APPEAL from the Circuit Court of Madison County; the Hon.
VICTOR J. MOSELE, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Ricky Douthit appeals from his conviction of burglary after a jury trial in the Circuit Court of Madison County.
In the early morning hours of March 1, 1975, two Collinsville police officers were dispatched to the Park Place Tavern to investigate a burglary in progress. Defendant and Donald Muench (who was tried separately) were observed inside the tavern holding bottles of liquor, and one of the officers overheard a conversation to the following effect: "Let's get what we can and get out of here." "All right, I'm hurrying." Defendant and Muench were apprehended shortly after they left the tavern. Defendant was identified at trial by both police officers.
At trial, defendant raised the affirmative defense that he was so intoxicated at the time of the offense that he was incapable of acting knowingly and intentionally, as required to commit the crime of burglary. (See Ill. Rev. Stat. 1975, ch. 38, pars. 6-3(a), 19-1(a).) He and Donald Muench both testified to the extensive drinking they had done, beginning in the early evening of the previous day and ending about 3:30 a.m., shortly before their arrest. By that time, they testified, they were both so drunk that they didn't know what they were doing. Defendant testified that he remembered nothing from the time he left a friend's trailer, at about 3:00 a.m., until he awoke in jail. The arresting officers, however, were of the opinion that, although defendant had been drinking, he realized what was going on. The jury was instructed, in accordance with IPI Criminal No. 24.02, that an intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting intentionally. The jury returned a verdict of guilty of burglary. Defendant's post-trial motion was denied, and he was sentenced to two to seven years' imprisonment.
Defendant contends on appeal that his constitutional rights to compulsory process for obtaining witnesses in his favor and to due process of law were violated by the court's exclusion of two witnesses because of defendant's failure to inform the State, in response to its discovery motion that he intended to call them at trial. Alternatively, he urges that the court's exclusion of the witnesses was an abuse of judicial discretion.
The record reveals the following facts necessary for an understanding of defendant's arguments. Defendant was indicted on March 27, 1975. The public defender was appointed on April 9 to represent him for purposes of arraignment only, as the court found that defendant was not indigent. He was instructed to retain private counsel within seven days. That same day, April 9, both the State's attorney and the public defender filed motions for discovery. The State's motion sought discovery, inter alia, of any defenses the defendant intended to make and the names and addresses of witnesses he intended to call at trial. On April 14, the State responded to defendant's motion. On May 20, by retained counsel, defendant filed another motion for discovery. The case went to trial on June 5.
On the second day of trial, after the State had presented its case and defendant's motion for directed verdict was denied, defense counsel indicated in chambers that he intended to call four witnesses: defendant, Donald Muench, Gary Muench, and Rocky Reed. The State's attorney objected to the testimony of the latter two witnesses, as their names had not been disclosed in response to the discovery motion. He argued that defense counsel was experienced in the criminal field, had seen the State's discovery motions many times before, and should have been aware of the duty to disclose the names of the prospective witnesses. Defense counsel stated that he had never received any motions or requests for discovery from the State's attorney. He continued:
"* * * It seemed unusual. I did not investigate any further. I didn't ask them why. I never looked at the court file until a bit ago when the case was coming up for trial. Yes, I looked at the court file, he has never either orally or in any way asked me for anything. * * * He never asked me for any list of witnesses. He didn't consider any defense to be of any value. * * *"
The court stated that defense counsel "is a trial attorney and knows the local rules in this court that at arraignment, discovery is ordered or entered by the court. It's totally unfair if we're going to have discovery ordered to have one side comply and the other side withhold discovery compliance until the last minute."
"* * * Holding the attorney in contempt does not ease the problem of the unfairness of allowing the witness to testify. Continuation is out. Today is Friday. Continuance in order for the State to interview their witnesses or trying to obtain other witnesses is totally unfeasible at this stage of the game. If this case goes on appeal, I want the reviewing court to outline just how far a trial judge can go. I say what is good for the goose is good for the gander. If the State is going to comply, then the defense has got to comply with the discovery rule. I'm going to rule these two, Reed and Muench, not be allowed to testify in this case because of the failure to comply with the discovery rule."
Defense counsel then stated that Reed had been with defendant until about half an hour before the burglary, and would testify that defendant had been drinking all night and "was out of his head." Counsel asserted that "[t]he night before this trial was the first time I learned that the boy had been drinking and had this defense."
However, the court held to its ruling, stating:
"Mr. Massa is an experienced trial lawyer and knows in Madison County at arraignment time the discovery rule is ordered or put on each party * * *. He didn't look in this file until the trial started. If he would have, he would have discovered that the order was effective April 9, 1975. Further, it's not the duty of the State's Attorney ...