Reply by the Prosecutor

In general

• When a defendant files a notice of alibi, the prosecuting attorney shall file with the court and serve upon the defendant, or upon his counsel, a specific statement containing:

(1) the date the defendant was alleged to have committed the crime; and

(2) the exact place where the defendant was alleged to have committed the crime;

that he intends to present at trial. However, the prosecuting attorney need not comply with this requirement if he intends to present at trial the date and place listed in the indictment or information as the date and place of the crime.

IC 35-36-4-2(a)

• The alibi statute requires the prosecutor to answer with specificity as to the date and place of the alleged crime if the State intends to present at trial a date and place other than that listed in the information.

Stewart v. State, 521 N.E.2d 675, 676 (Ind. 1988)(citing IC 35-36-4-2(a))

• The State need not respond to an alibi notice if it intends to prove the time or place alleged in the charging instrument.

Thompson v. State, 612 N.E.2d 1094, 1099 (Ind. Ct. App. 1993), reh’g denied, trans. denied(citing McNeely v. State, 529 N.E.2d 1317, 1321 (Ind. Ct. App. 1988))

See Johnson v. State, 734 N.E.2d 530, 531 (Ind. 2000)(citing Joyner v. State, 678 N.E.2d 386, 394 (Ind. 1997), reh’g denied)(“The State is not required to respond to an alibi notice if it intends to rely on the date and place alleged in the information.”)

See also Joyner v. State, 678 N.E.2d 386, 394 (Ind. 1997), reh’g denied(citing IC 35-36-4-2(a))(“Upon a notice of alibi, the prosecution is not required to respond if it intends to rely on the date and place as alleged in the indictment or information.”)

See also Garrison v. State, 575 N.E.2d 700, 702 (Ind. Ct. App. 1991), trans. denied(“The State need not respond to a notice of alibi if it intends to present evidence consistent with the date and place listed in the information as the date and place of the crime.”)

Timeliness

• If a reply by the prosecuting attorney is required by subsection (a) of this section, the prosecuting attorney shall serve such a statement upon the defendant, or his counsel, within seven (7) days after the filing of the defendant’s first notice of alibi.

IC 35-36-4-2(b)

• If a response is necessary . . . it must be filed within seven days of the filing of the notice of alibi.

Garrison v. State, 575 N.E.2d 700, 702 (Ind. Ct. App. 1991), trans. denied(citing IC 35-36-4-2)

Requisite level of specificity

• “[T]he alibi statute requires that the State set forth the date of the offense charged only with such reasonable specificity as the circumstances of the case allow.

Thompson v. State, 612 N.E.2d 1094, 1099 (Ind. Ct. App. 1993), reh’g denied, trans. denied(quoting McNeely v. State, 529 N.E.2d 1317, 1322 (Ind. Ct. App. 1988))

See Bixler v. State, 537 N.E.2d 21, 24 (Ind. 1989), reh’g denied(citing Clifford v. State, 474 N.E.2d 963, 971 (Ind. 1985))(“Our cases hold the prosecution is required to allege the time of the offense with such specificity as circumstances will allow.”)

See also Bruce v. State, 375 N.E.2d 1042, 1058 (Ind. 1978), reh’g denied, cert. denied, 433 U.S. 988 (1978)(“We believe that the purpose of the notice of alibi statute is to narrow the factual issues of time and place to the degree practicable. Consequently we hold that IC 35-5-1-2 [recodified with non-substantive changes at IC 35-36-4-2] requires the prosecutor to state the time of the offense with such reasonable specificity as the circumstances of the case allow.”)

• The alleged date of commission of a criminal offense may be sufficiently specific if the circumstances of the crime do not permit a more exact determination.

Joyner v. State, 678 N.E.2d 386, 394 (Ind. 1997), reh’g denied(citing Clifford v. State, 474 N.E.2d 963, 971 (Ind. 1985))

Effect of filing a notice of alibi: Burden of proof

• Filing an alibi notice does not impose a greater burden of proof on the State than would otherwise exist.

Johnson v. State, 734 N.E.2d 530, 531 (Ind. 2000)(citing Jennings v. State, 514 N.E.2d 836, 837 (Ind. 1987), reh’g denied)

See R.L.H. v. State, 738 N.E.2d 312, 218 (Ind. Ct. App. 2000)(“[I]t 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.”)

• [W]e conclude that the mere fact that a defendant raises an alibi defense does not necessarily make time an essential element of an offense.

Sangsland v. State, 715 N.E.2d 875, 879 (Ind. Ct. App. 1999), trans. denied

Effect of filing a notice of alibi: Whether time becomes critical or “of the essence of the offense”

• Although the filing of an alibi defense does not impose a greater burden of proof on the State than would otherwise be required, the filing of an alibi defense does make the time of the alleged offense of the essence.

Jennings v. State, 514 N.E.2d 836, 837 (Ind. 1987), reh’g denied(citations omitted)

See Johnson v. State, 734 N.E.2d 530, 531 (Ind. 2000)(citing Jennings v. State, 514 N.E.2d 836, 837 (Ind. 1987), reh’g denied)(“[A]n alibi filing does render the time of the offense critical or ‘of the essence’ . . . .”)

• The time is critical because the defendant desires to predicate his defense thereon.

Jennings v. State, 514 N.E.2d 836, 837 (Ind. 1987), reh’g denied

Effect of a reply by the prosecutor: Restriction on the presentation and consideration of evidence

• 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), reh’g denied(citing Webster v. State, 426 N.E.2d 1295, 1297 (Ind. 1987))

McNeely v. State, 529 N.E.2d 1317, 1321 (Ind. Ct. App. 1988)(citing Webster v. State, 426 N.E.2d 1295, 1297 (Ind. 1987))

See Joyner v. State, 678 N.E.2d 386, 394 (Ind. 1997), reh’g denied(citing Webster v. State, 426 N.E.2d 1295, 1297 (Ind. 1987))(“If the State chooses to answer, its answer then limits the State to proof of the date in the answer.”)

• [W]here the State’s answer to the notice of alibi and evidence points exclusively to a specific date, and the defendant presents a defense based on that date, the jury’s consideration of the defendant’s guilt should be restricted to that date.

Sangsland v. State, 715 N.E.2d 875, 879 (Ind. Ct. App. 1999), trans. denied

• In the event the State does not respond to the notice, “only evidence consistent with the date and time set forth in the indictment or information” may be introduced.

Thompson v. State, 612 N.E.2d 1094, 1099 (Ind. Ct. App. 1993), reh’g denied, trans. denied(quoting McNeely v. State, 529 N.E.2d 1317, 1321-22 (Ind. Ct. App. 1988))

Variance: Variance between the information or indictment and the prosecutor’s reply

• [T]he State’s answer was filed months before trial. It named a specific date other than the date stated in the indictment. A changed date is permissible when the alibi statute is invoked by the accused.

Webster v. State, 426 N.E.2d 1295, 1297 (Ind. 1981)(citing Evans v. State, 68 N.E.2d 546, 548 (Ind. 1946))

See Garrison v. State, 575 N.E.2d 700, 703 (Ind. 1991), trans. denied(citing Webster v. State, 426 N.E.2d 1295, 1297 (Ind. 1981))(“Because the effect of a response which changes the date effectively amends the date alleged in the charging document, a change of date in the information is permissible when the alibi statute is invoked by the accused.”)

• For more information about variance, please review Variance.

Variance: Variance between the prosecutor’s reply and the proof at trial

• A variance[,] to be fatal[,] between the State’s proof and its answer to a defendant’s alibi notice must be of such a substantial nature as to mislead the accused in preparing or maintaining his defense or be of such a degree as would likely place him in second jeopardy for the same offense.

Mitchell v. State, 360 N.E.2d 221, 223 (Ind. Ct. App. 1977), reh’g denied(citing Denton v. State, 203 N.E.2d 539, 540 (Ind. 1965))

See Smith v. State, 439 N.E.2d 634, 636 (Ind. 1982)(quoting Denton v. State, 203 N.E.2d 539, 540 (Ind. 1965))(“A variance by the State during offering of proof or argument as to the place where a crime has occurred from that alleged by the State in a response to alibi ‘must be of such a substantial nature as to mislead the accused in preparing or maintaining his defense’ in order to constitute reversible error.”)

• For more information about variance, please review Variance.

Defendant’s second statement of alibi

• If the prosecuting attorney’s statement to the defendant contains a date or place other than the date or place stated in the defendant’s original statement, the defendant shall file a second statement of alibi if the defendant intends to produce at trial evidence of an alibi for the date or place contained in the prosecutor’s statement. The defendant shall:

(1) file the second statement with the court; and

(2) serve the second statement upon the prosecuting attorney;

within four (4) days after the filing of the prosecuting attorney’s statement. The defendant’s second statement must contain the same details required in the defendant’s original statement.

IC 35-36-4-2(c)

• The defendant may then file a second statement if the dates do not match.

McCallip v. State, 580 N.E.2d 278, 279 (Ind. Ct. App. 1991)(citing IC 35-36-4-2(c))