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07/21/87 the People of the State of v. Michael L. Spicer

July 21, 1987





511 N.E.2d 235, 158 Ill. App. 3d 699, 110 Ill. Dec. 400 1987.IL.1033

Appeal from the Circuit Court of McLean County; the Hon. James A. Knecht, Judge, presiding.


JUSTICE HEIPLE delivered the opinion of the court. BARRY, P.J., and WOMBACHER, J., concur.


The defendant, Michael Spicer, was found guilty of three counts of residential burglary after a bench trial. He was sentenced to three concurrent terms of nine years' imprisonment. On appeal, the defendant argues (1) that he was denied a fair trial by the trial court's action in excluding defendant's defense of voluntary intoxication due to defense counsel's failure to comply with discovery rules, (2) that he was denied effective assistance of counsel because of his counsel's failure to tender the affirmative defense of voluntary intoxication, and (3) that the trial court abused its discretion in imposing a sentence on him. We affirm.

The crucial evidence against the defendant was provided by the codefendant, Todd Spence. Spence testified that he and the defendant shared an apartment at 818 East Washington Street in Bloomington in October and November of 1984. On October 31, 1984, Spence returned home from work between 9 and 10 p.m. He and the defendant drank alcohol and smoked marijuana during the next three to four hours. After three or four hours of drinking and smoking, they left the apartment, each carrying a screwdriver and a flashlight. They walked approximately 2 1/2 blocks to a house at 1005 East Jefferson, broke in through a basement window, and took two stereo speakers and a purse. After returning to their apartment with the goods, they consumed more beer. Shortly thereafter, they went back to the house at 1005 East Jefferson and took a case of silverware and other small items.

Spence further testified that at approximately 1 a.m. on November 2, 1984, he and the defendant again left their apartment with screwdrivers and flashlights and broke into another residence in the same neighborhood as the first at 905 East Jefferson. The men removed a purse from the house and returned to their apartment. They confiscated $40 from the wallet and an automatic teller card, which they used to obtain another $500.

Finally, Spence testified that he read a newspaper article about a residential burglary in the apartment two doors down from their apartment. When he confronted the defendant with the story, the defendant admitted committing the crime. It was shown that the defendant committed the residential burglary after returning from a concert on November 9, 1984, and that he was intoxicated when he returned home.

The defense counsel attempted to cross-examine Spence regarding the defendant's intoxicated state at the time he and the defendant committed the East Jefferson Street burglaries. The State objected to the line of questioning on the ground that the defense had not tendered the affirmative defense of intoxication during discovery as required by Supreme Court Rule 413(d). (107 Ill. 2d R. 413(d).) The court allowed an offer of proof on the issue, but excluded all substantive evidence of the affirmative defense because of defense counsel's noncompliance with Rule 413(d). The defendant first argues that the trial court's action in excluding the evidence of the defense violated his sixth amendment right to a fair trial by preventing him from presenting a defense.

Supreme Court Rule 413(d) provides:

"Defenses. Subject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defense counsel shall inform the State of any defenses which he intends to make at a hearing or trial . . .." (107 Ill. 2d R. 413(d).)

Supreme Court Rule 415(g)(i) provides:

"If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule . . . the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter ...

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