1. CRIMINAL LAW — Defenses — Alibi — Compliance with Notice Rule — Critical Consideration — Admission of Evidence — Necessary — Assure Fair Trial. While a showing by a defendant of good cause for noncompliance with the procedural rule on the alibi defense is a proper factor to be considered by a trial court in deciding whether alibi evidence should not be admitted, justification for noncompliance is not the sole determinant of admissibility; rather, the critical consideration is whether the alibi evidence should be admitted in order to assure the defendant a fair trial.
Opinion by JUDGE KELLY.
Defendant was acquitted of three felony counts by a jury and the People appeal pursuant to the authority granted by § 16-12-102, C.R.S. 1973. The People contend that the trial court erred in its application of Crim. P. 12.1, the notice of alibi rule. We affirm.
It is uncontroverted that six days after arraignment, the People served the defendant with the written notice required by Crim. P. 12.1, to which the defendant had not responded when the case went to trial 12 days later. Although defense counsel protested his unpreparedness for trial, the court ordered that the case proceed.
During trial, the district attorney objected to the reception of the testimony of defendant's alibi witnesses on the ground that the defendant had failed to respond to the People's notice with a written statement of his whereabouts and the names and addresses of his witnesses as required by Crim. P. 12.1. After a brief colloquy, the trial court ruled that the witnesses would be permitted to testify.
On appeal, the People again urge that the defendant's failure to comply with Crim. P. 12.1 forecloses the reception of the testimony of his alibi witnesses. They argue that the rule requires exclusion of alibi evidence when the defendant has failed to provide the specification required by the rule and has failed to show good cause for his failure to do so. We do not agree.
The applicable portion of the rule states:
"If a defendant fails to make the specification required by this section, the court shall exclude evidence in his behalf that he was at a place other than that specified by the prosecuting attorney unless the court is satisfied upon good cause shown that such evidence should be admitted."
[1,2] While a showing by a defendant of good cause for noncompliance with the rule is a proper factor to be considered by a trial court in deciding whether alibi evidence should be admitted, justification for noncompliance is not the sole determinant of admissibility. The critical consideration is whether the proffered alibi evidence should be admitted in order to assure the defendant a fair trial. See State v. Grant, 10 Wash. App. 468, 519 P.2d 261; State v. Francis, 128 N.J. Super. 346, 320 A.2d 173; People v. Robinson, 54 Mich. App. 704, 221 N.W.2d 596. Where, as here, the defendant was required to go to trial on two felony counts only 18 days after arraignment, and the People neither claimed surprise nor requested a continuance to permit the defendant to supply the statement contemplated by Crim. P. 12.1, the ruling of the trial court admitting the testimony of defendant's alibi witnesses was proper.
Judgment affirmed.
JUDGE SMITH and JUDGE RULAND concur.