Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 0128 -- Marvin E. Aspen, Judge.
Cudahy, Coffey, Circuit Judges, and Grant,*fn* Senior District Judge. Coffey, Circuit Judge, dissenting in part.
GRANT, Senior District Judge.
This is an appeal from the district court's granting of petitioner Johnny Veal's request for habeas corpus relief. United States ex rel. Veal v. Wolff, 529 F. Supp. 713 (N.D.Ill. 1981). While his original petition raised several separate grounds for relief, the district court addressed and relied on only one. It concluded that Veal's constitutional rights were violated when the state trial court refused to allow Veal to present alibi witnesses because of his refusal to disclose the names of those witnesses prior to presenting his case-in-chief. Background
Veal and another individual were tried and convicted during the summer of 1971 for the murders of two police officers and sentenced to concurrent imprisonment terms of not less than one hundred years nor more than one hundred ninety-nine years for each murder. The Illinois Appellate Court affirmed his conviction, People v. Veal, 58 Ill. App. 3d 938, 374 N.E.2d 963, 16 Ill. Dec. 188 (1978), and the Illinois Supreme Court denied leave to appeal. Veal then filed a petition for a writ of certiorari with the United States Supreme Court which was also denied. Veal v. Illinois, 441 U.S. 908, 60 L. Ed. 2d 378, 99 S. Ct. 2001, 99 S. Ct. 2002 (1979). In January, 1980, Veal proceeded to file with the federal district court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). As earlier stated, Veal asserted in his petition several constitutional violations. Finding that relief was warranted on one claim, the district court declined to examine the others.
That one claim concerns the events which transpired after the State completed its case-in-chief. The facts are not disputed and we will simply rely upon the statement of facts contained in the Illinois Appellate Court's opinion.
Several months before trial, the State filed a motion for discovery, which included a demand for notice of alibi defense and the names and addresses of witnesses thereto. Defendant Veal did not respond to this demand before trial; nor did he respond at the commencement of trial. However, after the State rested its case-in-chief and after the court had denied a motion for a directed verdict of acquittal, Veal's attorney asked the court to rule on whether Veal would be permitted to call alibi witnesses without first disclosing to the State the witnesses' names and addresses. He stated that four witnesses were prepared to testify that Johnny Veal was at a place other than the place from which the shots were fired, but that these witnesses had told him they would not testify if their names and addresses were revealed before they took the witness stand, because they feared the police would abuse them. Counsel cited both a sixth amendment right to call witnesses and Williams v. Florida (1969), 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446, for that court's ruling that alibi discovery statutes are permissible if the defendant enjoys reciprocal discovery of the State's alibi rebuttal witnesses.
The State objected that the motion was not timely made and questioned whether the alibi witnesses in fact existed. Defense counsel asserted again that they existed, but made no offer to reveal them to the court, in camera or otherwise. Defendant Veal's counsel said:
"We are saying that we have witnesses. We want to call the witnesses and will not tell the State who the witnesses are. The question now is will your Honor let them testify or not testify. It's just that simple your Honor. Rule and we'll go on to something else."
In response the court stated:
". . . 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 * * * [defense counsel], I stated on the record, gentlemen, I am going to treat the defense the same way as I am 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."
Veal's counsel then said:
"I'll not give them until the witness takes the stand."
"Then the court will not permit them to testify, and that's the order of court."
Thereafter, defendant Veal did not call any alibi witnesses to testify. His counsel argued that it would be prejudicial to him to call the witness, have the State object and then have the witness excluded by the court for failure to comply with the alibi discovery motion.
At the time of Veal's trial, the Illinois Code of Criminal Procedure contained the following notice-of-alibi statute:
Upon the request of the prosecuting attorney, filed and served upon a defendant not less than 10 days before the trial of such cause, whenever a defendant charged with an offense prohibited by Articles 8 through 33, inclusive, of the "Criminal Code of 1961" proposes to offer in his defense, testimony of witness other than himself to establish an alibi, such defendants shall, not less than 5 days before the trial of such cause, file and serve upon the prosecuting attorney a notice in writing of his intention to assert such alibi, which notice shall include specific information as to the place where the accused maintains he was at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call to establish such alibi defense.
The defendant shall not be permitted to introduce evidence inconsistent with such notice unless the defendant establishes to the satisfaction of the court that witnesses to be called and not named in the notice were not known at the time such notice was filed or the court for other good cause permits the notice be amended. In the event of the failure of a defendant to file written notice as required in this Section, the court may exclude evidence offered by the defendant for the purpose of proving an alibi, if it appears to the court that such evidence takes the State by surprise.
Ill. Rev. Stat. ch. 38, § 114-14 (1969). A separate section of the Code denied to the defendant the right to discover the names and addresses of the State's rebuttal witnesses. Ill. Rev. Stat. ch. 38, § 114-9(c) (1969). While shortly before Veal's trial this statutory scheme was held to be constitutional by the Illinois Supreme Court in People v. Holiday, 47 Ill. 2d 300, 265 N.E.2d 634 (1970), it was later held to be unconstitutional following the United States Supreme Court's decision in Wardius v. Oregon, 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208 (1973). People v. Fields, 59 Ill. 2d 516, 322 N.E.2d 33 (1974), cert. denied, 423 U.S. 843, 96 S. Ct. 80, 46 L. Ed. 2d 65 (1975). The fatal aspect of the statute was its failure to provide for adequate reciprocal discovery rights. Both the Illinois Appellate Court and this court have held that Wardius is to be applied retroactively. See People v. Stinson, 37 Ill.App. 3d 229, 345 N.E.2d 751 (1976); People v. Lucien, 34 Ill. App. 3d 161, 340 N.E.2d 65 (1975); United States ex rel. Hairston v. Warden, 597 F.2d 604, 609 (7th Cir.), cert. denied, 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170 (1979).
State Appellate Proceedings
On appeal to the Illinois Appellate Court, Veal argued that the trial court erred in excluding his alibi witnesses for failing to name them. The Appellate Court, nearly seven years after the trial, rejected this argument on the ground that Veal had not been prejudiced by the trial court's action. 374 N.E.2d at 991. It relied on two reasons. First, the trial court had not applied the alibi statute and Veal was thus not suffering the prejudices associated with it.
By revealing the witnesses only just before their testimony, defendant Veal would have effectively achieved the surprise specifically denied to the defendant in Williams v. Florida and the effect of fear of police harassment of the witnesses before they could testify was eliminated. Had the witnesses been permitted to testify following disregard of the alibi notice rule, their names and addresses would have been revealed no later than the State's cross-examination of the first alibi witness, for the prosecutor no doubt would have inquired of that first witness who else was present besides the defendant and the witness at the place other than the scene of the crime at the time the crime was committed. [cite omitted]. Indeed, this may have been revealed during the direct examination. Therefore, the use to which ...