¶1 concurring in judgment.
¶2 Although I concur in the sustaining of the first assignment of error and the reversal and remand for a new trial, I would also sustain the second and fifth assignments of error.
¶3 Assuming there to be relevance, the evidence as to change of alibi through changes in the notice of alibi can be accomplished through introduction of the *261 notices themselves into evidence. Only if appellant objected to admissibility could the issue of defense-counsel authority arise. This would initially be an issue for the court out of the presence of the jury. See Evid.R. 104(A).
¶4 Here, however, the trial court not only permitted cross-examination of appellant as to confidential communications to his attorneys, but, also, permitted the prosecution to call and cross-examine defendant’s attorneys, both one who had been replaced and the actual trial attorney, as to confidential communications between appellant and his attorneys. Evid.R. 501 preserves such privilege. The filing of a notice of alibi does not waive the attorney-client privilege. Without belaboring the point, the second assignment of error should be sustained and, hopefully, the evidentiary rulings will differ upon retrial.
¶5 As to the fifth assignment of error, the trial court refused appellant’s request before and after the charge that the trial court instruct the jury that appellant has no burden of proof with respect to an alibi “defense.” Contrary to the prosecution’s contention, the trial court did not cover the question of burden of proof as to alibi in the charge as actually given but, at best, left the question open for speculation by the jury.
¶6 The alibi evidence was crucial to appellant’s defense. Under the circumstances, the refusal to charge as to burden of proof was prejudicial, especially in connection with the errors raised by the first and second assignments of error. The alibi evidence, if believed, would have required a finding that appellant was not present at the scene of at least one of the crimes and, thus, could not be guilty. Appellant also presented expert testimony that footprints found at the scene of that crime could not have been made by appellant’s shoes. Under such circumstances, the error in refusing to instruct that appellant had no burden to prove his alibi cannot appropriately be found nonprejudicial. The fifth assignment of error should also be sustained.