APPEAL from the Circuit Court of Logan County; the Hon. JOHN
T. McCULLOUGH, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
David Mann was arrested in Logan County pursuant to a governor's extradition warrant which stated that he had been charged in Milwaukee, Wisconsin, with two counts of theft. It was alleged that one of these thefts was committed on May 5, 1979, and the other on June 13 or June 20, 1979. Mann filed a habeas corpus petition, the trial court denied it, and he now appeals.
The parties' first court appearance regarding the petition occurred September 30, 1980, whereupon they agreed to a continuance until October 14 so that the State could file a response to the petition and prepare its case. On October 14, however, the State had not filed its answer, and the petitioner moved for entry of a default judgment.
The State's Attorney, appearing for the State, said that Assistant State's Attorney Roosevelt was in charge of the case and that an answer had been drafted which would be ready for filing soon. He also stated that Roosevelt and an assistant state's attorney in Wisconsin had tried but failed to get into contact with each other. He pointed out that petitioner was apparently going to present alibi witnesses and that it was necessary to discuss with Wisconsin officials the possibility of getting rebuttal witnesses.
In support of his motion for default, petitioner's attorney pointed out that petitioner and his three witnesses had come from Chicago to Lincoln that day and that he had gotten no message from the State that it would seek a continuance. Following counsel's arguments, the court allowed a 30-minute recess to permit the State to get its answer on file. The court then heard testimony from petitioner and his three witnesses.
Betty Granger, an employee of Trans World Airlines, testified that from May 3 to May 7, she and petitioner were together in California. On May 5 they did a lot of sightseeing and drove between San Francisco and Los Angeles. Granger, however, had no documents to prove that she and petitioner were together in California on those dates. She testified that they had flown there as nonpaying passengers on a TWA flight and that she had listed David Mann, the petitioner, as her husband in order to get free passage for him. According to Granger, TWA does not keep records of the names of nonpaying passengers.
In addition, Granger rented a car in California in her name because her TWA employment gave a discount, and she registered at hotels as "Mr. and Mrs. Granger" for the same reason. Granger had known petitioner for 10 years and had first become intimate with him around the time of their California trip. She also testified that petitioner had helped her move to a new apartment following their return to Chicago. However, none of his activities in this regard occurred on the dates of the alleged thefts.
Petitioner's mother, Louise Williams, stated that on June 13 and 20, 1979, petitioner was involved in a drug rehabilitation program at a center in Chicago. The clinic where petitioner received treatment was located near his mother's place of employment, and he always stopped in to see her when he went to the center. She did not, however, testify specifically that she saw him at any time on June 13 or June 20.
Russell Clark, a close friend for 30 years of both petitioner and his mother, testified that on June 20 petitioner had gone with him to Indiana Harbor, Indiana, to repair Clark's car, which Clark had left there the previous day. The witness' testimony reveals that he and petitioner were together from approximately noon until 3 p.m. Clark also testified that for several years he had been employed by the Chicago White Sox and that he had driven the team's truck between Chicago and Milwaukee a number of times. He said that the trip took him 2 1/2 hours but conceded that he had never driven between the cities by car.
Testifying in his own defense, petitioner said that he had been in California with Granger on May 5 and that he had not been in Milwaukee for 20 years. He also testified that he had been at his drug rehabilitation center for approximately an hour between the times of 11 a.m. and 2 p.m. on the dates of June 11 through 15, June 18 and 19, and June 22 through 24. He echoed Clark's testimony concerning their trip to Indiana Harbor on June 20 to repair Clark's car.
The State produced no evidence at the October 14 hearing, and the case was continued to October 16 for arguments. On that date — over petitioner's objection — the court granted the State a continuance until October 28, when Mr. Teeter testified for ...