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Ware v. State

The sanction of exclusion of the evidence under O.C.G.A. § 17-16-5 a is reserved for instances in which the trial court finds prejudice to the state and bad faith by the defense.

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Following a jury trial, Quinn Ware appeals his conviction for armed robbery and possession of a firearm during the commission of a felony. Ware argues that absent a finding of bad faith and prejudice, the trial court erroneously excluded the testimony of his alibi witness based upon his failure to give the state the statutory ten day notice. We agree and reverse. Viewed in the light most favorable to the guilty verdict,1 the evidence presented at trial showed that on the afternoon in question, the victim was walking on the campus of Morehouse College when he was approached by two males. As the taller male held a gun to his side, the shorter one asked the victim if he had a computer and searched the victim’s backpack. The victim was looking into the face of the shorter suspect as they spoke. The assailants then took the victim’s wallet and fled.

The victim went to an adjacent building and called the police. He later made a police report in which he described the gunman as tall and light-complexioned with a hat, and the other as short and darker complexioned with “unruly” hair.

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