Respondents Brief — Taylor v. Illinois
Supreme Court brief1988
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No. 86-5963
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the Cinited States
Supreme Court of
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RAY TAYLOR
STATE OF ILLINOIS,
On Writ Of Certiorari To The Appellate Court
Of Illinois, First Judicial District
BRIEF FOR RESPONDENT
ROMA J. STEWART
—S eae
“BEST AVAILABLE COPY
QUESTIONS PRESENTED
Should this Court exercise its discretion to decline
jurisdiction over the instant cause, where Defendant
did not raise a Compulsory Process Clause argument
before the state courts, and where that is the sole
constitutional issue that Defendant now raises before
this Court?
Is the interpretation of the Sixth Amendment in
Washington v. Texas and its progeny correct in light
of a full analysis of the language and history of that
amendment?
Was any error committed by the trial court in ex
cluding a defense witness’s testimony harmless where
there is no reasonable probability that the witness’s
cumulative and incredible testimony would have af
fected the jury’s verdict?
Were Defendant’s due process rights infringed by
exclusion of a defense witness’s testimony as a sanc
tion for abuse of the discovery process, where that
witness’s testimony was cumulative and not credible,
where there is no reasonable probability that the
outcome of the trial would have differed had the tes
timony been admitted, and where the integrity of the
truth-seeking process would have been compromised
by admission of that testimony?
TABLE OF CONTENTS
QUESTIONS PRESENTED
rABLE OF AUTHORITIES
JURISDICTION
STATEMENT OF THE CASE
SUMMARY OF ARGUMENT
ARGUMENT
|
THIS COURT SHOULD EXERCISE ITS DIS
CRETION TO DECLINE JURISDICTION OVER
THE INSTANT CAUSE, WHERE DEFEN
DANT DID NOT RAISE * COMPULSORY
PROCESS CLAIM IN THE STATE COURTS,
BUT WHERE THAT IS THE SOLE CONSTI
TUTIONAL ISSUE THAT DEFENDANT NOW
RAISES BEFORE THIS COURT
I
THIS COURT'S INTERPRETATION OF THE
SIXTH AMENDMENT IN WASHINGTON
TEXAS AN ITS PROGENY SHOULD BE
RECONSIDERED IN LIGHT OF A FULL
ANALYSIS OF THE LANGUAGE AND HIS
TORY OF THAT AMENDMENT
\ Enactment Of The Compulsory Process
( lause
BR > y tripet) > (ft > — — Pr
| ‘etis I a‘ it) i UILip Ais! ‘ rUCcCess
(_lause
iil
ANY ERROR COMMITTED BY THE TRIAL
COURT IN EXCLUDING A DEFENSE WIT
iil
NESS’S TESTIMONY WAS HARMLESS WHERE
THe RE IS NO REASONABLE PROBABILITY
THAT THE WITNESS’S CUMULATIVE AND
INCREDIBLE TESTIMONY WOULD HAVE
AFFECTED THE JURY’S VERDICT ...... 29
IV.
DEFENDANT'S DUE PROCRSS RIGHTS WERE
NOT INFRINGED BY EXCLUSION OF A
DEFENSE WI™NESS’S TESTIMONY AS A
SANCTION FOR ABUSE OF THE DISCOV.
ERY PROCESS, WHERE THAT WITNESS’S
TESTIMONY WAS CUMULATIVE AND NOT
CREDIBLE, WHERE THERE IS NO REASON.
ABLE PROBABILITY THAT THE OUTCOME
OF THE TRIAL WOULD HAVE DIFFERED
HAD THE TESTIMONY BEEN ADMITTED,
AND WHERE THE INTEGRITY OF THE
TRUTH-SEEKING PROCESS WOULD HAVE
BEEN COMPROMISED BY ADMISSION OF
ET coc ccc cccccccccccccc: 31
A. Scope Of Defendant’s Due Process Right
re, occ ccccceccce 31
Bb. Permissible Limitations On The Due Proc-
ess Right To Defend ................ 33
1. Illinois’ Interest In Enforcing Its Dis-
EE Si 37
2. Effectiveness Of Less Severe Sanc-
eke een ccceccccee: 39
3. Materiality And Favorability Of The
Excluded Witness To The Defense .. 43
4. Evidence Of Bad Faith In The Viola-
tion Of The Discovery Rules ..... 45
5. Reciprocal Nature Of State Rule ... 46
ee ca waco eccecceccccece 46
iV
TABLE OF AUTHORITIES
CASES: PAGE(S):
Berger v. United States, 295 U.S. 78 (1985)
Blackmer v. United States, 284 U.S. 421 (19382) ..
Brady v. Maryland, 373 U.S. 83 (1963) .......
Cardinale v. Louisiana, 394 U.S. 487 (1969)
Chambers v. Mississippi, 410 U.S. 284 (1973)
POF OTE OP ET re eT 12. 18, 30, 32, 33,
Chapman v. California, 386 U.S. 18 (1967) .. 12, 13, 29,
City of Oklahoma City v. Tuttle, 105 S.Ct. 2427
( er errr ee re 10,
Cooke v. United States, 267 U.c. 517 (1925)
Cool v. United States, 409 U.S. 100 (1972)
Crumpton v. United States, 138 U.S. 361 (1891) ..
Eddinas -. Oklahoma, 455 U.S. 104 (1982)
Ex Parte Harding, 120 U.S. 782 (1887) .......
Fendler v. Goldsmith, 728 F.2d 1181 (9th Cir.
ng ae eo ee a re ees Be re
Green v. Georgia, 442 U.S. 95 (1979) .........
Illinois v. Gates, 462 U.S. 2138 (1983) .......
In re Olwer, 3383 U.S. 257 (1948) .....cccccee: 31,
Isaacs v. United States. 159 U.S. 487 (1895)
Link v. Wabash Railroad Company, 370 U.S. 626
PD «cadveeusueekenahs taucsaeeiaadeer ee
McCray v. State of Illinois, 386 U.S. 300 (1967) .
36
30
17
31
|
|
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
re a ee een ee hee ee 23
McGoldrick v. Compagnie Generale Transatlantique,
I ee 17
Mima Queen v. Hepburn, 11 U.S. (7 Cranch) 290
I co tial rN a ee ek ek Ok ee Te 30
ldurray v. Carner, 106 S.Ct. 2639 (1986) ..... 42
Pate v. Robinson, 383 U.S. 375 (1966) ........ 26
Pennsylvania v. Ritchie, 107 S.Ct. 989 (1987)
ee ye ire eae eT 14, 20, 28, 29, 33, 34, 43
Picard v. Connor, 404 U.S. 270 (1971) ........ 16, 17
Reed v. Ross, 468 U.S. 1 (1984) .............. 4?
Rock v. Arkansas, 55 U.S.L.W. 4925 (U.S. June
TR RRA ee ene Rare nt een eee 12, 29, 30
Rosen v. ''nited States. 245 U.S. 467 (1918) 26
Schall v. Martin, 467 U.S. 253 (1984) ......... 36
Stanley v. Illinois, 405 U.S. 645 (1972) ....... 16
Strickland v. Washington, 466 U.S. 668 (1984) 42
Terminiello v. City of Chicago, 337 U.S. 1 (1949) . 17
United States v. Bagley, 473 U.S. 667 (1985) 28, 43
United States v. Burr, 25 F. Cas. 30 (No. 14, 692d)
a Se wD + Orn re beh ebexeeuebeewws 25
United States v. Burr, 25 F. Cas. 187 (No. 14, 694)
I Fe al 25
United States v. Nobles. 422 U.S. 225 (1975)
ey ae Pre 35, 37, 41, 44
United States v. Reid et al.. 53 U.S. (12 How.) 360
ye ree eum nner 26
vl
l’nited States v. Valenzuela-Bernal. 458 U.S. 858
(1982) TTT Ten TrLeTLeRTEeaTeakEnEeaVvaGL.ires +o% »
L’nited States v. Van Duzee. 140 U.S. 169 (1891) . 26
United States ex rel. Enoch v. Hartigan, 768 F.2d
161 (7th Cir. 1985). cert. denied. 106 S.Ct. 128]
Se 25546446 6666460 65560545 37
Wardius v. Oregon, 412 U.S. 470 (1973) .... 28, 34, 36
Washington v. Texas, 388 U.S. 14 (1967) .....
a AGP OLE A i ee eee a 20, 24, 25, 26, 27, 40
Webb v. Texas. 409 U.S. 95 (1972) ............ 27, 28
Webb v. Webb. 451 U.S. 4938 (1981) ........... 17
Webh’s Fabulous Pharmacies. Inc. v. Beckwith, 449
SO SS ara a ee 17
We st 2). Louisiana. 194 U.S. 258 (1904) peeeener 26
Williams v. Flomda, 399 U.S. 78 (1970) .......
CONSTITUTIONAL AND STATUTORY PROVISIONS:
, 44, 46
rr Me ee ce ee benee vhae passim
OF Re ER , ee ee passim
TB USB.C.A. 9 TBS re) CIBGR) onc cccccccccccs 10, 15, 18
Ill. Rev. Stat. ch. LIOA, § 412 (1985) .......... 46
Ill. Rev. Stat. ch. LIOA, § 418 (1985) ......... passim
Ill. Rev. Stat. ch. 11OA, § 415 (1985) ......... passim
Maryland Declaration of Rights, art. XIX (1776) .
Massachusetts Declaration of Rights, art. XII
Dt sto cue seu e ad ek eek au eee ewes ewes
V1
New Hampshire Bill of Rights, art. XV (1733) .. 22, 23
Pennsylvania Declaration of Rights § 176 (1776) .. 22
Virginia Bill of Rights §8 (1776) ............. 22
TREATISES:
1984 Admin. Off. of the Ill. Cts.—1984 Ann. Report
3. flO eT reer errr TTS 4()
l1 Annals of Cong. 755 (1789) ................. 24, 25
2 B. Schwartz. The Bill of Rights: A Docume ntary
RO RE rr, ne zl, Ze
Clinton, The Right to Present a Defense: An
Emergent Constitutional Guarantee in Crimi-
nal Trials, 9 Ind. L. J. 711 (1976) ...... 20, 22, 27
Epstein, 55 J. Crim. L., Criminology & Police Sci.
PE vebebekeedesscsedasdeendeusess hee 39
Holdsworth, History of English Law 192 (3d ed.
SE MAneuawhdshessnveenesees cevensdescdss 21
L.. Levy, Constitutional Opinions: Aspects of the
Bill of Rights 119 (1986) .................. 22
Westen, The Compulsory Process Clause, 73 Mich.
i Se EE teen che ekdecuks hanicdecches 20, 21
8 J. Wigmore § 2191 (rev. ed. J. McNaughton 1961) . 20
In THe
Supreme Court of the United States
OcroserR TERM, 1987
RAY TAYLOR,
Petitioner.
STATE OF ILLINOIS,
Respond: nt.
On Writ Of Certiorari To The Appellate Court
Of Illinois, First Judicial District
BRIEF FOR RESPONDENT
JURISDICTION
Defendant has adequately set forth a jurisdictional state
ment. As explained in Argument I, however, the State
believes this Court lacks jurisdiction over this case.
STATEMENT OF THE CASE
I. State’s Case Prior To Defendant's Attempt To Add A
Previously Undisclosed Witness.
On August 6, 1981, Jack Bridges parked his automobile
in front of his sister’s home on Chicago’s south side. (R.
133-134) Early that evening, Bridges spotted a certain
Derrick Travis sitting on cop of the car. When Bridges
~
asked Travis to get off of the car, Travis said to Bridges,
“Mother F , you don't run nothing.” (R. 135) Bridges
slapped Travis in the face. (R. 135) Travis walked away,
saying he would be back. (R. 135)
Shortly thereafter, Defendant Ray Taylor approached
3ridges and told him he had “‘no business”’ slapping Der
rick Travis. (R. 136) An argument ensued in the middle
of the street, with a group of six or seven other persons
joining in. (R. 137) The argument broke up, and Bridges
drove to a nearby park and remained there for an hour
to calm himself. Bridges then returned and again parked
his car in front of his sister’s house. (R. 138-139).
Bridges left his sister’s home after an hour, having been
told by his brother, Maurice Bethany, that Defendant and
a group of men who had been circulating the neighborhood
had threatened to ruin Bridges’ car. (mn. 140) Bridges
started driving home, but became concerned for his broth
er’s and sister’s safety so he returned to his sister's
neighborhood. (R. 14]
sridges hid his car in a parking Jot, and proceeded
his sister’s house on foot. (R. 141) As Bridges neared the
house, he saw Defendant and four other men talking with
his sister in front of her house. (R. 142) Bridges heard
the men ask his sister where he was. Bridges, who was
standing across the street, called, “I’m over here. Come
over here.” (R. 143)
3efore proceeding across the street, the men reached
into a car and pulled out sticks and pipes. (R. 143-144)
Only Defendant and another man did not retrieve weapons
from the car. (R. 144) The five men then crossed the
street, as did Maurice Bethany.
Maurice Bethany first noticed that Defendant was car
rying a pistol as the men crossed the street. Maurice
3ethany told Defendant, “You ain’t going to shoot nobody
= =
with that pistol.’’ (R. 178) Defendant replied, ‘“You just
stay out of it.” (R. 179)
When the five men approached Bridges, Bridges said
that he wanted to apologize to Travis “because it don’t
make no sense for us to be shooting or killing one another
or fighting.” (R. 144) One of the men replied, ‘““We don’t
want to hear nothing.” (R. 144)
A fight ensued. Neither Bridges nor his brother were
armed. (R. 155, 193) When Maurice Bethany swung at one
of the men, Defendant said ““Boom”’ and shot point-blank
at Bethany warning, “Don’t move.” (R. 180)
The gang of men then attacked Jack Bridges with sticks.
Bridges broke out of the crowd and began running down
Kast 64th Street. (R. 145-146) All five men chased after
Bridges, yelling, “Shoot the nigger. Shoot the nigger.”’
(R. 146)
Attempting to avoid Defendant’s gunshots, Bridges ran
down the street in a zig-zag pattern. (R. 182) Defendant
hit Bridges in the back with his fourth shot. (R. 146)
Bridges fell and attempted to crawl beneath a car. De
fendant ran to Bridges as he lay on the ground, placed
his gun at the side of Bridges’ head, and pulled the trig-
ger. The gun failed to fire. (R. 147) Bridges heard De
fendant say, “He’s dead,” and then Bridges heard a car
skidding away. (R. 147)
The police arrived at the scene almost immediately. Of.
ficer Jon Davis asked Bridges if he knew who had shot
him. Bridges identified Defendant as his assailant. (R. 270)
Il. Defendant’s Offer Of Previousiy Undisclosed Witness.
The foregoing summarizes the testimony of Jack Bridges
and Maurice Bethany at trial. After these two State wit
nesses had testified, Defendant’s counsel, Vester Var
~~.
moved to amend his Answer to Discovery. Mr. Van told
the court that during the testimony of the aforestated wit
nesses, he learned there were two other witnesses who
could give relevant testimony. (J.A. 12) One of the wit
nesses was Alfred Wormley. Van told the court that while
he did not have Wormley’s address, he was going to try
to locate it that evening. (J.A. 12)
The court asked Van why he had not previously listed
Alfred Wormley’s name in his discovery answer. Van said
that while Defendant had suggested Wormley as a wit
ness, Van had been unable to find him. (J.A. 13) The court
instructed Van to bring the proffered witness to court the
following day, whereupon the eourt would consider admit
ting the witness’ testimony. (J.A. 14) Meanwhile, State
prosecutors told the court that Van had given the State
two expected defense witnesses’ supposed home addresses,
but that those purported addresses had turned out to be
burned out buildings.
The following day, Mr. Van arrived in court with Alfred
Wormley. State prosecutors commented of Van, “‘He has
waited until this trial, selected a jury and the State has
already put on its witnesses and then he adds a name.”
(J.A. 15) The State thus objected to admission of Worm-
ley’s testimony. (J.A. 15)
Van responded that there had been “numerous fires”
in the neighborhood where the shooting had taken place,
and that some of the buildings had burned down. Van
commented, “It has been a tramatic (sic) experience for
myself to even locate the witnesses.” (J.A. 16)
The court noted that at the least, Van could have listed
Wormley as a witness and could have noted that his ad
dress was unavailable. The Court said:
To do what you did is inexcusable and I have had,
for the record, so many violations of discovery rules
by the defense in the last few trials that it is unbe
lievable. Since the opinion on Judge Schiller came
down where he got reversed for not allowing the de-
fense to put in an affirmative defense when they
brought it up in the last moment, [People v. Dicker
son, 119 Ill. App. 3d 568, 456 N.E.2d 920 (ist Dist.
1983)| I have had in the last two trials affirmative
defenses that came in after the trial started.
(J.A. 16)
Nonetheless, the trial court permitted Defendant’s coun-
sel to conduct an offer of proof as to Alfred Wormley’s
testimony. In this offer of proof, Wormley testified that
he was in the vicinity of Bridges’ sister’s home at approx
imately 8:00 on the night in question. Wormley said that
he saw “Jack, whatever you say, Bridges,” two other
men, and Jack’s sister sitting on a front porch. (J.A. 19)
Wormley testified, “Jack had a blanket. It was two pistols
in there. . .”. (J.A. 19) Wormley also testified, ‘“{t}hey
were saying what they were going to do to the people.
Say they were after Ray and the other people.” (J.A. 19)
Continuing on his way home, Wormley testified, he ran
into Defendant and his companions and warned them to
watch out for Jack Bridges. (J.A. 19)
On cross-examination, Wormley stated—contrary to
Vester Van’s statement to the court—that he had learned
he was going to be called upon to testify the previous
week, when Vester Van had come to his house to ask
him to testify. (J.A. 21) Van had served a subpoena upon
Wormley. (J.A. 22)
The court then asked Wormley whether he was a friend
of Defendant’s. Wormley said he had met Defendant four
months ago, after the events in question, but that the two
had not discussed the case. (J.A. 23)
Wormley then testified that a woman named Donna
Kerr had held the blanket containing the guns. “I guess
that was |Bridges’| girlfriend at the time,’’ Wormley tes
— =
tified. (J.A. 23) Wormley said he saw two pistols under
the blanket, and he saw Bridges hand the blanket to Ms
Kerr. (J.A. 24)
The court asked Mr. Wormley whether his testimony was
that while he did not then know Defendant, he had stopped
Defendant on the street to warn him of the impending
attack. (J.A. 24) Wormley testified that he recognized De
fendant from the street, and that he knew the people who
were with Defendant. (J.A. 24)
The State then again voiced an objection to admission
of Wormley’s testimony. (J.A. 25-26) In response to the
State’s objections, Mr. Van changed his previous stor)
and said he thought he had listed Wormley as a witness
and that his failure to do so was simply an oversight. (J.A
27) While conceding that Wormley had not seen the inc!
dent, Van characterized Wormley as “‘a good part of my
defense,” and asked that he be allowed to testify. (J.A. 27)
The court denied Defendant’s motion to add Wormley
as a witness. (J.A. 28) The court found Van’s conduct to
be a blatant violation of the discovery rules and ques
tioned Alfred Wormley’s veracity as well. In particular,
the court questioned Wormley’s statement that he had
stopped Defendant on the street, although Wormley did
not know him, and questioned how Wormley could have
seen guns wrapped in a blanket. (J.A. 28) Finally, the
court informed Mr. Van that it was considering taking
disciplinary measures against him. (J.A. 28)
The trial then resumed
lll. The Continuation Of The State's Evidence.
The balance of the State’s case was the testimony of
Bridges’ sister, Jacqueline Jones, and also Charles Trot
ter, a family friend. Chicago police officer Jon Davis also
testified.
Ms. Jones testified that Defendant rebuked Bridges for
slapping Derrick Travis, and that Defendant and his asso
clates warned Bridges that they were going to destroy
his car unless he moved it. (R. 235, 238) Ms. Jones ad
mitted that she did not see who shot her brother, but
she testified she saw the gang chasing her brother down
the street. After Bridges was shot, Ms. Jones ran into
the middle of the street. She heard a man say, “We killed
him.” (R. 242, 246) Contrary to later defense testimony,
Ms. Jones testified that while there may have been peo
ple sitting on their front porches during the incident, no
one was sitting on the church steps. (R. 247)
Maurice Bethany lived with Ms. Jones at the time of
the incident. Ms. Jones testified that Bethany did not own
a gun. Ms. Jones did not know whether her brother Jack
Bridges owned a gun. (R. 246)
Charles Trotter also witnessed the incident. Trotter tes
tified that when the group of men crossed the street
towards Jack Bridges, Trotter saw that “one of them had
his hands behind his back and then when he got in the
middle of the street I seen a silver pistol.” (R. 258) In
court Trotter identified Defendant as the man who had
shot at Maurice Bethany, and who then ran behind Bridges
shooting at him. (R. 259-260) Trotter testified that while
he saw Defendant with a gun, and while he saw Defen
dant chasing Bridges and shooting at him, Trotter did not
see Defendant shoot and strike Bridges. (R. 261)
Chicago police officer Jon Davis testified that he was
summoned to the scene after the shooting took place. As
Brdges was being carried into an ambulance, Officer
Davis asked him who had shot him. Bridges said “Ray
Ray.” (R. 270) “Ray Ray” is Defendant’s nick-name. (R
136)
IV. The Defendant's Evidence.
The defense case consisted of the testimony of Hatti
and Regina Algood, sisters who both knew Defendant
Prosecutors complained that the addresses Vester Van
had given them for the Algood sisters had turned out to
be burned out buildings. (R. 232, 277)
Both Hattie and Regina Algood testified that they wit
nessed the sequence of events from the church steps
across the street from Jack Bridges’ sister’s home. (R
278, 302) Hattie Algood testified that when she saw De
fendant and the other men crossing the street towards
Bridges, she saw Maurice Bethany and Donna Kerr re
main on the porch steps of Ms. Jones’s house. (R. 281)
It was Bethan, who fired the gunshots from the porch,
Hattie testified. (R. 283)
On cross-examination, however, Hattie testified that
Maurice fired the gunshots from the walk in front of Ms
Jones’s house; Maurice never stepped into the street. (R
293-294) Hattie Algood said that only Jack Bridges ran
down 64th Street. (R. 294) When asked if she was testi
fying that Maurice Bethany fired down 64th Street at his
own brother. Hattie responded that Bridges was shot
while standing in the crowd and then he stumbled down
64th Street. (R. 295-297
Regina Algood testified that when she saw the group
f men emerge from their car, they were carrying sticks
R. 311 Regina stated that the men held the sticks as
they spoke with Bridges’ sister, Jackie Jones. (R. 312)
Regina further testified that Maurice fired his gun as he
stood on Ms. Jones’ front porch. Everybody ran, Regina
testified, including Jack Bridges. Regina stated, “{bjefore
I ran | seen Jackie something like stumble or some
thing. . .”’. (R. 314) Maurice Bethany never left the porch
be Baad oh . ; P > O15 Q1¢
while he tired the gunsnots Regina testified. (R. 315-316)
~ =
Both sisters testified that although they knew Defen-
dant, and they knew he had been charged with murder,
this was the first time they had come forward with their
version of the events. (R. 300-301, 319)
V. The Jury’s Verdict, The Sentence, And The Appellate
History Of The Case.
During jury deliberations, the jurors advised the court
that they wanted to review portions of the trial testimony.
The jurors submitted a note to the court specifying that
with regard to Jack Bridges’ testimony, they wanted to
review:
A. How many people were chasing Jack down 64th
Street?
B. What were their names?
C. Who did Jack see over him when the gun mis-
fired? Did he actually see someone, or did he
just see feet?
(R. 399-400) Regarding Maurice Bethany’s testimony, the
jurors asked to review testimony pertaining to “Who ran
down the street after Jack after the first shot was fired?”
(R. 400) The court reporter read the relevant portions of
the transcript to the jurors. (R. 401)
After further deliberations, the jurors returned a ver-
dict of guilt on the charges of attempted murder, aggra-
vated battery while armed, aggravated battery causing
great bodily harm, and armed violence. (R. 402)
The trial court sentenced Defendant on the attempted
murder conviction only. (R. 441) Defendant was sentenced
to serve a ten year term of incarceration in the Illinois
Department of Corrections. (R. 520)
The Illinois Appellate Court for the First Judicial Dis
trict affirmed Defendant’s conviction and sentence on Feb
ruary 10, 1986. The People of the State of lilinois v. Raz
= 1 (}—
Taylor, 141 Ill. App. 3d 889, 491 N.E.2d 3 (1st Dist. 1986).
Defendant’s Petition for Leave to Appeal to the Illinois
Supreme Court was denied on October 2, 1986. Ill. Sup.
Ct. No. 63507.
SUMMARY OF ARGUMENT
I. In the state courts, Defendant invoked only Due Proc
ess Clause concerns. In the brief on the merits that Defen
dant has filed with this Court, however, Defendant has
presented a claim of violation of only the Compuisory
Process Clause. Given that this Court does not generally
exercise jurisdiction over federal claims not presented in
the state courts, and because the instant defect raises prob
lems of comity, this Court should dismiss certiorari as im-
providently granted in this case. 28 U.S.C.A. § 1257(3)
(1966).
The State acknowledges that it failed to raise this defect
in the State’s brief in opposition to the petition for cer-
tiorari. That fact, even under City of Oklahoma City v.
Tuttle, 105 S.Ct. 2427 (1985), need not be treated by this
Court as a waiver by the State of the defect for several
reasons. First, the Court in Oklahoma City made it clear
that waiver was a matter within the exercise of its discre-
tion, so that the Court is free here to deem the defect
not waived by the State’s failure to raise it earlier than |
the brief on the merits. |
|
Second, this case is distinguishable from Oklahoma City
on several grounds. In Oklahoma City, the defect that
respon ‘ent failed to raise was purely procedural in nature.
105 S.Ct. at 2432. In this case, however, Defendant’s claim
represents a defect that is more jurisdictional in nature.
Also, in Oklahoma City the defect was only alluded to
==
briefly in the brief on the merits, whereas here the State
is vigorously pressing the issue and has fully briefed the
question in this brief on the merits.
Moreover, theve are concerns of comity with the state
courts In the case at bar that were not a factor in Okla-
homa City, which involved a case arising from the federal
courts.
Accordingly, there are meritorious reasons for this
Court to exercise its discretion to decline jurisdiction over
this case.
Il. The Compulsory Process Clause does not guarantee
the admissibility of defense testimony.
By its language, the Compulsory Process Clause sug-
gests that it is intended to protect a defendant’s right
to subpoena witnesses in his defense. Evidence of the
Framers’ intent supports this construction. Therefore, the
availability of a subpoena for Wormley was enough to
satisfy the Sixth Amendment.
The language of the Compulsory Process Clause was
derived from state bills of rights which afforded defen-
dants varying levels of protection for the right to pro-
duce witnesses in their favor. For example, while the
Maryland Declaration of Rights simply afforded a defen-
dant the right “to have process for his witnesses,’’ Mary-
land Declaration of Rights, art. XIX (1776), the Massa-
chusetts Declaration of Rights guaranteed defendant the
right “‘to produce all proofs . . . and to be fully heard
in his defence . . .”’ Massachusetts Declaration of Rights,
art. XII (1780).
From this range of language, the Framers chose to
guarantee defendant only “‘the right ... to have com
pulsory process for obtaining witnesses in his favor.
U.S. Const., amend. VI.
= =
Aside from the chosen language, further evidence that
the Framers intended to confer a limited right is found in
the Framers’ rejection of an amendment that would have
guaranteed more. In the House of Representatives, it was
suggested that the Clause be amended to provide that
a defendant would have a protected right to delay trial
if he were unable to serve process on a material witness.
1 Annals of Cong. 755-56 (1789). This motion was over-
whelmingly rejected. One representative commented that
‘in securing [defendant] the right of compulsory process,
the Government did all it could; the remainder must lie
in the discretion of the court.” 1 Annals of Cong. 755-56
(1789).
Thus, the evidence is that the Framers intended no
more than to secure for defendants the machinery for
summoning favorable witnesses to trial.
Notwithstanding the language and history of the Com-
pulsory Process Clause, this Court in Washington v.
Texas, 388 U.S. 14 (1967) expanded the Clause to ensure
the admissibility of defense testimony. This conclusion
should be reconsidered in the context of this case.
III. Even should this Court find that the Sixth Amend
ment guarantees the admissibility of defense witness tes-
timony, the preclusion of Wormley’s testimony was not
reversible error here.
First, the test by which the error should be judged is
not the Chapman standard relied upon by Defendant. See
Chapman v. California, 386 U.S. 18 (1967). In an anal
ogous situation in Rock v. Arkansas, 55 U.S.L.W. 4925
(U.S. June 22, 1987), this Court did not apply a harmless
error analysis to an asserted violation of the Due Proc
ess 4nd Compulsory Process Clauses. Rather, this Court
applied the type of due process balancing test that was
set forth in Chambers v. Mississippi, 410 U.S. 284 (1973)
—13—
Second, even if this Court concluded that a Chapman
v. California, 386 U.S. 18 (1967) harmless error analysis
is applicable here, the State can carry its burden of prov-
ing any error harmless beyond a reasonable doubt.
Under Chapman, the question is “whether there is a
reasonable probability” that the error affected the jury’s
verdict. 386 U.S. at 24. In the case at bar, the exclusion
of Alfred Wormley’s testimony cannot be deemed to have
affected the jury’s verdict because Wormley did not wit-
ness the shooting and his testimony was cumulative.
IV. Whatever protection a defendant’s right to introduce
testimony has is found in the Due Process Clause’s guar-
antee of a fair trial, not in the Compulsory Process
Clause. Under the Due Process Clause, that right is lim-
ited. Chambers v. Mississippi, 410 U.S. 284 (1973).
In Chambers, this Court held that while the Due Proc-
ess Clause affords protection for the right to a fair oppor-
tunity to defend, that right may, in some circumstances,
“bow to accommodate other legitimate interests in the
criminal trial process.’ 410 U.S. at 295. The Court then
applied a due process analysis to defendant’s assertion
that state hearsay and voucher rules had operated to ex-
clude relevant and reliable evidence in his favor. Under
that test, the Court weighed the defendant’s interest in
introducing the challenged statement against the state’s
interest in enforcing its evidentiary rules. 410 U.S. at 302.
Since Chambers, the balancing test has evolved to in-
clude the following factors: First, the legitimacy and
strength of the State’s interest in the restriction. In the
case at bar, Illinois has a legitimate interest in enforcing
its rule which outweighs Defendant’s due process right to
a fair opportunity to defend. The state’s interest is the im-
portant one of protecting the integrity of the trial process
and preventing trial by ambush. Protection of the state’s
=o
interest requires enforcement of the Illinois discovery
sanction statute against Defendant, who, in deliberate
derogation of the statute, made a last minute attempt to
admit evidence which the trial court adjudged to be lack-
ing in credibility, and which was cumulative and could not
have altered the verdict. Furthermore, the admission of
the proposed defense testimony of Alfred Wormley would
have distorted the truth-seeking process, would have dis-
served the ends of justice, and would have prejudiced the
State if the trial court had not precluded it.
Second, the balancing test requires consideration of the
effectiveness of lesser sanctions. Here, lesser sanctions
would not have been effective in protecting the People’s
interest in a fair trial and would have unnecessarily dis-
rupted the continuity of the presentation of evidence and
inconvenienced the jurors and the court. Furthermore,
there was no constitutional need for the tral court to
substitute a lesser sanction, such as a continuance, since
the trial court had assessed Wormley’s proffered testi-
mony in an offer of proof and had determined that the
exclusion of his testimony would cause minimal harm to
Defendant's case.
Third, the Court should evaluate the materiality of the
excluded testimony. Defendant cannot demonstrate that
there is a reasonable probability that the outcome of the
trial might have differed had Alfred Wormley’s testimony
been admitted, since Wormley’s testimony was essentially
cumulative, and since Wormley did not even witness the
shooting of Jack Bridges. Therefore, the materiality ele-
ment of the due process balancing test, as defined in
Pennsylvania v. Ritchie, 107 S.Ct. 989, 1001 (1987), weighs
in favor of the State.
Fourth, the bad faith of Defendant’s attorney in at-
tempting to introduce a last minute witness is another
element of the due process test. Here, Defendant's coun-
= =
sel’s bad faith is indisputable and further underscores the
suspect nature of the precluded witness’s testimony.
Fifth, a consideration of the reciprocal nature of Illinois’
discovery rules establishes that those discovery rules ap-
ply equally to the prosecution and to the defendant. Wil-
liams v. Florida, 399 U.S. 78 (1970).
In summary, then. Defendant’s due process right to de-
fend cannot be said to have been infringed where all five
elements of the balancing test weigh in favor of the State.
ARGUMENT
1.
THIS COURT SHOULD EXERCISE ITS DISCRETION
TO DECLINE JURISDICTION OVER THE INSTANT
CAUSE, WHERE DEFENDANT DID NOT RAISE A COM-
PULSORY PROCESS CLAIM IN THE STATE COURTS,
BUT WHERE THAT IS THE SOLE CONSTITUTIONAL
ISSUE THAT DEFENDANT NOW RAISES BEFORE THIS
COURT.
The federal statute governing this Court’s certiorari
jurisdiction over state court cases provides that this Court
may review final judgments rendered by the highest court
of a State when, inter alia, a federal right is “specially
set up or claimed under the Constitution.”” 28 U.S.C.A.
§ 1257(3) (1966). In the brief Defendant has filed with this
Court, Defendant rests his claim on the Compulsory Process
Clause of the Sixth Amendment. In the state courts, how-
ever, Defendant grounded his claim solely on the Due
Process Clause of the Fourteenth Amendment. Although
the State did not raise this defect in its brief opposing
the petition for certiorari, this Court should refrain from
exercising its jurisdiction over a case presenting an issue
—16—
which the state courts have not had an opportunity to
review.
In the Motion for a New Trial which Defendant pre
sented in the trial court, he claimed that “(the court erred
by not letting a witness for defendant testify before the
Jury.” (R. 412) On direct appeal, however, Defendant argued
that “The trial judge abused his discretion and denied Mr.
Taylor Due Process by excluding a material defense wit
ness from testifying as a sanction for a discovery viola
tion.” (Dft’s State App. Ct. Brief at 28) Similarly, in his
Petition for Leave to Appeal to the Illinois Supreme Court
Defendant argued that “The Appellate Court’s holding
that exclusion of a material defense witness was a proper
sanction for a discovery violation is in conflict with ever)
reported decision of this State and violates Due Process
of law.” (Dft’s Petition for Leave to Appeal at 6) In sum,
Defendant’s claims regarding the exclusion of Alfred Worm
ley’s testimony in the trial court rested completely on the
Due Process Clause
This Court has indicated that it looks with disfavor upon
federal claims that are presented before this Court with
out first having been presented in the: state courts, even
when the factual basis of those claims has been presented
on both the state and federal levels. Stanley v. /ilinois,
405 U.S. 645, 658 n.10 (1972); Picard v. Connor, 404 US
270, 275-278 (1971). See generally, Illinois v. Gates, 467
U.S. 213 (1983). Having failed to comply with this require
ment, Defendant’s arguments should be dismissed
The only rationale for circumventing Defendant’s default
would be for this Court to construe the vague language
in Defendant’s claims in the state courts as somehow em
bodying references to the Compulsory Process Clause as
incorporated by the Due Process Clause of the Fourteenth
Amendment. However, while there is support for this
Court’s review of cases where a petitioner has failed to
= =
cite “book and verse” in the state courts, Eddings v.
Oklahoma, 455 U.S. 104, 113-14 n.9 (1982); accord Webb's
Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155
(1980); Terminiello v. City of Chicago, 337 U.S. 1 (1949),
this Court has evinced a decided reluctance to construe
reliance on a particular constitutional provision as reliance
on a constitutional provision that might also have been
correctly raised in the state courts. Picard v. Connor, 404
U.S. 270 (1971).
Important policy considerations countervail against waiv
ing defects such as that presented by this case. First,
comity between the federal and the state courts is dam
aged when state courts are not first given an opportunity
to consider constitutional arguments. Webb v. Webb, 451
U.S. 493 (1981); McGoldrick v. Compagnie Generale Trans
atlantique, 309 U.S. 430, 434-435 (1940). Second, when a
specific federal claim is not presented in the state courts.
the state court record is likely to be inadequate since the
record was not compiled in view of that federal question.
Cardinale v. Louisiana, 394 U.S. 437, 439 (1969).
Certainly these considerations apply in the case at bar,
where the state courts were given no specific opportuni
ty to entertain Defendant’s compulsory process argument,
and where the state court record accordingly reflects no
application of that constitutional provision to these facts.
As noted, however, the State did not challenge the juris-
dictional defect presented in this case in the State’s brief
in opposition to the petition for certiorari. In City of
Oklahoma City v. Tuttle, 105 S.Ct. 2427 (1985), this Court
held that when a respondent fails to raise a non-jurisdic
tional defect prior to the brief on the merits, this Court
may elect to deem the defect waived.
Oklahoma City is distinguishable from the case at bar
In two respects
==
First, Oklahoma City involved respondent’s failure to
challenge a procedural, non-jurisdictional defect. In the
case at bar, however, Defendant's failure to present his
Compulsory Process Clause claim before the state courts
is a defect more accurately characterized as jurisdictional
in nature. 28 U.S.C.A. § 1257(3) (1966).
Second, Oklahoma City involved a cause of action that
was litigated in the federal courts. Hence, comity was not
a consideration, as it is in the case at bar, since it is the
state courts that were not given the opportunity to review
Defendant’s Compulsory Process claim
The State accordingly requests that this Court refrain
from exercising jurisdiction over the instant cause
THIS COURT’S INTERPRETATION OF THE SIXTH
AMENDMENT IN WASHINGTON vc. TEXAS AND ITS
PROGENY SHOULD BE RECONSIDERED IN LIGHT OF
A FULL ANALYSIS OF THE LANGUAGE AND HISTORY
OF THAT AMENDMENT.
In our view, the Compulsory Process Clause of the Sixth
Amendment, properly interpreted, guarantees only that
defendants have subpoena power to produce witnesses
In this case, where the defense was able to subpoena wit
ness Alfred Wormley and present him for an offer of proof
at trial, Defendant’s Compulsory Process rights were fully
protected. The distinct question whether a subpoenaed
and produced witness’s testimony can be excluded for a
violation of the discovery process so egregious that it
threatens the trial’s fundamental search for truth is meas
ured not by the Compulsory Process Clause but by the
Due Process Clause. No Compulsory Process Clause con
cerns are raised by the Illinois discovery sanction statute
in general, nor the trial court’s application of it in this
case, where Wormley’s name was not listed in pre-trial
discovery, where his testimony was not credible, and
=x =
where the State would have been prejudiced by permit
ting Defendant to put Wormley on the stand.
The trial court excluded Wormley’s testimony because
it found that the proffered testimony lacked credibility,
and that Vester Van’s failure to reveal Wormley’s name
prior to trial as required by Illinois Supreme Court Rule
413' was a tactic conceived in bad faith. (J.A. 28) The trial
court's exclusion of Wormley’s testimony for violation of
Rule 413 was based on Illinois Supreme Court Rule 415(gXi),
which provides:
If at any time during the course of the proceedings
it is brought to the attention of the court that a party
has failed to comply with an applicable discovery rule
or an order issued pursuant thereto, the court may
order such party to permit the discovery of material
and information not previously disclosed, grant a con
tinuance, exclude such evidence, or enter such other
order as it deems just under the circumstances.
ll. Rev. Stat. ch. 110A, § 415(@\i) (1985).
Application of the aforestated statute to preclude Alfred
Wormley’s testimony did not infringe Defendant’s Sixth
Amendment right to the Compulsory Process Clause with
in the meaning of the amendment’s language and history.
' Defendant’s obligation to disclose his defense witnesses was
mandated by Illinois Supreme Court Rule 413, which provides in
pertinent part:
Defenses. Subject to constitutional limitations and within a
reasonable time after the filing of a written motion by the
State, defense counsel shall inform the State of any defenses
which he intends to make at a hearing or trial 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
lll. Rev. Stat. ch. LIOA, § 413(d\i) (1985
~20—
Because this Court has heretofore refrained from clarify
ing the contours of the Compulsory Process Clause, Penn
sylvania v. Ritchie, 107 S.Ct. 989, 1000 (1987), there is
a divergence of opinion over the scope of protection af
forded by the Clause. Based on Washington v. Texas, 388
U.S. 14 (1967), a majority of the courts have, we believe
erroneously stretched the Compulsory Process Clause to
protect the admissibility of defense testimony. See general
ly Westen, The Compulsory Process Clause, 73 Mich. L
tev. 71, 99 (1974). A careful analysis of the language and
history of the Clause, however, demonstrates the propriety
of some scholars’ view that the Clause assures only that
defendants are afforded the subpoena power they lacked
at common law. See, Clinton, The Right to Present a De
fense: An Emerge nt Constitutional Guarantee In Crimi
nal Trials, 9 Ind. L. J. 711, 767 (1976) (“Clinton”); & J
Wigmore § 2191, at 68-70 (rev. ed. J. McNaughton 196]
(Compulsory Process Clause intended only to secure for
defendants the subpoena power they lacked at commor
law)
he latter Vit W is Line ily The . ipported vO Line ial
guage of the Clause and the intent underlying it. Thes
suggest that the Framers merely intended to protect a
defendant's right to invoke the authority of the goven
ment for the purpose of compelling the attendance of wit
nesses in his favor. Once a state court defendant has beer
afforded that right, state rules govern the question of e\
dentiary admissibility. The federal constitution governs
question of the admissibility of defense testimo1
the extent that Due Process principies art ffended
the operation of a state evidentiary rule
Before discussing the due process issue, the State w
first identify the ver) limited role of the Con puisor Proces
Clause in the case at bar
4. Enactment Of The Compulsory Process Clause
A review of the circumstances surrounding the adop
tion of the Compulsory Process Clause helps in assess
ing the scope of protection afforded by that Clause. Ear!
American trial practice generally resembled British pra
tice. Under sixteenth century British practice, defendants
were not ertitied to summon witnesses in their defense
5.W. Holdsworth, History of English Law 192-93, 195 (3d
ed. 1944) apparentiy Decause it was deemed unseemly for
witnesses to testify against tne row! see generaily
Westen, The Compulsory Process Clause, 73 Mic!
Rev. 71, 83 (1974
.
.
i¢ rer sé ‘ 'neses té ry v¥y ’ } ’ ‘ iy ! ‘ 77 le) \é : ,"
;
Dracvice lefendants nad mited a ‘ Tis ‘
; ;
ricted subpoena pl eves. ana re ricted a f I
y] ae Tmen?' ‘ ryt " “7 *)*)
il ons
If . } | | 1y ’ ’ ’ ~ ; ; " iy
Na Wal MACTOT i ‘ ‘ LTT}
(] ry’ r} ~ rr in ’ i? rm? ry x ’ ’ ’ :
| | LILLE ; : . i . : : : :
lefendant ) ont ’ itt yet ‘ +. if na rot ‘
’ ’ ‘ rignt mi j ’ ’ ‘ : at
+, , ’
: : > : >
:
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29
The Bill of Rights A Documentary History 1145 (1971
“Sehwartz’’). It was clear, however, that the citizenry
deemed adoption of a bill of rights to be critical; in
deed, the states’ reluctance to adopt a federal constitution
stemmed in part from a reluctance to adopt the document
without a bill of rights
Madison therefore pressed the matter before (Congress
with an eye towards drafting a bill that would spark as
ittle dissent as possible, culling the language of the Sixth
Amendment from state constitutions’ bills of rights. L. Levy
(‘omatifution fy (on rwris Aspects of the Bill of Rights 119
1486
The state bills of rignts Madison chose from provided
arying jteveis of protection for the nght to present de
fense witnesses. At one end of the spectrum, the Mary
and Declaration of Rights simply afforded a defendant
the night “to have process for his witnesses.”’ Maryland
Declaration of Rights, art. XIX (1776), reprinted im Clin
ton at 729. The Virginia and Pennsylvania bills of rights
guaranteed defendant the right “to call for evidence in
his favour.” Virginia Bill of Rights §8 (1776); Pennsy
ania Declaration of Rights § 176 (1776)
At the other end of the spectrum, the Massachusetts
and New Hampshire bills of rights provided that “every
subject shall have a right to produce all proofs, that may
be favorable to him and to be fully heard in his de
fense Massachusetts Declaration of Rights. art. XII
1780); accord New Hampshire Bill of Rights, art. X\
1733) repr nted im Clinton at 730
> >
From the varying language of these state constitutions
James Madison rejected the encompassing language of the
Massa husetts and New Hampshire guarantees, electing
instead to propose that a defendant merely be afforded
“the right . . . to have compulsory process for obtaining
witnesses in his favor . . .” U.S. Const., amend. VI.
In construing the meaning of this Clause, we turn first
to the language used. Normally, when constitutional lan-
guage unambiguously requires a particular conclusion, the
text is held to be dispositive. Cf’ McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 407 (1819) (Marshall, C.J.) (stating
that “we must never forget, that it is a constitution we
are expounding” (emphasis in original)). The text of the
Compulsory Process Clause is convincingly dispositive.
If the Framers had intended to protect the admissibil-
ity of defense evidence, they could have used the language
of the Massachusetts and New Hampshire bills of rights
which gave express protection to the right to admit de-
fense evidence. See supra at p. 22. Instead, the Framers
deliberately settled on conciliatory language guaranteeing
only the right “to have compulsory process. . .’”. U.S.
Const., amend. VI. They thus left the Compulsory Process
Clause utterly devoid of language suggesting that they
intended the Clause to protect the admissibility of evi-
dence.
The recorded debate further supports this interpretation
of the Compulsory Process Clause. The Annals of Congress
for 1789 report the following exchange in the House of
Representatives:
Mr. BURKE moved to amend this proposition in
such a manner as to leave it in the power of the ac-
cused to put off the trial to the next session, pro-
vided he made it appear to the court that the evidence
of the witnesses, for whom process was granted but
not served, was material to his defence.
Mr. HARTLEY said, that in securing him the right
of compulsory process, the Government did all it
—24—
could; the remainder must lie in the discretion of the
court.
Mr. SMITH, of South Carolina, thought the regula-
tion would come properly in, as part of the judicial
system.
The question on Mr. BURKE’s motion was taken
and lost; ayes 9, noes 41.
1 Annals of Cong. 755-56 (1789).
Mr. Hartley’s comment, that the Clause secured to de-
fendant the right of compulsory process, and that the re-
mainder lay in the trial court’s discretion, conveys in
straightforward fashion that the Clause guarantees sub-
poena power only.
Contrary to the Court’s statement in Washington v.
Texas, 388 U.S. 14 (1967), that the Compulsory Process
Clause must protect the admissibility of defense evidence,
because “the Framers . . . did not intend to commit the
futile act of giving to a defendant the right to secure the
attendance of witnesses whose testimony he had no right
to use,” /d. at 23, Representative Hartley’s comment
makes clear that the Framers did not intertwine the con-
cept of evidentiary admissibility with the concept of sub-
poena power. Rather, the Framers gave constitutional pro-
tection to defendant’s right to compel the attendance of
witnesses, and expressly declined to constitutionalize the
question of the admissibility of defense witnesses’ testi-
mony.
The vote recorded in the excerpted exchange also lends
weight to this conclusion. Representative Burke’s sug-
gested amendment would have given a defendant the con-
stitutionally protected right to delay trial if defendant was
unable to serve subpoena on a material witness. Unwill-
ing to go beyond ensuring defendants the machinery for
summoning witnesses to trial, however, the representa
tives rejected Burke’s motion by a vote of 41 to 9
=~ =
The Framers’ vote thus makes clear that having granted
to defendants the machinery for compelling the attendance
of witnesses, the Framers left it to the discretion of the
trial courts how to deal with any consequent problems.
Hence, Representative Smith’s comment that he thought
“the regulation would come properly in, as part of the
judicial system.” 1 Annals of Cong. 755-56 (1789).
In summary, then, the language of the Sixth Amend-
ment and the House debate on the Clause clearly reflect
the Framers’ intent to protect defendant’s subpoena power
only by the Compulsory Process Clause.
B. Construction Of Compulsory Process Clause.
Notwithstanding that neither the language of the Clause
nor the circumstances of its adoption support a broad read-
ing, protecting the admissibility of defense testimony, the
Court in Washington v. Texas, 388 U.S. 14 (1967), held
that the Clause not only ensures the attendance of wit-
nesses at trial, but also protects the admissibility of
witnesses’ testimony. 388 U.S. at 19. As Justice Harlan’s
concurring opinion in Washington more accurately ob-
serves, however, the admissibility of evidence is a Due
Process concern, and not a Compulsory Process Clause
violation. 388 U.S. at 24. To the extent that Washington
suggests more than this, it should be reconsidered.
Prior to Washington, the lead cases construing the Com-
pulsory Process Clause were Chief Justice John Marshall’s
opinions in the trial of Aaron Burr. United States v. Burr,
25 F. Cas. 30 (No. 14, 692d) (C.C.D. Va. 1807); United
States v. Burr, 25 F. Cas. 187 (No. 14, 694) (C.C.D. Va.
1807). In Burr, the Court gave force to the plain import
of the Compulsory Process Clause by holding that defen-
dants have the right to use subpoenas to compel the at-
tendance of witnesses at trial and to compel the produc-
tion of material documents as well. 25 F. Cas. at 33-35.
~.26—
After Burr, courts demonstrated a decided reluctance
to treat the exclusion of defense evidence as an issue of
constitutional magnitude. Instead, in cases subsequent to
Burr, the question of exclusion of defense evidence was
treated by the Court as a matter of statutory construc-
tion, Rosen v. United States, 245 U.S. 467, 471-472 (1918);
United States v. Van Duzee, 140 U.S. 169, 173 (1891);
United States v. Reid et al., 53 U.S. (12 How.) 360 (1851),
or, alternatively, the Court avoided the question alto-
gether by disposing of the cause on other grounds. See
Pate v. Robinson, 383 U.S. 375, 378 n.1 (1966); Blackmer
v. United States, 284 U.S. 421, 442 (1932); West v. Loui-
siana, 194 U.S. 258, 262 (1904); Ex Parte Harding, 120
U.S. 782 (1887).
Thus, the Washington Court wrote on a virtually clean
slate in applying the Compulsory Process Clause to a
state evidentiary exclusion issue. In Washington, a Texas
trial court had barred the defendant from calling to tes-
tify an accomplice who would have provided exculpatory
testimony. The trial court’s decision was dictated by a
state statute providing that persons charged or convicted
as co-participants in the same crime could not testify for
one another, although the co-participant could testify for
the state. 388 U.S. at 16-17.
In resolving the question whether the Texas statute was
constitutional, the Court first determined that the right
to compulsory process for obtaining witnesses is incor-
porated against the states by the Due Process Clause of
the Fourteenth Amendment. 388 U.S. at 17-18. The Court
then ruled that the Texas statute created a per se exclu-
sion which operated arbitrarily to exclude relevant and
material testimony from a witness who was physically and
mentally capable of testifying to events he had personal.
ly observed. 388 U.S. at 23. The Court on these unique
facts held that the statute infringed the defendant’s rights
under the Compulsory Process Clause. It was in this cor
—?7—
text that the Court wrote, “The Framers of the Constitu-
tion did not intend to commit the futile act of giving to
a defendant the right to secure the attendance of wit-
nesses whose testimony he had no right to use.” /d.
There are two significant infirmities in the Washington
analysis.
First, the Washington Court suggested that the Texas
disqualification statute at issue in that cause was a hold-
over from the common law, and that the Sixth Amend-
ment was intended to abolish such statutes. 388 U.S. at
19-23. In point of fact, however, the Texas statute was
a nineteenth century development. See Clinton at 766-767.
Hence, the argument that the Sixth Amendment was in-
tended to abolish this type of statute is anachronistic.
Second, the Washington Court reasoned that defense
testimony is guaranteed admissibility under the Compul-
sory Process Clause because the Framers could not have
intended to commit the “futile act” of giving defendant
the right to summon witnesses whose testimony could be
barred. At the same time, however, the Court carved an
exception for testimonial privileges and for certain state
rules based on incapacity. 388 U.S. at 23 n.21. The Wash-
ington opinion thus accepts the power of a legislature or
court to exclude defense testimony without offering any
explanation as to under what standard the Compulsory
Process Clause might guarantee the admissibility of some
categories of defense testimony but not others.
The flaws in the Washington Court’s overbroad con-
struction of the Compulsory Process Clause are exposed
by subsequent cases where asserted Compulsory Process
Clause violations are analyzed under the Due Process
Clause.
For example, in Webb v. Texas, 409 U.S. 95 (1972), the
next case to invoke the Clause after Washington, the
Court applied a due process analysis to intimidation of
—28—
a defense witness by a trial court which amounted to de
facto exclusion of testimony. This Cowt characterized the
trial court’s conduct as a Sixth Amendment violation, but
then proceeded to apply a due process analysis. 409 U.S.
95, 98 (1972).
In United States v. Valenzuela-Bernal, 458 U.S. 858
(1982), the question before the Court was whether the
government’s policy of pre-trial deportation of illegal aliens
who may have been potential defense witnesses violated
the Compulsory Process Clause. This Court expressly bor-
rowed concepts from the Due Process Clause of the Fifth
Amendment in arriving at its decision. 458 U.S. at 867-
872.
In Pennsylvania v. Ritchie, 107 S.Ct. 989 (1987), this
Court addressed a challenge to the constitutionality of a
Pennsylvania statute shielding certain youth records. 107
S.Ct. at 994. This Court concluded that while the contours
of the Compulsory Process Clause had not yet been de-
fined, the cases construing the Clause established at a
minimum that defendants have the right to government
assistance in compelling the attendance of witnesses, and
that defendants have the right to put before the jury evi-
dence that might influence the question of guilt. 107 S.Ct.
at 1000-1001. Nonetheless, the Court noted, a claimed right
to discover exculpatory evidence was traditionally analyzed
under the “‘broader protections”’ of the Due Process Clause
of the Fourteenth Amendment. 107 S.Ct. at 1001, citing
United States v. Bagley, 473 U.S. 667 (1985); Brady v.
Maryland, 373 U.S. 83 (1963); and Wardius v. Oregon,
412 U.S. 470 (1973). This Court accordingly held that while
it was not prepared to state how the guarantees of the
Compulsory Process Clause differ from those of the Four-
teenth Amendment, at a minimum, the Compulsory Process
Clause provides no greater protection that the Due Process
Clause. /d.
—29—
Finally, in Rock v. Arkansas, 55 U.S.L.W. 4925 (U.S.
June 22, 1987), this Court held that a state statute pre-
cluding on a per se basis the use of hynotically refreshed
testimony infringed defendant’s right to testify as pro-
tected by the Due Process Clause, the Compulsory Process
Clause, and the Fifth Amendment. This Court then applied
a due process analysis, concluding that a State’s legitimate
interest in barring unreliable evidence does not justify a
per se exclusion because that evidence might be unreliable
in a particular case. 55 U.S.L.W. at 4930.
Thus, this Court’s jurisprudence recognizes that the
Compulsory Process Clause guarantees process alone, and
evidentiary questions, if constitutional, are due process
concerns.
ill.
ANY ERROR COMMITTED BY THE TRIAL COURT IN
EXCLUDING A DEFENSE WITNESS’S TESTIMONY WAS
HARMLESS WHERE THERE IS NO REASONABLE PROB-
ABILITY THAT THE WITNESS’S CUMULATIVE AND IN-
CREDIBLE TESTIMONY WOULD HAVE AFFECTED
THE JURY’S VERDICT.
The foregoing analysis establishes that the Compulsory
Process Clause does not guarantee the admissibility of de-
fense witness testimony, and that the Sixth Amendment
is therefore not implicated in this case. However, if this
Court finds to the contrary, the conviction can still be
affirmed. The State satisfies the Due Process test sug-
gested by this Court’s analysis in Pennsylvania v. Rit.
chie, 107 S.Ct. 989, 1001 (1987), and Rock v. Arkansas,
55 U.S.L.W. 4925, 4928 (1987). Moreover. the State can
even meet its burden, under Defendant’s analysis, of prov-
ing the alleged error “harmless beyond a reasonable
doubt.”’ Chapman vy. California. 386 US. 18, 24 (1967),
if exclusion of the defense testimony was error under a
Sixth Amendment analysis
- ‘ ‘ , . ) ‘ +s .
ly Roch ne slate § per se EXACIUSIOI tT nyDNnoOviIcaly fre
Iresned testimony Was found to have violated defendant's
right to testify. as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments. 55 U.S.L.W. at 4927. However
echoing language from the due process balancing test set
1IOrT”tn ( hambers V SS SSt; j 110 L) ‘ Zs. 295 (1973
this Court assessed the constitutionality of the Arkansas
statute Dy measuring the state § interest ll enforcing its
per se rule against defendant’s inter’ st in introducing the
testimony. 55 U.S.L W. at 4928. Hence, a due process Dal
incing test (see infra at 36 for expanded discussion of
Due Process balancing test) !s evidently applicable ever
mn the ntext of a Sixth Amendment violation. As dis
7
issed in Part 1\ Defendar annot demonstrate a dus
process violation in tne case a nar where his profiered
witness s testimony was not matemai and where the integ
mty\ ; ne tyujtl Pe KI Ng nNrocess A wuld nave hHeer}r an
nromised | idmission of his testimor
Should this (Court determine that the narmiess erro!
naAaliVSsisS Dets ndal | nas posited IS Tne corres | Lest. NOW’
ever, the State can meet that test too. Under Chapma?r
California, 386 U.S. 18 (1967), the question Is whether
there is a “reasonabie probability that the error affected
the ijurv’s verdict. 386 U.S. at 24. Here, the exclusion ol
_ ; - . ‘ +s + —_— -
Alfred Wormlevy’s testimony. if error at ail, was harmiess
bevond a reasonable doubt because, as explained i aetal
nfra at pp. 43-45, Wormiey's testimony was essentia
imuilative and not credibie according to the (ria lige
ing because Wormle\ ada noi witness lack Bridges
~— 7 wy ’
31
1\
DEFENDANT'S DUE PROCESS RIGHTS WERE NOT
INFRINGED BY EXCLUSION OF A DEFENSE WIT-
NESS'S TESTIMONY AS A SANCTION FOR ABUSE OF
THE DISCOVERY PROCESS, WHERE THAT WITNESS’S
TESTIMONY WAS CUMULATIVE AND NOT CREDIBLE.
WHERE THERE IS NO REASONABLE PROBABILITY
THAT THE OUTCOME OF THE TRIAL WOULD HAVE
DIFFERED HAD THE TESTIMONY BEEN ADMITTED,
AND WHERE THE INTEGRITY OF THE TRUTH-SEEK-
ING PROCESS WOULD HAVE BEEN COMPROMISED
BY ADMISSION OF THAT TESTIMONY
\. Scope Of Defendant's Due Process Right To Defend
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—32—-
testimony, and to be represented DY counsel.” 333 U.S
at 273.
In Chambers v. Mississippi, 410 U.S. 284 (1973), this
Court affirmed that the Due Process Clause guarantees
defendants the right to a fair opportunity to defend, but
held that the right may give way to a state's competing
interest in enforcing a rule designed to enhance the in
tegrity of the criminal trial process. Thus, this Court noted
in Chambers that
Of course, the right to confront and to cross-examine
is not absolute and may, in appropriate cases, bow
to accommodate other legitimate interests in the
criminal trial process. But its denial or significant
dimunition calls into question the ultimate integrity)
of the fact-finding process and requires that the com
peting interests be closely examined
110 U.S. at 295 (ctations omitted)
After weighing the legitimacy of the state hearsay and
voucher rules in Chambers against defendant's interests
in introducing the testimony, this Court concluded that
the defendant's interest outweighed the state’s. First, the
Mississippi voucher rule was deemed to be an inappropri
ate remnant of “primitive” English trial practice. 410 U.S
at 296. Second, while the state’s hearsay rule may have
been valid in general, the particular rejected hearsay tes
timony was 80 reliable and so critical to defendant's case
that the mechanistic application of the rule violated defen
dant’s due process rights. 410 U.S. at 302
Similarly, in Green v. Georgia, 442 U.S. 95 (1979), this
Court held that defendant’s Due Process mghts were in
fringed by a Georgia hearsay rule which operated to ex
clude reliable and highly relevant testimony defendant
,
sought to introduce in the sentencing phase of his capita
trial. 442 U.S. at 96-97
—33—
Notwithstanding Chambers and Green, this Court has
held in a variety of other circumstances that defendants
can be constitutionally precluded from introducing particu
lar testimony at trial.
Bb. Permissible Limitations On The Due Process Right To
Defend.
Even Chambers recognized that a defendant’s Four
teenth Amendment due process right to defend, which in
cludes the right to submit relevant information to the trier
of fact, can be qualified. 410 U.S. at 295. The admissibil
ity of defense testimony has long been subject to hearsay
rules, Mima Queen v. Hepburn, 11 U.S. (7 Cranch) 290
(1813), and testimonial privileges, McCray v. State of Illi
nois, 3386 U.S. 300 (1967).
Furthermore, this Court has made clear that a defen
dant’s right to introduce evidence may depend upon com
pliance with reasonable state rules. For example, in /saacs
v. United States, 159 U.S. 487, 489 (1895), the Court
upheld the trial court’s refusal to grant defendant’s re
quest for a continuance despite the absence of a material
defense witness. The Court noted that defendant had not
demonstrated that he had used due diligence in procur
ing the attendance of the witness. Further, defendant had
not shown that the witness’s testimony was non-cumula
tive. And ia Crumpton v. United States, 138 U.S. 361.
364-365 (° 1), the Court, noting that the witnesses’ testi
mony was apparently not material, upheld the trial court’s
refusal to order the government to subpoena three de
fense witnesses because it would have delayed the trial
More recently, this Court has specifically considered the
Due Process Clause before upholding state statutes limit
ing defendants’ right to submit information to the trier
of fact. For example, in Pennsylvania v. Ritchie, 107 S.Ct
—34-
GR9 (1987). this Court reviewed the constitutionality of a
state law precluding defendants from introducing privi
leged child abuse records. This Court recognized the state's
legitimate interest in enforcing its privilege rule, and held
that the interest could preclude disclosure in some, but
not all, circumstances. 107 S.Ct. at 1002. The Court con
cluded that preclusion of trial use of privileged informa
tion by a defendant would not violate due process prin
ciples if, before excluding the information, the trial court
undertook a materiality inquiry and determined that the
privileged information would probably not change the out
come of the trial
In Williams v. Florida. 399 U.S. 78 (1970), this Court
upheld an alibi notice statute which provided for exclu
sion of alibi witnesses if the defendant failed to give ad
vance notice of his alibi defense. The Williams Court
categorically rejected defendant’s argument that the alibi
notice requirement violated his due process and fair trial
rights, principally because that statute imposed a recip
rocal duty on the state to disclose alibi rebuttal witnesses
399 US. at 8] Compare Wardius 1 (Pregon, 412 US
470 (1973) (alibi notice statute held violative of Due Process
because statute did not provide for reciprocal discov ery)
Characterizing the state's interest in protecting against
eleventh-hour defense testimony “obvious and legitimate”
id.. the Williams Court concluded
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. We find ample room in that system, at
east as far as “due process is concerned, for tine
instant Florida rule, which is designed to enhance the
search for truth in the criminal trial by insuring both
the defendant and the State ample opportunity to in
vestigate certain facts crucial to the determinatior
of guilt or mnocence
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—37—
1. Illinois’ Interest In Enforcing Its Discovery Rules.
Illinois’ discovery rules and exclusion sanctions and
others like them® are designed to protect the truth-seek-
ing process. United States ex rel. Enoch v. Hartigan, 768
F.2d 161, 163 (7th Cir. 1985), cert. denied, 106 S.Ct. 1281
(1986). When a defendant is permitted to conduct a trial
by ambush, the truth-seeking process is distorted and the
ends of justice thwarted. Given that, the state’s interest
in enforcing the particular discovery rule at issue here
is strong. Yet, the lower courts have consistently under-
stated states’ interest in enforcing such rules, focusing in-
stead solely on the perceived impropriety of “‘penalizing”’
a defendant for his attorney’s misdeeds.
Whether a defendant has been unfairly prejudiced by
his attorney’s misconduct is only the beginning of the in-
quiry. The people of the State have the same interest as
a defendant in ensuring that a trial is fair. Therefore, the
harm to the defendant and the appropriateness of hold-
ing him accountable for his counsel’s conduct must be
weighed against the State’s interest in protecting the
fairness of the trial against the prejudice that results to
the State when discovery rules are flouted. Keeping in
mind that the dual purpose of our criminal justice is “that
guilt shall not escape or innocence suffer,”’ Berger v.
United States, 295 U.S. 78, 88 (1935), the overarching
question must be whether admission here of testimony
by a previously undisclosed and consequently uninvesti-
gated and untested witness detracts from the integrity
of the trial to the extent that the truth-seeking process
is irredeemably impaired. See generally United States v
Nobles, 422 U.S. 225 (1975). It is obvious that ambush
testimony detracts from the integrity of the trial, convert-
>
> See footnote 3 at p. 35 listing 36 discovery sanction statutes
and footnote 4 at pp. 35-36 listing 35 alibi notice statutes
—38—
ing the trial into a poker game rather than a search for
truth. Williams v. Florida, 399 U.S. 78, 82 (1970).
Both sides are damaged by admission of evidence with-
out prior notice. When prosecutors are given due notice
of the witnesses a defendant intends to call, prosecutors
ean fulfill their duty of seeking justice by interviewing
the witness, researching the witness’s background, and
investigating other sources of evidence uncovered by the
witness. With notice, the prosecution can determine if an
alibi is true so that the case should be dismissed or, on
the other hand, if it is necessary to find rebuttal wit-
nesses. In either case, the ends of justice are well served.
When prosecutors are not given advance notice of wit-
nesses, however, they cannot adequately test the veracity
of the witnesses’ testimony and the People’s right to a
fair trial is compromised.
The instant cause epitomizes this problem and highlights
the constitutional legitimacy of the Illinois discovery rules’
limitation on Defendant’s right to defend. Here, defense
attorney Van failed to divulge Alfred Wormley’s name
until after the jury was empanelled and the judicial process
underway, although Van clearly knew before that not only
that he intended to call Wormley to testify but also Worm-
ley’s address. Even after Van had disclosed Wormley’s
name, Van continued to impede the prosecution by fail-
ing to give the prosecution, until just prior to the offer
of proof, information he had that would enable the prose-
cution to initiate a background check on Wormley. (J.A.
15)
Had the trial court admitted Wormley’s testimony, the
prosecutors would have been put in the position of at-
tempting to cross-examine a witness whose testimony and
whose background the prosecutors knew nothing about,
as was Van’s undoubted intention. The point is not that
the prosecutors would have been inconvenienced or dis
—39—
advantaged although they would have been. The point is
that the truth-seeking process would have been impaired.
2. Effectiveness Of Less Severe Sanctions.
Another element that must be considered in determin-
ing whether it is constitutional to exclude testimony by
a proffered defense witness is whether imposition of a less
severe sanction would be appropriate and effective.
A trial court could almost always impose a lesser sanc-
tion than witness preclusion, as, for example, the grant-
ing of a continuance while prosecutors investigated last
nuinute evidence, but that sanction would not have been
appropriate here. Criminal trials do not take place in a
vacuum. Courts cannot indulge errant attorneys and in-
convenience jurors, prosecutors, and court officials by con-
stantly granting continuances. More importantly, a continu-
ance unnecessarily and unjustly disrupts the trial process.
If a continuance is granted after the prosecution has pre-
sented witnesses, then the testimony of those witnesses
is apt to grow “cold” as the jurors await the resumption
of the trial. The outcome of the trial may thus be affected.
Epstein, 55 J. Crim. L., Criminology & Police Sci. 29, 35-
36 (1964). The instant cause illustrates this danger. If the
trial court had granted a continuance, that continuance
would have come after two prosecution witnesses had tes-
tified. The testimony of those witnesses as to the fast-
paced incidents at issue was not so simple that the jurors
could have been relied upon to recall the important nuances
of the testimony with a high degree of accuracy. There-
fore, it is not enough to simply ask whether a lesser sanc-
tion 1s available. Rather, the question must be whether
a lesser sanction is appropriate and equally effective in
light of the surrounding circumstances.
As the trial court noted in the instant case. defense
counsel's dilatory conduct had already caused delay and it
—40—
promised to cause more delay yet. The trial court judge
commented to Mr. Van during Wormley’s offer of proof:
what am I going to do? I am interested in
finishing the case because I have got to try. I have
a fourth term case that I would like to start work-
ing on Friday and here I am.
Now, the Appellate Court will always say well, the
Judge should have given 24 hours or allowed the
State to talk to that witness ahead of time but that
still does not accomplish getting the State a B of I.
In 24 hours they could do it. Now I am sitting here
and the jury is cooped up in the jury room. They
are ready to go. I quit yesterday at 2:30. Am I go-
ing to send them home now without hearing anything
and just have a super waste of judicial time?
(J.A. 16-17)
In 1984 in the Circuit Courts of Cook County, alone,
330 judges presided over a total of 6,679,113 cases. Of
that number, the circuit courts disposed of 4,246,133 cases.
1984 Admin. Off. of the Ill. Cts.—1984 Ann. Report to
the Sup. Ct. of Ill. at 90-92, 177. Given these overwhelm-
ing numbers, the reality is that courts simply cannot on
a consistent basis indulge in the luxury of granting mid-
trial continuances.
Other lesser sanctions suggested by Defendant would
have been equally inappropriate and ineffective here. For
example, Defendant has suggested that the trial court
might have permitted prosecutorial comment on Van’s fail
ure to comply with discovery rules. Such a remedy is of
doubtful constitutionality.®
6 First, Washington v. Texas, 388 U.S. 14, 22 (1967) has expressly
disallowed a prori presumptions of untrustworthiness. Second,
comment on late testimony might violate due process by diminish
ing the State’s burden of proving guilt beyond a reasonable doubt
See Cool v. United States, 409 U.S. 100, 104 (1972)
~~ =
Moreover, the remedy of prosecutorial comment would
be inadequate. Comment on the discovery violation would
simply invite the jury to discount the witness’s testimony
to a random degree, without any basis for knowing the
extent of true impeachment that would have occurred, or
the area of testimony implicated by that impeachment,
had the prosecution been able to investigate the witness.
In an analogous situation in United States v. Nobles, 422
U.S. 225, 241 (1975), this Court said it perceived no “con-
stitutional significance”’ in a trial court’s decision not to
resort to the remedy of prosecutorial comment.
Defendant next suggests that the trial court might have
imposed contempt or criminal sanctions against him. (Dft’s
brief at 19.) However, the admission of defense witness
testimony at trial is not a reward to Defendant for hav-
ing complied with discovery rules; neither is imposition
of the preclusion sanction a punishment directed against
Defendant. Rather, preclusion is a means of ensuring the
integrity of the evidence presented at trial, and of guaran-
teeing a fair trial to both sides. It is difficult to imagine
how admitting the disputed testimony but imposing crim-
inal or contempt sanctions against Defendant or his coun-
sel would have served this end. Hence, this alternative
cannot be used as a substitute for preclusion.
In a related argument, Defendant asserts that the pre-
clusion sanction should be prohibited because “‘it places
the entire penalty on the defendant. . . .” (Dft’s Br. at
19) This argument rests on three erroneous assumptions.
First, it assumes that preclusion is a punishment of De-
fendant. Second, it assumes that a defendant should not
be bound by the acts of his attorney. Third, it assumes
that it would be appropriate merely to penalize Defen-
dant’s attorney for the discovery violation. All of these
assumptions are meritless.
—42—
First, as noted above, preclusion is not a punishment
of Defendant—or of his counsel—but is merely an aid to
the achievement of a fair trial for both the defendant and
the State.
Second, Defendant has no basis for severing himself
from the tactical choices of his counsel. Cf. Reed v. Ross,
468 U.S. 1, 13 (1984) (attorney cannot flout procedural
rules on client’s behalf, then seek habeas corpus relief in
federal court). See also Murray v. Carrier, 106 S.Ct. 2639,
2646 (1986) (in context of federal habeas corpus action,
defendant is bound by attorney’s procedural default unless
default was due to external impediment), Link v. Wabash
R.R. Co., 370 U.S. 626 (1962) (under civil law, defendant
cannot repudiate attorney’s conduct). Thus, Defendant
here is properly bound by his counsel’s conduct regarding
compliance with the discovery statute.’
Third, although the Illinois discovery sanction statute
has been designed in such a way that should the trial
court deem it appropriate, it can impose sanctions against
an attorney and still admit the challenged evidence,® as
-
The question of Vester Van's possible ineffectiveness 1s not a!
issue before this Court. This Court expressly declined to review
this issue, which Defendant raised in his petition for writ of cer
tiorari. (J.A. 44) However, it should be noted that Defendant has
not even attempted to show that his counsel “made errors so ser
ous that counsel was not functioning as the ‘counsel’ guaranteed
by the Sixth Amendment, and that counsel’s errors effective
ly deprived him of a fair trial.” Strickland v. Washington, 466 U.S
668, 687 (1984). Nor has Defendant overcome the “strong presump
tion” that Van's conduct, viewed overall, fell within the wide range
of reasonable professional assistance. Strickland, 466 U.S. at 689
® -[llinois Supreme Court Rule 415 provides in relevant part
Wilful violation by counsel of an applicable discovery rule or
an order issued pursuant thereto may subject counsel to ap
propriate sanctions Dy the court
Ill. Rev. Stat. ch. 110A, § 415¢@n) (1985
_—
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il iy CasOlna rwe il ' evlerminat .
1. Evidence Of Bad Faith In The Violation Of The
Discovery Rules
:
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ni? mie ‘Whe ) SITUALIOT wheres | VW rryriie a ty tin :
)
Vas inneren| npevevadie ind (2 \ ins cont! edi ta
ar TT Ter iT Mpossidi | iy Thi pre ~y oy iT ’ | Pat pate
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nvestigatiol Thus, while Van's bad faith s! id not I
— | cry pe Lhe pre ISO? yf W rrvrii¢ S Teslimor \ i?
nad ee . i? ipp! nriate ‘ e2rNnerTyt ; ‘ ” lat ng net ne)
.
VW rry e,\ x i eat ry ’ vas mcr l¢ 1 | Thnerel rs 1? . a
f admissio1
his 1a : " we aay t hye " : i? As orl . - y : an
sTate rgni ’ : “? ’ ryr's } ’ i? ’ ’ ?? 1a
» Reciprocal Nature Of State Rule
,
Illinois Supreme Court Rule 412 (1 it Stat
110A, § 412 (1985) imposes upon the State discover)
iwatlor Ss COTTNMenS irate Witt tL? st mip sec ip ly le!
lant by Rule 413. | nois dis eTy SLALUL@ES are a ra
ny med l~ate rs pr CA Vv sT PIS la misist ry | ~
7 1 i) :
CONCLUSION
Certiorat e dis! ed a p! le? grant
. | ii) : : iijsé rye ié ry : ; : rere Are? ;
at ’ ) ir? Nua ar’’ ’ ’ | ri ' an j ’ ry c“%
f alsé yf this Sixt Amendment fr YY ex ding Worn
lf this Court reaches the merits of Defendant's un
rocess CLAlTN) snould i revectleq
nowever
Hecause that { }
if defense evidence at tna!
i’
} Ver)
that Defendant's Sixth Amendment rights were violated
uarantee the admissibilit
should this Court find
the State can prove both that any error was harmiess be
yond a reasonable doubt since there is no reasonable prob
ibility that the exclusion of Alfred Wormley’s testimor
iffected the iry s verdk and that even if the exciusior
s evaluated under the due process balancing test, it wa
mit erry
vi reovel Det ndant ive process lain raised below
but abandoned here, fails because the State's interest i
enforcing its dis¢ ery rule a8 a means of assuring Dot!
Defendant and the People of Lilinois a fair tna itweilg!?
Defendant's nterest : mamitting eslLImMmo! Lnat
il lial . ind CRITE edll 1
| ’ | (ne | 4 ne eu | hve Stats ry pectiu rs
i? Fi) lndicial District
: « | j ‘
NEIL F. HARTIGAN
iiLi. WINE-BANKS *
ROMA J. STEWART
FICKINGER
MOAN
{,
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