# Respondents Brief — Taylor v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0979%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 400 ## Text No. 86-5963 ' ' i ; | the Cinited States Supreme Court of 0) | 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 +, , ’ : : > : > : ¢ : : lia ‘ ' : ‘ ri : ‘4 = : : : ; ‘ 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 { | ‘ : YPudala . . : | 1¢ Té¢ ~e vA . . ha idimiss f such te ~ ‘ e(] irc | re rie p { ; ‘ ‘ } eee’? \ . ine na j if } ‘ rig le Te ae cle . ‘ p ive ete ~é ence iil ed r f jues ~ : I¢ i Lun } { : . : ; idmiss lefens ‘ wt l¢ Va " wT ‘ | l¢ redera : : : iV f f \/ Zc ‘i 7 I a“ : 7 wz where ' V1 ‘ yu Py i ‘ 1d t Al ind i rea ine | nit ray Ney Wa elense eX ; iit Wi r nis ’ cle ‘ rig? i ‘ esses to g es Zt - Z i ST he ( Ke lie@ Was a rund : ries \ ‘ il¢ rif ; ‘ eed vs iy vt) ey U.S. 2 144% \ ‘ : ! ded tha | la } P vr lets ! wie is a —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 : ~ Z ~ 4 . , . = .*t : 4 . , . p47 " — si . ’ , il l¢ 7. v ’ 17 >) i? : | ’ : . : , rs : ‘ > vy > , ; - 4i 4 | ’ ry " : : ‘ — ” oF. i¢ ; " er +? : ; ‘ 1 . : : : : ~ > " : ;, . : ; . ; ‘ ; : ‘ 9 : ‘ ' oF } ' : ’ \ , : " ; ‘ ’ ; , , : : . i¢ ‘ ri go? : , he . , ’ - +} ; ‘ 7 ‘ , | aT cl rt ' . ‘ ’ ; . : ’ e . : . . ': , : - . — . . a iif " , | ; P ; . ‘ ae | | : : ; \ . 3 ’ | : ; ' : ™ J * > . > rat SF - ‘a ' | ™ ~ rs ~ " ' , ' , ” " x ' ww S A vs . 14 . aS ™ Mi a Vi ' ; , . oF q ; \ . - ' ; | , ; ; dal, ve ; * > : ) : " : . . ; ‘ , 4 Imig . . whut ims , . . _ : . 1-2 7 Din " : ’ wr , 'y : ; : . ; ve +. : , ; : 7 > ; : La >» . - . ; . ’ vv im 7 " “i J . ‘5 4 ws Ti , " — , . _ » ~ ‘ 4 , : ; 7 ' ‘ 7 i» | ; ‘ ~ . Z ; : ‘ : e : " : ‘ : ’ ‘ | _ ; ; . i. _ : ¢’*t’ k ’ ~ 4 - : ts | : : ‘ 7 ‘ , , fis . ‘ : : ; : by ty y a . : | . . : : 1.4 ; \ 4 : Vi . . im | ty " ~ : im) : ’ + " t} r\ rs : : r i? = " : ; > + ‘ 7 I™M4 ; : > As J ‘ - 7 7 : brs " + = s™ ot . " : . * . : a7 v7 . : ~ : ~ : ; : ‘sf . —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 _— A : ’ ’ , a . _ : ¥ ’ — 2 ie. . 4 i i | led Pe . . a it * : iil : . . + . ++ . ‘ . . rial to merely sanction Mr. Van. Admitting the testimor , + . +} +} p ™ »~* _ , ™ | +» " ’ erie ‘ ‘ ‘ e0Die — J ‘ +s : : a : ’ ’ ’ ; My \ ’ : : ’ ’ - ’ ’ ’ r\y : wrc> ‘ a } . a ; : . . 7 ss Zs : ot — — ot +1 + +) - Lua j ‘ la - itvu ; = i> | ‘ ‘ ‘ \ i? is / ives at Tr rs DejTia | ’ al _ ~ ’ ° y ’ I. , ’ ate ’ ~ ’ ’ ’ y ’ ’ ’ , : at sr avtt | = ‘ . i= , a : : ee " ‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ " y*? b cy : y " " . SLa Act st . I - . sin t iis . ¥ r\ : . ° ’ : ’ : . 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TT? , an \ : ‘ | _ ivf ' . ’ . . aL UA a . , — il Hs : Tr : A rT : LI it el . . el : : : . : ’ ’ | , : rs’ ; | . \ | aac rhe ri 7 —_ " . — ort ine ‘ = ‘ : A "Y , aay c eT rs; ryé TT \ ‘ | . il : ' Ll : : : : : : ; ’ | | , ' ‘ . 4 7 ‘ j : . , : \ , : J ry ; ’ " , : VV ' ” ++ : ’ ¢° 7 ’ : : : : . : : ; : ‘ . ey ‘ : , . : : . j : > ‘ ’ " , " : : . : : — : . ; : ' : . ni oe! . : | rye Ta | »f The rer ar rs : fnes ‘ : ry n\ i} aa, is : nar ’ r exan pit rig ry mur’ va 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 r? ” 7 Nerey ’ nine lé Vane Tr oaTiryvywyt : : : : 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 {, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0979%3A7. Public record. Not legal advice.