Notice of Alibi
• Whenever a defendant in a criminal case intends to offer in his defense evidence of alibi, the defendant shall, no later than:
(1) twenty (20) days prior to the omnibus date if the defendant is charged with a felony; or
(2) ten (10) days prior to the omnibus date if the defendant is charged only with one (1) or more misdemeanors;
file with the court and serve upon the prosecuting attorney a written statement of his intention to offer such a defense. The notice must include specific information concerning the exact place where the defendant claims to have been on the date stated in the indictment or information.
• IC 35-36-4-1 requires a defendant to inform the trial court in writing of defendant’s intention to offer an alibi defense to a felony charge.
• IC 35-36-4-1(2) . . . requires a defendant to inform the trial court in writing of defendant’s intention to offer an alibi defense to a misdemeanor charge.
Timeliness: Effect of resetting the omnibus date after an untimely filing
• If a trial court moves an omnibus date, which effectively creates at least a twenty-day period between the initial notice of alibi filing date and the subsequent omnibus date, then the purposes of the alibi statute are served by treating the initial notice as timely filed. Here, [the defendant] filed his initial notice of alibi on April 6, 1994. Because a new omnibus date was set for May 30, 1994, [the defendant] effectively filed his notice twenty days before the omnibus date and thus it was timely filed.
Proper nature and location of filing
• The [defendant] contends . . . that a filing may be merely a delivery, such as a delivery to the prosecuting attorney in this case. The argument is further made that filings may be made in the secretary of state’s office, the recorder’s office, auditor’s office and various other public offices. In this instance, however, since the filing refers to criminal proceedings which take place only in a court, it is our opinion that the statute must be read in that light and the filing in this instance, as referred to in the alibi statute, requires that it be filed within the time limitation in the clerk’s office of the court where the criminal proceeding is pending. The filing with the court is normally done by the clerk, as an arm of the court.
Requisite level of specificity
• A criminal defendant must file a “written statement of his intention to offer” an alibi defense, which “must include specific information concerning the exact place where the defendant claims to have been on the date stated in the indictment or information.”
• [The defendant’s] statement that he was in Pennsylvania was too general to meet the requirements of IC 35-36-4-1.
• The State contends that [the defendant’s] notice of alibi was set forth in such broad language that it did not meet the requirements of IC 35-5-1-1 [recodified with non-substantive changes at IC 35-36-4-1]. We agree. IC 35-5-1-1 requires the alibi notice to “include specific information in regard to the exact place at which the defendant claims to have been at the time stated in the indictment or information at the time of such offense.” [The defendant’s] statement that he was in Indianapolis, Indiana, was too general and did not meet the requirements of the statute.
• [The defendant’s] notice was couched in such broad language (his alibi was that he was at “among other places, his home at 1404 Arundel Drive, Kokomo, Indiana”) that it would not meet the requirements of IC 35-5-1-1 1 [recodified with non-substantive changes at IC 35-36-4-1] which requires the notice to “include specific information in regard to the exact place at which defendant claims to have been at the time stated in the indictment or information at the time of such offense.”
Effect of withdrawing the notice
• Here, [the defendant] asked the trial court if he would be permitted to re-file his alibi defense more than three months before his trial began. However, he did not re-file and has failed to provide any reason at all for his failure to do so. We are not persuaded by his argument that the State had proper notice of his alibi defense because it was on file for twenty days in November 2000.The notice of alibi defense was withdrawn approximately eleven months before trial; therefore, the State did not have adequate notice that [the defendant] intended to call an alibi witness at trial.
Impermissibility of adding locations to the notice during trial
• One purpose of [IC 35-36-4-1] is to advise the State in advance of the exact place the accused claims to have been when the offense was committed so that the State might investigate the alibi and either dismiss the charges before trial, if it is discovered that the wrong person is accused, or secure evidence to prove the alibi false if such is the case. This purpose was thwarted by [the defendant’s] addition during trial of the other locations in which he could have been found at the time of the robbery.
Whether the notice may be considered as evidence
• [The defendants] filed a notice of alibi . . . . The State takes the position this was an intent to impeach the testimony of the prosecuting witnesses in advance. This position is untenable. When an accused files a notice of alibi he is in fact complying with a statutory condition precedent to the introduction of evidence on the question of alibi. . . . Compliance with the alibi statute did not constitute evidence in any sense of the term . . . .