Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 830-C-4303-Prentice H. Marshall, Judge.
Before BAUER, Circuit Judge, POSNER, Circuit Judge, and CAMPBELL, Senior District Judge.*fn*
CAMPBELL, Senior District Judge. This is an appeal from a district court decision reported at 581 F. Supp. 423 which grants a habeas corpus petition to three Illinois state criminal defendants. The petitioners are three brothers: Jimmie, Melvin and Robert Enoch. After a jury trial, they were convicted of rape and aggravated assault. The convictions were affirmed by the Illinois appellate court. See People v. Enoch, Nos. 81-2100, 81-2101, and 81-2102 (Ill.App., Mar. 31, 1982). The Illinois Supreme Court denied leave to appeal. Petitioners subsequently filed their habeas corpus petition in the United States District Court for the Northern District of Illinois. Upon cross-motions for summary judgment, District Court Judge Prentice H. Marshall granted the habeas petition concluding that the trial court had violated petitioners' Sixth Amendment right by precluding the defense from calling a particular witness. The court concluded that despite the failure to adhere to discovery rules regarding disclosure of the witness, constitutional considerations, compelled the trial court to permit the witness to testify. A review of this conclusion is the sole issue before this court. This court has jurisdiction of this appeal under 28 U.S.C. § 1291.
A complete recitation of the facts can be found at 581 F. Supp. 423. A brief review of the sequence of events during trial will provide the necessary perspective for our analysis.
The prosecution's main witness was the alleged victim, Sandra Davis. She testified she was returning from a visit to her cousin's house, Pamela Shaviers, at about 4:15 a.m., on the morning of December 6, 1979 when she encountered Robert and Melvin Enoch at 2031 South Clark Street. According to Davis, Robert and Melvin forced her into an elevator at the above address and took her to their apartment. At this point she alleges she was raped by the three petitioners. Davis claimed she left the Enoch residence at 7:20 a.m. and returned home. She reported the incident to police later in the day. She also visited a hospital later that day and the examining physician testified as to bruises and evidence of sexual intercourse.
The defense presented six witnesses. The first was a police investigator who spoke with Davis at the hospital and received a recital of the above facts.
Willie Enoch, petitioner's mother, next testified she was in the apartment during the night in question and let Jimmie and Melvin in at about 4 a.m. to 4:30 a.m. She did not specify if anyone else accompanied them. Mrs. Enoch testified she did not hear any noise or commotion in the apartment that night and fell asleep at approximately 5 a.m.
At this point in the trial the court recessed for lunch. There were still four defense witnesses and one rebuttal witness scheduled to testify. After lunch petitioner's attorneys notified the court that they had discovered an additional witness, a Patricia Griffin. Petitioners moved to amend their answer to the state's discovery request regarding the designation of witnesses. The prosecution objected. Defense counsel argued the new witness was a material witness and made the following offer of proof: That Patricia Griffin, whose apartment abutted the Enoch apartment, would testify she left her apartment at 7 a.m. on the morning of the alleged incident and that she saw Sandra Davis, a long-time acquaintance, on the way to a bus stop arguing with a man who shouted: "Bitch, where is the money?" Defense counsel also represented to the court that Ms. Griffin was in a bedroom abutting the Enoch bedroom at the time of the alleged assault and would testify as to what, if anything, was heard from the apartment during that time period.
Defense counsel denied any bad faith in the late discovery of Ms. Griffin and claimed they had not previously been informed of her testimony. The prosecution responded that Mrs. Enoch knew of Ms. Griffin existence and that the sanction of exclusion should be applied. However, Ms. Griffin was available to be interviewed by the prosecution prior to her testifying. Furthermore, the prosecution did not specify any prejudice that would result from Griffin's testimony.
The trial judge denied petitioner's motion to amend the witness list. He stated that prejudice to the prosecution was not his only concern but also possible design in that the state had rested and the defense already commenced. As a result, petitioners were allowed only to call the four witnesses remaining on their next witness list. Charles Enoch testified he, Theresa Mosely, Michael Mayberry, Sandra Davis, Joyce Darnell, and Jimmie, Melvin and Peggy Enoch were together until 6 a.m. on the morning of December 6th. Charles stated that Davis, Robert Enoch and Mayberry left in close succession at about that time.
Theresa Moseley corroborated the testimony of Charles Enoch. She also stated she had known the alleged victim for five or six years and that "we use [sic] to disco together, and we use [sic] to have sex with mens [sic] for money." The final two witnesses, Joyce Darnell and Sherri Edwards, also corroborated Charles Enoch's testimony.
The prosecution's one rebuttal witness was Pamela Shaviers, Sandra Davis' cousin. Shaviers corroborated Davis' testimony by saying Davis visited her from 8 p.m. to 4:15 a.m. on December 6th and that she walked Davis to the bus and watched her leave.
This is a case where the State's interest in applying a discovery rule must be weighed against the defendant's Sixth Amendment right to a fair trial. In this situation the Seventh Circuit has adopted the following analysis:
"The right of a defendant to present relevant and competent evidence is not absolute and many 'bow to accommodate other legitimate interests in the criminal trial process,' ... although the competing state interests must be substantial to overcome the claims of the defendant. Our task is thus to evaluate the exculpatory significance of the proffered evidence...and then to balance it against the competing state interest in the procedural rules that prevented the defendant from presenting this evi- dence at his trial." [Citations and ...