22-3218. Plea of alibi; notice. (1) In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal presence of the one who committed the crime, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.
(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. The notice shall be served on the prosecuting attorney at least seven days before the commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date.
Within seven days after receipt of the names of defendant's proposed alibi witnesses, or within such other time as is ordered by the court, the prosecuting attorney shall file and serve upon the defendant or his counsel the names of the witnesses known to the prosecuting attorney which the state proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the case. Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided by this section so that reciprocal discovery rights are afforded both parties.
(3) In the event the time and place of the crime are not specifically stated in the complaint, indictment or information, on application of defendant that the time and place be definitely stated in order to enable him to offer evidence in support of a contention that he was not present, and upon due notice thereof, the court shall direct the prosecuting attorney either to amend the complaint or information by stating the time and place of the crime, or to file a bill of particulars to the indictment or information stating the time and place of the crime; and thereafter defendant shall give the notice above provided if he proposes to offer evidence to the effect that he was at some other place at the time of the crime charged.
(4) Unless the defendant gives the notice as above provided he shall not be permitted to offer evidence to the effect that he was at some other place at the time of the crime charged. In the event the time or place of the crime has not been specifically stated in the complaint, indictment or information, and the court directs it be amended, or a bill of particulars filed, as above provided, and the prosecuting attorney advises the court that he cannot safely do so on the facts as he has been informed concerning them; or if in the progress of the trial the evidence discloses a time or place of the crime other than alleged, but within the period of the statute of limitations applicable to the crime and within the territorial jurisdiction of the court, the action shall not abate or be discontinued for either of those reasons, but defendant may, without having given the notice above mentioned, offer evidence tending to show he was at some other place at the time of the crime.
History: L. 1970, ch. 129, § 22-3218; amended by Supreme Court (order dated May 10, 1977); to be effective on publication in advance sheets of Supreme Court Reports.
Source or Prior Law:
62-1341.
Law Review and Bar Journal References:
Provisions of this section remain substantially unchanged from prior law, Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 168 (1970).
Reasons for Supreme Court amendment discussed in comment on Talley case, 17 W.L.J. 432, 436, 437 (1978).
Comment on recent Supreme Court modification of this section, 26 K.L.R. 607 (1978).
"Defending the Arson Case," Pedro L. Irigonegaray, XIV J.K.T.L.A. No. 2, 12 (1990).
Survey of Recent Cases, 43 K.L.R. 983 (1995).
"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).
CASE ANNOTATIONS
1. Within discretion of trial court to permit late notice of alibi to be given county attorney. State v. Kirk, 208 Kan. 645, 493 P.2d 233.
2. Cited; proper ruling on part of court as to what testimony defendant could give and what would be excluded. State v. Collins, 209 Kan. 534, 536, 498 P.2d 103.
3. Failure of trial counsel to file notice of alibi and exclusion of evidence thereon has no effect on rights after defendant acquitted of charge. State v. Ralls, 213 Kan. 249, 253, 254, 515 P.2d 1205.
4. No merit in contention of denial of plea of alibi; noncompliance with section. State v. Wonser, 217 Kan. 406, 407, 537 P.2d 197.
5. Applied; time not indispensable ingredient to offense charged; no evidence of alibi. State v. Sisson, 217 Kan. 475, 478, 536 P.2d 1369.
6. Section unconstitutional as violative of due process whether read alone or in conjunction with K.S.A. 22-3201 (6). Talley v. State, 222 Kan. 289, 291, 292, 293, 294, 564 P.2d 504.
7. Court's denial of right to produce alibi evidence not prejudicial. State v. Thornton, 224 Kan. 127, 128, 129, 577 P.2d 1190.
8. Alibi witness not limited just to evidence bearing on alibi; court erred in restricting testimony. State v. Baker, 224 Kan. 474, 476, 580 P.2d 1345.
9. Failure to file notice of alibi hereunder did not constitute deprivation of constitutional guarantee of effective counsel. State v. Schrum, 226 Kan. 125, 595 P.2d 1127.
10. Prosecution not required to prove each fact contained in bill of particulars, only necessary elements of crime. State v. Henderson, 226 Kan. 726, 733, 603 P.2d 613.
11. Exclusion of testimony for failure to give notice not error unless discretion abused; no violation of constitutional right to compulsory process. State v. Roberts, 226 Kan. 740, 741, 742, 743, 744, 602 P.2d 1355.
12. Subsection (2) applied; no good cause shown for permission to serve notice of alibi out of time. State v. Prince, 227 Kan. 137, 145, 605 P.2d 563.
13. Conviction of aggravated robbery upheld; failure to make timely, specific objection to admissibility of evidence bars consideration on appeal. State v. Dailey, 228 Kan. 566, 569, 618 P.2d 833.
14. Conviction of sale of cocaine upheld; no reversible error by trial court in excluding defense witnesses from testifying. State v. Bright, 229 Kan. 185, 192, 623 P.2d 917.
15. Trial judge required to exercise same discretion on late endorsement of alibi witnesses as late endorsement of prosecution witnesses. State v. Douglas, 234 Kan. 605, 606, 675 P.2d 358 (1984).
16. Cited; amendment of information expending time crime (indecent liberties, K.S.A. 21-3504) allegedly occurred not prejudicial denial of alibi. State v. Armstrong, 238 Kan. 559, 560, 562, 712 P.2d 1258 (1986).
17. Cited; use of state rebuttal testimony where no notice of alibi defense filed examined. State v. Willis, 240 Kan. 580, 583, 731 P.2d 287 (1987).
18. Alibi and insanity (K.S.A. 22-3219) only circumstances requiring notice of intended defense; voluntary intoxication (K.S.A. 21-3208) distinguished. In re Habeas Corpus Petition of Mason, 245 Kan. 111, 113, 775 P.2d 179 (1989).
19. Trial court's refusal to allow testimony of three unendorsed defense witnesses examined. State v. Coleman, 253 Kan. 335, 347, 856 P.2d 121 (1993).
20. No abuse of discretion in excluding alibi testimony for noncompliance with notice requirements. State v. Claiborne, 262 Kan. 416, 421, 940 P.2d 27 (1997).
21. Defense attorney's failure to file notice of alibi when sole defense constituted ineffective assistance. State v. Thomas, 26 Kan. App. 2d 728, 730, 993 P.2d 1249 (1999).
22. No good cause shown for failure to give notice of alibi witness seven days before trial. State v. Pham, 27 Kan. App. 2d 996, 10 P.3d 780 (2000).
23. Reversed because of trial court's failure to consider all relevant factors in admitting previously undisclosed alibi testimony. State v. Aldaba 29 Kan. App. 2d 184, 25 P.3d 149 (2001).
24. The definition of alibi does not include testimony defendant was not at scene of crime; ergo, defendant not required to give notice of alibi testimony. State v. Deffebaugh, 31 Kan. App. 2d 1030, 77 P.3d 1277 (2003).
25. Notice of alibi not required when defendant intends to produce eyewitness testimony that witness was present at crime scene but defendant was not—with no indication of where defendant was at that time. State v. Deffebaugh, 277 Kan. 720, 89 P.3d 582 (2004).
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