APPEAL from the Circuit Court of Cook County; the Hon. ALFONSE
F. WELLS, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, after a jury trial, was found guilty of the offense of selling .45 grams of heroin in violation of Ill. Rev. Stat. 1969, ch. 38, par. 22-3, and was sentenced to a term of 5 to 15 years in the State Penitentiary. Defendant appeals. Upon appeal he contends:
(1) His motion for a substitution of judges was improperly denied;
(2) Ill. Rev. Stat. 1969, ch. 38, par. 114-14, which requires the filing of a notice of alibi defense upon request by the State, is unconstitutional under the Federal Due Process Clause;
(3) The trial court erred in striking the testimony of defendant's alibi witnesses and in admitting into evidence defendant's Answer to Request for Notice of Alibi Defense;
(4) The trial court erred in exhibiting bias and prejudice toward the defendant in the presence of the jury;
(5) The trial court improperly influenced the jury after deliberations upon a verdict had begun.
The pertinent facts follow:
Defendant was charged in two separate indictments with the sales of heroin on October 21, 1969 and December 12, 1969. However, the indictments for these alleged sales were returned by the grand jury in reverse chronological order; No. 70-543 pertaining to the October 21, 1969 offense, and No. 70-542 to the December 12, 1969 offense.
In answer to defendant's pretrial motion for discovery the State alleged that each of the two sales had taken place at the home of the defendant. The indictments were tried separately, and the instant appeal involves only the trial of the defendant on indictment No. 70-543 for the October 21, 1969 offense.
Indictment No. 70-543 was assigned to the trial call of Judge Alfonse Wells on March 13, 1970. On July 22, 1970, the defendant filed a motion under Ill. Rev. Stat. 1969, ch. 38, par. 114-5 for a substitution of judges and named therein Judge Wells and Judge David Cerda. Judge Cerda, who, during a brief absence by Judge Wells had been temporarily assigned to Judge Wells' trial call, granted defendant's motion as to himself but denied the motion as to Judge Wells on the basis that the matter had been pending before Judge Wells "for some time."
A consolidated answer to request for notice of alibi defense was filed by the defendant for both indictments Nos. 70-543 and 70-542 which listed separately under each indictment number the persons to be called as alibi witnesses. Following such listing the answer concluded on the second page with the statement that the defendant, at the time of the commission of the alleged offenses, was at home. Prior to the commencement of trial under indictment 70-543, defendant sought and was granted leave to amend his alibi notice by transferring the names of the alibi witnesses who had been mistakenly listed in the notice as alibi witnesses for the December 12, 1969 offense. However, the defendant failed to seek leave to amend the statement contained on the second page of his alibi notice which stated that he was at home at the time of both the October 21 and December 12 offenses.
In the opening statement of defendant's attorney which was made at the close of the State's case in chief, the jury was informed that the defendant would present between four and six witnesses who would testify that he was not at home at the time of the alleged October 21 sale. Thereafter, defendant presented five witnesses three relatives and two friends of defendant who testified that he was at a downtown movie on October 21 at the hour when the sale was alleged to have taken place at his home. The State made no objection either to the contents of defense attorney's opening statement or to the testimony of the five alibi witnesses.
An attempt by the State to call and examine one of the alibi witnesses in rebuttal resulted in a conference in chambers wherein the State was denied permission to examine any of the witnesses in rebuttal as to their alibi testimony. The State then indicated that when trial was resumed it would move that all alibi testimony be stricken as being in conflict with the statement contained in the alibi notice that defendant was at home at the time of the October 21 sale. The State further indicated that it would offer the alibi notice into evidence. Defendant's attorney responded that the statement contained in the alibi notice was the result of a clerical error in his office, and objected to the striking of the alibi testimony and the introduction of the alibi notice into evidence. The trial court then stated to defendant's attorney that defendant would have to be bound by the statement contained in the alibi notice. At the resumption of trial the State's motion that the alibi ...