alibi defense in Georgia

2024Because the true effect of an alibi defense is to traverse the state’s proof that the defendant committed the crime, a charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt. 11 (Citation and punctuation omitted.) Hollis v. State, 359 Ga. App. 249 , 254 (6) (b) ( 857 SE2d 254 ) (2021); see also Rivers v. State, 250 Ga. 288, 300 (8) ( 298 SE2d 10 ) (1982).

2024Because the true effect of an alibi defense is to traverse the state’s proof that the defendant committed the crime, a charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt. 11 (Citation and punctuation omitted.) Hollis v. State, 359 Ga. App. 249 , 254 (6) (b) ( 857 SE2d 254 ) (2021); see also Rivers v. State, 250 Ga. 288, 300 (8) ( 298 SE2d 10 ) (1982).

2004In Caldwell v. State, 139 Ga. App. 279 ( 228 SE2d 219 ) (1976), we recognized this general rule and held that “if defendant, relying upon an alibi defense for the time alleged in the indictment, is surprised and prejudiced by a time variance, upon his motion therefor he will be afforded sufficient time to prepare his defense to meet a new date.” (Footnote omitted.) Id. at 287 (2).

2004In Caldwell v. State, 139 Ga. App. 279 ( 228 SE2d 219 ) (1976), we recognized this general rule and held that “if defendant, relying upon an alibi defense for the time alleged in the indictment, is surprised and prejudiced by a time variance, upon his motion therefor he will be afforded sufficient time to prepare his defense to meet a new date.” (Footnote omitted.) Id. at 287 (2).

2025In his first enumeration of error, Saunders contends that his trial counsel was constitutionally ineffective in a number of respects, citing the standard of review for an ineffective-assistance-of-counsel 7 claim under Strickland v. Washington, 466 US 668, 687 (1984), and reciting several acts or omissions of his trial counsel that purportedly reflect “how defense counsel conducted himself during his representation of Saunders.” However, Saunders only presents argument and citations to authority on two ineffectiveness claims— a claim relating to his trial counsel’s refusal of an alibi instruct

2012Nevertheless, at the hearing on his motion to withdraw the guilty plea, his trial counsel testified that he considered filing a demurrer, but decided not to because “if the demurrer puts the finger on a[n] issue, then sometimes the State can just, you know, come back and 6 (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) ( 596 SE2d 597 ) (2004). 7 See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) ( 591 SE2d 782 ) (2004). 8 (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 ( 586 SE2d 313 ) (2003). 4 correct the defect.” And he

1990The State cites Edgehill v. State, 253 Ga. 343, 345 ( 320 SE2d 176 ) (1984), which holds that “when the exact date of the commission *562 of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations.” The State claims that the indictment put the defendant on notice that the dates alleged in its various counts were not material allegations and would not be relied upon by the State. “[W]here the variance between the allegata and probata surprises and prejudices the defendant by effectively bar

1990The State cites Edgehill v. State, 253 Ga. 343, 345 ( 320 SE2d 176 ) (1984), which holds that “when the exact date of the commission *562 of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations.” The State claims that the indictment put the defendant on notice that the dates alleged in its various counts were not material allegations and would not be relied upon by the State. “[W]here the variance between the allegata and probata surprises and prejudices the defendant by effectively bar

2016Scott v. State, 290 Ga. 883, 889 (7) ( 725 SE2d 305 ) (2012) (citations and punctuation omitted). (a) Alibi defense.

2016Scott v. State, 290 Ga. 883, 889 (7) ( 725 SE2d 305 ) (2012) (citations and punctuation omitted). (a) Alibi defense.

2013“Under these circumstances, [Rembert] cannot show a reasonable probability that the outcome of the trial would have been different had counsel met the notice requirements of OCGA § 17-16-5(a) and presented the alibi defense.” (Footnote omitted.) Jones v. State, 266 Ga. App. 679, 683-684 (2) ( 598 SE2d 65 ) (2004).

2013“Under these circumstances, [Rembert] cannot show a reasonable probability that the outcome of the trial would have been different had counsel met the notice requirements of OCGA § 17-16-5(a) and presented the alibi defense.” (Footnote omitted.) Jones v. State, 266 Ga. App. 679, 683-684 (2) ( 598 SE2d 65 ) (2004).

1989See McCoy v. State, 174 Ga. App. 621, 622 (2) ( 330 SE2d 746 ) (1985).

1989See McCoy v. State, 174 Ga. App. 621, 622 (2) ( 330 SE2d 746 ) (1985).

1985The trial court’s alibi instruction was nearly identical to the first paragraph of the alibi charge discussed in Patterson v. State, 233 Ga. 724 (7) ( 213 SE2d 612 ) (1975).

1985The trial court’s alibi instruction was nearly identical to the first paragraph of the alibi charge discussed in Patterson v. State, 233 Ga. 724 (7) ( 213 SE2d 612 ) (1975).

2024Instead, when it comes to the interplay of the statute of limitation and a defendant’s alibi 4 The jury was not charged on the defense of alibi, and Buenrrostro does not claim that this amounted to plain error. 8 defense, well settled Georgia precedent states that “[a]libi evidence does not make the date alleged in the indictment material unless proof of a different date effectively barred an alibi defense.” (Emphasis supplied.) Lovelace v. State, 241 Ga. App. 774, 775 (1) ( 527 SE2d 878 ) (2000).

2024Instead, when it comes to the interplay of the statute of limitation and a defendant’s alibi 4 The jury was not charged on the defense of alibi, and Buenrrostro does not claim that this amounted to plain error. 8 defense, well settled Georgia precedent states that “[a]libi evidence does not make the date alleged in the indictment material unless proof of a different date effectively barred an alibi defense.” (Emphasis supplied.) Lovelace v. State, 241 Ga. App. 774, 775 (1) ( 527 SE2d 878 ) (2000).

2017Though Pittman presented an alibi defense at trial, the jury was allowed to disbelieve that evidence and credit the testimony of Pittman’s accomplices, as “[r]esolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court.” (Citation and punctuation omitted.) McNeely v. State, 296 Ga. 422, 425 ( 768 SE2d 751 ) (2015).

2017Though Pittman presented an alibi defense at trial, the jury was allowed to disbelieve that evidence and credit the testimony of Pittman’s accomplices, as “[r]esolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court.” (Citation and punctuation omitted.) McNeely v. State, 296 Ga. 422, 425 ( 768 SE2d 751 ) (2015).

2016Finally, in reviewing claims of ineffective assistance, “we accept the trial court’s factual findings and credibility determinations unless *593 clearly erroneous, but we independently apply the legal principles to the facts.” Hill v. State, 291 Ga. 160, 164 (4) ( 728 SE2d 225 ) (2012) (punctuation omitted). (a) The tactical decision of whether to present an alibi defense “after thorough investigation and client consultation[ ] is virtually unchallengeable!)]” (Citation omitted.) Walker v. State, 280 Ga. App. 457, 462 (6) (a) ( 634 SE2d 93 ) (2006).

2016Finally, in reviewing claims of ineffective assistance, “we accept the trial court’s factual findings and credibility determinations unless *593 clearly erroneous, but we independently apply the legal principles to the facts.” Hill v. State, 291 Ga. 160, 164 (4) ( 728 SE2d 225 ) (2012) (punctuation omitted). (a) The tactical decision of whether to present an alibi defense “after thorough investigation and client consultation[ ] is virtually unchallengeable!)]” (Citation omitted.) Walker v. State, 280 Ga. App. 457, 462 (6) (a) ( 634 SE2d 93 ) (2006).

2014“To succeed on his ineffective assistance claim, [Boddie] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.” (Citation and punctuation omitted.) Chalk v. State, 318 Ga. App. 45, 47 (1) (a) ( 733 SE2d 351 ) (2012).

2014“To succeed on his ineffective assistance claim, [Boddie] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.” (Citation and punctuation omitted.) Chalk v. State, 318 Ga. App. 45, 47 (1) (a) ( 733 SE2d 351 ) (2012).

2014Id.; accord Eberhardt v. State, 257 Ga. 420 (2) ( 359 SE2d 908 ) (1987). *880 Here, the May 21, 2007 date was not alleged to be an essential element of any of the offenses charged, and Reed did not assert an alibi defense.

2014Id.; accord Eberhardt v. State, 257 Ga. 420 (2) ( 359 SE2d 908 ) (1987). *880 Here, the May 21, 2007 date was not alleged to be an essential element of any of the offenses charged, and Reed did not assert an alibi defense.

2014Brown, 287 Ga. App. at 861 (5) (finding no reversible error because even though child-molestation offense for which defendant was found guilty took place at times different from time alleged in the indictment, defendant was not deprived of presenting an alibi defense or otherwise deprived of a fair trial); Norman, 278 Ga. App. at 499 (4) (same).

2007Phipps and Mikell, JJ., concur. 1 Brown was also charged with one count of rape and another count of child molestation for allegedly touching his daughter’s buttocks, but the jury found him not guilty of those charges. 2 Campbell v. State, 282 Ga. App. 854 ( 640 SE2d 358 ) (2006). 3 Id. 4 OCGA§ 16-6-4 (a). 5 Gibbs v. State, 256 Ga. App. 559, 560 ( 568 SE2d 850 ) (2002); Cobb v. State, 254 Ga. App. 48 (1) ( 561 SE2d 124 ) (2002). 6 See Clements v. State, 279 Ga. App. 773, 774 (1) ( 632 SE2d 702 ) (2006). 7 Thompson v. State, 277 Ga. 102, 103 (1) ( 586 SE2d 231 ) (2003). 8 (Citation and punctuat

2013Tiller v. State, 196 Ga. 508, 510 (13) ( 26 SE2d 883 ) (1943) (emphasis supplied); see Scott v. State, 290 Ga. 883, 886 (4) ( 725 SE2d 305 ) (2012) (trial court did not plainly err in failing to charge the jury that the state bore the burden of disproving the defendant’s alibi defense beyond a reasonable doubt; considering charge as a whole, trial court completely and correctly instructed the jury on the defendant’s presumption of innocence, the state’s burden of proof beyond a reasonable doubt that the defendant committed the crimes at issue, and the assessment of the credibility of witnesses

2013Tiller v. State, 196 Ga. 508, 510 (13) ( 26 SE2d 883 ) (1943) (emphasis supplied); see Scott v. State, 290 Ga. 883, 886 (4) ( 725 SE2d 305 ) (2012) (trial court did not plainly err in failing to charge the jury that the state bore the burden of disproving the defendant’s alibi defense beyond a reasonable doubt; considering charge as a whole, trial court completely and correctly instructed the jury on the defendant’s presumption of innocence, the state’s burden of proof beyond a reasonable doubt that the defendant committed the crimes at issue, and the assessment of the credibility of witnesses

2013While Wickerson denied any involvement in those offenses and attempted to present an alibi defense, the jury “was entitled to disbelieve [his] version of the facts.” (Citation and punctuation omitted.) Herrera v. State, 306 Ga. App. 432, 433 (1) ( 702 SE2d 731 ) (2010).

2013While Wickerson denied any involvement in those offenses and attempted to present an alibi defense, the jury “was entitled to disbelieve [his] version of the facts.” (Citation and punctuation omitted.) Herrera v. State, 306 Ga. App. 432, 433 (1) ( 702 SE2d 731 ) (2010).

2013See generally Parks v. State, 234 Ga. 579, 583-584 (4) ( 216 SE2d 804 ) (1975) (no error in failure to charge that accident was an affirmative defense and that the burden was on the defendant to show accident by a preponderance of the evidence; appellate court did not find, from the charge as given, that the jury would be confused or misled to the point that it would apply the reasonable doubt standard to the defendant’s defense).

2013See generally Parks v. State, 234 Ga. 579, 583-584 (4) ( 216 SE2d 804 ) (1975) (no error in failure to charge that accident was an affirmative defense and that the burden was on the defendant to show accident by a preponderance of the evidence; appellate court did not find, from the charge as given, that the jury would be confused or misled to the point that it would apply the reasonable doubt standard to the defendant’s defense).

2013Tiller v. State, 196 Ga. 508, 510 (13) ( 26 SE2d 883 ) (1943) (emphasis supplied); see Scott v. State, 290 Ga. 883, 886 (4) ( 725 SE2d 305 ) (2012) (trial court did not plainly err in failing to charge the jury that the state bore the burden of disproving the defendant’s alibi defense beyond a reasonable doubt; considering charge as a whole, trial court completely and correctly instructed the jury on the defendant’s presumption of innocence, the state’s burden of proof beyond a reasonable doubt that the defendant committed the crimes at issue, and the assessment of the credibility of witnesses

2013Tiller v. State, 196 Ga. 508, 510 (13) ( 26 SE2d 883 ) (1943) (emphasis supplied); see Scott v. State, 290 Ga. 883, 886 (4) ( 725 SE2d 305 ) (2012) (trial court did not plainly err in failing to charge the jury that the state bore the burden of disproving the defendant’s alibi defense beyond a reasonable doubt; considering charge as a whole, trial court completely and correctly instructed the jury on the defendant’s presumption of innocence, the state’s burden of proof beyond a reasonable doubt that the defendant committed the crimes at issue, and the assessment of the credibility of witnesses

2012See Powell v. State, 276 Ga. 592, 595 (2) ( 581 SE2d 13 ) (2003) (defendant failed to show that counsel was ineffective for failing to introduce evidence of defendant’s abuse where there was no evidence to support defendant’s bare assertion); Herrington v. State, 285 Ga. App. 4, 4-5 (a) ( 645 SE2d 29 ) (2007) (since defendant neither called purported alibi witness to testify at motion for new trial hearing nor presented legally acceptable substitute for alibi’s testimony to substantiate claim that alibi evidence would have been favorable to his defense, it was impossible for defendant to show

2012See Powell v. State, 276 Ga. 592, 595 (2) ( 581 SE2d 13 ) (2003) (defendant failed to show that counsel was ineffective for failing to introduce evidence of defendant’s abuse where there was no evidence to support defendant’s bare assertion); Herrington v. State, 285 Ga. App. 4, 4-5 (a) ( 645 SE2d 29 ) (2007) (since defendant neither called purported alibi witness to testify at motion for new trial hearing nor presented legally acceptable substitute for alibi’s testimony to substantiate claim that alibi evidence would have been favorable to his defense, it was impossible for defendant to show

2012See Landers v. State, 270 Ga. 189, 191 (4) ( 508 SE2d 637 ) (1998).

2012See Landers v. State, 270 Ga. 189, 191 (4) ( 508 SE2d 637 ) (1998).

2012See Powell v. State, 276 Ga. 592, 595 (2) ( 581 SE2d 13 ) (2003) (defendant failed to show that counsel was ineffective for failing to introduce evidence of defendant’s abuse where there was no evidence to support defendant’s bare assertion); Herrington v. State, 285 Ga. App. 4, 4-5 (a) ( 645 SE2d 29 ) (2007) (since defendant neither called purported alibi witness to testify at motion for new trial hearing nor presented legally acceptable substitute for alibi’s testimony to substantiate claim that alibi evidence would have been favorable to his defense, it was impossible for defendant to show

2012See Powell v. State, 276 Ga. 592, 595 (2) ( 581 SE2d 13 ) (2003) (defendant failed to show that counsel was ineffective for failing to introduce evidence of defendant’s abuse where there was no evidence to support defendant’s bare assertion); Herrington v. State, 285 Ga. App. 4, 4-5 (a) ( 645 SE2d 29 ) (2007) (since defendant neither called purported alibi witness to testify at motion for new trial hearing nor presented legally acceptable substitute for alibi’s testimony to substantiate claim that alibi evidence would have been favorable to his defense, it was impossible for defendant to show

2017Pursuant to the standard set forth in Jackson v. Virginia, 443 U. S. 307 ( 99 SCt 2781 , 61 LE2d 560) (1979), the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Pittman was guilty of the crimes for which he was convicted. “ ‘It follows that the court did not err in denying [Pittman’s] motion for directed verdict of acquittal made at the conclusion of the State’s case-in-chief.’ ” (Citation omitted.) Murray, 295 Ga. at 291-292 . 2.

2017Pursuant to the standard set forth in Jackson v. Virginia, 443 U. S. 307 ( 99 SCt 2781 , 61 LE2d 560) (1979), the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Pittman was guilty of the crimes for which he was convicted. “ ‘It follows that the court did not err in denying [Pittman’s] motion for directed verdict of acquittal made at the conclusion of the State’s case-in-chief.’ ” (Citation omitted.) Murray, 295 Ga. at 291-292 . 2.

1983“Both the courts and commentators have long noted that since the true effect of an alibi defense is to traverse the state’s proof that the defendant committed the crime, the charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt.” Rivers v. State, supra at 300; see also Booker v. State, 247 Ga. 74 ( 274 SE2d 334 ) (1981); Lavender v. State, 234 Ga. 608 ( 216 SE2d 855 ) (1975); Bone v. State, 102 Ga. 387 ( 30 SE 845 ) (1897

1983“Both the courts and commentators have long noted that since the true effect of an alibi defense is to traverse the state’s proof that the defendant committed the crime, the charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt.” Rivers v. State, supra at 300; see also Booker v. State, 247 Ga. 74 ( 274 SE2d 334 ) (1981); Lavender v. State, 234 Ga. 608 ( 216 SE2d 855 ) (1975); Bone v. State, 102 Ga. 387 ( 30 SE 845 ) (1897

2007See Williams v. Florida, 399 U. S. 78, 85 (90 SC 1893, 26 LE2d 446) (1970), where the United States Supreme Court held that a discovery rule requiring a criminal defendant intending to rely on an alibi defense to notify the State of the place where the defendant claimed to be at the time in question and of the names and addresses of his intended alibi witnesses is not “compelled” self-incrimination, and thus does not violate the Fifth Amendment.

1999In Wardius v. Oregon, 412 U.S. 470, 476-477 , 93 S.Ct. 2208 , 37 L.Ed.2d 82 (1973), the Supreme Court held that under the due process clause a defendant cannot be compelled to disclose to the State evidence or witnesses to be offered in support of an alibi defense *680 absent reciprocal discovery of the State's rebuttal witnesses. [2] The Wardius Court reviewed its earlier decision in Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), which upheld Florida's notice-of-alibi statute because such statute provided reciprocal discovery, and stated: [a]lthough the Due Process

2000Cf. Johnson, 164 Ga. App. at 429-430 (1) (a criminal trespass charge was not required where a defendant accused of burglary denied any involvement in the crime and attacked the state’s identification evidence and presented an alibi defense).

1983Having denied being there, he was not entitled to a charge to the effect that if the jury disbelieved him they could still come back with a verdict of guilty on the lesser offense, differing only from burglary in criminal intent. [Cits.] “Because the defense strategy was that of attacking the state’s identification evidence and then presenting an alibi defense, there was no evidence mitigating the criminal intent element of burglary (‘intent to commit a felony or theft therein’) to that of criminal trespass (‘for an unlawful purpose’). [Cits.]” Johnson v. State, 164 Ga. App. 429 (1), 430 ( 296

1999In Wardius v. Oregon, 412 U.S. 470, 476-477 , 93 S.Ct. 2208 , 37 L.Ed.2d 82 (1973), the Supreme Court held that under the due process clause a defendant cannot be compelled to disclose to the State evidence or witnesses to be offered in support of an alibi defense *680 absent reciprocal discovery of the State's rebuttal witnesses. [2] The Wardius Court reviewed its earlier decision in Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), which upheld Florida's notice-of-alibi statute because such statute provided reciprocal discovery, and stated: [a]lthough the Due Process

1999In Wardius v. Oregon, 412 U.S. 470, 476-477 , 93 S.Ct. 2208 , 37 L.Ed.2d 82 (1973), the Supreme Court held that under the due process clause a defendant cannot be compelled to disclose to the State evidence or witnesses to be offered in support of an alibi defense *680 absent reciprocal discovery of the State's rebuttal witnesses. [2] The Wardius Court reviewed its earlier decision in Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), which upheld Florida's notice-of-alibi statute because such statute provided reciprocal discovery, and stated: [a]lthough the Due Process