Can Utah courts exclude alibi witnesses for filing notice two days late? State v. Gilling Explained

The Utah Court of Appeals recently addressed when trial courts may exclude alibi witnesses for untimely notice and whether defense counsel’s tactical decisions constitute ineffective assistance of counsel in State v. Gilling, 2025 UT App 125.

Background and Facts

Shanean Marquis Gilling was convicted of two counts of object rape after the victim testified that he digitally penetrated her on two occasions in April 2021 while she was recovering from methamphetamine withdrawal. Eight days before trial, defense counsel filed an alibi notice listing six witnesses who would testify that Gilling was elsewhere during the alleged crimes. The State moved to exclude the witnesses, arguing the notice was untimely under Utah Code § 77-14-2, which requires notice “not less than 10 days before trial.”

During trial, the State called an expert psychologist who testified about responses to sexual violence. On cross-examination, defense counsel asked whether the expert had treated patients he suspected of making false allegations. The expert confirmed two such instances. On redirect, the State elicited testimony that false allegations were “very uncommon” in the expert’s experience—occurring in only two to four cases out of approximately 1,000 patients.

Key Legal Issues

The appeal raised three primary issues: (1) whether the trial court abused its discretion in excluding alibi witnesses for a two-day delay in filing the required notice; (2) whether the court erred in permitting expert testimony about the statistical rarity of false allegations; and (3) whether defense counsel provided ineffective assistance in both contexts.

Court’s Analysis and Holding

The court applied an abuse of discretion standard to the exclusion of alibi witnesses and admission of expert testimony, while reviewing ineffective assistance claims for correctness. Regarding the alibi witnesses, the court held that Utah Code § 77-14-2(3) grants trial courts discretionary authority to exclude evidence when defendants fail to comply with notice requirements. The court rejected Gilling’s argument that filing two days late caused no meaningful prejudice, emphasizing that the statutory deadline does not distinguish between business and non-business days.

On the expert testimony issue, the court found that Gilling had waived his objection by agreeing during a bench conference that he had “opened the door” to the questioning. As for ineffective assistance, the court concluded that defense counsel’s strategy actually supported the defense theory by eliciting testimony that “substantial life challenges” could increase the likelihood of false allegations, which aligned with the defense’s argument about the victim’s drug addiction and troubled circumstances.

Practice Implications

This decision reinforces that Utah’s alibi notice statute should be strictly observed. Even minimal delays can result in exclusion of critical defense witnesses, as trial courts possess broad discretion under the statute’s “may exclude” language. Defense attorneys should file alibi notices well before the ten-day deadline to avoid potential exclusion arguments. The decision also demonstrates how opening the door to certain testimony can constitute reasonable trial strategy rather than deficient performance, particularly when the elicited evidence supports the defense theory. Finally, the court’s denial of the rule 23B motion illustrates the importance of developing a complete record regarding counsel’s strategic decisions at the trial level.