Petition for Writ of Certiorari — Lane v. Enoch

\

No 8 © -339

A

S 24

JOSEPH F. SPANIOL, JR.

CLERK

In THE

Supreme Court of the United States

Octoser T'erm, 1985

MICHAEL LANE, Director, Illinois Department

of Corrections, and NEIL F. HARTIGAN, Attorney General,

State of Illinois,

Petitioners,

VS.

UNITED STATES OF AMERICA ex rel. JIMMIE ENOCH,

MELVIN ENOCH and ROBERT ENOCH,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA JONES STEWART

Solicitor General, State of Dlinois

MARK L. ROTERT *

Assistant Attorney General

100 West Randolph Street, 12th Floo1

Chicago, Illinois 60601

(312) 917-2570

Counsel for Petitioners

Joan G. Fickrncer

Assistant Attorney General

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 32976—50—$9-23-85)

l

QUESTION PRESENTED FOR REVIEW

Whether the state trial court’s imposition of a statutory

preclusion sanction against respondents comported with

the Sixth Amendment, where respondents failed to adhere

to discovery rules requiring pre-trial disclosure of wit-

nesses.

il

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...

TABLE OF AUTHORITIES ......... yeaveews

i sch eres haces eccs eset voces

i Ceci cas ihecsevecceseceses

5 oo Gy : re

STATEMENT OF THE CASE ...............

REASONS FOR GRANTING CERTIORARI:

THE STATE TRIAL COURT’S IMPOSITION

OF THE PRECLUSION SANCTION AGAINST

RESPONDENTS COMPORTED WITH THE

SIXTH AMENDMENT, IN LIGHT OF RE-

SPONDENTS’ FAILURE TO ADHERE TO DIS-

COVERY RULES REQUIRING PRE-TRIAL

DISCLOSURE OF WITNESSES ...........

CE ree

APPENDIX

A—Opinion of the United States Court of Appeals

for the Seventh Circuit, dated July 18, 1985.

B—Opinion of the United States District Court for

the Northern District of Illinois, dated Feb-

SE MEE Sao pencoccccesvccccccecoces

C—Order of the Appellate Court of Illinois for the

First Judicial District, dated March 31, 1982 .

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13

A-1l

B-1

C

-]

ill

TABLE OF AUTHORITIES

CASES: PaGR(s)

Alicea v. Gagnon, 675 F.2d $13 (7th Cir. 1982) .. 8

Chambers v. Mississippi, 410 U.S. 284 (1973) ... 8

Fendler v. Goldsmith, 728 F.2d 1181 (9th Cir.

De atenchess (sahedineeedetketebeséeacees 8

Illinois v. Allen, 397 U.S. 337 (1970) ......... )

Ronson v. Commissioner of Cor. of State of N.Y.,

604 F.2d 176 (2d Cir. 1979) ............... 7

Smith v. Jago, 740 F.2d 969, cert. denied, 53

U.S.L.W. 3667 (U.S. March 18, 1985) ...... 12

United States v. Barron, 575 F.2d 752 (9th Cir.

i Ceiatideusdasedgheeunndeeapedaaeseeoe 8

United States v. Davis, 639 F.2d 239 (5th Cir.

EE Sn ea ee 7

United States ex rel. Enoch v. Hartigan, 768 F.2d

BGR Crt Car. BORED ..cccccccccececccece 1, 6, 7, 11

United States v. Fitts. 576 F.2d 837 (10th Cir.

United States v. Nobles. 422 U.S. 225 (1975) .. 10

United States v. White, 583 F.2d 899 (6th Cir.

EE Se ee nn ~

Wardius v. Oregon, 412 U.S. 470 (1973) ....... 7, 10

Williams v. Florida, 399 U.S. 78 (1970) ....... 7.8.9

STATUTES:

n,n i Over cc cauewuseeenees )

, & e SS Sa ee ee 4

. Se rrr rrr rrr rrTTTT i)

Ill. Rev. Stat. ch. LIOA, § 413(dXi) (1983) ..... 2,8

ll. Rev. Stat. ch. LIOA, § 415(@@)G) (1983) ...... 3,8

ARTICLE:

Note, Alibi Notice Rules: The Preciusion Sanction

as Procedural Default, 51 U. Chi. L. Rev. 254

In Tue

Supreme Court of the United States

Octroper Term, 1985

MICHAEL LANE, Director, Illinois Department

of Corrections, and NEIL F. HARTIGAN, Attorney General,

State of Illinois,

Petitioners,

V8.

UNITED STATES OF AMERICA ex rel. JIMMIE ENOCH,

MELVIN ENOCH and ROBERT ENOCH,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at United States ex rel.

Enoch v. Hartigan, 768 F.2d 161 (7th Cir. 1985). A copy

of the opinion is attached to this petition as Appendix A.

The opinion of the United States District Court for the

Northern District of Illinois is reported at United States

ex rel. Enoch v. Lane, 581 F. Supp. 423 (N.D. Ill. 1984).

2

A copy of the opinion is attached to this petition as Ap-

pendix B. The order of the Appellate Court of Illinois is

unpublished pursuant to Illinois Supreme Court Rule 23.

A copy of the order is attached to this petition as Ap-

pendix C.

JURISDICTION

The court of appeals on July 18, 1985 affirmed the dis-

trict court’s grant of respondents’ application for a writ

of habeas corpus. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Ill. Rev. Stat. ch. 110A, § 413(d)(i) (1983)

Supreme Court Rule 413. Disclosure to Prosecution.

(d) Defenses. Subject to constitutional limitations and

within a reasonable time after the filing of a written mo-

tion by the State, defense counsel shall inform the State

of any defenses which he intends to make at a hearing

or trial and shall furnish the State with the following

material and information within his possession or control:

(i) The names and last known addresses of persons he

intends to call as witnesses together with their relevant

written or recorded statements, including memoranda re-

porting or summarizing their oral statements, any record

of prior criminal convictions known to him;

~ S

Ill. Rev. Stat. ch. 110A, § 415(g)(i) (1983)

Supreme Court Rule 415. Regulation of Discovery.

(g) Sanctions.

(i) 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 or

an order issued pursuant thereto, the court may order

such party to permit the discovery of material and infor-

mation not previously disclosed, grant a continuance, ex-

clude such evidence, or enter such other order as it deems

just under the circumstances.

STATEMENT OF THE CASE

A. State Court Proceedings.

Respondents 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.

Sandra Davis, the eighteen-year-old victim of the crime,

testified at trial that on the evening of December 5, 1975

she played cards with a group of people at her cousin’s

house from the early evening until approximately 4:00 in

the morning. (R. 52) When the game ended, Sandra took

public transportation to a stop near her home, then pro-

ceeded from there on foot. (R. 53) Walking through China-

town, Ms. Davis happened upon Robert and Melvin Enoch,

whom she had known for several years. (R. 54, 74)

Robert Enoch asked Sandra Davis whether she thought

she was “too good to socialize with them,” (R. 56) then

dragged her to the Enoch apartment where she was raped

and beaten by Melvin, Robert and Jimmie Enoch. (R.

60-69)

ndion

After the State had rested and three defense witnesses

testified, defense attorneys moved to amend their answer

to the State’s discovery request regarding the designa-

tion of witnesses. The defense claimed it had just learned

of the existence of one Patri viffin, who could testify

te an alleged altercation bec.we-n Sandra Davis and an

unidentified man on the morning of December 6. (R. 225)

In their offer of proof, defense attorneys said Ms. Grif-

fin would testify that she saw Sandra Davis on the street

arguing with a man, and that the man said “something

to the effect” of “bitch, where is the money.” (R. 227)

Ms. Griffin lived in the apartment next to the Enochs’

and served as the “captain” of the floor on which she and

the Enochs lived. (R. 226) The Enoch brothers lived to-

gether with their mother and other family members in

the apartment where the rape and beating took place. Ac-

cording to the defense, Ms. Griffin had told the Enochs’

mother about the alleged altercation several months

before trial. (R. 228) Although defense attorneys had inter-

viewed Mrs. Enoch, and although Mrs. Enoch had already

testified at trial, the defense claimed that Mrs. Enoch had

never previously mentioned her conversation with Patricia

Griffin. (R. 228)

Noting that defendants had demanded trial, that the

case had been on the trial call every day for more than

two months, and that the trial was in its third day, the

prosecution objected to the amendment motion. (R. 230)

The court denied defendants’ motion to amend, observ-

ing:

It would violate every contention of any notice of dis-

covery to permit it. . . It is more than a question

of prejudice. It is more than a question of how one

side or the other is going to be hurt. It is a ques-

~

tion of possible design, possibly I say, after the State

had rested, and the defense has commenced... |

imagine that this very situation is one of the strong-

est reasons why discovery rules were eventually

adopted ...

(R. 230-232)

The defense then resumed its case. Deferse witnesses

testified that on the night and morning in question,

Sandra Davis attended a party with a group of people

including Robert, Jimmie and Melvin Enoch. (R. 244) Wit-

nesses testified that Ms. Davis left the party somewhere

between 5 and 6 o’clock in the morning. (R. 325)

Teresa Mosely, who had previously been convicted for

theft, (R. 279) testified that she had «..zaged in prostitu-

tion “a couple of months ago,” and that she and Sandra

Davis “use (sic) to have sex with mens (sic) for money.”

(R. 263, 280)

Other defense witnesses included such interested parties

as respondents’ mother, brother, Jimmie Enoch’s wife, and

a woman who used to live with respondents’ brother.

With the exception of the latter, all of the defense wit-

nesses visited at least one of the respondents in jai! prior

to trial. (R. 249-251, 274) Ms. Mosely admitted visiting the

jailhouse, but denied that she actually speke with respon-

dents. (R. 274) Ms. Mosely never reported her version of

the sequence of events to the police, although she knew

respondents would be tried for rape. (R. 278)

From a judgment of conviction, respondents appealed

to the Illinois Appellate Court for the First District. The

appellate court affirmed the conviction. People v. Jimmie

Enoch, Melvin Enoch and Robert Eno« 1, Nos. 80-2100,

80-2101, 80-2102 (Ist Dist. Mar. 31, 1982).

~ =

The appellate court reasoned that since Teresa Mosely’s

testimony implied that Sandra Davis was a prostitute, Ms.

Griffin’s testimony would have been cumulative. Although

exclusion is a drastic sanction, the court concluded, no

prejudice was demonstrated. Jd. at pp. 3-4.

The lilinois Supreme Court denied leave to appeal.

B. Federal Court Proceedings.

Upon exhausting state remedies, respondents filed a

petition for a writ of habeas corpus in the United States

District Court for the Northern District of Illinois. The

District Court granted the habeas petition. See United

States ex rel. Enoch v. Lane, 581 F. Supp. 423 (N.D. IIl.

1984).

The court held that respondents’ due process and fair

trial rights were violated by imposition of the preclusion

sanction for two principal reasons. First, respondents were

not responsible for their attorneys’ failure to list Griffin

as a witness. Secondly, Ms. Griffin’s testimony was im-

portant to the defense. 581 F. Supp. at 431. The court

concluded the error was not harmless beyond a reason-

able doubt and granted the writ.

The case was then submitted to the United States Court

of Appeals for the Seventh Circuit for review of the ques-

tion whether constitutional considerations compelled the

trial court to permit Patricia “riffin to testify.

Weighing the State’s interest in enforcing its discovery

rules against respondents’ Sixth Amendment rights, the

court found the state’s interest insufficient to override the

Sixth Amendment considerations at issue. United States

ex rel. Enoch v. Hartigan, 768 F.2d 161, 163 (7th Cir.

1985). Discovery rules were devised to prevent surprise

to the state, the court said, and not to punish the accused

——_ ee — — —_—

~~ =

for “mere technical errors or omissions.” 768 F.2d at 163.

Furthermore, the court held, the defense was prejudiced

by the sanction, while less severe sanctions were avail-

able. Id.

Accordingly, the Court of Appeals affirmed the decision

of the federal district court to issue the habeas writ.

REASONS FOR GRANTING CERTIORARI

THE STATE TRIAL COURT’S IMPOSITION OF THE

PRECLUSION SANCTION AGAINST RESPONDENTS COM-

PORTED WITH THE SIXTH AMENDMENT, IN LIGHT OF

RESPONDENTS’ FAILURE TO ADHERE TO DISCOVERY

RULES REQUIRING PRE-TRIAL DISCLOSURE OF WIT-

NESSES.

In Williams v. Florida, 399 U.S. 78, 84 n.4 (1970) and

Wardius v. Oregon, 412 U.S. 470, 473 n.4 (1973), this

Court specifically left unanswered the question whether

a state can enforce its discovery rules against a defen-

dant by excluding relevant evidence. The instant case ex-

emplifies the unjustified trend in the federal courts to de-

limit state courts’ authority to enforce reasonable discov-

ery rules through imposition of the preclusion sanction.

State courts’ consequent uncertainty in applying the

sanction is increased by the inconsistent treatment given

the issue in the circuits: Ronson v. Commissioner of Cor.

of State of N.Y., 604 F.2d 176 (2d Cir. 1979) (good faith/

prejudice test); United States v. Davis, 639 F.2d 239, 243

(5th Cir. 1981) (preclusion sanction per se impermissible);

United States ex rel. Enoch v. Hartigan, 768 F.2d 161,

163 (7th Cir. 1985) (balancing State’s interest in enforc-

ing discovery rule against defendant’s Sixth Amendment

= =

interests); Fendler v. Goldsmith, 728 F.2d 1181, 1190 (9th

Cir. 1984) (harmless error test).! Petitioner therefore asks

that this Court affirm Illinois’ right to effectuate its gen-

eral criminal discovery rules through use of the sanction

by reversing the judgment of the Seventh ( .rcuit.

Illinois discovery rules provide that a defendant must

apprise the state of any defense he intends to make, and

must furnish the State with the names and addresses of

persons he intends to call as witnesses. Jl. Rev. Stat.,

ch. 110A, § 413(d\i) (1983). A defendant’s failure to comply

with this discovery rule may result in imposition of the

preclusion sanction. See Jil. Rev. Stat., ch. 110A, § 415(gXi)

(1983). Petitioners submit that imposition of this sanction

in the instant case conformed with the Sixth Amendment.

While this Court announced state court defendants’

Sixth Amendment right to present witnesses in their own

behalf in Chambers v. Mississippi, 410 U.S. 284, 294

(1973), that rule has not been held to be so inviolate that

a state cannot condition that right on compliance with rea-

sonable procedural rules such as that of Illinois’.

In Williams v. Florida, 399 U.S. 78, 86 (1970), for

example, this Court upheld a Florida notice-of-alibi rule

against a Fifth and Sixth Amendment challenge. The

Florida rule provided that if a defendant failed to give

the prosecution pre-trial notice of intention to claim an

alibi, exclusion of the alibi evidence might result. 399 U.S.

at 79-80. Although the Williams’ defendant’s compliance

1 See also cases considering preclusion sanction issue in context

of alibi witness notice rules: United States v. White, 583 F.2d 899

(6th Cir. 1978) (preclusion permitted); Alicea v. Gagnon, 675 F.2d

913 (7th Cir. 1982) (preclusion improper); United States v. Barron,

575 F.2d 752 (9th Cir. 1978) (preclusion permitted); United States

v. Fitts, 576 F.2d 837 (10th Cir. 1978) (preclusion permitted).

aillte:

with the alibi notice rule precluded review of the exclu-

sion, this Court found “ample room”’ in the constitution

for such a rule, commenting:

The adversary system of trial is hardly an end in

itself; it is not yet a poker game in which players

enjoy an absolute right always to conceal their cards

until played.

399 U.S. at 82.

Hence, while Williams endorses the concept of pre-trial

notice rules, it does not decide the case at bar because

this Court was not squarely presented with the issue, and,

moreover, this Court has suggested that a different balance

of interests might be required where an alibi defense is

not involved. 399 U.S. at 84 n.4 (1970).

Nonetheless, Congress and this Court have seen the

need to place reasonable conditions on assertions of Fifth

and Sixth Amendment trial rights in other contexts. For

example, Federal Rule of Criminal Procedure 12.1 pro-

vides tiiat if a party fails to give notice he intends to pre-

sent an alibi defense, the court may exclude the testimony

of undisclosed witnesses. Fed. R. Crim. P. 12.1.

Pursuant to Federal Rule of Criminal Procedure 33, a

defendant may lose the opportunity to present new evi-

dence at trial if he cannot show he exercised due diligence

in procuring that evidence. Fed. R. Crim. P. 33.

A defendant who fails to posit a contemporaneous ob-

jection to improper jury instructions or to inadmissible

evidence forfeits the right to object later. Fed. R. Crim.

P. 30.

Additionally, this Court has held that the Confrontation

Clause does not bar sequestration as a sanction against

an unruly defendant. Illinois v. Allen, 397 U.S. 337, 347

(1970).

= s=

Finally, this Court held in United States v. Nobles, 422

U.S. 225, 241 (1975) that a trial court acted properly in

refusing to permit defense witnesses to testify regarding

interviews they held with defendant’s investigator, where

defendant refused to reveal to the prosecution the full

scope of the investigator’s interview with those witnesses.

This Court observed in Nobles: ‘“{Ojne cannot invoke the

Sixth Amendment as a justification for presenting what

might have been a half-truth.” 422 U.S. at 241.

In sum, while courts have recognized defendants’ right

to present a defense, courts have also, in seiect circum-

stances, conditioned an unabridged defense on compliance

with reasonable rules so as not to undercut the integrity

and efficiency of the judicial system. This Court, in fact,

has expressly applauded the “salutary development” of

discovery devices which enhance the fairness of the adver-

sary system. Wardius v. Oregon, 412 U.S. 470, 474 (1973).

The fairness of exclusion of witnesses because of non-

compliance with the notification rule is exemplified in this

case where alternative measures would have been highly

impractical and prejudicial to the State, and where the

grounds for non-compliance are suspect.

As an alternative to the preclusion sanction, the federal

district court below offered the incredible advice to the

State that one prosecuting attorney could have inter-

viewed Ms. Griffin while the other continued to prosecute

the case. 581 F. Supp. at 428. Surely the state prosecutors

would have been duty-bound to exhibit more zealotry than

this. The prosecution would undoubtedly have needed a

break in the trial to interview and investigate the back-

ground of Ms. Griffin, Mrs. Enoch, Sandra Davis, the

alleged pimp, and any vice squad officers. The prosecu-

tion might additionally have needed to prepare its own

rebuttal witnesses. Thus, while the federal district court

=

scrupulously honored respondents’ Sixth Amendment right

to present a defense, it gave rather short shrift to the

state’s interest in enforcing well-founded discovery rules.

Furthermore, respondents’ revelation of a “‘key”’ wit-

ness after the prosecution rested only represented an

added threat to the integrity of the trial. While the trial

court considered the defense attorneys’ offer of proof and

rejected it, suspecting a bad faith attempt to manipulate

the presentation of evidence, the federal courts took Ms.

Griffin’s wholly untested claim? that Ms. Davis was in-

volved in an unspecified argument about money and em-

barked on a flight of fancy about prostitution and pimps.

This conclusion was completely unsupported by any evi-

dence, including that given by the Enoch brothers, with

the exception of the testimony given by Teresa Mosely,

a former prostitute and felon. The Seventh Circuit found:

[Tjhe jury could infer the following story from [Ms.

Griffin’s] testimony alone: that Davis was a prosti-

tute, that she was working that night, that the

Enochs (or others) failed to pay for her services and

that this caused the physical confrontation with a

pimp the following morning which resulted in bruises

to Davis’ body.

768 F.2d at 168.

In drawing this scenario, the Seventh Circuit offered

no plausible reasons why Sandra Davis would bother to

accuse anyone if she was fearful of accusing her true al-

leged assailant; why Sandra Davis would accuse not one,

not two, but three Enoch brothers if there was no truth

2 The -deral district court did not hold an evidentiary hearing,

noting tnat respondent had not asked for one, and concluding that

a hearing was unneces United States ex rel. Enoch v. Lane,

581 F. Supp. 423, 432 ( D. Il. 1984).

to her assertion; or why respondents did not testify about

Ms. Davis’ alleged prostitution based on their two-year

knowledge of her. Further, the Seventh Circuit tailed to

question the grounds for delay in discovering and dis-

closing the witness.

Petitioners ask this Court to support Illinois’ objective

of preserving an orderly and fair criminal justice system

by affirming the trial court’s imposition of the preclusion

sanction for failure to comply with discovery rules in time-

ly fashion. Petitioners seek not to restrict defendants’

Sixth Amendment right to present a defense, but rather,

seek to ensure the integrity of evidence admitted at trial.

See generally Note, Alibi Notice Rules: The Preclusion

Sanction as Procedural Default, 51 U. Chi. L. Rev. 254

(1984).

The language in the Seventh Circuit and district court

decisions below makes plain that the so-called balancing

test adopted by that circuit is wholly inconsiderate of the

state’s interest. Petitioners submit that this Court should

adopt a true balancing test whereby a defendant can cir-

cumvent the state’s requirement for advance notice of wit-

nesses only where the defendant can provide compelling

grounds for delay in notification and the testimony of the

witness is likely to be pivotal to the verdict. As Justices

Burger, Brennan and White observed in their dissent from

the denial of certiorari in Smith v. Jago, 740 F.2d 969,

cert. denied, 53 U.S.L.W. 3667 (U.S. March 18, 1985) (No.

84-5548), a case comparable to the instant one, this is an

issue “which will surely not disappear of its own accord.”

If the Seventh Circuit’s decision is permitted to stand,

defendants will be encouraged to sandbag their defense

by saving “critical” witnesses for presentation at the most

opportune point in the trial. Defendants will need do little

more than characterize their witness as important, and

courts will be forced to let them testify. As this case il-

lustrates, courts will be forced into this position regard-

less of their first-hand assessment of the defense’s good

faith in making its eleventh-hour demand.

In sum, petitioners ask this Court to hold that imposi-

tion of the preclusion sanction in this case was not con-

stitutional error, but rather, was an appropriate remedy

in light of respondents’ failure to comply with a reason-

able discovery rule.

CONCLUSION

For the reasons set forth, a writ of certiorari should

issue to review the judgment and order of the United

States Court of Appeals for the Seventh Circuit.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA JONES STEWART

Solicitor General, State of Illinois

MARK L. ROTERT*

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Counsel for Petitioners

JOAN G. FICKINGER

Assistant Attorney General

Of Counsel * Counsel of Record

A-]

APPENDIX A

UNITED STATES of America, ex rel. Jimmie ENOCH,

Melvin Enoch, and Robert Enoch, Petitioners-Appellees,

Vv.

Neil F. HARTIGAN, Attorney General

of the State of Illinois,

Respondent-Appellant.

No. 84-1366.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 17, 1984.

Decided July 18, 1985.

Before BAUER, Circuit Judge, POSNER, Circuit Judge,

and CAMPBELL, Senior District Judge.*

WILLIAM J. CAMPBELL, Senior District Judge.

This is an appeal from a district court decision reported

at 581 F.Supp. 423 (D.C. Ill. 1984) 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 af-

firmed by the Illinois appellate court. See People v.

Enoch, 104 Ill.App.3d 1203, 63 Ill.Dec. 295, 487 N.E.2d

944 (Ill.App., 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

* The Honorable William J. Campbell, Senior District Judge of

the Northern District of Illinois, is sitting by designation.

A-2

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 wit-

ness, constitutional considerations compelled the trial court

to permit the witness to testify. A review of this conclu-

sion is the sole issue before this court. This court hz:*

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. Ac-

cording to Davis, Robert and Melvin forced her into an

elevator at the above address and took her to their apart-

ment. At this point she alleges she was raped by the

three petitioners. Davis claimed she left the Enoch resi-

dence at 7:20 a.m. and returned home. She reported the inci-

dent to police later in the day. She also visited a hos-

pital 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 Jim-

mie and Melvin in at about 4 a.m. to 4:30 a.m. She did not

specify if anyone else accompanied them. Mrs. Enoch tes-

tified she did not hear any noise or commotion in the

apartment that night and fell asleep at approximately

5 a.m.

A-3

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 attor-

neys notified the court that they had discovered an addi-

tional witness, a Patricia Griffin. Petitioners moved to

amend their answer to the state’s discovery request re-

garding the designation of witnesses. The prosecution ob-

jected. Defense counsel argued the new witness was a ma-

terial witness and made the following offer of proof: That

Patricia Griffin, whose apartment abutted the Enoch apart-

ment, 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 dis-

covery of Ms. Griffin and claimed they had not previous-

ly been informed of her testimony. The prosecution re-

sponded that Mrs. Enoch knew of Ms. Griffin’s existence

and that the sanction of exclusion should be applied. How-

ever, 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.

A-4

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 to-

gether, and we use [sic] to have sex with mens [sic] for

money.” The final two defense 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 defendants’

Sixth Amendment right to a fair trial. In this situation

the Seventh Circuit has adopted the following analysis:

“({Tyhe 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 evidence at his

trial.”’ [Citations and footnotes omitted.] McMorris v.

Israel, 643 F.2d 458, 461 (7th Cir. 1981). See also

Parisie v. Greer, 671 F.2d 1011, 1018 (7th Cir. 1982).

Petitioners’ proffered evidence was highly significant

when considered in light of the other evidence in the case.

The testimony at trial was conflicting with respect to the

events of December 6th. The prosecution’s only direct in-

culpatory evidence came from the alleged victim. Ms. Grif-

fin’s eyewitness account of the alleged victim’s conduct

during a portion of the time in question was clearly ma-

terial testimony. If Ms. Griffin had heard a man shout

at Ms. Davis the morning after the alleged incident,

A-5

“Bitch, where’s the money?”, this would suggest Ms.

Davis was engaged in prostitution the night of the alleged

incident. Such testimony is material to the issue of this

case and the jury was entitled to consider it. We reject

the State’s contention that Ms. Griffin’s testimony was

cumulative. While Theresa Mosely stated that Davis was

a prostitute, no evidence was presented as to whether

Davis was engaged in prostitution on the evening in

question.

The State also claims the Griffin testimony would only

have presented an alternative basis for explaining Davis’

bruises. Yet the narrower issue of the bruises is signifi-

cant to petitioners’ defense since it is crucial to the charge

of assault. Finally, if Ms. Griffin were in an adjoining room

at the Enoch apartment during the morning hours of De-

cember 6th and heard no noise, the jury could infer the

following story from her testimony alone: that Davis was

a prostitute, that she was working that night, that the

Enochs (or others) failed to pay for her services and that

this caused the physical confrontation with a pimp the

following morning which resulted in bruises to Davis’

body. Petitioners’ inability to present this ev idence to the

jury was constitutional error.

The State’s interest in applying discovery rules was not

so substantial that it could override the Sixth Amendment

considerations surrounding this case.

“In balancing the competing interests . . . we must

closely examine the justification for the state interest

The principal reason for notice rules, as we

noted at the outset of this opinion, is prevention of

surprise to the state, not punishment of the accused

for mere technical errors or omissions.” Alicea v

Gagnon, 675 F.2d 913, 924 (7th Cir. 1982).

In addition to preventing surprise, other factors con-

sidered before a witness preclusion sanction is employed

to enforce discovery rules are: the effectiveness of less

severe sanctions, the materiality of the testimony to the

outcome of the case, prejudice to the other party caused

A-6

by the testimony, and the evidence of bad faith in the

violation of the discovery rules. See Fendler v. Goldsmith,

728 F.2d 1181 (9th Cir. 1983).

While there may have been some element of surprise

involved in Ms. Griffin’s late discovery she was available

to be interviewed by the prosecution. Therefore, only a

brief recess was necessary. The prosecution never speci-

fied what prejudice would result from her testimeny. Fur-

thermore, there was no evidence of bad faith. The trial

court’s speculation that some “design” could be present

is also unsubstantiated and without any evidentiary basis.

Less severe sanctions were available but apparently were

not considered by the trial judge. Considering the exculpa-

tory significance of the Griffin testimony it should have

been admitted.

The State argues Ms. Griffin should not testify because

defendants’ mother knew of her existence and that such

negligent behavior should not be used as a vehicle to

avoid discovery notice rules. However, there is no basis

in the record for imputing Mrs. Enoch’s knowledge to her

sons.' Absent bad faith on the part of petitioners, Mrs.

Enoch’s negligence should not preclude the Enoch brothers

from fully telling their side of the story.

The State believes we should employ the standard util-

ized in United States v. Rogers, 475 F.2d 821 (7th Cir.

1973), which was later used in United States ex rel. Chat-

man v. Lane, 573 F.Supp. 693 (N.D. Ill. 1983). Under the

Rogers test a defendant’s Sixth Amendment rights are

considered violated when his “inability to make the [wit-

ness] inquiry created a substantial danger of prejudice by

depriving him of the ability to test the truth of the wit-

ness’s direct testimony.” See Rogers, 475 F.2d at 827. For

1 Indeed, the State admits this on page 18 of its brief:

‘. . . the District Court first noted that it appears not to

have been petitioners’ fault that Griffin was not discovered

as a witness until late into the trial. Respondent does not

dispute this conclusion .

A-7

the reasons stated above, we believe petitioners have met

the Rogers standard in that they were prejudiced by Ms.

Griffin’s inability to testify. Further, the Rogers case is

distinguishable from the case sub judice. In Rogers the

issue was a defendant’s right to cross-examine [confront]

a witness. In our case the issue is a defendant’s right to

present a witness in his defense. In this situation the

McMorris guidelines are appropriate.

Chatman is also distinguishable. The witness who was

not allowed to appear in Chatman was being used only

to impeach another witness’s identification skills and was

not of the same significance as Ms. Griffin in our case.

Indeed, the Chatman court applied the harmless error

rule in deciding there was no error at the state level. We

have already concluded the harmless error cannot be ap-

plied in our case. This is because we believe there is a

reasonable possibility the exclusion of the Griffin testi-

mony affected the jury’s verdict and we cannot conclude

the error was harmless beyond a reasonable doubt. See

Allison v. Gray, 603 F.2d 633, 634 (7th Cir. 1979). Since

we do not find the error here harmless, a final case ad-

vanced by the State, United States v. Davis, 639 F.2d

239 (5th Cir. 1981), does not enhance the State’s position.

The primary holding in Davis is that the Sixth Amend-

ment forbids the exclusion of otherwise admissible evi-

dence solely as a sanction to enforce discovery rules

against criminal defendants. Jd. at 243. First, this holding

supports the district court holding in the case sub judice.

Secondly, while Davis does hold the harmless error rule

can nullify this principle, we have found no harmless error

and therefore Davis is not helpful here.

For the reasons set forth above, the decision of the dis-

trict court is affirmed.

B-1

APPENDIX B

UNITED STATES of America ex rel.

Jimmie ENOCH, Melvin Enoch, and

Robert Enoch, Petitioners,

Vv.

Michael LANE, Director of Department

of Corrections, State of Illinois,

Respondent.

No. 83 C 4303.

United States District Court,

N.D. Illinois, E.D.

Feb. 23, 1984.

MEMORANDUM OPINION

PRENTICE H. MARSHALL, District Judge.

In this habeas corpus case we address an issue of ap-

parent first impression in this circuit: whether it is con-

stitutionally permissible in a state criminal prosecution for

the trial judge to refuse to permit a material defense wit-

ness 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 (Iil.App.

Mar. 31, 1982). The Illinois Supreme Court denied leave

to appeal.

I

B-2

The main prosecution witness was the victim of the al-

leged crime, Sandra Davis. She testified that she went

to visit her cousin, Pamela Shaviers, at 10744 South Went-

worth 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 on 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 testi-

fied that Douglas was lying down, she was unsure whether

he was awake or asleep.

Davis testified that she left the Enoch residence at ap-

proximately 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 ex-

amined. The examining physician testified at trial that

Davis had been beaten and that her vagina contained a

B-3

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 testimony.

Petitioners’ mother, Willie Enoch, testified that Melvin

and Jimmie left the family’s apartment (the same apart-

ment 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 apart-

ment around 4:00 or 4:30 a.m. on December 6. The prose-

cution, 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 iden-

tified 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 al-

leged rape. The prosecution objected to the belated dis-

closure. The court deferred consideration of this question

until petitioners’ lawyers could obtain more detailed in-

formation concerning the proposed witness’ testimony.

After another recess, petitioners’ lawyer identified the

witness as Patricia Griffin, a resident of apartment 1402

B-4

at 2031 South Clark. Petitioners’ lawyer made the follow-

ing 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 some-

thing to the effect of “bitch, where is the money.’

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 pros-

ecution wished to speak with her. The prosecutor re-

sponded that in light of Mrs. Enoch’s knowledge of Grif-

fin and the fact that Griffin lived next door to the

Enochs,? 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. Essen-

tially, its argument was based solely on the defense’s lack

of diligence.

The trial judge stated that discovery rules were, after

all, rules, and noted that they were in the middle of a

jury trial. He stated that it was “more than a question

of prejudice . . . It is a question of possible design,

possibly I say, after the state has rested and the defense

has commenced.” He therefore denied the motion to amend

the witness list, effectively precluding the defense from

calling Ms. Griffin.

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

1 The defense attorney later noted that at or about the time of

the assault, Ms. Griffin was in a bedroom adjoining the bedroom

where the alleged rape took place.

2 The prosecutor also noted that the Enochs had been demand-

ing for two months to go to trial.

B-5

18th floor, he saw Teresa Mosley, Sandra Davis, and

Michael Mayberry standing in the elevator room. He iden-

tified Davis as a resident of 2030 South State Street.

Later that evening, Charles and Robert went to apart-

ment 1906 at 2031 South Clark. Present were Sharon Ed-

wards, 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 May-

berry 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

Michael Mayberry.

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, Mosley 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 Mosley

by eliciting that she had never reported her version of

the events to the police despite knowing that the Enochs

were in jail awaiting trial for rape.*

* Mosely also testified that some six weeks before trial Joyce

Darnell, who was then married to Jimmie Enoch, was involved

in an altercation with Sandra Davis at the Criminal Courts build-

ing. She stated on cross examination that Davis started the fight.

B-6

Joyce Darnell was the next defense witness. She mar-

ried Jimmie Enoch sometime after December 6, 1979.

Darnell corroborated the previous defense witnesses’ ver-

sion of the events of December 5 and 6. On cross exami-

nation the prosecution attempted to impeach her in the

same manner as it had the other defense witnesses. Sherri

Edwards, the final defense witness, also confirmed the

defense version of the events. After Edwards testified,

one of the defense lawyers noted for the record that

Patricia Griffin was present in court and asked if he could

make a formal offer of proof. The judge declined to per-

mit this, stating that he had already ruled on that matter.

The prosecution called one rebuttal witness, Davis’

cousin Pam Shaviers. Shaviers testified that Sandra Davis

came to her house alone around 8:00 p.m. on December

5 and remained until 4:15 a.m. on December 6. Shaviers

walked Davis to the bus stop and watched her board a

bus.

The defense’s theory appears to have been twofold: first,

that the Enochs did not have intercourse with Davis, that

the evidence revealed in the hospital examination was due

to her alleged “profession,” and that any physical abuse

was done by someone else. Alternatively, if the Enochs

had intercourse with Davis, it was not done by force or

against Davis’ will. The prosecution argued that Davis was

a credible witness and that the defense testimony was

fabricated.

Respondent has completely misapprehended the nature

of this case.* It characterizes the petition as a challenge

to an “evidentiary ruling” and argues that the evidence

4 Respondent filed a motion for summary judgment with a sup-

porting memorandum. Petitioners filed a responsive memorandum

combined with a cross motion for summary judgment. Respond-

ent’s next filing was a one page document stating that respond-

ent stood on his earlier memorandum. Petitioner’s counsel orally

waived the filing of a further brief in a telephone conversation

with our law clerk Matthew Kennelly.

B-7

was “cumulative, and speculative at best.” Though we

construe the latter argument as a claim of harmless er-

ror, respondent has not addressed the constitutional issue

raised by the petition. Further, its argument on the

merits in its memorandum takes up all of one page. This,

despite the fact that the habeas petition clearly charac-

terized the claim as one of denial of petitioners’ fourteenth

amendment right to present a defense at trial and cited

two important Supreme Court cases on that issue, Wash-

ington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18\ L.Ed.2d

1019 (1967), and Chambers v. Mississippi, 410 U.S. 284,

93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

“Few rights are more fundamental than that of an ac-

cused to present witnesses in his own defense.” Cham-

bers, 410 U.S. at 302, 93 S.Ct. at 1049. “The right of an

accused in a criminal trial to due process is, in essence,

the right to a fair opportunity to defendant against the

State’s accusations. The right[].. . to call witnesses in

one’s own behalf [has] long been recognized as essential

to due process.” Id. at 294, 93 S.Ct. at 1045. In the pres-

ent case the state trial court precluded the defense from

calling a witness as a discovery sanction. In the circum-

stances of this case, the trial court’s action violated peti-

tioners’ constitutional right to present a defense.

The colloquy that took place when the defense moved

to amend its witness list demonstrates that the trial court

acted with the aim of sanctioning the defense’s noncompili-

ance with discovery. The defense lawyer, after describing

Griffin’s expected testimony, stated that he had learned

of the witness from petitioners’ mother, who had told him

about Ms. Griffin only that day. R. 228. He also stated

that Griffin was available if the prosecution wished to in-

terview her. Jd. The prosecution’s argument that the mo-

tion to amend should be denied was based solely on the

fact that the witness was known to Mrs. Enoch prior to

trial, that she was the Enochs’ next door neighbor, and

that defendants had been demanding to go to trial for two

months. R. 229. The trial judge then stated:

B-8

(I}f there are to be discovery rules, they are to be

viewed as rules, and whereas this Court interprets

them liberally, as is suggested, they still are rules.

. . . Here are defendants who had demanded trial

before this Court, which they had every right to do,

and which the Court encourages, especially when peo-

ple are in custody, and because they did we held

their case on the trial call every day for over two

months, for about ten weeks. . . . We are in the third

day of trial, including the jury selection, and it is now

revealed to the Court that a woman in the apartment

next to the apartment of the defendants spoke al-

legedly to the mother months ago... .

*x* * * * * *

[NJow it is suddenly revealed on the third day of the

trial, when the State has rested and the defense has

commenced. It would violate every contention of any

notice of discovery to permit it.

R. 230-31. The defense then argued that the State had

not shown any prejudice due to the late disclosure. R. 231.

The court responded: “It is more than a question of prej-

udice. It is more than a question of how one side or the

other is going to be hurt. It is a question of possible

design, possibly I say, after the State has rested and the

defense has commenced.” Jd. The court went on to state

that

situations like this are froth [sic] with possibilities.

I imagine that this very situation is one of the strong-

est reasons why discovery rules were eventually

adopted whereas it was not too long ago there were

no discovery ruled beyond a list of witnesses.

These rules have been adopted, and they are good

rules, and they should be adhered to and interpreted

liberally. If it were the day before trial or the day

of the trial, the morning of the trial, it would be late,

but it would be a different factual situation, but these

things are hardly tolerable.

R. 232.

B-9

An examination of the trial judge’s statements indicates

three possible reasons for the denial of the motion to

amend the witness list. First and foremost, the judge was

of the view that “rules are rules.” Second, he speculated

that nondisclosure was “a question of possible design.”

Finally, he noted twice that the disclosure came during

the trial, which suggests that he was concerned with

delaying or interrupting the trial.

Even if the court’s suggestion that the iate disclosure

was purposeful was a finding of fact entitled to a presump-

tion of correctness under 28 U.S.C. § 2254(d) (1976) and

Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d

722 (1981), several exceptions to the presumption apply

here. First, the material facts underlying the finding were

not adequately developed by the trial court. 28 U.S.C.

§ 2254(d\3). Second, petitioners did not receive a “full,

fair, and adequate hearing” on the issue of purposefulness,

id. § 2254(d\6). Finally, and most important, the finding

is “not fairly supported by the record,” id. §2254(d\8).

The only evidence in the record concerning the reason for

the late disclosure is that petitioners’ mother, the only per-

son identified as knowing of Griffin’s potential testimony,

did not tell petitioners’ lawyers about Ms. Griffin until

trial had started. There was no basis for attributing to

petitioners any willful intent, for there is nothing indi-

cating that they were aware that Ms. Griffin knew of facts

favorable to them.

Though as a trial judge we sympathize with the state

court judge’s concern with delaying the trial of a case that

has already begun, there is nothing in the record that

shows that a continuance would have been necessary here.

The state was represented by two lawyers throughout the

trial; one of those lawyers could have interviewed Ms.

Griffin while the testimony continued. The defense

presented four additional witnesses after the colloquy con-

cerning Griffin. Moreover, the trial did not end that same

day; had the court inquired of petitioners’ lawyer as to

the amount of defense testimony he expected to present,

it may well have been able to determine that trial would

B-10

continue through the following day, which would have pro-

vided the prosecution with even more time to interview

Griffin.’ Finally, as we have noted, the prosecution did

not argue that it would be prejudiced by the belated adding

of Griffin to the defense list of witnesses. Any conclusion

that delay would have resulted had the trial court granted

the defense motion is not supported by the record.®

This leaves us with the “rules are rules” rationale as

the only basis supported by the record for the trial court’s

action. We do not think that this reason is a constitutional-

ly adequate one for precluding a criminal defendant from

offering relevant and material testimony.

The Supreme Court has expressly left open the ques-

tion whether it is proper under the sixth amendment (as

incorporated by the fourteenth amendment) to enforce dis-

covery rules against a noncomplying criminal defendant

by excluding relevant and probative evidence. In Williams

v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446

(1970) and Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208,

37 L.Ed.2d 82 (1973), the Court held that state rules re-

quiring a defendant to give prior notice of his intention

to rely upon an alibi defense and of his alibi witnesses

comport with due process only if the defendant receives

reciprocal discovery rights. In Williams, however, the de-

fendant complied with the notice of alibi rule, and in War-

dius, the Court held that the absence of reciprocal dis-

5 The fact that this might not have provided the prosecution with

time to develop rebuttal to Griffin’s expected testimony does not

in the circumstances of this case make much of a difference. It

appears that none of petitioners’ witnesses who testified as to the

events of December 5 and 6 spoke with the prosecution or the

police. The prosecution was nonetheless able to impeach their

testimony effectively, as indicated by the fact that the jury re-

jected the defense theory and accepted Davis’ testimony.

6 Further, we again note that respondent does not conterd that

the trial court’s action is justified by reason of any delay that

would have been poe ta by granting petitioners’ motion or by

reason of any intentional nondisclosure by petitioners or their

lawyers.

B-11

covery made enforcement of the rule invalid, so the Court

was not required to reach the question whether a recip-

rocal discovery statute could constitutionally be enforced

against a defendant. Williams, 399 U.S. at 83 n. 14, 90

S.Ct. at 1897 n. 14; Wardius, 412 U.S. at 472 n. 4. 93

S.Ct. at 2211 n. 4.

Nor has the Seventh Circuit addressed the question

presented in this case or the analogous issue in the notice

of alibi context. In Alicea v. Gagnon, 675 F.2d 913 (7th

Cir.1982), the court held that it was unconstitutional to

prevent a defendant from testifying on his own behalf as

a sanction for noncompliance with a state notice of alibi

rule. It expressly left open the question whether the same

rule would apply to witnesses other than the defendant.

noting that that very issue was presented in another case

then pending before the court. Jd. at 917 n. 6. However,

when the other case, United States ex rel. Veal v. De-

Robertis, 693 F.2d 642 (7th Cir.1982), was decided, the

basis for the decision was somewhat different than antici-

pated. The court held that the alibi notice rule applied

to the petitioner was of the non-reciprocal sort forbidden

by Wardius. Id. at 647. Moreover, it remanded the case

to the trial court, because there was doubt as to whether

petitioner has preserved the sixth amendment issue in the

state courts. Thus, the Seventh Circuit has not spoken

on the issue presented here. Further, we have found no

decisions by other judges in this district that are on point.

Several courts have held that discovery rules like or

akin to that involved here cannot be enforced against a

noncomplying defendant by precluding testimony. The

most recent of these cases is Fendler v. Goldsmith, 717

F.2d 1552 (9th Cir.1983). In Fendler, the trial court re-

fused to permit the petitioner to call two defense wit-

nesses because he had not listed their addresses on his

pretrial witness list, as required by state discovery rules.

The court noted that it was unclear whether the sixth

amendment strictly prohibited witness preclusion as a dis-

covery sanction or rather required an examination of all

the attendant circumstances. Jd. at 1555-57. However, ap-

B-iZ

plying the balancing test, the court held that the trial

court had committed constitutional error. One of the wit-

nesses vas petitioner’s key witness on a significant issue

in the case. Further, the prosecution would not have been

prejudiced or surprised by the witness’ testimony since

it already had his name and lacked only his address and

since a brief continuance would have accommodated any

need for time to prepare for cross examination or rebut-

tal. Jd. at 1558-59. Even assuming that petitioner’s non-

compliance was willful, the court stated, the preclusion

of the witness was ‘“‘too high a price to exact for failure

to comply with discovery orders issued pursuant to gen-

eral discovery rules.” Jd. at 1560.

In United States v. Davis, 639 F.2d 239 (5th Cir.1981),

the Fifth Circuit held that it was improper to exclude

otherwise admissible evidence solely as a discovery

sanctioa.7 In Davis, a case involving an alleged conspirary

to possess and distribute marijuana, the prosecution relied

heavily on the testimony of a confidential informant who

was involved in the alleged conspiracy. The trial court

refused to permit the defendants to impeach the infor-

mant’s credibility by means of reputation testimony by

two other witnesses, since the witnesses were not on de-

fendants’ pretrial witness list. The court of appeals re-

versed, stating that while witness preclusion might be a

proper sanction where justified by overriding policy con-

siderations, preclusion solely as a discovery sanction was

improper. Id. at 243.

The court in Hackett v. Mulcahy, 493 F.Supp. 1329

(D.N.J.1980) held that it was unconstitutional to preclude

the testimony of a defense witness because of counsel’s

failure to comply with discovery rules, unless the record

7 Davis was a federal prosecution. The discovery rules in ques-

tion were Fed.R.Crim.P. 16 and a pretrial discovery order entered

by the trial court.

8 The trial court alternatively ruled that the testimony would be

merely cumulative. The court of appeals disagreed with this con-

clusion as well, 639 F.2d at 243-45.

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revealed some complicity by the defendant. Jd. at 1336.

Finally, in Ronson v. Commissioner of Correction, 604

F.2d 176 (2d Cir.1979), the court examined a state court’s

refusal to permit a defendant to call a psychiatrist to

testify in support of an insanity defense, because the de-

fendant had not given notice of his intention to raise that

defense, as required by state law. Ronson differs from

the present case in that the defendant had substantially

complied with the notice requirement by sending a let-

ter to the prosecution “reserving [his] right” to inverpose

such a defense. However, the case is significant in that

the court applied a “less restrictive alternative” analysis,

noting that a continuance would have minimized any possi-

ble surprise or prejudice to the prosecution. See also

Fendler, 717 F.2d at 1557 (noting that alternate means

exist to make discovery rules effective, including continu-

ances, permitting prosecutorial comment on the defen-

dant’s noncompliance, and contempt); Note, “The Preclu-

sion Sanction—A Violation of the Constitutional Right to

Present a Defense,” 81 Yale L.J. 1342, 1356-60, 1364

(1972); Reznick, “The New Federal Rules of Criminal Pro-

cedure,” 54 Geo.L.J. 1276, 1294 (1966).

The Supreme Court’s opinion in United States v. Nixon,

418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), in-

forms our analysis here:

We have elected to employ an adversary system of

criminal justice in which the parties contest all issues

before a court of law. The need to develop all rele-

vant facts in the adversary system is both fundamen-

tal and comprehensive. The ends of criminal justice

would be defeated if judgments were to be founded

on a partial or speculative presentation of the facts.

The very integrity of the judicial system depends on

full disclosure of all the facts, within the framework

of the rules of evidence.

Id. at 709, 94 S.Ct. at 3108. Except in a case where

preclusion is imposed for reasons related to the integrity

or probative value of the evidence, it necessarily detracts

from the “search for the truth,” which is, as the Supreme

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Court has stated, a central goal of the criminal justice

system. United States v. Nobles, 422 U.S. 225, 232, 95

S.Ct. 2160, 2167, 45 L.Ed.2d 141 (1975); Williams v.

Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d

446 (1970). In the present case there is no suggestion that

the trial court acted out of a perceived need to bar

evidence with no probative value or that was somehow

tainted.®

Thus, this case is not like United States v. Nobles. In

that case, the Court upheld a trial court’s ruling barring

an investigator from testifying for the defense concern-

ing a government witness’ prior statements if the defense

did not produce the investigator’s written report for use

by the government in cross examination. The Court spe-

cifically noted that the district court “did not bar the in-

vestigator’s testimony” but rather “merely prevented [de-

fendant] from presenting to the jury a partial view of the

credibility issue... .” Id. 422 U.S. at 241, 95 S.Ct. at

2171. The Court stated that the sixth amendment “does

not confer the right to present testimony free from the

legitimate demands of the adversarial system; one can-

not invoke the Sixth Amendment as justification for pre-

senting what might have been a half-truth.” Jd. In the

present case, there is no basis for concluding that Grif-

fin’s testimony would have been a “half-truth” in the

sense of Nobles; though one might argue that Griffin’s

potential testimony was, as the prosecution argued with

respect to the other defense witnesses, “concocted,” the

trial court could not make such a determination on the

basis of the record before it. Nobles may permit a trial

court to bar testimony where the defense obstructs any

meaningful cross examination; it does not permit a trial

® Though the prosecution undoubtedly would have argued that

Griffin’s testimony was “concocted” had it been admitted, as it

argued with respect to the other defense witnesses, the state court

made no such determination in denying the motion to amend the

witness list, nor was there any basis for it to make such a

determination.

B-15

court to bar testimony absent a showing of such preju-

dice to the state.

Nor is this case like those where the integrity of the

evidence is questionable. Courts have held that where a

defense witness has violated a sequestration order, her

testimony may be precluded if it was tainted by the lack

of sequestration. See Holder v. United Stotes, 150 U.S. 91,

14 S.Ct. 10, 37 L.Ed. 1010 (1893); Fendler, 717 F.2d at

1556.

Like the court in Fendler, we see no need in the pres-

ent case to decide whether the sixth amendment requires

a prohibition of witness preclusion as a discovery sanc-

tion, for even under a balancing test we think that the

trial court committed constitutional error. While we rec-

ognize that there is a body of opinion supporting the view

that witness preclusion may sometimes be the only way

to enforce valid discovery rules, see Fendler, 717 F.2d at

1557 (citing several state court cases), in the circumstances

of this case the sanction was too stiff a penalty. First,

there is no evidence that petitioners were in any way

responsible for the failure to list Griffin as a witness. The

failure appears to be attributable to petitioners’ mother

or, perhaps, to the lack of diligence of petitioners’ lawyer.

As the court noted in Fendler, penalizing a criminal de-

fendant for his lawyer’s neglige:\ce only creates additional

constitutional problems and invites attacks on convictions

based on the incompetence of counsel.

Second, Griffin’s testimony was very important to the

defense. The evidence against petitioners consisted pri-

marily of the testimony of the victim, Sandra Davis. Her

story was credited by her mother and the examining phys-

ician, both of whom stated that Davis had told them that

she had been raped. The prosecution’s case, then, de-

pended almost entirely on the credibility of Davis when

she claimed that petitioners had raped her and inflicted

the blows that caused her to be bruised. Petitioners’

defense was, as we have noted, two-fold; the first line of

defense was that Davis’ condition resulted from her al-

leged “profession” as a prostitute, and that no rape oc-

B-16

curred. Griffin’s testimony would have buttressed petition-

ers’ contention that Davis was a prostitute by providing

evidence corroborating Teresa Mosley’s testimony. We

disagree with the state appellate court’s conclusion, see

People v. Enoch, slip op. at 3-4, that Griffin’s testimony

would have been cumulative in this respect.?° The pros-

ecution noted in its closing argument, R. 380, that Mosley

appeared to have been under the influence of drugs when

she testified, and thus Griffin possibly could have provided

more credible evidence as to Davis’ alleged activities.

Though Griffin would not have testified directly as to

Davis’ activities, her testimony concerning the altercation

on the sidewalk would have lent support to Mosley’s tes-

timony.

Moreover, Griffin’s testimony concerning the altercation

might have alse provided an alternative basis fur explain-

ing how Davis had become bruised. Since Griffin was not,

unlike many of the defense witnesses, related to petition-

ers, her testimony would have been less subject to ques-

tion on the basis of bias. Without Griffin, the defense was

limited to arguing that some unknown person might have

committed the assault. With Griffin, that theory would

have been less speculative. Griffin’s testimony would have

provided a more solidly placed anchor for the defense’s

theory of the case. It was therefore important testimony.

Further, as we have noted, there is no evidence that

petitioners willfully withheld Griffin’s name from the court

or the prosecution. There was no suggestion of prejudice

by the prosecution, and nothing indicating that any great

delay would have been occasioned had Griffin been per-

mitted to testify. See p. 428 supra. Though the prosecu-

tion was surprised by the mention of Griffin, surprise in

itself means nothing; surprise becomes meaningful only

where it causes prejudice. There was no showing of pre)-

udice here. Thus, even applying a balancing test, the trial

10 This conclusion is not a finding on an unmixed question of fact

such that the Sumner v. Mata presumption of correctness applies.

B-17

court based its ruling on a showing by the state that was

inadequate to overcome the presumption against exclusion

of otherwise probative and admissible defense evidence.

See Washington v. Texas, 388 U.S. at 19, 87 S.Ct. at 1923;

Fendler, 717 F.2d at 1558. We hold that the state court

committed constitutional error in precluding Griffin’s tes-

timony.??

We must next decide whether the error was harmless

beyond a reasonable doubt. Chapman v. California, 386

U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Alicea v.

Gagnon, 675 F.2d at 925. The test is “‘ ‘whether there

is a reasonable possibility’ that the error affected the

jury’s verdict. In answering this question, the court must

assess the ‘probable impact of the [error] on the minds

of an average jury.’”’ Allison v. Gray, 603 F.2d 633, 634

(7th Cir.1979) (quoting Chapman, 386 U.S. at 24, 87 S.Ct.

at 828, and Harrington v. California, 395 U.S. 250, 254,

89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969)). Based on the

non-cumulative nature of the evidence and the fact that

it would have provided a more solid basis for the defense

theory of the case, see p. 431 supra, we cannot conclude

beyond a reasonable doubt that the state trial court’s er-

ror was harmless.

Respondent has not requested an evidentiary hearing,

and we do not find one neéessary.'? All the evidence needed

11 There are several cases upholding the preclusion of defense

witnesses or other evidence under the federal notice of alibi rule,

Fed.R.Crim.P. 12.1, as a sanction for noncompliance. See, e¢.g.,

United States v. White, 583 F.2d 899 (6th Cir. 1978); United States

v. Fitts, 576 F.2d 837 (10th Cir. 1978); United States v. Barron,

575 F.2d 752 (9th Cir. 1978); and United States v. Myers, 550 F.2d

1036 (5th Cir. 1977) (preclusion of guvernment witness), cert.

denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978). Myers

involved a government witness, and in none of the other three

cases was the question presented in constitutional terms. See

White, 583 F.2d at 901 n. 3; Fitts, 576 F.2d at 837, 839 (sixth

amendment question presented, but in context of claim of ineffec-

tive assistance of counsel); Barron, 575 F.2d at 757 n. 5.

‘2 No argument is made that petitioners failed to preserve their

constitutional claim at trial or on direct appeal.

B-18

to rule on the due process and harmiess error issues is

contained in the trial record. Petitioners’ motion for sum-

mary judgment is granted, and respondent’s motion for

summary judgment is denied. The petition for a writ of

habeas corpus is granted. The writ will issue unless peti-

tioners, Jimmie Enoch, Melvin Enoch and Robert Enoch,

are retried within 120 days hereof. Judgment to enter

accordingly.

C-1

APPENDIX C

Nos. 80-2100, 80-2101, 80-2102

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THIRD DIVISION—FILED MARCH 31, 1982

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

V.

JIMMIE ENOCH, MELVIN ENOCH, and ROBERT ENOCH,

Defendants-Appellants.

Avpeal from the Circuit Court of Cook County.

norable Thomas J. Maloney, Presiding.

ORDER DISPOSING OF APPEAL

UNDER SUPREME COURT RULE 23

After a jury found defendants Jimmie, Robert and

Melvin Enoch guilty of rape and aggravated kidnapping,

the court sentenced Jimmie and Robert Enoch to concur-

rent terms of 25 years and Melvin Enoch to concurrent

terms of 12 years. On appeal defendants contend that the

trial court improperly excluded testimony of a defense

witness, permitted the State to introduce admissions of

a defendant which had not been previously revealed to

defendants, and admitted prejudicial hearsay statements.

C-2

Defendants also maintain that they were denied a fair trial

due to improper prosecutorial comments and a supplemen-

tal jury instruction given by the trial court.

Complainant testified that shortly after 4:15 a.m. on De-

cember 6, 1979, she was returning home from her cousin’s

home when she was accosted by Robert Enoch. He was

armed with a gun and grabbed her by the arm and neck.

He led her into an elevator and up to an apartment. She

was cautioned to be quiet because defendants’ mother was

asleep. She was taken to a back bedroom where Robert

and Melvin each beat and raped her. Jimmie then raped

her. Robert warned complainant. that if she told her

mother or the police they would kill her. She was per-

mitted to leave the apartment at approximately 7:25 a.m.

When complainant arrived home, “swollen and hys-

terical,” she told her mother she did not feel like talk-

ing and she went to bed. When she arose at noon, she

told her mother that she had been raped by the Enoch

brothers. The police were called, and she was examined

by a doctor. The doctor testified that her face and neck

were bruised and that the right side of her face and neck

were bruised and that the right side of her face and eye

were extremely swollen. She was crying and shaking.

There was a large amount of seminal fluid in her vagina.

The complainant told the doctor she had been raped by

three men.

Charles and Joyce Enoch, Teresa Mosley and Sherri Ed-

wards testified for defendants that at the time of the

alleged offense complainant was with them at a drug par-

ty in Edwards’s apartment. Mosley also statec that she

and complainant had worked together as prostitutes.

Pam Shaviers, complainant’s cousin, testified in rebut-

tal that complainant was at the Shavier home until 4:15

a.m. on December 6.

Defendants initially contend that they were denied the

right to present a defense because the trial court refused

to allow them to amend their answer to discovery to add

Patricia Griffin as a witness. Defendants’ motion to add

C-3

Griffin as a witness was made after the State had rested

and three defense witnesses had been called. The testi-

mony was excluded because defendant had failed to com-

ply with discovery provisions requiring prior disclosure

of information regarding all potential defense witnesses.

(Ill. Rev. Stat. 1979, ch. 110A, par. 413(dXi).) Although

exclusion is a drastic sanction, People v. Rayford (1976),

43 Ill. App.3d 288, 356 N.E.2d 1274, it is within the dis-

cretion of the trial court whose discretion will only be

disturbed upon a showing of prejudice. (People v. Aguero

(1980), 87 Ill. App.3d 358, 408 N.E.2d 1092.) We find no

prejudice in the present case.

According to defendants, Griffin would have testified

that she was in the apartment next to defendants’ at the

time of the occurrence and that she heard no noise. Since

complainant stated that she had been warned to keep

quiet, we do not believe that the exclusion of this testi-

mony prejudiced defendants. Griffin was also to have tes-

tified that she observed complainant that morning, argu-

ing with a man who said to her, “bitch, where is the

money?” Defendants’ claim that this testimony would have

inferred that complainant was a prostitute is not only

speculative but also cumulative in light of Mosley’s testi-

mony. Its exclusion caused defendants no prejudice.

Defendants next contend that the trial court erred in

permitting the State to introduce a previously undisclosed

statement of Jimmie Enoch. The statement recited that

he knew complainant and that she had been in his family’s

apartment at some unspecified date in December 1979;

that his brothers were also present; and that he had got-

ten so high smoking marijuana that he did not remember

what happened but he was sure that neither he nor his

brothers had sex with complainant.

Although defendants were entitled to the substance of

this oral statement, Ill. Rev. Stat. 1979, ch. 110A, par.

412(aXi), noncompliance with discovery rules does not re-

quire reversal absent a showing of prejudice to the de-

fendant. (People v. Greer (1980), 79 Ill.2d 108, 402 N.E.2d

C-4

203.) The trial court may have believed the prosecutor’s

assurance that he orally advised defense counsel of the

substance of the statement. This coupled with the court’s

granting defendants an extra day to investigate should

have alleviated any prejudice. People v. Herrera (1981),

96 Ill. App.3d 851, 422 N.E.2d 95.) Furthermore, the ad-

mission that defendants were drug users and were ac-

quainted with complainant was not inconsistent with the

testimony of defendants’ own witnesses. The introduction

into evidence of Jimmie Enoch’s statement does not re-

quire reversal.

Defendants also contend that complainant’s statements

to her mother and examining physician were inadmissible

hearsay. Rape complaints made to both witnesses were

admissible under the corroborative complaint exception to

the hearsay rule. (People v. Damen (1963), 28 Ill.2d 464,

193 N.E.2d 25.) Although details are inadmissible under

this exception, their admission in the present case did not

constitute reversible error since no facts were revealed

which were not also established by the complainant’s own

testimony and other corroborative evidence and since

defense counsel had the opportunity to cross-examine the

out-of-court declarant. People v. Robinson (1978), 73 Ill.2d

192, 383 N.E.2d 164.

Defendants next argue that improper remarks made by

the prosecutor during closing argument were so prejudicial

that they deprived defendants of a fair trial. Defendants

first complain that the prosecutor characterized them as

garbage, punks and criminals, and compared them to the

James and Dalton gangs. Although these comments were

needlessly harsh, we find that under the facts and circum-

stances of this case, they were not so prejudicial as to

constitute a material factor in defendants’ convictions or

deny them a fair trial. People v. Martinez (1977), 45 Ill.

App.3d 939, 360 N.E.3d 495.

Defendants also claim that they were prejudiced by the

prosecutor’s comments on the State’s burden of proof. He

stated that “every convicted criminal who sits in the

C-5

penitentiary in this country has been proved guilty beyond

a reasonable doubt” and that the standard has been the

same “for the past two hundred years.” This court has

found an almost identical statement to be a superfluous

but harmless restatement of the State’s burden of proof.

(People v. Smith (1981), 93 Ill. App.3d 1133, 418 N.E.2a

172.) While the prosecutor’s additional assertion that there

was nothing “magical” or “unusual” about the standard,

coupled with his reference to it as a “defense tactic” and

“smoke-screen”’ was improper, in view of the overwhelm-

ing evidence against defendants we do not believe the

statement contributed to their convictions.

Defendants did not object to the prosecutor’s comment

about the law of accountability. Hence they have waived

the issue on review. People v. Skorusa (1973), 55 Ill.2d

577, 304 N.E.2d 630.

Defendants finally contend that they were denied a fair

trial because the trial court gave supplemental instruc-

tions to the jury on the issue of accountability which were

unclear and overemphasized the issue. When the jury in-

formed the court that it was confused with regard to cer-

tain jury instructions the court had an obligation to try

and clarify the question in the mind of the jury. (People

v. Land (1975), 34 Ill. App.38d 548, 340 N.E.2d 44.) The

court in this case adequately performed this task.

Accordingly, the judgment of the circuit court of Cook

County is affirmed.

Dated at Chicago, Illinois, this 3lst day of March, 1982.

ENTER:

/s/ William S. White

Justice

/s/ Daniel J. McNamara

Justice

/s/ Dom J. Rizzi

Justice