concurring in result.
I fully concur with the majority's holdings that the trial court did not commit error in limiting the cross-examination of Officer Wildauer or in refusing Washington's tendered jury instruction and in its conclusion that Washington's convictions should be affirmed, but I believe the trial court was within its discretion in excluding the alibi testimony. Accordingly, I concur in result.
My colleagues look to the decisions of our Supreme Court in Baxter v. State, 522 N.E.2d 362 (Ind.1988) and the United States Supreme Court in Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) which held that the exclusion of evidence in criminal case for discovery violations was not error where the violations constituted willful misconduct. From these holdings they reason that since the discovery violation here was the result of oversight and not willful misconduct, the trial court erred in excluding the testimony. I do not think that either Baxter or Taylor should be so limited.
In Baxter, our Supreme Court noted that the determination "is necessarily fact sensitive." 522 N.E.2d at 369. While preclusion of alibi testimony "may be appropriate" where the defendant has purposely suppressed the evidence, it may not be *890appropriate where the alibi notice is simply tardy or inadequate and "their failure does not deprive the State of sufficient time and information to investigate and respond." Id. The Court observed that the determination of "whether the defendant's right to testify must overcome the State's interests is necessarily fact sensitive." Id.
In Taylor, the United State Supreme Court noted that "it is neither necessary nor appropriate for us to attempt to draft a comprehensive set of standards to guide the exercise of discretion in every possible case." 484 U.S. at 414, 108 S.Ct. 646. The Court continued, saying that the fundamental character of the defendant's right to offer testimony must be weighed against the integrity of the adversary process, the interest of fair and efficient administration of justice and the potential prejudice to the State.
My reading of Baxter and Taylor leads me to believe that the courts were setting out guidelines by which the trial court was to exercise its discretion in making the determination of whether to exelude alibi and other defense evidence for discovery violations and important factors which must be weighed in that determination and that while it may be appropriate to exclude evidence for willful violations, the fact that the violations derive not from willfulness but oversight or inattention does not end the inquiry. Whether the discovery violation at issue is due to oversight or a willful desire to gain an advantage, the harm to the State is the same, and that harm must be factored into the decision to exclude or allow the evidence. Here, I believe the trial court properly balanced the competing interests and was within its discretion in excluding the testimony.