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February 23, 1984


The opinion of the court was delivered by: Prentice H. Marshall, District Judge.


In this habeas corpus case we address an issue of apparent first impression in this circuit: whether it is constitutionally permissible in a state criminal prosecution for the trial judge to refuse to permit a material defense witness to testify because the witness was not listed on the defense's pretrial witness list submitted in response to the prosecution's discovery request.

Petitioners Jimmie, Melvin, and Robert Enoch were found guilty of rape and aggravated kidnapping by a jury in the Circuit Court of Cook County, Illinois in June 1980. Jimmie and Robert were sentenced to two concurrent 25 year terms, and Melvin was sentenced to two concurrent 12 year terms. The convictions were affirmed on appeal. People v. Enoch, Nos. 81-2100, 81-2101, & 81-2102 (Ill. App. Mar. 31, 1982). The Illinois Supreme Court denied leave to appeal.

The main prosecution witness was the victim of the alleged crime, Sandra Davis. She testified that she went to visit her cousin, Pamela Shaviers, at 10744 South Wentworth in Chicago on the evening of December 5, 1979. She left her cousin at 4:15 a.m. on December 6 and rode a bus toward her home at 2030 South State Street. Davis testified that as she walked past 2031 South Clark Street, she saw Melvin and Robert Enoch. Robert stopped her and told her that he was "going to take [her] body." Davis pulled away, but Robert grabbed her and pushed her toward the elevator at 2031 South Clark. She testified that she saw a gun in Robert's belt. Robert put his hand on the gun and told Davis that they were going to take her upstairs and rape her. The three entered the elevator and exited at the 14th floor.

Melvin opened the door to apartment 1403 with a key, and Robert told Davis to keep quiet because his mother was asleep in the apartment. Davis was taken to a back bedroom containing two beds. Robert struck her on the side of the head with his gun and then forced her to have intercourse with him. Robert then left; Melvin entered, struck her, and forced her to have intercourse with him. Petitioner Jimmie Enoch entered as Melvin left and also forced Davis to have intercourse. Then Robert returned and again forced Davis to have intercourse with him. He told Davis that if she mentioned the incident to anyone she would be killed. Davis also testified that Melvin took photographs of the incident and threatened to "show them all around the building" if she told on them. Another Enoch, Douglas, apparently remained through the entire incident on the other bed in the room. Though Davis testified that Douglas was lying down, she was unsure whether he was awake or asleep.

Davis testified that she left the Enoch residence at approximately 7:20 a.m. and went home. Later that day, she reported the rape to her mother, who called the police. Davis was taken to Mercy Hospital, where she was examined. The examining physician testified at trial that Davis had been beaten and that her vagina contained a large quantity of semen. Both the physician and Davis' mother testified without objection that Davis told them she had been raped.

The first defense witness was a police investigator. The defense elicited from the investigator that he spoke with Davis at the hospital and that Davis told him that she had been raped by three men in apartment 1403 at 2031 South Clark and that she saw "a mother and a sister asleep" in the apartment. It is unclear why the defense introduced this testimony.

Petitioners' mother, Willie Enoch, testified that Melvin and Jimmie left the family's apartment (the same apartment 1403 referred to by Davis) between 8:00 and 9:00 p.m. on December 5. Her daughter and another woman, Joyce Darnell, left shortly thereafter, leaving Mrs. Enoch and her son Douglas, and a baby. Mrs. Enoch watched television in her bedroom "all night . . . until the all night show came on." She let Jimmie and Melvin into the apartment around 4:00 or 4:30 a.m. on December 6. The prosecution, which elicited the latter testimony, did not ask Mrs. Enoch whether anyone was with her sons when they entered. Mrs. Enoch testified that she did not hear any commotion or noises in the apartment, though she stated that she probably was asleep by 5:00 a.m.

After Mrs. Enoch testified, and after a luncheon recess, petitioners' lawyers moved to amend their answer to the state's discovery request. One of the lawyers stated that he had learned some additional information from the Enoch family concerning an additional witness. He identified the witness as Patricia Griffin and stated that she would testify concerning an altercation she had observed between Ms. Davis and a man on the morning of the alleged rape. The prosecution objected to the belated disclosure. The court deferred consideration of this question until petitioners' lawyers could obtain more detailed information concerning the proposed witness' testimony.

After another recess, petitioners' lawyer identified the witness as Patricia Griffin, a resident of apartment 1402 at 2031 South Clark. Petitioners' lawyer made the following offer of proof, based on statements made to him by Griffin. On December 6, Griffin left her apartment at 7:00 a.m. On her way to the bus stop, she saw Sandra Davis, whom she had known since she was a young girl. Davis was arguing with a man, who was stating loudly something to the effect of "bitch, where is the money."*fn1

Petitioners' attorney stated that he had become aware of Griffin only that day. Griffin had spoken with Mrs. Enoch some time ago, but Mrs. Enoch had not informed her sons' lawyer despite being in contact with him. The lawyer stated that Ms. Griffin was available if the prosecution wished to speak with her. The prosecutor responded that in light of Mrs. Enoch's knowledge of Griffin and the fact that Griffin lived next door to the Enochs,*fn2 the defense should not be permitted to add her to its witness list. The prosecution did not identify any prejudice to it as a result of the late disclosure. Essentially, its argument was based solely on the defense's lack of diligence.

The trial judge stated that discovery rules were, after all, rules, and noted that they were in the middle of a jury trial. He stated that it was "more than a question of prejudice . . . It is a question of possible design, possibly I say, after the state has rested and the defense has commenced." He therefore denied the motion to amend the witness list, effectively precluding the defense from calling Ms. Griffin.

The defense's next witness was Charles Enoch, also a resident of 2031 South Clark, apartment 1403. He stated that around 7:00 p.m. on December 5, he rode the building elevator with Robert. When the elevator stopped on the 18th floor, he saw Teresa Mosley, Sandra Davis, and Michael May-berry standing in the elevator room. He identified Davis as a resident of 2030 South State Street. Later that evening, Charles and Robert went to apartment 1906 at 2031 South Clark. Present were Sharon Edwards, who lived in apartment 1906, Teresa Mosley, Michael Mayberry, and Sandra Davis. They smoked some marijuana, took some pills (which were not identified at trial), and drank some cough syrup. Mosley left around 3:00 a.m. on December 6. Those remaining were later joined by Jimmie, Melvin, and Peggy Enoch and Joyce Darnell. Sandra Davis, Robert Enoch, and Michael Mayberry left the apartment around 6:00 a.m. They did not leave together but rather left in close succession. The prosecutor impeached Charles' testimony by eliciting on cross examination that Charles had never reported his version of the events of December 5 and 6 to the police. He also suggested that Charles had concocted the story with his brothers, Joyce Darnell, Teresa Mosley and Michael Mayberry.

Teresa Mosley, also a resident of 2031 South Clark, was the next defense witness. She testified that she had known Sandra Davis for five or six years. She stated that "[w]e use [sic] to disco together, and we use [sic] to have sex with mens [sic] for money." Mosley testified to a series of events similar to that testified to by Charles Enoch. On cross examination, Mosely first denied visiting any of the defendants in jail but later admitted going to the jail to visit Robert Enoch approximately three weeks before the trial. She denied, however, actually seeing Robert at the jail. The prosecution also impeached ...

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