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UNITED STATES EX REL. VEAL v. WOLFF

United States District Court, Northern District of Illinois, E. D


May 14, 1981

UNITED STATES EX REL. JOHNNY VEAL, PETITIONER,
v.
DENNIS WOLFF, WARDEN, AND HONORABLE WILLIAM G. SCOTT, ATTORNEY GENERAL OF ILLINOIS, RESPONDENTS.

The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

This is a petition for a writ of habeas corpus filed by Johnny Veal pursuant to 28 U.S.C. § 2254(a) in January, 1980. Veal is currently incarcerated at Stateville Correctional Center in Joliet, Illinois, where he is serving concurrent terms of not less than 100 years nor more than 199 years for the murders of two Chicago police officers in July, 1970. His conviction was affirmed by the Illinois Appellate Court in People v. Veal, 58 Ill. App.3d 938, 16 Ill.Dec. 188, 374 N.E.2d 963 (1st Dist. 1978). The Illinois Supreme Court denied leave to appeal, and Veal's petition for a writ of certiorari was denied by the United States Supreme Court, Veal v. Illinois, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979).*fn1

Veal challenges his state criminal conviction as having been procured in violation of his sixth amendment right to confront and cross-examine witnesses, and to compel the attendance of witnesses in his behalf, and his fourteenth amendment right to due process, in that: (1) the trial court refused to let petitioner's alibi witnesses testify in his defense because their names were not disclosed to the State at the conclusion of the State's case-in-chief; (2) the State failed to disclose charges pending against two juvenile witnesses who testified for the State and did not correct the perjured testimony of one of these witnesses on this point at trial; (3) the State suppressed and failed to disclose upon request other evidence favorable to the defense; and (4) the trial judge was a material witness who declined to recuse himself and testify at the post-trial hearing concerning an in camera and partially recorded discussion he had with one of the State's witnesses during the trial at which the witness, who later recanted his trial testimony at the post-trial proceeding, maintained that he told the judge that he had fabricated his trial testimony because of threats made by the State.*fn2

This matter is presently before the Court on the parties' cross motions for summary judgment pursuant to Fed.R.Civ.P. 56.*fn3 Since we hold that the state trial court's refusal to allow the testimony of Veal's alibi witnesses violated Veal's sixth and fourteenth amendment rights, it is unnecessary to address the other grounds for relief asserted in Veal's petition.

I.

Petitioner Veal and a co-defendant, George Clifford Knights,*fn4 were tried before a jury in the Cook County Circuit Court during the summer of 1971 for the July 17, 1970, murders of Chicago police officers James Severin and Anthony Rizzato at the Cabrini-Green housing project. The trial began in July and lasted well over a month. Veal and Knights each had separate counsel.*fn5

At the time of the trial, the Illinois Code of Criminal Procedure required that, upon request by the prosecution not less than ten days prior to trial, the defendant must produce, not less than five days prior to trial, notice that he intended to rely on an alibi defense. The notice was required to contain a statement of where the defendant claimed he was at the time of the crime and a list of the names and addresses of the witnesses whom the defendant intended to call to support the defense. Ill.Rev.Stat. ch. 38 § 114-14 (1969).*fn6 If the defendant did not comply with the statute, the court was permitted to exclude any alibi evidence offered by the defendant. Ill.Rev.Stat. ch. 38, § 114-14 (1969). The Code specifically denied to the defense the right to discover the names and addresses of the State's rebuttal witnesses. Ill.Rev.Stat. ch. 38 § 114-9(c) (1969).

Prior to Veal's trial, the State filed a motion for discovery which included a demand for notice of any alibi defense and the names and addresses of any alibi witnesses. People v. Veal, 58 Ill. App.3d 938, 975-76, 16 Ill.Dec. 188, 374 N.E.2d 963 (1st Dist. 1978). See also Transcript at 6761, 6763-64. Veal did not respond to the State's demand. After the State had presented its case-in-chief and before the commencement of the defense, Veal's attorney argued that the Illinois notice-of-alibi statute was unconstitutional. He pointed out that while the United States Supreme Court, in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), had held that the Florida notice-of-alibi statute did not offend the fifth amendment, the Court had specifically noted that the Florida statute mandated reciprocal discovery of the State's rebuttal witnesses. Further, the Court in Williams had specifically left open the question of a defendant's sixth amendment right to present witnesses on his behalf. Veal's counsel argued that because the Illinois statute did not provide the defense an opportunity for reciprocal discovery and because the defendant had a sixth amendment right to present witnesses in his behalf, the statute was unconstitutional and should not be enforced. Transcript at 6759-61.

The State argued that the attack on the constitutionality of the alibi statute was untimely. Transcript at 6760. The State went on to argue that in Williams, the Supreme Court had upheld the constitutionality of a statute "similar" to the Illinois statute. Further, they pointed out that the Illinois Supreme Court in People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634 (1970), had upheld the constitutionality of the Illinois alibi statute, despite Williams. Transcript at 6773. In response, Veal's counsel argued that the Illinois Supreme Court in Holiday had also specifically declined to rule on the sixth amendment issue. Transcript at 6774. The State responded that "we do wish to have the alibi statute complied with as the Illinois Supreme Court has stated it should be complied with, as the United States Supreme Court has stated it should be complied with." Transcript at 6774. Veal's counsel again argued that the Sixth Amendment of the United States Constitution as well as the Illinois Constitution guaranteed a defendant's right to compel the attendance of witnesses. Transcript at 6775.

The court responded:

  The answer is the Court will permit them to
  testify. The Court stated previously to defense
  counsel, I am going to treat the defense the same
  as it did the State. When the State offered a
  policeman there who wasn't on the list, I said he
  could not testify, and at that time, I asked Mr.
  Pincham, or both counsel, I stated on the record,
  gentlemen, I am going to treat the defense the
  same way as I'm treating the prosecution. I want
  to be fair to both. If you have alibi witnesses,
  submit those names. To date, they were not given.
  This is the proper time to give a list of
  witnesses.

  Mr. Adam: I'll not give them until the witness
  takes the stand.

  The Court: Then the Court will not permit them to
  testify, and that's the order of Court.

Transcript at 6776.

Johnny Veal presented no defense and was convicted by the jury.

II.

In 1973, two years after Veal was convicted, the United States Supreme Court held that the due process clause of the fourteenth amendment forbids enforcement of notice-of-alibi rules unless reciprocal discovery rights are given to the defendant. Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973).*fn7 The Court stated that the purpose of notice-of-alibi rules is to give both parties the maximum possible amount of information with which to prepare their cases and thereby reduce the possibility of surprise at trial. Wardius, supra, 412 U.S. at 473, 93 S.Ct. at 2211. Unlike the Florida statute at issue in Williams v. Florida, supra, the Oregon statute in Wardius had no provision for reciprocal discovery on its face. The Court in Wardius held that:

  It is fundamentally unfair to require a defendant
  to divulge the details of his own case while at
  the same time subjecting him to the hazard of
  surprise concerning refutation of the very pieces
  of evidence which he disclosed to the State.

Wardius, supra, 412 U.S. at 476, 93 S.Ct. at 2212.

It was insufficient, the Court held, that the Oregon trial court might have decided that petitioner was entitled to reciprocal discovery. The Court reasoned that a criminal defendant's fourteenth amendment right to due process cannot be made to depend upon the possibility that the state trial court might provide for reciprocal discovery. See Wardius, supra, 412 U.S. at 477-79, 93 S.Ct. at 2213-14.

In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court had clearly stated that it was not deciding whether the threatened sanction for noncompliance with Florida's notice-of-alibi statute — exclusion of alibi evidence — violated the sixth amendment.*fn8 "Whether and to what extent a State can enforce discovery rules against a defendant who fails to comply, by excluding relevant, probative evidence is a question raising sixth amendment issues which we have no occasion to explore. . . ." Williams, supra, 399 U.S. at 83 n. 14, 90 S.Ct. at 1897 n. 14. Similarly, in Wardius the Court stated that:

  Petitioner also argues that even if Oregon's
  notice-of-alibi rule were valid, it could not be
  enforced by excluding either his own testimony or
  the testimony of supporting witnesses at trial.
  But in light of our holding that Oregon's rule is
  facially invalid, we express no view as to
  whether a valid rule could be so enforced.
  Cf. Williams v. Florida, supra, at 83 n. 14 [90
  S.Ct. at 1897 n. 14].

Wardius, supra, 412 U.S. at 472 n. 4, 93 S.Ct. at 2211 n. 4.

Shortly after the Wardius decision, the Illinois notice-of-alibi statute was held unconstitutional by the Illinois courts on fourteenth amendment due process grounds. People v. Fields, 59 Ill.2d 516, 322 N.E.2d 33 (1974), cert. denied, 423 U.S. 843 (1975); People v. Cline, 19 Ill. App.3d 446, 311 N.E.2d 599 (1974), aff'd, 60 Ill.2d 561, 328 N.E.2d 534 (1975). In United States ex rel. Hairston v. Warden, 597 F.2d 604, 609 (7th Cir.), cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), the Seventh Circuit held that Wardius should be applied retroactively.

III.

In support of his motion for summary judgment, Veal argues that he was precluded from presenting his alibi witnesses on reliance on the unconstitutional Illinois notice-of-alibi statute and in contravention of the sixth amendment's guarantee of an absolute right to call witnesses on his behalf. In response to Veal's arguments, the State acknowledges that the right to present witnesses in one's behalf is fundamental and made applicable to the states by the due process clause of the fourteenth amendment. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). However, the State contends that it may condition exercise of this right on "reasonable rules designed to further legitimate state interests." Memorandum of Law in Support of Motion for Summary Judgment at 4. It argues that exclusion of Veal's alibi witnesses by the trial court "served the legitimate interest of the orderly administration of justice in order to safeguard against surprise." Id.*fn9

The State does not refer to the Illinois notice-of-alibi statute in its memorandum supporting his motion for summary judgment. Yet it is clear from the trial transcript that the State assumed at trial that the court's preclusion of petitioner's alibi witnesses was based on that statute. On August 11, 1970, in arguing for a protective order, the State said: "A corollary of that order will be now that your Honor has ruled, because of the defense failure to comply with the alibi statute. . . ." Transcript at 6789. Later that same day, an attorney for the State asserted: "Yesterday your Honor ruled that because the Defense had not complied with the Illinois Law [sic], that they would not be permitted to place upon the stand to testify any alibi witnesses. Your Honor clearly stated that, unequivocally said that is what it is." Transcript at 6939. On August 16, 1970, the Assistant State's Attorney stated: "Here is the hang up, if your Honor will let me use the vernacular, the defense and especially Veal has refused to obey the Illinois Alibi Statute." Transcript at 7580.*fn10 Shortly thereafter, the following exchange occurred:

  Mr. Adam: . . . I say that the alibi statute is
  unconstitutional. I say to you we don't have to
  give it but —

Mr. DiVito: But the Supreme Court says otherwise.

Mr. Adam: The Supreme Court says we do —

The Court: You are not complying with it.

Transcript at 7584.

The Court and the defense never contradicted the State's characterization of the issue as one of compliance with the alibi statute, though the record makes clear that the literal terms of the statute as to timing were not being applied by the court.*fn11 It is clear that the trial judge either was attempting to apply the non-reciprocal Illinois alibi statute, albeit incorrectly, or was applying a judicially-created alibi rule of his own.*fn12

If the trial judge was applying the Illinois notice-of-alibi statute to exclude Veal's alibi witnesses, the Wardius decision is directly applicable and the conviction cannot stand. If the trial judge was applying an alibi rule of his own creation, the principles enunciated in Wardius are still applicable. The fundamental unfairness which the Supreme Court found to exist when Oregon's non-reciprocal notice-of-alibi statute was applied is surely as present when a non-reciprocal judicially-created rule is applied as when the rule is embodied in a state statute. The end result is the same: the defendant is precluded from presenting his alibi evidence because of his failure to comply with a fundamentally unfair procedural rule. As the Court explained in Wardius, it is not enough that the trial judge might have decided that petitioner was entitled to reciprocal discovery in the instant case. The State does not contend that the trial judge would have ordered it to provide such reciprocal discovery to the defense. Moreover, given the explicit statutory exception of rebuttal witnesses from discovery at that time, Ill.Rev.Stat. ch. 38 § 114-9(c) (1969), such a possibility appears highly unlikely.

In United States ex rel. Hairston v. Warden, 597 F.2d 604 (7th Cir. 1979), the petitioner sought habeas corpus relief on the ground that the trial court's application of the Illinois notice-of-alibi statute in effect at the time of his trial operated to deny him a fair trial. The Seventh Circuit agreed with the petitioner and held that Wardius should be applied retroactively, because the defendant's inability to prevent his alibi defense at trial undermined the fact-finding process.*fn13

In Allison v. Gray, 603 F.2d 633 (7th Cir. 1979), the petitioner sought habeas corpus relief on the ground that exclusion of his alibi evidence under the Wisconsin non-reciprocal notice-of-alibi statute was unconstitutional. The Wisconsin Supreme Court had held that the non-reciprocal notice-of-alibi statute which was applied in Allison's case was unconstitutional. The court affirmed Allison's conviction, however, on the ground that the error in excluding Allison's alibi evidence was harmless. The federal district court agreed with the Wisconsin Supreme Court that the error was harmless. The Seventh Circuit reversed. The Court stated that while the evidence presented at Allison's trial was sufficient to support a jury verdict of guilty, it was not such overwhelming evidence "that no conceivable alibi evidence could overcome it." Allison, supra, 603 F.2d at 635. The Seventh Circuit concluded that the State could not meet its burden under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), of proving that the erroneous exclusion of Allison's alibi was harmless beyond a reasonable doubt. Allison, supra, 603 F.2d at 635.*fn14

In the instant case, it is evident that Veal, like the petitioners in Hairston and Allison, was forced "to choose between complying with the notice requirement and presenting his defense without the reciprocal disclosure of rebuttal witnesses, or foregoing his opportunity to present his defense at all." Hairston, supra, 597 F.2d at 608, quoting the district court opinion, No. 75 C 1079 (N.D.Ill., Sept. 8, 1977). This is precisely what the Supreme Court condemned as "fundamentally unfair" in Wardius, supra, 412 U.S. at 472, 475-76, 93 S.Ct. at 2211, 2212.

The exclusion of Veal's alibi defense rendered his trial fundamentally unfair by undermining the fact-finding process. The issue thus becomes whether the exclusion of Veal's alibi defense was harmless error. The State argues that the burden of demonstrating that the exclusion of Veal's alibi evidence was harmless beyond a reasonable doubt rests upon Veal. However, that burden clearly belongs with the State. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Allison v. Gray, 603 F.2d 633, 635 (7th Cir. 1979). This burden has not been met in the instant case. Applying the harmless error test as enunciated in Chapman and Allison, we are unable to conclude that the complete exclusion of any alibi evidence by Veal or on his behalf was harmless beyond a reasonable doubt. There is no indication in the record of what alibi evidence Veal wished to introduce, nor to what his alibi witnesses would have testified. The State's evidence was not so overwhelming that no conceivable alibi evidence could overcome it.*fn15

Accordingly, whether the court applied the Illinois notice-of-alibi statute then in use or a judicially-created notice-of-alibi rule, the trial court's exclusion of the testimony of Veal's alibi witnesses rendered the trial fundamentally unfair and denied Veal due process of law in contravention of the fourteenth amendment.

IV.

Veal also contends that exclusion of his alibi evidence at his state court trial violated his sixth amendment right "to have compulsory process for obtaining witnesses in his favor." This right is applicable to the states as "a fundamental element of due process of law" in Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 109 (1967).

The question of whether a state can enforce discovery rules against a criminal defendant who fails to comply with them by excluding relevant, probative evidence such as that which would presumably be provided by alibi witnesses has specifically been left undecided by the Supreme Court. See Wardius v. Oregon, 412 U.S. 470, 472 n. 4, 93 S.Ct. 2208, 2211 n. 4, 37 L.Ed.2d 82 (1973); Williams v. Florida, 399 U.S. 78, 83 n. 14, 90 S.Ct. 1893, 1897 n. 14, 26 L.Ed.2d 446 (1970). The issue has also been left undecided by the United States Court of Appeals for the Seventh Circuit. See Allison v. Gray, 603 F.2d 633, 634 n. 1 (7th Cir. 1979).*fn16

In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court stated that:

  The right of an accused in a criminal trial to
  due process is, in essence, the right to a fair
  opportunity to defend against the State's
  accusations. The rights to confront and
  cross-examine witnesses and to call witnesses in
  one's own behalf have long been recognized as
  essential to due process.

Chambers, 410 U.S. at 294, 93 S.Ct. at 1045 (emphasis added). The Court went on to say that "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." 410 U.S. at 302, 93 S.Ct. at 1049. The right to confront and cross-examine witnesses and to call witnesses in one's own behalf, however, is not absolute. In Chambers, the Court stated that, in appropriate cases, the right to confront and cross-examine witnesses must "bow to accommodate other legitimate interests in the criminal trial process. But its denial or significant diminution calls into question the ultimate `integrity of the fact-finding process' and requires that the competing interests be closely examined." 410 U.S. at 295, 93 S.Ct. at 1045. This principle applies equally to the right of a criminal defendant to present witnesses in his own behalf. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 109 (1967); United States v. Davis, 639 F.2d 239 (5th Cir. 1981). Thus, we must determine whether Johnny Veal's sixth amendment right to call witnesses on his own behalf should bow to the state's procedural interest in preventing surprise in the case at bar. We hold that it does not.

In Chambers, the Mississippi trial court applied its hearsay rule to exclude the testimony of three defense witnesses who would have testified that a person other than the defendant had confessed to committing the murder with which the defendant was charged. The trial court also refused, under another Mississippi rule, to permit the defendant to cross-examine the person who had confessed to the crime. The defendant argued that the application of these state rules deprived him of a fair trial. The Mississippi hearsay rule at issue in Chambers was designed to prevent the introduction of untrustworthy evidence. Chambers, 410 U.S. at 298, 93 S.Ct. at 1047. Similarly, the Texas rule prohibiting testimony by an accomplice on behalf of a criminal defendant at issue in Washington v. Texas, supra, had the same purpose. Washington, 388 U.S. at 21-23, 87 S.Ct. at 1924-25. The surest way to prevent the introduction of untrustworthy evidence in Chambers would have been a mechanistic application of the hearsay rule, just as the surest way to avoid the introduction of perjured testimony in Washington would have been a blanket prohibition of testimony by accomplices of defendants in criminal trials. Yet the Supreme Court made it clear in both cases that screening of such testimony by a jury is an adequate alternative to complete exclusion and that the added effectiveness, if any, of a blanket prohibition is not justified when measured against the defendants' sixth amendment rights. See generally Westen, The Compulsory Process Clause, 73 U.Mich.L.Rev. 71, 137-39 (1973).

In the instant cause, the discovery rules involved are designed primarily to prevent surprise, rather than to protect the integrity or trustworthiness of the evidence presented at trial. The testimony of an alibi witness will be rendered neither more nor less trustworthy by the mere revelation of his name to the state. The states' interests in the evidentiary rules at issue in Chambers and Washington were surely more significant than the purely procedural interest of preventing surprise involved here in the exclusion of unlisted alibi witnesses. Since the purpose of a notice-of-alibi rule is to give the state time to prepare its rebuttal, an adequate alternative to the wholesale preclusion of unlisted alibi witnesses might be a short recess granted to the state. The court could also consider the use of its contempt power against an attorney or defendant whose conduct it felt to be deliberately obstructionist.*fn17

In a similar case, the United States Court of Appeals for the Fifth Circuit recently held that: "[T]he compulsory process clause of the sixth amendment forbids the exclusion of otherwise admissible evidence solely as a sanction to enforce discovery rules or orders against criminal defendants." United States v. Davis, 639 F.2d 239 (5th Cir. 1981).*fn18 The Davis court stated that the exclusion of relevant, probative, and otherwise admissible evidence is an extreme sanction that should be used only when justified by some overriding policy consideration. Because discovery orders are designed to prevent surprise, rather than to protect the integrity of the evidence presented, the Fifth Circuit did not find the policy consideration compelling enough to justify the exclusion of the defendant's evidence. In the instant case, as in Davis, the policy reasons asserted by the State in support of its argument that Veal's alibi witnesses were legitimately precluded from testifying fail to justify such a severe interference with a defendant's sixth amendment right to compel the attendance of witnesses on his behalf. We hold, therefore, that exclusion of a defendant's alibi witnesses as a sanction for noncompliance with a notice-of-alibi rule violates a defendant's sixth amendment right to compulsory process.

This Court is not unmindful of the seriousness of the offenses for which Veal was charged and convicted — the murders of two Chicago police officers. We are also not without sympathy for the members of the victims' families who undoubtedly will be required to relive the pain and agony of the losses of their loved ones should the State seek to try Veal again. But there is a principle of law involved in this case that transcends these personal tragedies. It concerns the integrity of the United States Constitution — which these fine police officers had worked so nobly to uphold. What distinguishes the American system of justice from many other forms of jurisprudence is that every person charged with a crime — no matter how heinous — is entitled under our Constitution to a fundamentally fair trial. Veal did not receive such a trial. Accordingly, the State's motion for summary judgment is denied and Veal's motion for summary judgment is granted. It is so ordered.


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