(dissenting).
I must disagree with the majority’s holding that the trial court abused its discretion in excluding alibi testimony of two defense witnesses as a sanction for defendant’s failure to comply with the notice of alibi rule.
SCRA 1986, 5-508(A) provides in relevant part “a defendant who intends to offer evidence of an alibi in his defense shall, not less than ten (10) days before trial ... serve upon [the] district attorney a notice in writing of his intention to claim such alibi.” (emphasis added). Defendant in the instant case totally failed to comply with this rule. He did not submit a notice of alibi, but simply filed a witness list containing the names and addresses of the two witnesses in question, without identifying them in any special capacity. Because alibis are most convincing and easy to fabricate, notice of alibi statutes require a defendant to give notice to the prosecution of a defendant’s intention to rely on an alibi as a defense. Such notice provides the State with the opportunity to ascertain the facts as to the credibility of the witnesses or to obtain rebuttal testimony. Annotation, Validity and Construction of Statute Requiring Defendant in Criminal Case to Disclose Matter As To Alibi Defense, 45 A.L.R.3d 958, 965 (1972). The alibi rule “is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.” State v. Smith, 88 N.M. 541, 543, 543 P.2d 834, 836 (Ct.App.1975) (quoting Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970)). The rationale enunciated in Williams exemplifies “the growing realization that disclosure, rather than suppression of relevant materials ordinarily promotes the proper administration of criminal justice.” Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966). The notice requirement merely compels a defendant to accelerate the timing of his disclosure information which he plans to divulge at trial anyway, Williams, 399 U.S. at 85, 90 S.Ct. at 1893, and thereby, provides the judicial system with a better opportunity to determine the truth of the charge.
The notice of alibi rule further provides that the trial court may exclude alibi evidence offered by the defendant at trial, if the defendant failed to comply with the notice requirements. SCRA 1986, 5-508(C). The decision to exclude such testimony is discretionary. Smith, 88 N.M. at 544, 543 P.2d at 837. The appropriate standard of review is whether the trial court abused its discretion in ruling as it did. “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.” State v. Simonson, 100 N.M. 297, 301, 669 P.2d 1092, 1096 (1983). I find no abuse of discretion here.
The record shows that not until after the State had rested its case did defense counsel make an offer of proof as to the two witnesses’ testimony arguing it was not offered as alibi but rather to impeach the state’s witness, Donny Chapman. Since the testimony of both Gordon and Gilkison would have directly refuted the testimony of Chapman indicating that defendant was at a place other than the place where the crimes charged allegedly occurred, their testimony constituted alibi evidence as the trial court determined. Nonetheless, the trial court permitted the impeachment evidence by both witnesses on Chapman’s general character for truthfulness. The witnesses indicated that Chapman lied and was not trustworthy.
Although it is true that Rule 5-508 permits the trial court to waive the notice requirements for good cause, defendant made no such showing. SCRA 1986, 5-508(C). First, an adjournment to obtain other witnesses who might have refuted defendant’s witnesses would have unnecessarily delayed the proceedings. Defense counsel was aware of the existence of these witnesses and their proffered testimony at the time the State filed its demand for notice of alibi, but totally failed to comply with the rule and identify them as alibi witnesses. Second, both were permitted to testify on Chapman’s credibility. Third, defendant did not offer a valid justification for his failure to comply with the notice requirements. Finally, and contrary to defendant’s reasoning, the State was prejudiced from the moment defendant failed to notify it of an alibi defense. “Alibi” literally means “elsewhere; in another place” other than the place where the crime charged allegedly occurred. State v. Nunn, 113 N.J.Super. 161, 167, 273 A.2d 366, 369 (App.Div.1971); State v. Redwine, 79 Or.App. 25, 717 P.2d 1239, cert. granted, 301 Or. 338, 722 P.2d 737 (1986). “The defense of alibi has its evidential efficacy in the physical impossibility of the accused’s guilt.” Nunn, 113 NJ.Super. at 167, 273 A.2d at 369. Moreover, it is used to case a doubt on proof of the elements of the crime. See, e.g., People v. Williamson, 168 Cal.App.2d 735, 336 P.2d 214 (1959). Thus, in the absence of notice of an alibi defense, it is more onerous for theState to prove that there is no reasonable doubt that defendant was present at the time the crime was committed. See State v. Smith, 21 N.M. 173, 153 P. 256 (1915).
I can only conclude that the action of the trial court was not so clearly unreasonable in light of the surrounding circumstances to warrant interference on the ground of abuse of discretion. Any decision to the contrary renders the force of Rule 5-508, a rule which is clear and specific, a nullity.
By defendant’s total failure to comply with the rule, its intent and purpose were completely frustrated and created an unfair situation for the prosecution. The basic premise remains that both sides are equally entitled to a fair trial. The effect of the majority opinion is to tilt that premise in favor of the defense, which result is neither desired or appropriate.
Furthermore, I believe that the majority opinion’s reliance on Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), and Fender v. Goldsmith, 728 F.2d 1181 (9th Cir.1984), to find an abuse of discretion in the instant case, is misplaced. Both Taylor and Fendler involved the constitutionality of witness preclusion for failure to obey pretrial discovery rules. The case before us involves the trial court’s discretion by excluding the testimony of two defense alibi witnesses as a result of defendant’s complete failure to comply with Rule 5-508. See e.g., United States v. Barron, 575 F.2d 752 (9th Cir.1978). We held in State v. Smith, 88 N.M. 541, 543 P.2d 834 (Ct.App.1975), that New Mexico’s alibi rule does not violate due process, the right to compulsory process or defendant’s privilege against self-incrimination. Therefore, under the appropriate standard of review, abuse of discretion, I must affirm the trial court’s exclusion of alibi testimony for defendant’s failure to comply with the notice of alibi rule.
For these reasons, I dissent.