Tubbs v. StateTubbs v. State
The grand jury indicted Keiotta Tubbs for two counts of malice murder and four counts of felony murder involving two victims. The District Attorney is seeking the death penalty. Tubbs opted for discovery pursuant to
1. Tubbs contends that the trial court erred in finding that he failed to comply with
Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.
Contrary to Tubbs’ argument, a defendant does not comply with the statute by listing only those witnesses who will testify as to the defendant’s location at the specific time of the alleged offense. Instead, the statute prescribes notice in two parts: first, a statement of the alibi defense and, second, a list of witnesses in support thereof. Only the former refers to the particular time of the alleged offense. The latter portion is concerned with “witnesses who will testify
regarding
the alibi defense.” (Emphasis supplied.)
White v. State,
supra at 131 (2). Even if the witnesses do not testify that the defendant was at a certain location at the exact time of the offense, their testimony may still support such a finding. In that instance, they do
come within the parameters of the statute because they are witnesses “upon whom the defendant intends to rely to establish such alibi. . . .”
Furthermore, Tubbs may not utilize his general witness list as a substitute for compliance with
Accordingly, the trial court correctly found that Tubbs’ alibi notice did not comply with
2. Remedies for failure to comply with
3. The trial court’s ruling regarding a remedy under
“[I]t is true that the defendant has a valuable right to be tried by the original impaneled jury. But that right is not paramount to the state’s equal right to a fair trial.”
Putnam v. State,
Manifest necessity exists when the accused’s right to have the trial completed by a particular tribunal is subordinate to “ ‘the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.’” [Cit.]
Laster v. State,
“Manifest necessity can exist for reasons deemed compelling by the trial court, especially where ‘ “ ‘the ends of substantial justice cannot be attained without discontinuing the trial. . . .’ (Cit.)” (Cit.)’ [Cit.]”
Pleas v. State,
“A trial judge has acted within his sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition, even though ‘(i)n a strict, literal sense, the mistrial (is) not “necessary.”’ [Cit.] This great deference means that the availability of another alternative does not without more render a mistrial order an abuse of sound discretion. (Cits.) Deference to the judge’s sound discretion also precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived a defendant of constitutional rights. . . .”
Burleson v. State,
The trial court has a duty to ensure that all parties have a fair trial and has the authority to grant a mistrial where injustice is caused to either party in a criminal case arid is especially empowered to avoid the absurdity of a defendant benefitting from the prejudicial error he created. [Cit.]
Pleas v. State, supra at 891 (2).
“Both the defendant and the state are entitled to a fair trial designed to end in a just judgment. [Cit.]. . . . The trial court is vested with as much authority to grant a mistrial when an injustice occurs to the state as when it occurs to the defendant. [Cit.]” [Cit.]
Putnam v. State, supra at 97.
The trial court clearly considered all of the alternatives. It steadfastly refused the most drastic remedy of excluding testimony supporting Tubbs’ sole defense, but it was equally determined to grant at least a continuance and not to deny the State an ample opportunity to interview all alibi witnesses and fully to explore and investigate their expected testimony. After the prosecutor interviewed one unlisted witness during a recess, it became apparent that the testimony of her and her son, whose trip from California for the trial had been delayed, would place Tubbs in Louisiana quite late and possibly at the very time the alleged offenses occurred. Contrary to Tubbs’ assertion, the transcript shows that defense counsel had an adequate opportunity to oppose the remedy of a mistrial since, before discharging the jury, the trial court informed the parties that it was going
When defense counsel mentions evidence in opening statement despite having failed to give a required notice or make a preliminary showing, the trial court does not abuse its discretion in granting a mistrial. Laster v. State, supra at 174 (2), 175 (3). “Under these cir cumstances, the public’s interest in granting the state one fair opportunity to present evidence to an impartial jury outweighs the accused’s right to have his trial completed before a particular jury.” Laster v. State, supra at 175 (3). “Accordingly,... in this case, declaration of a mistrial was not an abuse of discretion and retrial is not barred by double jeopardy. [Cits.]” Pleas v. State, supra at 891 (2).
Judgment affirmed.