State v. Focht

Per Curiam. Appellant’s primary contention is that the trial court abused its discretion by denying him the opportunity to present witnesses whose testimony would support his alibi. R. C. 2945.581 makes mandatory the filing of a notice of alibi where such a defense is contemplated (State v. Payne [1957], 104 Ohio App. 410), aUd, where notice is not properly filed it allows the trial court the discretion to admit or exclude evidence offered by the defendant to prove alibi. In the instant case, the trial commenced without defendant having filed a notice of alibi, or indeed having given any indication whatever of his intention to plead an alibi defense, presenting the prosecution with exactly the type of surprise defense which R. C. 2945.58 was designed to prevent. Referring to the alibi notice statute,2 — 175 — this court noted, in State v. Thayer (1931), 124 Ohio St. 1, 4, that: it* * * ^ gives the state some protection against false and fraudulent claims of alibi often presented by the accused so near the close of the trial as to make it quite impossible for the state to ascertain any facts as to the credibility of the witnesses called by the accused * * We cannot say that a trial court abuses its discretion in excluding the testimony of supporting alibi witnesses where a defendant has neither filed a notice of alibi prior to trial nor sought a continuance under the circumstances of this case, It follows that appellant’s second assignment of erf or, that the trial court’s instruction to the jury to disregard defense counsel’s reference to alibi in his opening statement constituted prejudicial error, is equally without merit. Where no alibi notice has been filed and the trial court in the proper exercise of its discretion denies the introduction of the supporting testimony of alibi witnesses, their testimony is simply unavailable as a part of the defendant’s case and reference to it by counsel is improper. Thus, where such reference has been made before the jury by counsel in his opening statement it is proper for the court to instruct the jury to disregard it, so as to dispel any effect tíie reference might have upon the verdict of the jury. ‘ ‘ Therefore, the judgment of the Court of Appeals is affirmed. Judgment affirmed. 0 ’Neill, 0. J., Herbert, Corrigan, Celebrezze and P. Brown, JJ., concur. Stern and W. Brown, JJ., concur in the judgment. Footnotes [1] R. C. 2945.58 provides: “Whenever a defendant in a criminal case proposes to offer in Ms defense, testimony to establish an alibi on his behalf, such defendant shall, not less than three days before the trial of such cause, file and serve upon the prosecuting attorney a notice in Writing of Ms intention to claim such alibi. Notice shall include specific information as to the place at which the defendant claims to have been at the time of the alleged offense. If the defendant fails to file such written notice, the court may exclude evidence offered by the defendant for the purpose of proving such alibi.” [2] The court, in State v. Thayer, was referring to G. C. 13444-20, which was substantially identical to the present R. C. 2945.58.