However Much: Court Of Appeals Of Utah Reverses Conviction Based On Improper Exclusion Of Alibi Testimony

Utah Code Annotated Section 77-14-2 states

(1) A defendant, whether or not written demand has been made, who intends to offer evidence of an alibi shall, not less than 10 days before trial or at such other time as the court may allow, file and serve on the prosecuting attorney a notice, in writing, of his intention to claim alibi. The notice shall contain specific information as to the place where the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish alibi. The prosecuting attorney, not more than five days after receipt of the list provided herein or at such other time as the court may direct, shall file and serve the defendant with the addresses, as particularly as are known to him, of the witnesses the state proposes to offer to contradict or impeach the defendant's alibi evidence.

(2) The defendant and prosecuting attorney shall be under a continuing duty to disclose the names and addresses of additional witnesses which come to the attention of either party after filing their alibi witness lists.

(3) If a defendant or prosecuting attorney fails to comply with the requirements of this section, the court may exclude evidence offered to establish or rebut alibi. However, the defendant may always testify on his own behalf concerning alibi.

(4) The court may, for good cause shown, waive the requirements of this section. 

It seems clear to me that under this Section, (1) a defendant must provide pre-trial notice of any alibi evidence; (2) the prosecution must then respond with pre-trial notice of any witnesses who will contradict this alibi evidence; (3) both sides have a continuing duty to disclose after these initial disclosures; (4) failure to comply with (1)-(3) can lead to the exclusion of alibi-related evidence; (5) the court can waive (1)-(3) for good cause shown; and (6) a defendant can always testify on his own behalf concerning alibi even if he fails to comply with (1) and/or (3). According to the recent opinion of the Court of Appeals of Utah in State v. Gallup, 2011 WL 6091688 (Utah App. 2011), however, part (6) of the above was not clear to a Utah trial court, necessitating a reversal of a defendant's conviction.

In Gallup, Jeffrey Gallup was convicted of failing to respond to an officer's signal to stop, speeding, and driving on a suspended or revoked operator license. The person who sped and failed to respond to the officer's signal to stop was driving a BMW registered in Gallup's name, but Gallup claimed that he was not the person in the car and sought to testify concerning an alibi. 

It was clear that Galluo could not present extrinsic evidence concerning this alleged alibi because he did not comply with the notice requirement(s) of Utah Code Annotated Section 77-14-2(1), but Gallup claimed that he could still testify concerning his alibi under Utah Code Annotated Section 77-14-2(3). The trial court disagreed, finding that the clause in Section 77-14-2(3) allowing the defendant to testify was still "subject to the notice requirement established in 77-14-2(1)."

After Gallup was convicted, he appealed, claiming that he should have been able to provide alibi testimony under Section 77-14-2(3). The Court of Appeals of Utah agreed, concluding that

The plain language of Section 77-14-2 protects a defendant's ability to "testify on his own behalf concerning alibi,"...regardless of whether he complied with the statute's notice requirement. The statute's use of the word "however" is significant. "However" is a transition word that "indicates a limitation on the preceding rule,"...here, that the rule does not apply to a defendant's right to testify on his own behalf....The use of the term "however" indicates that the defendant's right to testify on his own behalf concerning alibi is excepted from the preceding notice and penalty provisions in the statute. Thus, failure to comply with section 77-14-2's notice requirement grants the trial court discretion to exclude only alibi evidence extrinsic to the defendant's own testimony regarding alibi....A defendant who did not give the prosecution proper notice of alibi evidence may still testify as to that alibi but cannot support his testimony with that of other witnesses or evidence. The prosecution is then free to argue any reasonable inferences the lack of supporting alibi evidence may warrant.

And, because of this and other errors, the Court of Appeals of Utah reversed Gallup's conviction.

-CM