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 OCGA § 17-16-2 a and, in response to the State’s demand, gave written notice of his intention to offer a defense of alibi, listing only two witnesses. See OCGA § 17-16-5 a. According to the notice submitted to the prosecution, Tubbs was traveling with the two witnesses in Louisiana on May 12, 1998 between 9:00 and 9:30 p.m., the time that the offense allegedly occurred in Midway, Georgia. The case proceeded to trial and a jury was selected and sworn. During opening statement, defense counsel began listing several additional witnesses who allegedly saw Tubbs in Louisiana in May, two of whom saw him on May 12 in the late afternoon. The trial court granted a continuance on the State’s motion, and thereafter declared a mistrial sua sponte and ordered Tubbs to disclose any witnesses who would testify as to his whereabouts on May 11, 12, or 13, 1998. In its order, the trial court found that Tubbs did not comply with OCGA § 17-16-5, that placing him in Louisiana late in the afternoon of May 12 is an alibi, that the two additional witnesses would place Tubbs in Louisiana as late as 10:30 p.m. on that date, that the improper conduct of defense counsel was responsible for any delay or mistrial, and that there was so strong a necessity for mistrial that a manifest injustice would occur otherwise. Thereafter, Tubbs filed a plea in bar, which the trial court overruled based upon the findings in its previous order granting the continuance and declaring a mistrial. Tubbs directly appeals pursuant to Patterson v. State , 248 Ga. 875 287 SE2d 7 1982. 1. Tubbs contends that the trial court erred in finding that he failed to comply with OCGA § 17-16-5. “Upon a demand by the state, OCGA § 17-16-5 a requires the defendant to disclose in writing an intention to rely upon an alibi defense.” White v. State , 271 Ga. 130-131 1 518 SE2d 113 1999. 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. OCGA § 17-16-5 a.
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 . . . .” OCGA § 17-16-5 a. Requiring specific disclosure of all witnesses upon whom the defense plans to rely in establishing an alibi defense “furthers the act’s purpose of preventing surprise and promoting fairness.” White v. State , supra at 131 2. A review of the transcript reveals that Tubbs’ counsel clearly knew that some of the witnesses not listed in the notice would testify that Tubbs was in a specific location in another state at a time which would make it impossible for him to be at the crime scene at the time of the murders.
