a f inding of willful co nduct on th

e part of defenda nt, pe rs on al ly.
The defendant in Sta

te v . Ja mison , 5 52 N.E.2d 180 (Ohio 1990), had been tried for the robbery- murder

of a bar owner and sentenced

to death. An acco mplice te stified a s a state’ s witness tha t he and the defendant had been play ing basketball at noon on the day of the crime, and the defendan tsugge sted that t hey rob the ba

r. They then did so , with the a

ccomplic e acting

as th e lookoutand the defendant robbing the bar owne r. The defense attorney

had refused to providea list of his witnes ses and sa

id that he would n ot be rel

yin g on an a

libi. Howe

ver, the first def ense witness was the defe

ndant’s g irlfrie nd, who sa

id that she had bee

n with the d

efenda nt until at l east 2:00

p.m. The st at e t he n o bj ec te d t o t he de fe nd an t’ s p re se nt in g a ny a dd it io na l a li bi te st im on y; but, couns el deniedthat he was doing so, saying he only was ref

uting the testimony that the def endant had been playing basketba ll with the accomplice shortly before the crime was committed. The following da y, defense counsel advised the court that the defendant’s brother

and the br other’sgirlfr

iend also would testify that the defendant had been at his own girlfr iend’s house the a fternoon of the crime, continuing to assert, however, that he was not presenting a libi proof. He explained that he hadnot given notice of these witnesses “beca use the testimony was vag ue.” Id. at 186.
On appeal, th e cou rt analyzed the def endant’s reasons for wanting to deny that he was presenting alibi evidence:

In this c ase, app ellant’sdecision not to giv e alibi no tice wasa clear tactical decision. Defense counsel wanted the benefit of alibi evidence, that is, to crea t e a doubt, without the burdens of giving notice by supply

ing witnesses’ names and an alibi ins truc tion. Counsel, in fact, largely

succeeded. Duncan

test ified she had been withappella

nt all day unti l at l east 2:00

p.m. Her

brother and his girlfriend cor roborated her testimony at least to 1:30 p.m. That testimonywas inconsistent with the o therfacts, a robbery between 1:30 and 2:00 p .m. It conflicted with the testimony of Howell who said he had played basketba

ll with appe

llant, unti l noon on the

day in question.
Id. at 187.-60-

To conclude our consideration of this issue, we will trace the manne r in which evidence of alibi was sought by

the prosecution and later presented at trial. The State filed its alibi demand on February 17, 1999; and on March 8, 1999, the defendant asked that he ha ve until June 23, 1999, t

o respond, because

“[s]ince the Defe

ndant hasbeen inc arcer

ated, it ma

kes it diff icult to fully c omply withthe notice as to exact times and witnesses who are available.” The State opposed this requ est and allege d that the de fense w as att empti ng to obtain “false testimony.” O n March 19, 1999, denying this allegation, the defendant again asked for an extension to time to file his alibi response, explaining that the defendant was having a difficult time investigating his alibi because he had “very limited resources,” because he was incarcerated, and explaining that “[t]he only time aperson w ould remember

exactly where th ey were is if they wer

e committing a crime. When someone is at a place diff erent than where a crime was committed, it takes some time to investigate witnesses who can recall having knowledge of the Def endant’s presence at some place other than the sce ne of the crime.” The attor

ney who filed this respo nse was replaced by two other attorne ys w ho, themse

lves, were replaced by

counsel who represented the defenda ntat the tri al. This changing of counsel was recount ed by the trial court in th

e order deny ing the m otion for new tria l:
Mr. Looper has been r

epresented by

five different attor

ney s during this Court’s effort to get th is ca se tr ie d. Th es e f

iv e a tt or ne ys are in addition to different attorney s that represented hi m in the General Sessions Court. Every time the ca se appeared to be nearing a trial, Mr . Loop er would

be co me di ss at is fi ed wi th hi s a tt or ne ys and would seek to r eplace them. I n one insta

nce the a ttorney found it necessary to withdra

w from re present ation of M

r. Lo oper bec ause

of ethical reasons. After that withdrawal this Cou rt app ointed experienced

trial attorneys to try

the case. Those attorney s worked diligen tly in the preparation of the case and identified numer ous experts and made a thorough investigation. As the trial date neared, Mr. Looper

refuse d to coope

rate with those

attorne ys a nd ultimate

ly hiredhis current attorney s insisting that Mr. Poston and Mr. Cordova were attorneys with which he could cooperate. The Court allowed the dismissal of the appointed attorney s and permitted their replacement by the curr ent reta ined atto rney s three mo nths prior

to the trial of this case in August of 2000, at Mr. L ooper’s insistence.
The attorneys who re

presented the defe ndant at t rial cam e into the case only in June 2000, about two months before the August 11, 2000, trial date. Even if th ey had file d an alibi

response in Ju ly, when the

y a pparent ly le arned of

it, such a response would hav e been lo ng past the time when the response was required. I t might be expected that the State would not have re acted charitab ly

if presented shortly before the trial with an al

ibi claim, and would

have be en skepti cal both o f its timing and veracity

. However, trial counseldid not reveal the alibi as soon as they learned of it, nor during the State’s case in chief, nor even at the beginning of the weekend of August 18, 2000, as they were present

ing the d efense proof. I nstead, t he defe nse did not call Reba

Loope r to testif y un til-61-

Mo nd ay, August 21. Thus, the alibi was not revealed until the most difficult time for the State, the be gi nn in g o f a we ek du ri ng th e d ef en se pr oo f, an d b efor e a se qu es te re d j ur y fr om an ot he r c ou nt y. Alth ough it is argued

on appeal that trial counsel’s contention was “earne st” that th e defen se was notpresenting alibi proof and that “there [was] nothing willful or defiant about any

insufficiency of the notice of alibi,” the record and chronolog y compel the opposite conc lusion. First, as we have discussed at length, the def en da nt , r el yi ng upon what apparently was a self-created and ad hoc exceptio n to the alib i notice requirement, argued that the pr oof was not of alibi and, thus, not required to be disclosed while, at the same time, arguing the proof showed it was “impossible” for him to have c ommitted the crime. As a cor ollary to his non-alibi claim, and making his arguments even more con

tradicto ry , he conte

nded also that t he Flower y Bra nch testimony would have per mitted him both to have been in “Monterey” around the time of the crime and in Flowery Branch three hours later. We note that the defendant’s alibi response stated that he had not been at the victim’s farm during the period in the alibi demand. Not knowing wheth er couns el was using inter

chang eably “farm”and “Mon

terey ,” it is unclear whether

defense trial counsel intentionally was contradicting the written assertion of previous counsel.
While the defendant argues that witne ss exc lusio n is li mited to “h ard- core

tran sgr essio n[s]” and to so characterize this matter “ would be b ey ond the pa le,” we respec tfully

disagr ee. We not

e that the defendant has not provided examples of such transgressions so that we may c ompare what he concedes is “hard-core” with that w hic h he claims here is not. In fact, from an exclusion standpoin t, the fac ts of cas es discus sed in this o pinion, wh

ere on a ppeal it was determined that the trial court ha

d not err ed in exclu ding the

testimony

of late- reveal ed witnes s es, are scar cely distingu ishable from those of the present appeal. The existence of a large and

gaping exception

to the alibi notice requirement, the existence of which the defense claims to “firmly believe[],” ignore s th e v er y pu rp os e o f d is cl os ur e, as ex pl ai ne d b y Taylor : “Notice -of-ali

bi rules, now in

use in a large and growing

number of States, are based

on the proposition that the ends of justice will best be served b y a

sys tem o f

liberal discovery

which gives both parties the maximum possi

ble amoun

t of infor mation with

which to prepare thei r cases and thereby

reduces the possibility of surpr ise at trial. . .

. The growth o f such discovery de vices is a salutary

development which, by increasing the evidence

available to both parties, enhances the fairness of the adversary system.”
484 U.S. at 411, 108 S. Ct. at 654 n.16 (quot ing Wardius v. Oregon , 412 U.S. 47 0, 473-47 4, 93 S. Ct. 2208, 2211, 37 L. Ed. 2d 82 (1973)).
In arguing for

recognition of his exception to the alibi notice requirement, the defendant does notsuggest ho w, given tha t the interest of justice requires that reliable evidence be presented and unrelia ble evidence rejected, the judicial proce ss is advanced by e xclud ing from disclosure te stimony wh ich goes to the defendant’s wherea bouts just outside the period in the alibi demand, whil e-62-

testimonyas to his location within the period must be disclosed. Both categories of testimony

would appear to be equally subject to manipulation. Howeve r, an obvious beneficiary

of such an exception would be t he defen dant in the present appeal. Applicable here is the much quote d language from Williams v. Florida , “[t]he adversary sy stem of trial is hardly an e nd in itself; it is not yet a poker game in which players e

njoy an absolute right alway s to conceal their cards until played.” 399 U.S. at 81, 90 S. Ct. at 1896.
To conclude our analy sis of this issue, we consider again the lang uage of Taylor , explaining the rea sons for limiting a

defenda nt’s Sixth Ame

ndment rig

hts:
The principle that undergirds the defendant’s r ight to p res ent exculpatory

evidenc e is also the source of essential limitations on the right. The adve

rsary processcould not f

uncti on effectively

without adherence to rules of

procedu re that g overn the

orderly presentation of fact s and arg

uments to provide e ach par

ty with a fair o

pportunit y to a ssem ble and submit evidence to contradict or explain the opponent’s case. T h e trial process would be a shambles if either party had an absolute r

ight to c ontrol the

time and c ontent of

his witnesse s’ testimony. Neither may insist on the

right to interrupt the opposing party’s ca se, and obviously there i s n o absolute right to interrupt the delib eration s of th e jury to present newly discovered evidence. The State ’s intere st in the orderly conduct of a criminal trial is s u fficien

t to justify

the imposit

ion and en

forcem ent of fir m, thou gh not alway s inflexible , rules r elating to the ide

nti fic ation and presentation of evidence

. 484 U.S. at 410-11, 108 S. Ct. at 654 (footnote omitted).
We conclude that the manner in which the defense sprung the alibi witnesses evinces a n effort to gain a tactical advantag e, the circumstances and timing effectively inoculating them fr om a complete or thorough cross-examination. Further, we conclude that

the administration of justice and the adversary

process would have suffered had the trial cou rt not exclu ded the te stimony of these witnesse s. Accordingly , the trial court did not abuse its discretion in not permitting the witnesses to testify before

the jury.
II. In Camera Inspectio n of Psychological Re cords
On appeal, the defendant asks that this court review the psychol ogical records of State’s witness Wesle

y R ex. The tria

l court re viewed th ese rec ords and d

enied pr oduction t o the def endant, explaining

the ratio nale in the order overrul ing the m otion for new tria l:
Mr. Wesley L

eRoy Rex is described as a mentally re tarded person buthe has neve

r been ho spitalized

in any mental he alth fac ility

in the-63- [S]tateof Tennessee. Mr. Rex underwent psychologic al evaluations and testing as a part of the evaluation proc ess to determine whether or not he qualifie d for edu cationa l service s under th

e In dividualswith Disabilities Education Act. These psychological rec ord s were subpoenaed

by Mr. L ooper’s former attorney , Douglas Trant. The school system intervened a nd responded to the motion asserting that these records were privileged under both fede ral and state law. Mr. Rex also asserted his privilege as to hi s psycho logica l assessme

nt. This Court held a pretrial hearing on this issue months before the trial and overruled

the objection of Mr. Rex and the school board, ordering the record s to be produced for an in camer a inspec tion by

the Court. The purpose of

the Court’s inspection was to determine if there was evidence in the record that would be useful to aid the Court and the jury in appraising the credibility of Mr. Rex as a witness and in assessing the probative value of his direct testimony . Mr. Rex fr eely admitted in his testimony his spec ial edu cation ba ckground and hi s limite d ability to read, write, a nd perform math functions. The Court’s review of the school rec ords fai led to dem onstrate psychologic al evidence that would touch on either Mr. Rex’s ability to percei ve and re

member o

r his cre dibility

as a witne ss as required by State v. Barnes , 703 S.W.2d 611 (Tenn. 1985), State v. Middlebrook , 840 S.W .2 d 317 (Tenn[.] 1992), State v. Suttles , 30 S.W.3d 252 (Te nn. 2000) . Therefore, th is assig nment of e

rror is overruled.
We have reviewed

the rec ords per

taining to Wesley Rex which are under seal and conclude, as didthe trial court, that, given the evidence presented during the tr ial as to the limitations of Mr. Rex’s abilities, the records fail “to demonstrate psy chological evidence that would touch on either Mr. Rex’s ability to perceive and r emember or his credibility as a witness.” III. Sufficiency of the Evidence as to Aggravating Factor
The defendant argues that the evidenc e was insufficien t forthe application of Tennessee Code Annotated section 39-13-204(i)(11):

(i) No death penalty

or sentence of imprisonment for life without possibility

of parole shall be imposed but upon a unanimous finding that the state ha s proven b ey ond a rea sonable doubt the existence of one (1) or more o f the stat

utory aggr avating circumst ances, which are limi ted to the fo llow ing: (11) The murder was committed against a national, state, or loc al popularl y electe d officia

l, due to or

because of the of ficia l 's lawful-64- duties or status, and the defendant knew that the victim was such an official[.]
The defendant’s specific claim as to the insuffic iency

of proof to support a

pplicatio n of this aggravating f

actor is explained in his brief:
Here the decedent was an el ected State Senator, and the Defendant

does not di spute tha

t he knew what elective office the decedent held. The evidence is insufficient, however, for a rational trier of fact to concludethat Senator Burks was murdered “due to or because of the official’s lawful duties or status.” The evidence at trial taken in the light most favorable to the State, shows at most that Mr. Burks was kille d not because of his official duties or status, but instead because he was a candidate for office.
The fact is th at th e victim was both the incumbent state senator for the district and a candida te for reelection, and his death would create a vacancy

for this office . The recor d fully supports the determination of the jury that the de fendant killed the victim to create a vacancy in the position for which the defendant was a candidate.
CONCLUSION
Based upon t he fore going a utho rities and reasoning, we affirm the c onviction and the imposition of life without the possibility of parole.

__________________________________________ ALAN E. GL

ENN, JUDGE