Appellant, who is serving a 30-60 year term of imprisonment imposed in consecutive sentences after his conviction in Ohio of both possession for sale and sale of $15 worth of marijuana, appeals from the denial, without an evidentiary hearing, of his petition for a writ of habeas corpus. It is conceded that he has exhausted available state post-eonvietion remedies.
On February 4, 1965, he was indicted by a grand jury in Cuyahoga County, Ohio in six counts alleging violations of state narcotics laws. Three of the counts, which alleged sales of marijuana to a police informer on November 6, 1964, were dismissed because of insufficiency of evidence. The other three counts charged, respectively, possession, possession for sale, and sale of marijuana on November 30, 1964. Thе court subsequently nol prossed the possession count because it charged a crime included in the offense of possession for sale, and the jury had fоund appellant guilty of possession for sale and sale of the marijuana.
*578 The habeas corpus petition asserted three grounds for appellant’s release:
(1) That the court erred in admitting evidence allegedly proving a prior similar act pursuant to § 2945.59, Ohio Rev. Code; 1
(2) That petitioner was denied the effective assistance of counsel because his counsel failed to present an alibi defense which, if accepted by the jury, would have exonеrated him; and,
(3) That petitioner was denied the right to confront a witness against him.
On appeal, appellant also argues that his conviction and punishment both of possession for sale and sale constituted double punishment, in violation of the Fourteenth Amendment, because the evidence indicated no pоssession apart from that involved in making the sale.
The District Judge was furnished a transcript of the state trial and concluded that it permitted him to resolve the issues рresented by appellant’s petition without holding an evidentiary hearing. 28 U.S.C. § 2254. He found the remoteness in time of the alleged prior act disturbing but concluded that the admission of evidence of the prior act did not deprive petitioner of a fair trial. Next he found that, although appellant’s counsel failed to file and serve upon the prosecuting attorney a written notice of petitioner’s intention to rely upon an alibi defense, as required by § 2945.58, Ohio Rev. Code, 2 the trial judge nevertheless exercised his statutory discretion and permitted petitioner to introduce evidence of the alibi over the objection of the prosecuting attorney. The District Judge regarded appellant’s failure to offer employment records and time sheets in support of the alibi as the consequence of a tactical decision and not as the result of an exclusionary ruling by the trial court. Finally, he concluded that the claim of denial of the right оf confrontation was not supported by the testimony.
We have also reviewed the transcript of testimony and we hold that it is inadequate to permit a detеrmination whether appellant was denied the effective assistance of counsel. Accordingly, an evidentiary hearing is required in order to resolve that issue.
In this respect, we observe that the trial transcript contains repeated frustrating instances when the trial court, upon the stating of an objection, invitеd counsel to the bench for a side-bar conference and did not thereafter announce his ruling on the objection. The reader must accordingly infer from subsequent proceedings what, if any, determination was made. Unfortunately, appellant’s contention that he was denied the effective assistance of counsel is obfuscated by such an episode.
The state’s evidence indicated that the alleged sale took place in the vicinity of the Grapеvine Tavern in Cleveland, Ohio after 11:00 p. m. on November 30, 1964. Appellant testified that he was employed *579 as a cafeteria worker in an automobile faсtory on the evenings of November 30, December 1, and December 2, 1964 and that he was at work by 11:00 p. m. on those evenings. Defense counsel was then interrupted by the prosecuting attorney :
Q [by defense counsel]: How do you know you worked there on the 30th of November—
MR. LIPOLD [Prosecuting Attorney] : Your Honor, at this time I would like to approach the bench.
THE COURT: Surely.
(Thereupon discussion was had between the court and counsel off the record and out of the hearing of the jury.)
Transcript at 224-25. Without further record comment by either the trial judge or counsel, direct examination continued and the following colloquy occurred:
Q Now, how do you know you were there on those three days ?
A I have my pay stub in my pocket.
Q May I see it please ?
MR. LIPOLD: Your Honor, again I am going to object.
MR. MILANO: I am not offering anything.
MR. LIPOLD: I am still going to object and I would like to be heard on this.
THE COURT: All right, if counsel will approach the bench.
(Thereupon discussion was had between the court and counsel off the record and out of the hearing of the jury.)
Transcript at 225-26. No furthеr attempt was made to buttress appellant’s assertion that he was at work at the time of the alleged offense, although there are documents of rеcord which would lend support to the alibi.
It appears that the prosecuting attorney had no objection to Johns’ testifying about his employment, but that he vigorously opposed any attempt to buttress the claim of alibi by employment records or other means. It is unlikely that a jury would credit the unsupported alibi testimony of a defendant when that testimony, as in this case, merely contradicted the testimony of two witnesses for the prosecution who had identified Johns as the sellеr of the marijuana. We observe that many statutes requiring notice of intention to rely upon an alibi defense do not exclude alibi testimony of the defendant himsеlf.
See, e. g.,
Williams v. Florida,
Vacated and remanded for further proceedings.
Notes
. That statute reads :
In any criminal ease in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whеther they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another сrime by the defendant.
. That statute reads:
Whenever a defendant in a criminal cause proposes to offer in his 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 his intention to claim such аlibi. 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.