alibi defense in Indiana

2017D.D.K. v. State, 750 N.E.2d 885, 890 (Ind. Ct. App. 2001).

2015D.D.K. v. State, 750 N.E.2d 885, 890 (Ind. Ct. App. 2001) (citing Jones v. State, 569 N.E.2d 975, 982-83 (Ind. Ct. App. 1991)).

2001Jones, 569 N.E.2d at 982 -83 (citing Zeilinga v. State, 555 N.E.2d 471 (Ind.1990); Miller v. State, 543 N.E.2d 639 (Ind.1989); Smith v. State, 511 N.E.2d 1042 (Ind.1987)).

1998See, *722 e.g., Zeilinga v. State, 555 N.E.2d 471, 475 (Ind. 1990) (where defendant claimed that trial counsel was ineffective for not presenting an alibi defense, a pretrial hearing conducted in the case revealed that counsel rejected defendant's request to present an alibi defense because the witness had no knowledge of defendant's whereabouts at the time the crime was committed and the court concluded that counsel "had taken all reasonable steps to attempt to establish alibi evidence but was unable to do so”); Brewer v. State, 496 N.E.2d 371, 373 (Ind.1986) (where defendant unsuccessfully c

2000Moreover, it is well settled that even when an alibi defense is properly filed, such a filing does not impose a greater burden of proof on the State than would otherwise be required absent such a finding. *319 See Jennings v. State, 514 N.E.2d 836, 837 (Ind.1987); Sangsland, 715 N.E.2d at 879 .

1999As the majority indicates, the State’s answer alleged that the offenses occurred between February 9 and 11. “[T]he filing of an alibi defense does make the time of the alleged offense of the essence, ... [and] the effect of the State’s answer to the notice of alibi is to restrict the State to proof of the date in the answer.” Jennings v. State, 514 N.E.2d 836, 837 (Ind.1987) (citations omitted).

2018See id. (noting that defendant did not assert an alibi defense that would have been affected by the amendment of the dates in the charging information but instead denied that he committed the offenses, a defense that was still available under the amended information) (citing Lacy v. State, 438 N.E.2d 968, 972 (Ind. 1982) (recognizing an alibi defense as the “kind of situation which would make an amendment as to the date of the offense material by depriving 5 We refer, of course, to the versions of the statute that were in effect when French committed his crimes.

2000Distinguishing this court’s opinion in Lacy v. State, 438 N.E.2d 968 (Ind.1982), the Court of Appeals concluded that interposing an alibi defense is not the only situation under which an amendment as to the date of an information is material.

1999See Harris v. State, 617 N.E.2d 912 (Ind.1993) (once an alibi defense is invoked, the State "has the burden of proving that the defendant in fact was at the scene of the crime and committed the offense."), overruled in part on other grounds, Wright v. State, 690 N.E.2d 1098, 1109 (Ind.1997).

1999See Harris v. State, 617 N.E.2d 912 (Ind.1993) (once an alibi defense is invoked, the State “has the burden of proving that the defendant in fact was at the scene of the crime and committed the offense.”), overruled in part on other grounds, Wright v. State, 690 N.E.2d 1098, 1109 (Ind.1997).

1999See Harris v. State, 617 N.E.2d 912 (Ind.1993) (once an alibi defense is invoked, the State "has the burden of proving that the defendant in fact was at the scene of the crime and committed the offense."), overruled in part on other grounds, Wright v. State, 690 N.E.2d 1098, 1109 (Ind.1997).

1999See Harris v. State, 617 N.E.2d 912 (Ind.1993) (once an alibi defense is invoked, the State “has the burden of proving that the defendant in fact was at the scene of the crime and committed the offense.”), overruled in part on other grounds, Wright v. State, 690 N.E.2d 1098, 1109 (Ind.1997).

2001It is this type of claimed error that our supreme court has characterized as a "hybrid contention," consisting of "an act or omission on the record that is perhaps within the range of acceptable tactical choices counsel might have made, but in the particular instance is claimed to be made due ... to some other egregious failure rising to the level of deficient attorney performance." Woods v. State, 701 N.E.2d 1208, 1212 (Ind.1998), cert. denied 528 U.S. 861 , 120 S.Ct. 150 , 145 L.Ed.2d 128 (1999).

2001It is this type of claimed error that our supreme court has characterized as a "hybrid contention," consisting of "an act or omission on the record that is perhaps within the range of acceptable tactical choices counsel might have made; but in the particular instance is claimed to be made due ... to some other egregious failure rising to the level of deficient attorney performance." Woods v. State, 701 N.E.2d 1208, 1212 (Ind.1998), cert. denied 528 U.S. 861 , 120 S.Ct. 150 , 145 L.Ed.2d 128 (1999).

2017Assistance of Trial Counsel [8] Wait argues that he was denied the effective assistance of trial counsel because his trial counsel did not pursue an alibi defense, allowed Wait to admit to being Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017 Page 4 of 13 an habitual offender and a repeat sex offender, and did not object to the prosecutor’s vouching statements during closing argument. 1 [9] A claim of ineffective assistance of trial counsel requires a showing that: (1) counsel’s performance was deficient by falling below an objective standard of reasonab

2017“A reasonable probability arises when there is a ‘probability sufficient to undermine confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694 ).

2015D.D.K. v. State, 750 N.E.2d 885, 890 (Ind. Ct. App. 2001) (citing Jones v. State, 569 N.E.2d 975, 982-83 (Ind. Ct. App. 1991)).

2001Jones, 569 N.E.2d at 982 -83 (citing Zeilinga v. State, 555 N.E.2d 471 (Ind.1990); Miller v. State, 543 N.E.2d 639 (Ind.1989); Smith v. State, 511 N.E.2d 1042 (Ind.1987)).

2013Id. at 1267-68 .

1998See Williams v. State, 508 N.E.2d 1264, 1267 (Ind.1987) ("Absent a strong showing to the contrary, we normally presume that counsel failed to present an alibi defense because it was not indicated by the circumstances or, if indicated, was rejected upon due deliberation.”).

2012Young also discusses "with approval a pre- Wright case, Shelby v. State, 258 Ind. 439 , 281 N.E.2d 885 (1972), where a defendant charged with robbery presented an alibi defense but was convicted of theft, a lesser included offense of robbery. 699 N.E.2d at 256 .

2012Young also discusses "with approval a pre- Wright case, Shelby v. State, 258 Ind. 439 , 281 N.E.2d 885 (1972), where a defendant charged with robbery presented an alibi defense but was convicted of theft, a lesser included offense of robbery. 699 N.E.2d at 256 .

2007See Lacy v. State, 438 N.E.2d 968, 972 (Ind.1982) (recognizing alibi defense as “kind of situation which would make an amendment as to the date of the offense material by depriving the defendant of a defense”); see also Taylor v. State, 614 N.E.2d 944, 947 (Ind.Ct.App.1993) (applying Lacy in context of child molesting), trans. denied.

2000Taylor, 614 N.E.2d at 947 .

1998We note that Thomas v. State, 251 Ind. 546 , 242 N.E.2d 919 (1969), was decided before the Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), standard on ineffective assistance of counsel was established.

1975Greentree as serts that findings of both improper investigation and of a failure- to present a requested defense are not necessary to reversal here; he reasons that his attorney’s, failure to conduct a “proper” investigation into the alibi defense is alone sufficient because otherwise the defense’s presentation is “more ‘perfuntory’ than actual.” Thomas, supra, 251 Ind.- at 555, 242 N.E.2d at 924 .

2019In Barnett v. State, 83 N.E.3d 93, 101-02 (Ind. Ct. App. 2017), trans. denied, we found that Barnett’s substantial rights were not prejudiced 6 Unlike the State, we will not assume that a continuance would have been in McFarland’s best interests.

2019In Mays v. State, 120 N.E.3d 1070, 1081-82 (Ind. Ct. App. 2019), trans. denied, we found no prejudice where the State’s notice of the proposed amendment was given to the defendant nearly four months before trial and the alibi defense was equally available after the amendment.

2018See id. (noting that defendant did not assert an alibi defense that would have been affected by the amendment of the dates in the charging information but instead denied that he committed the offenses, a defense that was still available under the amended information) (citing Lacy v. State, 438 N.E.2d 968, 972 (Ind. 1982) (recognizing an alibi defense as the “kind of situation which would make an amendment as to the date of the offense material by depriving 5 We refer, of course, to the versions of the statute that were in effect when French committed his crimes.