The opinion of the court was delivered by: Baker, District Judge.
This matter is before the court on the petitioner's motion
for summary judgment. The motion presents two issues: (1)
Whether it is constitutionally permissible in a state criminal
prosecution for the trial judge to refuse to permit material
alibi witnesses to testify because the defense failed to give
timely notice of its intended alibi defense, and (2) whether
it is constitutionally permissible in a state criminal
prosecution for the trial judge to refuse to allow the
defendant to testify concerning his whereabouts on the date in
question because the defense failed to give timely notice of
its intended alibi defense.
The petitioner, Alan D. Robinson, an inmate at the Logan
Correctional Center, filed this action seeking a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury
trial in the Circuit Court, Ninth Judicial Circuit, Knox
County, Illinois, the petitioner was convicted of delivery of
more than thirty (30) grams of cocaine in violation of
Ill.Rev.Stat. ch. 56 1/2, § 1401(a)(2) (1979). Following his
conviction, the plaintiff was sentenced to a term of
imprisonment of twenty years.
The relevant facts are as follows: On November 6, 1979,
Ronald Guerrero was arrested for selling one-half gram of
cocaine. He offered to assist the police in setting up a drug
buy with his dealer in return for leniency. On November 13,
1979, the petitioner allegedly delivered cocaine 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 a man,
allegedly the petitioner, primarily in profile, giving
Guerrero a bag in exchange for money. During the transaction,
the seller stated that he might be able to get some more
cocaine for Guerrero. On December 5, 1979, pursuant to a court
order, the police installed a wire tap on a hotel telephone in
Galesburg from which Guerrero called the petitioner three
times to try to arrange a purchase of cocaine. The
transaction, however, was never completed.
The petitioner was charged with delivery of cocaine on
January 8, 1980, but he was not arrested until June of 1980.
Subsequently, the petitioner was ordered to file an answer to
the State's pre-trial discovery request by August 5, 1980. The
petitioner filed no response until 4:00 p.m. on Friday,
October 3, at which time he submitted a discovery answer
indicating that he would present an alibi defense consisting
of evidence that he was in Peoria at the time of the offense
and that he would call John Stringer as an alibi witness. The
petitioner's trial was scheduled for October 6, 1980, three
days after the plaintiff submitted his discovery answer.
Immediately prior to trial, defense counsel explained that he
had first learned Stringer's name on October 2. He also added
that the petitioner had been in a different town, Creve Coeur,
the night of the offense, and not in Peoria as previously
stated. Defense counsel stated that Stringer was in the
courthouse and available to the State for an interview. The
trial court, however, granted the State's motion in limine and
excluded the alibi defense on the grounds that it was not
timely filed and that the State would not have an adequate
opportunity to investigate the asserted alibi.
The trial began on Monday, October 6, but was recessed for
one week when the petitioner was injured in an automobile
accident on October 7, 1980. Late on Friday, October 10,
defense counsel filed a motion to reinstate the alibi defense
and listed a second witness. The court denied the motion as
untimely, and the trial was reconvened on Tuesday, October 14.
Summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(c). In determining whether summary
judgment is proper, a court ordinarily must view the record in
the light most favorable to the party opposing the motion,
drawing all inferences most favorable to that party. Rose v.
Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir. 1973).
A. EXCLUSION OF DEFENDANT-PETITIONER'S WITNESSES
It is well-settled that the right of an accused in a
criminal trial to present witnesses in his defense is a
fundamental right guaranteed by the Sixth Amendment of the
United States Constitution and made applicable to the states
by the Due Process Clause of the Fourteenth Amendment.
Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d
1019 (1967); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct.
1038, 35 L.Ed.2d 297 (1973). In the present case, the State
trial court precluded the defense from calling alibi witnesses
as a discovery sanction. The Illinois Appellate Court affirmed
the trial court and stated:
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 stated 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. 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.
People v. Robinson, 104 Ill. App.3d at 23, 59 Ill.Dec. 756,
432 N.E.2d 340.
In People v. Williams, 55 Ill. App.3d 752, 13 Ill.Dec. 234,
370 N.E.2d 1261 (1977), the Illinois Appellate Court reversed
the conviction of a defendant for rape and burglary, where all
defense witnesses were excluded from testifying because the
defense had failed to comply with the discovery procedures in
Ill.Rev.Stat. ch. 110A, § 415(g) (1971). In Williams, defense
counsel became involved as counsel for the defendant one week
before the trial with the understanding that the case was to be
dismissed by the State due to the difficulty the State had in
locating the complaining witness. As a result, the defense
counsel claimed that he did not know who his witnesses would
be. Moreover, the State had included one of the defendant's
alibi witnesses on its list of witnesses even though the State
did not call that witness to testify. The defense counsel
tendered no list of alibi witnesses to the state prior to
trial; however, counsel offered to let the State interview all
defense witnesses before they testified. Williams, 55 Ill.
App.3d at 757, 13 Ill.Dec. 234, 370 N.E.2d 1261.
In reversing the conviction, the Appellate Court held:
Even without the presence of these factors, we
would still hold that the imposition of the
particular sanction in the case at bar was an
improper exercise of the trial judge's discretion.
The exclusion of all the defense witnesses
effectively deprived defendant of an opportunity to
present a defense. Such a result offends our
system's fundamental tenets of due process. We
doubt that the Committee, in drafting our Supreme
Court rules, intended this particular sanction to
be applied where it would result in the complete
elimination of an accused's right to present a
defense. Rather, the trial ...