GA Code § 17-16-5 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 16 - Discovery|Article 1 - Definitions; Felony Cases|§ 17-16-5. Alibi Witnesses

  Upon written demand by the prosecuting attorney within ten days after arraignment, or at such time as the court permits, stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant's intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.   The prosecuting attorney shall serve upon the defendant within five days of the defendant's written notice but no later than five days before trial, whichever is later, a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the state, upon whom the state intends to rely to rebut the defendant's evidence of alibi unless previously supplied.   If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subsection (a) or (b) of this Code section, the party shall promptly notify the other party of the existence and identity of such additional witness.   Upon a showing that a disclosure required by this Code section would create a substantial threat of physical or economic harm to a witness, the court may grant an exception to any of the requirements of subsections (a) through (c) of this Code section.   If the defendant withdraws the notice of intention to rely upon an alibi defense, the notice and intention to rely upon an alibi defense are not admissible. However the prosecuting attorney may offer any other evidence regarding alibi.     (Code 1981, §17-16-5, enacted by Ga. L. 1994, p. 1895, § 4; Ga. L. 1995, p. 1250, § 2.)   Law reviews.   - For article, "Death Penalty Law," see 53 Mercer L. Rev. 233 (2001). For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004).   JUDICIAL DECISIONS   Duty of state.    - Use of the word "shall" indicates clearly that the state is required to file a rebuttal to the defendant's notification. White v. State, 271 Ga. 130, 518 S.E.2d 113 (1999).    State did not satisfy the state's obligation under O.C.G.A. § 17-16-5 because the state previously supplied a list of witnesses and the rebuttal witnesses were named on that list. White v. State, 271 Ga. 130, 518 S.E.2d 113 (1999).    State was obligated to respond to the defendants' notification of the defendants' intention to rely upon alibi as a defense, and neither the state's general witness list, nor the state's entitlement to rebut or impeach a witness's testimony with conflicting testimony or statements under former O.C.G.A. §§ 24-9-82 and24-9-83 (see O.C.G.A. §§ 24-6-608,24-6-13, and24-6-621), was a substitute for compliance with O.C.G.A. § 17-16-5(b). Hayes v. State, 249 Ga. App. 857, 549 S.E.2d 813 (2001).   "Witness" does not include defendant.    - Term "witness", as it is used in subsection (a) of O.C.G.A. § 17-16-5, and as defined by O.C.G.A. § 17-16-1(3) "does not include the defendant"; thus, the trial court's ruling requiring the defendant to give notice to the state of any alibi testimony the defendant might give at trial on the defendant's own behalf was erroneous. Johnson v. State, 272 Ga. 468, 532 S.E.2d 377 (2000).   Failure to disclose.    - If the defendant acted in bad faith in failing to provide information regarding alibi witnesses, and the state was prejudiced thereby, the defendant could be prevented from presenting the testimony of witnesses not properly disclosed. Davis v. State, 226 Ga. App. 83, 485 S.E.2d 508 (1997); Freeman v. State, 245 Ga. App. 384, 537 S.E.2d 776 (2000).    Defendant could not show a reasonable probability that the outcome of the trial would have been different had counsel met the notice requirements in O.C.G.A. § 17-16-5(a) and presented the defendant's alibi defense because of the overwhelming evidence against the defendant. Thus, the defendant did not receive ineffective assistance of counsel when the defendant's counsel failed to properly notify the prosecution of the defendant's alibi defense, which resulted in the exclusion of alibi testimony at trial pursuant to O.C.G.A. § 17-16-6. Jones v. State, 266 Ga. App. 679, 598 S.E.2d 65 (2004).    Exclusion of an alibi witness was proper as the record disclosed evidence of bad faith by the defense in failing to disclose the witness within ten days of trial as required by O.C.G.A. § 17-16-5(a). Specific findings of fact regarding prejudice and bad faith had not been required as such findings were implicit in the trial court's decision to exclude the witness. Theophile v. State, 295 Ga. App. 517, 672 S.E.2d 479 (2009).   Failure to timely come forward with alibi defense.    - Trial court did not abuse the court's discretion when the court excluded the defendant's alibi evidence, including the testimony of the defendant's alibi witnesses, pursuant to O.C.G.A. § 17-16-6, because the defendant's failure to timely come forward with the defendant's alibi defense constituted prejudice and bad faith; the state had notice of the alibi just three days before the start of trial, and although the defendant made the defendant's alibi witnesses available, at least one witness was uncooperative, further prejudicing the state. Huckabee v. State, 287 Ga. 728, 699 S.E.2d 531 (2010).    Exclusion of alibi evidence was not error as the defendant failed to notify the state of the alibi until the day of trial, despite the prosecutor's request for such evidence no more than five days prior to trial. Rembert v. State, 324 Ga. App. 146, 749 S.E.2d 744 (2013).   Presentation of alibi witness showed defendant not prejudiced by delay in appointment of counsel.    - Defendant could not show that the delay in defense counsel's appointment denied the defendant the benefit of an alibi witness's testimony because the defendant's trial counsel filed a notice of intent to present an alibi defense, identifying the witness, and the witness was present and testified that the defendant's counsel had located the witness and interviewed the witness prior to the trial. Woods v. State, 342 Ga. App. 301, 802 S.E.2d 822 (2017).   Preservation of alibi defense.    - Trial court erred in finding that the defendant failed to properly preserve an alibi defense pursuant to O.C.G.A. § 17-16-5(a) because the defendant had not gone to trial. Johnson v. State, 313 Ga. App. 895, 723 S.E.2d 100 (2012).   Premature filing of notice of alibi not ineffective assistance.    - In an armed robbery prosecution, trial counsel was not ineffective for disclosing the defendant's alibi defense before the prosecution filed a demand for notice of alibi under O.C.G.A. § 17-16-5(a) because counsel knew that such a demand was going to be filed, and the defendant was not prejudiced by the premature disclosure. Fuller v. State, 295 Ga. App. 439, 672 S.E.2d 438 (2009), cert. denied, No. S09C0749, 2009 Ga. LEXIS 220 (Ga. 2009).   Compliance required.    - Defendant, whose evidence was the sole evidence in support of an alibi defense, was required to file an intention to offer an alibi defense under O.C.G.A. § 17-16-5(a), even when the state was aware that the defendant claimed to be elsewhere on the day of the crime, and such did not affect the defendant's right to testify under the Sixth Amendment; moreover, it was irrelevant that the state was already aware that the defendant claimed to be elsewhere on the date of the crime because the statute provided no exception for such prior knowledge, and because the mere claim to be elsewhere when confronted by authorities was a far cry from intending to present the legal defense of alibi. State v. Charbonneau, 281 Ga. 46, 635 S.E.2d 759 (2006).    Trial court did not err in excluding possible alibi evidence because the defendant had not filed a written notice of an intention to offer a defense of alibi. Palmer v. State, 310 Ga. 668, 853 S.E.2d 650 (2021).   Defendant's testimony about alibi.    - Trial court did not err in excluding the defendant's testimony regarding the defendant's alibi defense since the defendant failed to provide information as required by O.C.G.A. § 17-16-5 ten days before the trial. Todd v. State, 230 Ga. App. 849, 498 S.E.2d 142 (1998).    State's failure to comply with O.C.G.A. § 17-16-5 did not demand that the trial court grant the defendant's motion for acquittal since the defendant did not raise the noncompliance at trial, the court did not have the opportunity to exercise the court's discretion in formulating a remedy under O.C.G.A. § 17-6-6, and the defendant could not complain for the first time on appeal. White v. State, 271 Ga. 130, 518 S.E.2d 113 (1999).    Defendants were not entitled to relief based upon the state's failure to serve the defendants with the notice required by O.C.G.A. § 17-16-5(b) because the defendants did not show that the state acted in bad faith nor that the defendants were prejudiced by the state's failure to separately disclose the names of the witnesses who would rebut the defendants' alibi defense. Hayes v. State, 249 Ga. App. 857, 549 S.E.2d 813 (2001).    Trial court did not err in granting the state's motion for a mistrial as the defendant's failure to disclose all of the defendant's alibi witnesses after the state demanded that the defendant do so, coupled with defense counsel's mentioning in opening statement several witnesses who could place the defendant in another state at the time of the murders for which the defendant was on trial, warranted granting the mistrial because a ruling otherwise would violate the state's right to a fair trial and reward the defendant for the misconduct of the defendant's counsel. Tubbs v. State, 276 Ga. 751, 583 S.E.2d 853 (2003).    In the defendants' trial on a charge of murder and other crimes, the trial court did not abuse the court's discretion by limiting the testimony of a defense witness who was named as an alibi witness shortly before trial began. Reddick v. State, 264 Ga. App. 487, 591 S.E.2d 392 (2003), overruled on other grounds by State v. Springer, 297 Ga. 376, 774 S.E.2d 106 (2015).   Defendant's choice not to testify about alibi.    - Trial court properly denied the defendant's motion for a new trial based on ineffective assistance as although the state filed a notice for demand of alibi defense, the defendant never maintained such a defense at trial and the record showed that the defendant decided not to testify based on having a prior conviction; thus, trial counsel's choice of trial strategy was consistent with the defendant's desire not to testify and was a reasonable choice based upon the pretrial assessment. Bostic v. State, 341 Ga. App. 402, 801 S.E.2d 89 (2017).   Reply to defendant's notice not required.    - Defendant's notice of the defendant's alibi defense did not place the burden on the prosecution to file a rebuttal. White v. State, 233 Ga. App. 24, 503 S.E.2d 26 (1998), aff'd, 271 Ga. 130, 518 S.E.2d 113 (1999).   Discretion of court in permitting witness to testify.    - Although the state failed to comply with the notification requirements of O.C.G.A. § 17-16-5(b), the trial court did not abuse the court's discretion in determining that the appropriate remedy was not to exclude the alibi witness, but to grant a continuance and permit the witness to testify. Malaguti v. State, 273 Ga. 398, 543 S.E.2d 1 (2001), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).   Exclusion of witness was error.    - Exclusion of a the defendant's alibi witness was error, although the defendant failed to give the state the required ten-days' notice pursuant to O.C.G.A. § 17-16-5(a), as there was no finding of bad faith by the defendant or prejudice to the state under O.C.G.A. § 17-16-6. Ware v. State, 298 Ga. App. 232, 679 S.E.2d 797 (2009).   Claim that defendant not at crime scene.    - Defendant is not required by O.C.G.A. § 17-16-5(a) to give notice to the state of the anticipated testimony of a witness who would testify merely that the defendant was not present at the crime scene at the relevant time when such testimony will not also assert that the defendant was at a specified location other than the crime scene at the time of the crime. Johnson v. State, 272 Ga. 468, 532 S.E.2d 377 (2000).   Evidence did not warrant instruction on alibi.    - Evidence did not warrant an instruction on alibi because the evidence proffered at trial was insufficient to warrant the trial court to give an instruction on alibi; the trial court properly excluded alleged evidence of an alibi because the defendant's failure to timely come forward with the defendant's alibi defense constituted prejudice and bad faith. Huckabee v. State, 287 Ga. 728, 699 S.E.2d 531 (2010).   Failure to elect.    - Court of Appeals rejected the defendant's claimed discovery violation as the defendant could not complain that discovery materials were not made available to counsel before trial since the defendant failed to show an election to proceed under the reciprocal discovery statute and could not show what materials were withheld, or how the availability of the materials might have changed the outcome of the trial. Hall v. State, 282 Ga. App. 562, 639 S.E.2d 341 (2006).   Challenge was not preserved for review.    - Since the defendant did not raise at trial the issue of the state's alleged failure to comply with the notice requirements of O.C.G.A. § 17-16-5(b), the defendant could not raise the issue for the first time on appeal. Cordy v. State, 257 Ga. App. 726, 572 S.E.2d 73 (2002).    Because the defendant failed to object to the introduction of the notice of alibi on abandonment grounds at trial, but rather asserted only that the notice was a privileged communication, any error as to the introduction of the notice was waived on appeal. Hester v. State, 287 Ga. App. 434, 651 S.E.2d 538 (2007).   Failure to sustain appellate burden.    - Trial court did not err in refusing to grant the defendant's requested remedy for the state's failure to respond to the defendant's notice of an alibi because although the state's provision of the state's general witness list did not satisfy the state's obligations under O.C.G.A. § 17-16-5(b); to be entitled to a new trial, the defendant was required to demonstrate what harm the defendant suffered as a result of the state's noncompliance, but the defendant showed no such harm; therefore, even assuming that the trial court erred, the defendant failed to sustain the defendant's appellate burden and reversal was not warranted. Martinez v. State, 306 Ga. App. 512, 702 S.E.2d 747 (2010).   Counsel not ineffective for failing to object that notice not required.    - Counsel was not ineffective in failing to specifically object that the defendant was not required to give the state notice of an alibi defense because, even if the trial court erred in failing to give an alibi instruction to the jury, the defendant was not prejudiced as the evidence did not provide the defendant a good alibi for the crime; the defendant admitted being at the crime scene with the victim on the night of the murder; and the girlfriend's testimony about when the defendant was home left the defendant ample time to kill the victim that night, and did not put the defendant at home when the minivan, like the one the defendant borrowed, was seen near the crime scene at about 1:30 A.M. Prince v. State, 295 Ga. 788, 764 S.E.2d 362 (2014).    Cited in Hargett v. State, 285 Ga. 82, 674 S.E.2d 261 (2009), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).   RESEARCH REFERENCES   Alibi Defense, 27 POF2d 431.