dissenting. Because I believe the opinion of the majority effectively emasculates Crim. B. 12.1, I must dissent.
“Given the ease with which an alibi can be fabricated, the state’s interest in protecting itself against an eleventh hour defense is both obvious and legitimate. Beflecting this interest, notice-of-alibi provisions, dating at least from 1927, are now in existence in a substantial number of states.” Williams v. Florida (1970), 399 U. S. 78, 81-82. (Footnotes, omitted.)
The Ohio General Assembly, in 1929, enacted G. C. 13444-20, which required advance notice to the prosecution of the defendant’s intent to rely upon an alibi defense. G. C.-13444-20 provided that “* * * in the event of the failure of a defendant to file the written notice * * * the court may, in its discretion, exclude evidence offered by the' defendant for the purpose of proving such alibi.” (Emphasis added.) .......
In State v. Nooks (1930), 123 Ohio St. 190, the two defendants were tried-on a-charge of larceny of chickens Dur*58ing' the trial one defendant attempted to call a witness for the purpose of proving an alibi. The trial court sustained the prosecution’s objection to this testimony, since no written notice of intent to rely on an alibi had been given to the state. Upon appeal, defendants argued that the testimony should have been admitted, since it tended to impeach the testimony of the principal witness for the prosecution. This court disagreed, and concluded, at page 194, as follows :
“Under the rule of Section 13444-20 we do not find that it affirmatively appears from this record that the trial court abused the discretion set forth in the statute, by the exclusion of this alibi testimony; nor were the defendants prevented from having a fair trial within the provisions of the Criminal Code. To hold that there was an abuse of discretion under this record is to deprive Section 13444-20 of any force and effect, as it is difficult to conceive how any alibi testimony in a criminal ease would not tend to disprove the testimony offered by the state upon the point of the whereabouts of the accused at the time and place of the commission of the offense.”
Since July 1, 1973, notice of alibi has been required by Crim. R. 12.1.7 Although Crim. R. 12.1 does not make explicit reference to the trial court’s -discretion in exercising the power to exclude, it is clear that abuse of discretion is the appropriate standard for review by this court.8
In reviewing the exercise of discretion by the trial court below, the majority relies upon three considerations: (1) Good faith on the part of the defense, (2) surprise to the prosecution, and (3) prejudice to either party.
The majority first cites State v. Thayer (1931), 124 Ohio St. 1, for the proposition that the trial court abuses *59its discretion when it excludes testimony relative to an alibi, where the prosecution is neither surprised nor prejudiced. Although there is no specific mention of either surprise or prejudice in Thayer, this court, at page 4, does offer the following remarks in the course of ruling that the alibi notice statute is constitutional:
“* * * This law pertains to a very important feature of the criminal law. It gives the state some protection against false and fraudulent claims of alibi often presented by the accused so near the close of the trial as to make it quite impossible for the state to ascertain any facts as to the credibility of the witnesses called by the accused, who may reside at some point far distant from the place of trial. * * * To admit such testimony from other witnesses on the ground that it tends to contradict testimony offered by the state is simply an indirect way of nullifying the statute entirely.”
In their attempt to establish that the prosecution could not have been surprised, the majority in this case, in the better light of hindsight, states that: “[t]he prosecution knew from the time of defendant’s arrest that the testimony of the defendant, his brother and his girl friend as to the whereabouts of defendant and Ayers on the evening of October 16 would be crucial # # * .” This comment completely disregards the fact that the prosecution could properly rely upon defense counsel to give notice of intent to raise an alibi, and that since the defense failed to do so, the prosecution would certainly be surprised by last minute testimony of witnesses whose credibility with regard io. the purported alibi the prosecution had no opportunity to probe. In addition, it is patently apparent that if the prosecution should have known that the alibi evidence was crucial, then, a fortiori, the defense should have been aware of this fact, and given seasonable notice to the state.
In an affort to establish that good faith, on the part of the defense, in failing to file notice of alibi should be a consideration when reviewing the exercise of discretion by the trial court, the majority relies upon an Arizona case, *60State v. Adair (1970), 106 Ariz. 4, 469 P. 2d 823. In Adair the defense neglected to name a witness which it intended to call to establish an alibi. The Arizona statute requires a defendant, who intends to rely on an alibi, to file a notice listing the names of all witnesses who will testify in support of such defense. In affirming the defendant’s conviction, the Supreme Court of Arizona noted that the decision to admit alibi evidence, in the absence of proper notice, was within the discretion of the trial court. While the court made no mention of a “good-faith mistake,” it did point out that both the record and brief on appeal were silent as to any explanation of why the witness’ name was not included in the list. The Adair court also quoted from its decision in State v. Dodd (1966), 101 Ariz. 234, 418 P. 2d 571, which case cited the Ohio case of State v. Thayer, supra (124 Ohio St. 1), with approval. In State v. Dodd, at page 237, the following appears:
“* * * [t] he alibi winch defendant was seeking to establish was that he was present at a party which was attended by the witnesses who were relatives and friends. Rule 192, subd. B, 17 * * * A. R. S., malms it discretionary with the court as to whether such testimony should be denied where notice is not given in compliance with the rule. Defendant certainly knew of this evidence, and knowledge of it could have been ascertained by his attorney in time to give the five days’ notice. Certainly it was his duty to have asked permission of the court to call the witnesses at the time he admits he had knowledge of them, which was two days before the request was actually made. The question then is whether the court abused its discretion in denying the evidence.
it* * *
tt# * * Because of defendant’s failure to attempt compliance with the notice rule, we find no abuse of discretion In the instant case. Any decision to the contrary would render the force of 17 A. R. S. Section 192, subd. B nugatory. ’■’
•I must confess to having great difficulty in accepting *61a self-serving claim on the part of defense counsel that its failure to file a notice of alibi, pursuant to Crina. R. 12.1, was a good faith error. In view of the fact that the requirements of Grim. R. 12.1 are set forth in plain and simple terms, that such notice of alibi has been required in Ohio since 1929, and that Ohio courts have specifically held that the filing of notice is mandatory,9 I believe that the error on the part of appellant’s trial counsel was inexcusable, if not wholly contrived.
Facts similar to those in the case at bar are set out in the appeal from the denial of a petition for a writ of ha-beas corpus in Johns v. Perini (C. A. 6, 1971), 440 F. 2d 577. Appellant therein had been convicted for the possession and sale of marijuana. Although appellant’s trial counsel failed to file a notice of intention to rely upon an alibi, the trial court exercised its discretion and allowed appellant himself to testify as to his employment in an auto factory at the time and on the evening when the sale of the marijuana was alleged to have occurred. The prosecution, however, vigorously opposed any attempt to buttress the claim of alibi by the introduction of employment records. Because it was unclear whether defense counsel made a tactical decision not to introduce the documentary evidence, or whether he was precluded from doing so because he had neglected to give the required notice of alibi, the Court of Appeals vacated the order of the district court and remanded the cause for an evidentiary hearing. The Court of Appeals remarked that if the defense was precluded from introducing documentary evidence in support of appellant’s only defense, i. e., the alibi, because of counsel’s failure to file the required notice, the issuance of the writ of habeas corpus would be dictated by the decision in Schaber v. Maxwell (C. A. 6, 1965), 348 F. 2d 664.
Schaber, and other eases cited by the Johns court including Powell v. Alabama (1932), 287 U. S. 45, establish *62that an accused is denied the right to counsel, guaranteed by the Sixth Amendment to the United States Constitution, when performance by counsel is ineffective. Recently this court set forth the standards by which to evaluate the assistance, of counsel when a claim of ineffectiveness is made. See State v. Lytle (1976), 48 Ohio St. 2d 391.
I think it apparent that by no stretch of the imagination could counsel’s failure to file notice of alibi be considered a tactical decision. However the question of effective assistance of counsel is not an issue in this appeal nor is it passed on by this writer.
I would hold: that the trial court, in the exercise of its discretion, properly excluded the evidence relative to an alibi defense, notice of which was not filed pursuant to the mandate of Orim. R. 12.1. For this reason, I dissent.
LocheR, J., concurs in the foregoing dissenting opinion.Crim. R. 12.1 presumptively supersedes R. C. 2945.58. This section became effective in 1953, and was virtually identical to its forerunner, G. C. 13444-20.
See State v. Focht (1974), 37 Ohio St. 2d 173, 175, which applies this standard to a cause involving R. C. 2945.58. That section makes no explicit reference to the discretion.of the court, as did G. C, 13444-20.
See State v. Focht, supra; State v. Payne (1957), 104 Ohio App. 410.