alibi defense in Missouri

1989State v. Clark, 509 S.W.2d 740, 743 (Mo.App.1974).

1980When a specific date is presented as the date of the alleged crime, an instruction covering a broad period of time may not be given which would nullify an alibi defense supported by substantial evidence.” Those cases which have required a more specific time period to protect the use of an alibi defense “announce a rule of fundamental fairness that when an alibi is interposed, the time span within which the crime is alleged to have occurred must not be such as to place an impossible burden on the defendant to offer evidence of his whereabouts over an extended period of time,” see State v. Clark

1990State v. Graves, 588 S.W.2d 495 (Mo. banc 1979), controls this issue: The evidence before the jury clearly contrasted the time of the alleged offense and the alibi defense of appellant.

1980In rejecting this claim the court held, 588 S.W.2d at 498 , that “[t]he evidence before the jury clearly contrasted the time of the alleged offense and the alibi defense of appellant” and it was “not a case where the jury could believe that the defendant was where his alibi defense and corroborating witnesses placed him and still believe that the defendant committed the crime in question”, and therefore the failure of the state’s verdict directing instructions “to circumscribe the time of day the alleged . . . offenses were committed did not nullify the appellant’s alibi defense.” The same is

2017Cf. State v. Williamson, 877 S.W.2d 258, 261 (Mo. App. W.D. 1994) (noting that, under the circumstances, the failure to offer an alibi instruction was “inconsequential”—the sole issue for the jury to resolve “was whether to believe the prosecution testimony or to believe the defense testimony as to whether defendant committed the offense.

2005It is well-established that “an alibi instruction will not be given unless there is supportive evidence that the defendant was somewhere other than the place of the crime during the entire time it was being committed.” State v. Rickman, 920 S.W.2d 615, 617 (Mo.App.S.D.1996) citing State v. Williamson, 877 S.W.2d 258, 261 (Mo.App.W.D.1994).

2019S.D. 2006); State v. Meyers, 770 S.W.2d 312, 316 (Mo.App.

2019See State v. Meyers, 770 S.W.2d 312, 316 (Mo. App. W.D. 1989); But cf. State v. Leisure, 810 S.W.2d 560, 574 (Mo. App. E.D. 1991) (observing the date and time in the verdict director should mirror the date and time in the alibi instruction).

1996See State v. Jones, 735 S.W.2d at 91 ; State v. Romesburg, 703 S.W.2d 562, 565 (Mo.App.W.D.1985).

1996See State v. Williamson, 877 S.W.2d at 261, n. 1 ; State v. Jones, 735 S.W.2d at 91 ; State v. Romesburg, 703 S.W.2d at 565 .

1985Although the court is required to give an alibi instruction if requested and if the evidence supports it, State v. Cox, 508 S.W.2d 716, 724 (Mo.App.1974); State v. Franklin, 591 S.W.2d 12, 14 [1-3] (Mo.App.1979), in the posture of this case that rule is inapplicable.

1981State v. McLane, 55 S.W.2d 956 , 958 (Mo.1932); State v. Floyd, 598 S.W.2d 517, 519 (Mo.App.1980); and State v. Franklin, 591 S.W.2d 12, 14 (Mo.App.1979).

1988Appellant complains that these events violated the rule set out in State v. Curtis, 544 S.W.2d 580 (Mo. banc 1976), that state witnesses shall not be permitted to testify in rebuttal of an alibi defense where the state has failed to disclose the rebuttal evidence.

1984(That case merely holds that where Oregon had no provision for reciprocal discovery, the Due Process Clause of the 14th Amendment forebade enforcement of an alibi preclusion rule against petitioner.) Note also State v. Curtis, 544 S.W.2d 580, 582 (Mo. banc 1976), holding that where the defendant has given notice-of-mental disease or defect defense, the state, under Wardius, must disclose the names and addresses of witnesses of rebuttal witness to that defense (as well as an alibi defense).

2025“Were that not the rule, a ‘defendant would simply have to make the assertion of alibi in order to escape prosecution once it became apparent that a child was 21 confused with respect to the date of sexual assault.’” Id. (quoting Hoban, 738 S.W.2d at 541 ). [I]n these cases, the “trier of fact should be allowed to weigh the witness’s inability to specify the exact day and time of the alleged crime, and the subsequent inability of the defendant to establish an alibi defense over so long a period of time, in determining whether the defendant is guilty beyond a reasonable doubt.” Id. (quoting Hob

2025“Were that not the rule, a ‘defendant would simply have to make the assertion of alibi in order to escape prosecution once it became apparent that a child was 21 confused with respect to the date of sexual assault.’” Id. (quoting Hoban, 738 S.W.2d at 541 ). [I]n these cases, the “trier of fact should be allowed to weigh the witness’s inability to specify the exact day and time of the alleged crime, and the subsequent inability of the defendant to establish an alibi defense over so long a period of time, in determining whether the defendant is guilty beyond a reasonable doubt.” Id. (quoting Hob

1965As to the further claim “that it places the burden of proof of alibi upon defendant, whereas the burden of proving that defendant ‘was there and committed the robbery’ was upon the state,” we there ruled: “This same criticism, leveled at an identical alibi instruction, was rejected by this court less than a year ago in State v. Washington, supra [ 364 S.W.2d 572 ], for the reasons stated in two cases cited in that opinion, 364 S.W.2d l. c. 577, namely, State v. Williams, 309 Mo. 155 , 274 S.W. 427, 435 [12], and State v. Prunty, 276 Mo. 359 , 208 S.W. 91, 95 [5], viz., that where this instruct

1965As to the further claim “that it places the burden of proof of alibi upon defendant, whereas the burden of proving that defendant ‘was there and committed the robbery’ was upon the state,” we there ruled: “This same criticism, leveled at an identical alibi instruction, was rejected by this court less than a year ago in State v. Washington, supra [ 364 S.W.2d 572 ], for the reasons stated in two cases cited in that opinion, 364 S.W.2d l. c. 577, namely, State v. Williams, 309 Mo. 155 , 274 S.W. 427, 435 [12], and State v. Prunty, 276 Mo. 359 , 208 S.W. 91, 95 [5], viz., that where this instruct

1987Where, as here, it is impossible for the State to determine the exact time and date that a crime was committed and thus the State does not rely on a specific day as the date of the alleged crime, this court in State v. Siems, supra , seemed to suggest that assertion of an alibi defense does not render time of decisive importance.

1987Where, as here, it is impossible for the State to determine the exact time and date that a crime was committed and thus the State does not rely on a specific day as the date of the alleged crime, this court in State v. Siems, supra, seemed to suggest that assertion of an alibi defense does not render time of decisive importance.

2023“An alibi instruction does not change the evidentiary picture or shift the burden of proof.” McGuire v. State, 523 S.W.3d 556, 569 (Mo. App. E.D. 2017) (citing State v. Phegley, 826 S.W.2d 348, 355 (Mo. App. W.D. 1992).

2023“An alibi instruction does not change the evidentiary picture or shift the burden of proof.” McGuire v. State, 523 S.W.3d 556, 569 (Mo. App. E.D. 2017) (citing State v. Phegley, 826 S.W.2d 348, 355 (Mo. App. W.D. 1992).

1996State v. Graves, 588 S.W.2d 495, 497 (Mo. banc 1979); State v. White, 621 S.W.2d 287, 295-296 (Mo.1981); and State v. Sager, 600 S.W.2d 541, 573-575 (Mo.App.1980).

1989While it is true that in cases where an alibi defense is raised, the verdict directing instruction must contain a specific time and date phrase alleging when the offense was supposedly committed, so that an impossible burden is not placed on a defendant who is trying to account for his whereabouts over a period of time, State v. Sager, 600 S.W.2d 541, 574 (Mo.App.1980), cert. denied, 450 U.S. 910 , 101 S.Ct. 1348 , 67 L.Ed.2d 334 (1981), such a defense was not raised here.

1989Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Rule 27.26(j).

1988Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

1982The same argument was rejected in State v. Bascue, 485 S.W.2d 35, 37 (Mo.1972).

1981State v. Bascue, supra at 37 [4].

1987The court distinguished the Missouri Supreme Court decision in State v. Bowles, supra , and upheld the instruction explaining: When a specific date is presented as the date of the alleged crime, an instruction covering a broad period of time may not be given which would nullify an alibi defense supported by substantial evidence....

1987The court distinguished the Missouri Supreme Court decision in State v. Bowles, supra, and upheld the instruction explaining: When a specific date is presented as the date of the alleged crime, an instruction covering a broad period of time may not be given which would nullify an alibi defense supported by substantial evidence....

1964In State v. Hubbard, 351 Mo. 143 , 171 S.W.2d 701 , cited by defendant, the language used was wholly different and very clearly cast the burden upon the defendant to prove an alibi defense.

1964In State v. Hubbard, 351 Mo. 143 , 171 S.W.2d 701 , cited by defendant, the language used was wholly different and very clearly cast the burden upon the defendant to prove an alibi defense.

2023An alibi instruction should not be given “unless there is supportive evidence that the defendant was somewhere other than the place of commission, during the entire time of commission.” State v. Poe, 857 S.W.2d 419, 422 (Mo. App. E.D. 1993) (citing State v. Reese, 787 S.W.2d 768, 773 (Mo. App. W.D. 1990)).

2023See id. (“No alibi instruction will be given unless there is supportive evidence that the defendant was somewhere other than the place of commission, during the entire time of commission.”) (citing Reese, 787 S.W.2d at 773 ). 39 No prejudice from failure to give alibi instruction Even assuming arguendo that it was error for the trial court to fail to issue an alibi instruction, Appellant has not demonstrated he was prejudiced by this failure.

2023An alibi instruction should not be given “unless there is supportive evidence that the defendant was somewhere other than the place of commission, during the entire time of commission.” State v. Poe, 857 S.W.2d 419, 422 (Mo. App. E.D. 1993) (citing State v. Reese, 787 S.W.2d 768, 773 (Mo. App. W.D. 1990)).

2023See id. (“No alibi instruction will be given unless there is supportive evidence that the defendant was somewhere other than the place of commission, during the entire time of commission.”) (citing Reese, 787 S.W.2d at 773 ). 39 No prejudice from failure to give alibi instruction Even assuming arguendo that it was error for the trial court to fail to issue an alibi instruction, Appellant has not demonstrated he was prejudiced by this failure.

1986State v. Bowles, 360 S.W.2d 706 (Mo.1962); State v. Chittim, 261 S.W.2d 79 (Mo.1953).

1962We held (citing authority) a like instruction in a similar situation prejudicially erroneous in State v. Chittim, Mo., 261 S.W.2d 79, 80 [1], stating: “This instruction nullified appellant’s alibi defense which was supported by substantial evidence.” The record in the case at bar calls for a like holding.

1969We note that the alibi instruction is in the form approved in State v. Hillebrand, 285 Mo. 290 , 225 S.W. 1006, 1007 [2], and recently recommended in State v. Howe, Mo.Sup., 343 S.W.2d 73, 75 [4], and State v. Pruett, Mo.Sup., 342 S.W.2d 943, 945 [4, 5], so there is no occasion for invocation, under State v. Haygood, Mo.Sup., 411 S.W.2d 230 , of the plain error rule (Criminal Rule 27.20(c), V.A.M.R.).

1965State v. Simon, Mo.Sup., 375 S.W.2d 102, 105, 107 ; State v. Howe, Mo.Sup., 343 S.W.2d 73, 75 ; State v. Williams, 309 Mo. 155 , 274 S.W. 427, 435 .

2025Supp. 2017). 4 “However, it is important to note that an instruction covering a broad period of time may not be given when doing so would nullify an alibi defense that is supported by substantial evidence.” Cannafax, 344 S.W.3d at 287 n.4 (citation modified). 5 thirteen years old, and from May 30, 2017, through the end of the year, Victim 2 was fourteen years old.

2025“Because time is not an essential element of the crime, the [S]tate is not confined in its evidence to the precise date stated in the Amended Information, but may prove the offense to have been committed on any day before the date of the information and within the period of limitation.” State v. Cannafax, 344 S.W.3d 279, 287 (Mo. App. S.D. 2011) (quoting State v. Bunch, 289 S.W.3d 701, 703 (Mo. App. S.D. 2009)).

2021This is especially true when the potential alibi witness is cooperative.5 See, e.g., Gennetten v. State, 96 S.W.3d 143, 151 (Mo. App. W.D. 2003) (“Here, Mr. Gennetten’s trial counsel did not make a reasonable professional investigation or a reasonable decision not to investigate Dr. Sharp”); Cravens, 50 S.W.3d at 295 (“Counsel lacked the information to make an informed judgment because of inadequacies in his investigation; therefore, any argument as to trial strategy is inappropriate”); State v. Hayes, 785 S.W.2d 661, 663 (Mo. App. W.D. 1990) (“[C]ounsel’s omission to call [an] alibi witness …

1991Id. at 182 .

2017See McClain v. State, 560 S.W.2d 894, 896 (Mo. App. Springfield 1978) (stating that “[i]f the jury was to believe the alibi testimony, an alibi instruction was not an absolute necessity before it could do so.”).

2005Although the issue of failure to request submission of an alibi instruction as a basis for ineffective assistance of counsel was considered in McClain v. State, 560 S.W.2d 894 (Mo.App.Spring.1978), the trial court, unlike here, held an evidentiary hearing.

2006Id.

2004“As a general rule, rebuttal witnesses need not be disclosed.” State v. Clark, 975 S.W.2d 256, 263 (Mo.App.1998); see also Rule 23.01(f). 3 The two exceptions to this rule, based on the theory of reciprocal discovery, are when the rebuttal witness is called (1) to refute an alibi and the defense has disclosed his alibi witnesses and (2) to refute a defense of mental disease or defect excluding responsibility and the defense has disclosed its witnesses on the matter.

1996See Rule 28.02(f); State v. Poe, 857 S.W.2d at 423 ; State v. Kimball, 624 S.W.2d at 159 .

1996See also State v. Kimball, 624 S.W.2d at 159-60 .

1984On the facts of this case, State v. Mitchell, 622 S.W.2d 791 (Mo.App.1981), is helpful to the state’s position that the trial court did not improperly permit the use of McKinney’s prior statement, where he testified to the alibi defense at trial.

1982See State v. Mitchell, 622 S.W.2d 791, 797 (Mo.App.1981) (rebuttal testimony offered not to rebut alibi but to impeach defense witness).