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2018 Georgia Code 17-16-5 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 17-16-5 Case Law from Google Scholar Amendments to OCGA 17-16-5

TITLE 17 CRIMINAL PROCEDURE

Section 16. Discovery, 17-16-1 through 17-16-23.

ARTICLE 1 DEFINITIONS; FELONY CASES

17-16-5. Alibi witnesses.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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 now 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).

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 by State v. Springer, 297 Ga. 376, 774 S.E.2d 106, 2015 Ga. LEXIS 487 (2015) overruled on other grounds.

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).

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).

RESEARCH REFERENCES

Alibi Defense, 27 POF2d 431.

Cases Citing O.C.G.A. § 17-16-5

Total Results: 14  |  Sort by: Relevance  |  Newest First

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Prince v. State, 295 Ga. 788 (Ga. 2014).

Cited 37 times | Published | Supreme Court of Georgia | Oct 6, 2014 | 764 S.E.2d 362

... defense of alibi, but the trial court declined to give the instruction on the ground that Appellant had not given the State notice of an alibi defense. Because the State had not requested alibi notice in writing, Appellant was not actually required to provide notice, see OCGA § 17-16-5 (a), but his counsel made only a general objection to the court’s ruling rather than objecting on that specific ground....
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State v. Lucious, 518 S.E.2d 677 (Ga. 1999).

Cited 36 times | Published | Supreme Court of Georgia | Jun 14, 1999 | 271 Ga. 361, 99 Fulton County D. Rep. 2237

...401, 297 S.E.2d 278 (1982), by providing for discovery of a custodial statement and the new requirement that witness statements be provided to the opposing party, OCGA § 17-16-7, as well as notice of an intent to offer an alibi defense and a list of witnesses to be offered to rebut the defense of alibi. See OCGA § 17-16-5(a) and (b)....
...NOTES [1] The trial court denied other discovery motions made by Lucious, including a motion to compel discovery of his custodial statements, a motion for all criminal records of State witnesses, and a motion to produce statements of witnesses. [2] The Oregon notice-of-alibi statute in issue in Wardius was like OCGA § 17-16-5(a) in that it required defendants to give written notice to the state of their intent to present alibi evidence and to produce a list of witnesses upon whom the defendant intended to rely for alibi evidence....
...Wardius, 412 U.S. at 472 fn. 3, 93 S.Ct. 2208. In contrast to the Oregon statute, however, the Act imposes a reciprocal obligation upon the State to provide the defendant a list of witnesses upon whom the State intends to rely to rebut the alibi evidence. See OCGA § 17-16-5(b)....
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Tubbs v. State, 583 S.E.2d 853 (Ga. 2003).

Cited 35 times | Published | Supreme Court of Georgia | Jul 10, 2003 | 276 Ga. 751, 2003 Fulton County D. Rep. 2183

...The District Attorney is seeking the death penalty. Tubbs opted for discovery pursuant to OCGA § 17-16-2(a) and, in response to the State's demand, gave written notice of his intention to offer a defense of alibi, listing only two witnesses. See OCGA § 17-16-5(a)....
...The trial court granted a continuance on the State's motion, and thereafter declared a mistrial sua sponte and ordered Tubbs to disclose any witnesses who would testify as to his whereabouts on May 11, 12, or 13, 1998. In its order, the trial court found that Tubbs did not comply with OCGA § 17-16-5, that placing him in Louisiana late in the afternoon of May 12 is an alibi, that the two additional witnesses would place Tubbs in Louisiana as late as 10:30 p.m....
...its previous order granting the continuance and declaring a mistrial. Tubbs directly appeals pursuant to Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982). 1. Tubbs contends that the trial court erred in finding that he failed to comply with OCGA § 17-16-5. "Upon a demand *856 by the state, OCGA § 17-16-5(a) requires the defendant to disclose in writing an intention to rely upon an alibi defense." White v....
...ave 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. OCGA § 17-16-5(a)....
...e exact time of the offense, their testimony may still support such a finding. In that instance, they do come within the parameters of the statute because they are witnesses "upon whom the defendant intends to rely to establish such alibi ...." OCGA § 17-16-5(a)....
...bs was in a specific location in another state at a time which would make it impossible for him to be at the crime scene at the time of the murders. Furthermore, Tubbs may not utilize his general witness list as a substitute for compliance with OCGA § 17-16-5. White v. State, supra at 131(2), 518 S.E.2d 113; Hayes v. State, 249 Ga.App. 857, 862(4), 549 S.E.2d 813 (2001). Tubbs also relies on subsection (c) of OCGA § 17-16-5, which allows supplemental notice under certain circumstances....
...However, that portion of the statute applies only where, unlike here, a party does not learn of the existence and identity of an additional alibi witness until after the statutory deadline to give notice passes. Accordingly, the trial court correctly found that Tubbs' alibi notice did not comply with OCGA § 17-16-5. 2. Remedies for failure to comply with OCGA § 17-16-5 are found in OCGA § 17-16-6. White v. State, supra at 131(3), 518 S.E.2d 113. Thus, if the defendant has violated the requirements of OCGA § 17-16-5(a) by failing to disclose the identity of an alibi witness, the court may order the defendant to permit interview of the witness, "grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from ......
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Buice v. State, 528 S.E.2d 788 (Ga. 2000).

Cited 33 times | Published | Supreme Court of Georgia | May 1, 2000 | 272 Ga. 323, 2000 Fulton County D. Rep. 1640

...serting that different dates were set forth in the two indictments regarding when the molestations had occurred and that Buice had an alibi for the 1996 indictment, although Buice had not given the State notice of any alibi claim as required by OCGA § 17-16-5(a)....
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Hargett v. State, 674 S.E.2d 261 (Ga. 2009).

Cited 25 times | Published | Supreme Court of Georgia | Jan 26, 2009 | 285 Ga. 82, 2009 Fulton County D. Rep. 274

...repared to expose and refute the alibi defense we anticipate from" appellants and was "confident that we have the evidence to prove our case and to disprove the proffered defense," the record reflects that all appellants gave notice pursuant to OCGA § 17-16-5(a) to the State of their intent to present an alibi defense, compare Parker v....
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Huckabee v. State, 699 S.E.2d 531 (Ga. 2010).

Cited 21 times | Published | Supreme Court of Georgia | Jul 5, 2010 | 287 Ga. 728, 2010 Fulton County D. Rep. 2664

...k place. Also, Juror 34 testified she could be a fair and impartial juror. The trial court did not err in qualifying Juror 34. 3. Appellant contends the trial court erred when it failed to allow him to present his defense of alibi. We disagree. OCGA § 17-16-5(a) provides that: 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 se...
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Johnson v. State, 532 S.E.2d 377 (Ga. 2000).

Cited 17 times | Published | Supreme Court of Georgia | Jun 12, 2000 | 272 Ga. 468, 2000 Fulton County D. Rep. 2232

...Garry Deyon Johnson is to be tried for the murder of Irene Shields in the Superior Court of Burke County. The State has given notice of its intent to seek the death penalty. This Court granted Johnson's application for interim review to consider whether the disclosure requirements of OCGA § 17-16-5(a) are applicable to Johnson's own alibi testimony....
...Johnson has also addressed in this interim review, as the Court's instructions to the parties permitted, unrelated search and seizure issues. 1. Johnson elected to have the discovery procedures of OCGA § 17-16-1 et seq. applied to the trial of his case. [1] OCGA § 17-16-5(a) requires the following: Upon written demand by the prosecuting attorney ..., the defendant shall serve ......
...reveal the substance of his own testimony prior to trial. The trial court disagreed, and ruled that Johnson must give notice to the State of any alibi testimony he might give at trial on his own behalf. (a) The term "witness," as it is used in OCGA § 17-16-5(a), is defined by OCGA § 17-16-1(3)....
...That subsection states that the term "`[w]itness' does not include the defendant." Thus, it is clear that the legislature intended that a defendant should not be treated as a witness under Code Chapter 17-16-1 et seq. For that reason, the trial court's ruling that OCGA § 17-16-5(a) requires Johnson to give notice to the State of any alibi testimony he might give at trial on his own behalf was erroneous and must be reversed....
...ify another location where the defendant was when the crime was committed. Although this question is made irrelevant as applied to Johnson's possible testimony because none of his potential testimony is subject to the disclosure requirements of OCGA § 17-16-5(a), we nonetheless take this opportunity to answer the question. Black's Law Dictionary defines an alibi as "[a] defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." OCGA § 17-16-5(a), by requiring a defendant to "state the specific place or places at which [he or she] claims to have been," itself suggests that an alibi necessarily includes a claim of the locale where a defendant purports to have been at the time of the crime. We conclude, therefore, that a defendant is not required by OCGA § 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....
...cle apply to the defendant's case." OCGA § 17-16-2(a). [2] To the extent that Todd v. State, 230 Ga.App. 849, 498 S.E.2d 142 (1998), held that "when it is the defendant who will establish the alibi defense, he is a witness within the ambit of [OCGA § 17-16-5(a) ]," it is hereby overruled....
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White v. State, 518 S.E.2d 113 (Ga. 1999).

Cited 14 times | Published | Supreme Court of Georgia | May 3, 1999 | 271 Ga. 130, 99 Fulton County D. Rep. 1778

...Lawrence E. Maioriello, Augusta, for appellant. Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee. FLETCHER, Presiding Justice. We granted certiorari to consider the scope of the state's obligation under OCGA § 17-16-5(b) to make a written response to a defendant's notice of alibi....
...The trial court denied the motion and the court of appeals affirmed, holding that the victim's identification of White as her attacker was sufficient to rebut his alibi defense. [2] The court of appeals also held that the state had no obligation to file a reply to White's alibi notification because OCGA § 17-16-5 is solely a means of discovery by the state. [3] *114 1. OCGA § 17-16-5 was enacted in 1994 as part of a comprehensive act to broaden discovery in criminal cases....
...[4] The purpose of the act is to prevent surprise and trial by ambush and reduce the caseload of the criminal trial courts. [5] To achieve this goal, the act imposes an affirmative duty on both the defendant and the state to disclose specific information. Upon a demand by the state, OCGA § 17-16-5(a) requires the defendant to disclose in writing an intention to rely upon an alibi defense....
...equired to file a rebuttal to the defendant's notification. [6] Because the court of appeals' contrary statement ignores the plain language of the statute, we disapprove this holding. 2. The state contends that it satisfied its obligation under OCGA § 17-16-5 because it had previously supplied a list of witnesses and the rebuttal witnesses were named on that list....
...Furthermore, a defendant who knows which witnesses will testify to rebut an alibi can more accurately assess the strength of his case prior to trial and may consider avoiding a trial through a plea bargain. [7] 3. The state's failure to comply with OCGA § 17-16-5 does not, however, demand that a trial court grant a defendant's motion for acquittal....
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Lynch v. State, 291 Ga. 555 (Ga. 2012).

Cited 13 times | Published | Supreme Court of Georgia | Sep 10, 2012 | 731 S.E.2d 672, 2012 Fulton County D. Rep. 2773

...The record shows that, after Lynch called his alibi witness, Nicole Brown, the State announced that it was going to recall Detective Tobars to rebut her testimony. The State, however, had not previously included Detective Tobars on its list of witnesses to be called in response to the alibi witness in accordance with OCGA § 17-16-5 (b), which states: 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, d...
...nesses, if known to the state, upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied. While trial counsel objected to Detective Tobars’s testimony as irrelevant, he did not object based on OCGA § 17-16-5 (b)....
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Malaguti v. State, 543 S.E.2d 1 (Ga. 2001).

Cited 10 times | Published | Supreme Court of Georgia | Feb 5, 2001 | 273 Ga. 398

...ailed to provide the required statutory notice that it intended to use Anguin as a witness to rebut Malaguti's alibi defense. We conclude, however, that the trial court did not err in denying the motion to prohibit Anguin from testifying. Under OCGA § 17-16-5(a), a defendant, upon demand by the State, must disclose to the State his intent to rely on an alibi defense at trial....
...a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses ... upon whom the state intends to rely to rebut the defendant's evidence of alibi unless previously supplied." [5] If the State fails to comply with § 17-16-5(b), a trial court is vested with discretion to permit the ......
...prepare for Anguin's testimony. The trial began Tuesday, January 12, and Anguin did not testify until late in the day on Wednesday, January 13. We agree with Malaguti's contention that the State failed to comply with the notification requirements of § 17-16-5(b) once it did locate Anguin....
...d not call Anguin as a witness until late Wednesday, January 13. Under the circumstances of this case, we conclude that the trial court did not abuse its discretion *5 in determining that the appropriate remedy for the State's failure to comply with § 17-16-5(b) was not to exclude Anguin's testimony, but was to grant a continuance and permit her to testify....
...In this regard, although Malaguti acknowledges that this Court has not adopted the cumulative error rule, [12] Malaguti urges this Court to adopt a rule that if one of several errors that occurred at trial stems from prosecutorial misconduct (Malaguti alleges that the prosecutor's failure to comply with § 17-16-5(b) amounts to prosecutorial misconduct), then this Court will examine the cumulative effect of all errors to determine whether the defendant is entitled to a new trial....
...Malaguti filed a notice of appeal on May 23, 2000, and the case was orally argued on September 11, 2000. [2] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). [3] White v. State, 271 Ga. 130, 131, 518 S.E.2d 113 (1999). [4] OCGA § 17-16-5(b)....
...The State could not locate either Anguin or Kinebrew before the first trial. The jury was unable to reach a verdict in the first trial, and the trial court declared a mistrial. [8] See White, 271 Ga. at 131, 518 S.E.2d 113 (State may not rely on its general witness list in complying with § 17-16-5(b); instead, it must send out a separate list of alibi rebuttal witnesses)....
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State v. Charbonneau, 635 S.E.2d 759 (Ga. 2006).

Cited 3 times | Published | Supreme Court of Georgia | Oct 2, 2006 | 281 Ga. 46, 2006 Fulton County D. Rep. 3017

...nt, whose own testimony will constitute the sole evidence in support of an alibi defense, is nevertheless required to file a written notice in response to the State's timely written demand for notice of intention to offer an alibi defense under OCGA § 17-16-5(a), [1] even though the defendant need reveal in the notice only the information the statute requires the notice to contain; and (2) where a defendant's own testimony will constitute the sole evidence in support of an alibi defense, is the written notice in OCGA § 17-16-5(a) required in response to the State's demand in those situations where the State is already aware that the defendant claimed to be elsewhere on the day of the crime....
...Scott Charbonneau was arrested for the robbery of a sandwich shop in Fayetteville. During the investigation, he made a statement to a detective referencing an alibi. After investigating such claim, the detective concluded that it was not credible. Pursuant to OCGA § 17-16-5(a), the State served Charbonneau with a written demand for notice of intention to offer an alibi defense, and Charbonneau did not respond....
...468, 469(1)(a), 532 S.E.2d 377 (2000), and its finding that the State was already aware that Charbonneau claimed to be elsewhere on the day of the crime. Charbonneau v. State, supra at 495-496, 621 S.E.2d 514. The Court of Appeals has misapplied Johnson v. State to the facts of this case. OCGA § 17-16-5(a) states in relevant part that "[u]pon written demand by the prosecuting attorney ....
...e would be the only possible witness in support of that defense. Consequently, the salient issue was not whether the defendant was required to give notice in response to the State's demand for notice of intention to offer an alibi defense under OCGA § 17-16-5(a), but rather whether the defendant had to disclose the substance of his alibi testimony prior to trial....
...408, 410, 542 S.E.2d 487 (2001) (Internal citations and quotation marks omitted). Certainly, fairness or efficiency in the trial of a criminal case is not promoted by permitting a defendant to surprise the State at trial with a claim of alibi. The need for a defendant to provide notice under OCGA § 17-16-5(a) exists even in the situation, like the present, in which the State ostensibly is already aware that the defendant is claiming to be elsewhere on the day of the crime....
...[2] Finally, contrary to Charbonneau's contention, requiring a defendant to give the statutory notice does not impinge upon, much less eviscerate, a defendant's Sixth Amendment right to testify effectively in his defense. As already noted, a defendant is obligated to provide only the information that OCGA § 17-16-5(a) requires the notice to contain, and not the substance of the defendant's alibi testimony. Johnson v. State, supra 469(1)(a). What is more, OCGA § 17-16-5(a), is part and parcel of the Act's required pretrial disclosures in a reciprocal discovery process, and the fact that such discovery is before trial is of no constitutional significance because "`[t]he Sixth Amendment does not confer the...
...distortion of a prior decision of this Court. Because the majority opinion defies both common sense and unanimous precedent from this Court, I must dissent. I am authorized to state that Presiding Justice Hunstein joins this dissent. NOTES [1] OCGA § 17-16-5(a) provides in full: 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...
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Graves v. State, 303 Ga. 305 (Ga. 2018).

Cited 1 times | Published | Supreme Court of Georgia | Mar 15, 2018

...As the trial court acknowledged in its order on Graves’ motion for new trial, these counts were instead vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). trial court’s striking of alibi testimony for failure to give notice under OCGA § 17-16-5 (a)....
...Three eyewitnesses identified Graves from a photo lineup, and four identified him in court. On December 16, 2013, the State served on Graves’ attorney a “State’s Demand for Written Notice of Defendant’s Intention to Offer a Defense of Alibi” pursuant to OCGA § 17-16-5....
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Graves v. State, 812 S.E.2d 290 (Ga. 2018).

Cited 1 times | Published | Supreme Court of Georgia | Mar 15, 2018

...ction with the deaths of Antonio Smith and Delaine King.1 His amended motion for new *291trial was denied, and he appeals, asserting as his sole enumeration of error the trial court's striking of alibi testimony for failure to give notice under OCGA § 17-16-5 (a)....
...Three eyewitnesses identified Graves from a photo lineup, and four identified him in court. On December 16, 2013, the State served on Graves' attorney a "State's Demand for Written Notice of Defendant's Intention to Offer a Defense of Alibi" pursuant to OCGA § 17-16-5....

Palmer v. State (Ga. 2021).

Published | Supreme Court of Georgia | Jan 11, 2021

...possible alibi evidence from a person named Kyle Lynsky. As Palmer’s trial began, the State moved to preclude Palmer from introducing alibi evidence because he had not filed a “written notice of the defendant’s intention to offer a defense of alibi” as required by OCGA § 17-16-5 (a).7 During the colloquy that followed, Palmer’s 6 While the State also contends that Palmer gave police officers consent to search his apartment, the trial court did not reach that issue, nor is it necessary for this Court to c...