APPEAL from the Circuit Court of St. Clair County; the Hon.
CARL H. BECKER, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from his conviction for the crime of armed robbery (Ill. Rev. Stat., ch. 38, par. 18-2). His defense was almost totally based on alibi. Prior to trial, in answer to a motion by the State for a list of alibi witnesses and pursuant to section 114-14 of the Illinois Criminal Code (Ill. Rev. Stat., ch. 38, Par. 114-14), defendant filed a list of alibi witnesses naming five persons. After the State had rested its case, defendant's attorney made a motion to produce the statements which the State had taken from these witnesses.
After the State had rested its case, the following occurred:
"Defense Counsel: Motion to produce, I would say I supplied the Court with what I thought was the authority, People versus Crawford and the Supreme Court case, People versus Sumner, and these cases show I am entitled to these statements.
The Court: I am not sure either one of those cases has gone that far. Do you have anything else you want to put in the record, Mr. Rice?
Mr. Rice: Yes, Your Honor. We were supplied with the list of alibi witnesses pursuant to our demands upon the defendant to do this, and upon receiving the names of alibi witnesses, we did take routine statements from three of these witnesses, and oral statement from one of them. I submit to the Court these four statements hopelessly do conflict with one another and they are all Missouri people. Upon the reasons we have already given for the Court's denial of this defense motion to produce these, it is the position of the State if we were to have to reveal what their own witnesses have previously stated we would be in the position that the defense could then call only those witnesses that they could hope to reconcile the statements they have given with whatever evidence may already be before the Court. We feel all impeachment possibilities by the State would be nullified completely. They are all four in hopeless conflict with one another on the facts in this case.
The Court: The Crawford case may indicate that the law may someday be that far that you will have to do that. I don't know that it says that at this point. It is very broad. I understand this case is on appeal to the Supreme Court of Illinois now. And I don't think the Sumner case, which is a Supreme Court case, went that far. None of these decisions touch directly on this question of alibi witnesses which might be handled quite differently. There will be reason for handling it quite differently than the other statements talked about in the Crawford case. For that reason, I don't believe the law at this time requires the State to produce these alibi witness statements, and I am going to deny the defense motion.
Defense Attorney: I have an evidence deposition I would like to read in this case of Mary Dudley. She is a crippled lady. She is unable to come to court and her testimony is important to the defense, in that she remembers seeing the defendant at or near the time of the alleged armed robbery in East St. Louis, in St. Louis, Missouri. For these reasons I would like to read the evidence deposition to the jury.
Mr. Rice: Your Honor, we would object on the basis there is no authority, plus if there were, if the Civil Rules of Procedure were applicable, I don't believe this is the fashion for the evidence deposition to come before the court.
The Court: Request to read the evidence deposition is denied because I know of no authority for this to be done. Request denied."
During the closing argument the state's attorney stated:
"You have Mrs. Brinkley testifying. They are in here trying to pull back December 30 and give him an alibi and put him somewhere at 2:30, because they know the armed robbery occurred at 2:30 on the East side. Mrs. Brinkley tells you he frequently took his wife to work. This is denied by the defendant himself. Mrs. Brinkley (we assume this was a mistake, meaning Mrs. Fields) said in her own handwriting, `He said when he left the house he was going to see Ronald Prince, who lives on Cottage.' But the defendant can't have you think he left the house to see Ronald Prince, because he said he was going to see Lee Blevins."
He further argues with regard to the alibi witnesses:
"They didn't do a very good job. They did not conspire maybe on this stand here today, and there is a reason for that, and that is because our investigator got to these people and got a written statement from them, and with that in our file there is not too far that these people can go."
Defense counsel's objection to the latter statement was overruled.
The first question presented is whether the trial court erred when it denied a defense motion to require the State to produce copies of statements of defense alibi witnesses obtained by the state.
We believe that Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), requires that copies of these statements be given to the defendant. For failure to meet the demands of Williams, we must reverse this conviction.
• 1 In Williams, Florida's notice-of-alibi rule was held constitutional against attacks based on the Fifth Amendment's prohibition of self-incrimination only because of statutory provisions for liberal and reciprocal discovery and disclosure against the state. The opinions in Williams manifest that requiring a defendant to name his witnesses is a drastic, fundamental concession on his part, and can only be valid if liberal discovery is reciprocal. Justice White, for the majority, stated at 399 U.S. 81:
"We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of `due process' or a `fair trial.' Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant."
Mr. Justice Black wrote his "emphatic disagreement and dissent" (399 U.S. at 116) believing that:
"This decision, in my view, is a radical and dangerous departure from the historical and constitutionally guaranteed right of a defendant in a criminal case to remain completely silent, requiring the State to prove its case without any assistance of any kind from the defendant himself." (399 U.S. at 108)
The majority opinion by Mr. Justice White, however, felt that these considerations were counterbalanced by reciprocal discovery against the State.
"* * * Florida law provides for liberal discovery by the defendant against the state, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant." (399 U.S. at 81)
The reason for this was stated by Mr. Justice White:
"* * * The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played." (399 U.S. at 82)
In Footnote 11 at page 82, the court noted that other states had alibi-notice requirements, but reserved judgment on their validity, as "* * * that conclusion must await a specific context and an inquiry, for example, into whether ...