# Petition for Writ of Certiorari — Lane v. Enoch

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1053

## Text

\

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 .

-~

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.

B-13

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

B-14

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0444%3A2. Public record. Not legal advice.