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August 20, 1984


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 petitioner filed an appeal from the judgment of conviction to the Appellate Court of Illinois, Third District. On appeal, the petitioner raised eight separate grounds for reversal. The Appellate Court rejected each of the petitioner's claims and affirmed his conviction. People v. Robinson, 104 Ill. App.3d 20, 59 Ill.Dec. 756, 432 N.E.2d 340 (1982). Subsequently, the petitioner filed this petition for writ of habeas corpus, alleging that he was denied his constitutional right to testify, to present a defense, and to call witnesses on his own behalf. See Petition at p. 5.


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).


Illinois Supreme Court Rule 415(g) grants trial courts the authority to exclude evidence if it is brought to the attention of the trial court that a party has failed to comply with an applicable discovery rule. Ill.Rev.Stat. ch. 110A, § 415(g)(i) (1979).*fn1 The Illinois Supreme Court held in People ex rel. Carey v. Strayhorn, 61 Ill.2d 85, 329 N.E.2d 194 (1975), that the Supreme Court Rules for discovery in criminal cases, including Rule 415, apply to the defense of alibi.

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.
  (Citations omitted.)

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 ...

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