APPEAL from the Circuit Court of Knox County; the Hon. SCOTT
I. KLUKOS, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Defendant Alan D. Robinson was charged, tried before a jury and convicted on a charge of delivery of cocaine in excess of 30 grams, and was sentenced to 20 years imprisonment. Ronald Guerrero had been arrested on November 6, 1979, for selling one-half gram of cocaine, and he offered to assist the police in setting up a drug buy with his dealer in return for leniency. The delivery was made by Robinson on November 13, 1979, to Guerrero in his home in Galesburg, Illinois, and was filmed on video tape by a camera previously installed by the police with Guerrero's consent. The camera was placed upon a living room shelf pointing towards the kitchen. The film showed defendant primarily in profile, giving Guerrero a bag in exchange for money. The price was $1,950 per ounce. During the transaction, defendant stated that he might be able to get some more, and on December 5, 1979, pursuant to a court order, the police installed a wiretap on a hotel telephone in Galesburg from which Guerrero called defendant three times to try to arrange a deal. The transaction was never completed. Defendant was charged on January 8, 1980, but he was not arrested until June of 1980. He has appealed from his conviction and sentence, asserting that it was error (1) to exclude his alibi evidence; (2) to admit a tape recording of a December 5 conversation concerning another possible transaction; (3) to permit in-court identification of defendant by two agents who had monitored the video transaction; (4) to display and admit into evidence profile photographs of defendant; (5) to admit two instances of hearsay evidence; (6) to allow several instances of prosecutorial misconduct during closing arguments; (7) for the legislature to classify cocaine as a Class X felony; and (8) to impose a 20-year sentence.
Defendant's first assertion of error is the exclusion of his alibi defense. Defendant had been ordered to file his answer to the State's pretrial discovery by August 5, 1980, but he filed nothing until 4 p.m. on Friday, October 3, when he submitted a discovery answer indicating that he would present an alibi defense with evidence that he was in Peoria at the time of the offense and that his witness would be John Stringer. Prior to trial commencing on October 6, defense counsel explained that he had just learned Stringer's name on October 2, and that defendant had been in a different town, Creve Coeur, the night of the crime, not in Peoria as previously stated. Defense counsel stated that Stringer was then in the courthouse and available to the State for interviewing. The trial court granted the State's motion in limine to exclude the alibi defense on the ground that it was not timely and that the State would not have time to investigate the asserted alibi. The trial began on October 6, but was recessed for one week when defendant was injured in an automobile accident on the morning of Tuesday, October 7.
Late on Friday, October 10, defense counsel filed a motion to reinstate the alibi defense and listed a second witness. The court again denied the motion as not being timely, and trial resumed on Tuesday, October 14. Monday, October 13, was a holiday. During the trial, defendant took the stand in his own behalf. The court ruled that he could not say where he was on the night of the crime; he could only testify that he was not at Guerrero's house. On appeal defendant argues that it was error to exclude his alibi evidence, both on October 6 and again on October 10, and that it was also error to prevent him from testifying to his alibi at trial.
The trial court's authority to exclude evidence is based upon Supreme Court Rule 415(g) (Ill. Rev. Stat. 1979, ch. 110A, par. 415(g)(i)), which provides that if it is brought to the attention of the trial court that a party has failed to comply with a discovery rule, the court may, among other sanctions, exclude such evidence. The Illinois Supreme Court held in People ex rel. Carey v. Strayhorn (1975), 61 Ill.2d 85, 329 N.E.2d 194, that the Supreme Court Rules for discovery in criminal cases, including Rule 415, apply to the defense of alibi. Whether alibi evidence should be excluded in a particular case is, of course, a matter for the discretion of the trial judge who must weigh all applicable factors in order to reach a just result. Some cases have decided that it was error, in the circumstances there present, to exclude alibi witnesses if the witnesses were disclosed in time for the prosecution to interview them before they testified. (E.g., People v. Mahdi (1980), 89 Ill. App.3d 947, 412 N.E.2d 669.) However, there are other cases which have held that exclusion of alibi witnesses was an appropriate sanction, justified by the facts and circumstances of those cases. In People v. Short (1978), 60 Ill. App.3d 640, 377 N.E.2d 389, where the State was not advised of the alibi defense until trial was in progress, this court noted that the State needed time and opportunity to investigate the alibi defense, and then held that the trial judge did not abuse his discretion in excluding the evidence regarding the alibi defense. In a more recent decision, the reviewing court observed that the defendant waited until the day of trial, which was the 117th day of his term, to notify the State of his alibi defense. (People v. Braxton (1980), 81 Ill. App.3d 808, 401 N.E.2d 1062.) The court said, "The sudden discovery of the alibi and production of his wife as an alibi witness at this late date suggests recent fabrication * * *." (81 Ill. App.3d 808, 815, 401 N.E.2d 1062, 1067.) In Braxton there was nothing to show that the defendant could not have produced his alibi witness at an earlier date.
• 1 In the case at bar, defendant has asserted that on the night of November 13, 1979, he had looked at a car that was for sale on the street of Creve Coeur and had talked to someone whose name he did not know at the house where the car was parked. Hence, it took some time to locate the alibi witness. Defendant also argues that the State had ample time to investigate his alibi defense during the week the trial was recessed. However, no alibi proposal was pending, since that period of time came after the court had ruled to exclude the evidence. Defendant does not explain why he did not renew his motion for an alibi defense immediately after the trial was recessed; the record reveals only that he waited until late in the day on Friday before trial was to begin again. The trial court noted that defendant knew where he had been all along, and there was no excuse for not giving notice of his intention to assert an alibi even before he had located the witnesses. We cannot say that the trial court erred in excluding the witnesses. While the circumstances surrounding disclosure of witnesses make this a close case for the relatively drastic sanction of exclusion, the other evidence, showing clearly that defendant was present in Galesburg on the night in question, makes it unlikely that this ruling would have been prejudicial, even if it was error. We think no error occurred.
Defendant also asserts that, even if the exclusion of his witnesses was not error, it nonetheless was error to prevent him from testifying in his own behalf to his whereabouts the night of the crime. Defendant notes that there are no Illinois cases on this point, and he argues that the better view has been adopted in those jurisdictions that have permitted the defendant to testify to his own alibi even though the alibi notice statute was not complied with. For example, in People v. Rakiec (1942), 289 N.Y. 306, 45 N.E.2d 812, it was held that the alibi statute applies only to witnesses other than defendant because the purpose of the statute is to enable the prosecution to learn something about the witnesses whom the defendant intends to call. The court reasoned that it was necessary as to the defendant himself since he is always fingerprinted and investigated before trial anyway. Rakiec has been followed in other States, including Iowa. (State v. Lanphear (1974), 220 N.W.2d 618), South Dakota (State v. Hibbard (1978), 273 N.W.2d 172), and Michigan (People v. Merritt (1976), 396 Mich. 67, 238 N.W.2d 31). In Merritt, the court noted that the purpose of the notice of alibi statute is to facilitate orderly, uninterrupted trials by providing advance notice of witnesses to be investigated, and that where the defendant fails to give early notice of an alibi, his own credibility will be so severely weakened in the eyes of the jury as to offset any disadvantage to the State from the surprise.
Other States have reached a different result. In an Indiana case, Hartman v. State (Ind. App. 1978), 376 N.E.2d 100, the court noted that earlier decisions had held that "the notice statute served the truth-finding process by protecting the state from easily fabricated `eleventh hour' defenses, and by enabling the state to make adequate trial preparation * * * when such statutes place reciprocal burdens of disclosure upon the state, they are not violative of the defendant's due process rights * * *." (376 N.E.2d 100, 105.) New Jersey, Wisconsin, and Kansas all recognize that defendant's own alibi testimony is subject to exclusion to the same extent as the testimony of other alibi witnesses. See State v. Francis (1974), 128 N.J. Super. 346, 320 A.2d 173, and cases cited therein.
• 2 We find the reasoning in Hartman to be persuasive. If defendant had a bona fide alibi, he could have given the State timely notice of his intention to assert such an alibi by his own testimony, at least, even before he located corroborating witnesses. There is no suggestion here that defendant had any reason for not knowing where he was the night of the crime. We therefore hold that the trial court did not err in ruling that defendant could not testify as to his location the night of the crime and was limited to denying that he was at Guerrero's house.
• 3 Defendant also argues that the error of excluding his alibi testimony was aggravated by the prosecutor's closing argument where, after stating that defendant said he wasn't at Mr. Guerrero's house, the prosecutor went on, "Does he say anything else?" Defendant asserts that this was unfair comment upon his failure to say where he was, when in fact the court had limited his testimony to a statement that he was not at Guerrero's house. We are inclined to agree that it was error for the prosecutor to comment upon the exclusion of evidence, but given the strong evidence that defendant was in fact at Guerrero's house, we do not believe the improper comment amounted to prejudical error.
Defendant next contends that the court erred when it admitted into evidence the tape of a telephone conversation occurring on December 5, 1979, between Guerrero and defendant which was represented as being a discussion of another possible drug deal. Defendant says this tape was evidence of other crimes and as such, was not admissible since it did not qualify under any of the exceptions permitting such evidence to be used. The State points out that the conversation on the tape does not in fact contain evidence of any other crime since the discussion did not result in a deal being consummated.
Defendant also says that Guerrero's identification of him as the person talking was so weak that use of the tape was not justified. We observe at this point that we have listened to the conversation and note that the person answering the call is identified as "Al" and answers to that name. During the conversation it is apparent that Guerrero is trying to arrange a transaction for that night while "Al" wants to wait 24 hours and tells Guerrero that he must wait his turn. There is reference to "last time" and a discussion of whether the product is "rock" and whether it is as "good as the last." From these remarks, we think it clear that both parties are making reference to a previous cocaine transaction which Guerrero identifies as the deal for which defendant is on trial.
• 4 In view of the fact that defendant's name is Alan, and in view of Guerrero's positive identification of defendant's voice (which was corroborated by a police officer who also recognized the voice as that of defendant), we conclude that the evidence of identification was sufficient for purposes of relevancy.
Whether the tape amounts to an admission that defendant committed the crime for which he is charged is a question for the jury to determine. We believe that the trial court did not abuse its discretion in admitting the conversation for the purpose of showing defendant's method of dealing, his guilty ...