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
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'
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
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 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
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 ...