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State v. Deffebaugh10/10/2003
Reversed and remanded.
Charles R. Deffebaugh, Jr., appeals his jury trial conviction for selling cocaine. The primary issue is whether the trial court erred by refusing to permit a defense witness to testify that Deffebaugh was not present during the drug transaction. The specific question before the court is: "Does the definition of alibi witness include one who would only testify the defendant was not at the scene of the crime?" We answer no and reverse.
On September 4, 2001, Detective Robson of the Coffeyville, Kansas, police department was investigating a house reported to be involved in drug trafficking. The house had been placed under surveillance prior to that date based on reports from neighbors. On this date, however, Robson arranged for an informant, Michelle Wilson, to attempt a controlled buy at the house. Wilson had been arrested for a DUI and had agreed to make controlled buys for the police department. She was considered credible by the police.
At 5 p.m., Wilson proceeded to the suspected drug house with two officers following. Wilson was "wired" so that her conversations could be audiotaped. After a brief conversation with several black males at curbside, one man left Wilson's car and returned with two rocks of cocaine. Wilson bought the rocks for $30. She left the house and returned to the police station.
Upon police questioning, Wilson indicated the man she received the cocaine from was "Jimmie." Robson attempted, but failed, to find anyone in the police department's computer database with that street name. Wilson described Jimmie as being taller than any of the other black males at the buy. Based on that factor and other physical attributes described by Wilson, Robson compiled two photo lineups, each composed of six photos. Wilson picked Deffebaugh out of the second lineup.
On September 5, 2001, Robson and several other police officers executed a search warrant at the house. There were 11 black males, including Deffebaugh, in the house at the time of the raid. Deffebaugh was the tallest. All of the men were in the bedroom when the police entered the house. There were money and dice on the floor. Cocaine, guns, and other money were found in the house. Deffebaugh had $167 on his person at the time of his arrest.
At trial, Wilson testified for the State. She identified Deffebaugh as the man at the house who sold her cocaine on September 4, 2001. The audiotape of the drug buy was admitted into evidence.
Deffebaugh did not testify at trial. However, he called Calvin Shobe as a witness. Shobe was one of the 11 males in the house when the search warrant was executed. Shobe testified that all the men, including Deffebaugh, were involved in a dice game prior to the execution of the search warrant. The defense attorney attempted to ask Shobe if he recognized Deffebaugh's voice on the audiotape of the drug buy. At that point, the prosecutor objected and requested a bench conference. Shobe's testimony was going to be that the voice on the audiotape was not Deffebaugh's. Additionally, Shobe was prepared to testify that he was at the house during the drug buy on September 4, 2001, and Deffebaugh was not present at that time.
The prosecutor objected to Shobe's testifying that Deffebaugh was not present at the drug buy on the grounds that Shobe was not listed as an "alibi" witness. The trial court sustained the objection. The court allowed Shobe to testify that the voice on the audiotape was not Deffebaugh's. However, the trial court refused to permit Shobe to testify Deffebaugh was not present during the drug buy. The court categorized this as alibi testimony and refused to permit the testimony since the
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