Petition for Writ of Certiorari — McGinnis v. Robinson

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54-1546) %

| é, Office -Supreme Court, U.S.

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FILED

No. aR 2B 1985

ALEXANDER L. STEVAS,

CLERK

In THE

Supreme Court of the United States

OctoBER Term, 1984

KENNETH McGINNIS and

NEIL F. HARTIGAN,

Petitioners,

VS.

ALAN D. ROBINSON,

Respondent.

~~

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NEIL F. HARTIGAN

Attorney General, State of Illinois

JILL WINE-BANKS

Solicitor General, State of Illinois

MARK L. ROTERT *

Assistant Attorney General

188 West Randolph Street, Suite 2200

Chicago, Illinois 60601

(312) 793-2570

Counsel for Petitioners

KennetH A. FEDINETS

Assistant Attorney General

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 32791—50—3-29-85)

i

QUESTION PRESENTED FOR REVIEW

Did the courts below fail to apply the presumption of

correctness required by 28 U.S.C. § 2254(d) to the Illinois

appellate court’s finding of fact that it was respondent

who was filmed on videotape by a concealed camera dur-

ing a drug sale, where proper application of the presump-

tion would have led to a finding that the constitutional

errors were harmless beyond a reasonable doubt.

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ... i

TABLE OF AUTHORITIES ............+.+-- iii

OPINIONS BELOW ............cceecceeeeees 1

JURISDICTION ....cccccccccccsscccvcvccccce 2

STATUTE INVOLVED ...........eceeeeeeees 2

STATEMENT OF THE CASE .............+: 4

REASONS FOR GRANTING CERTIORARI:

THE COURTS BELOW FAILED TO APPLY

THE PRESUMPTION OF CORRECTNESS RE-

QUIRED BY 28 U.S.C. § 2254(d) TO THE ILLI-

NOIS APPELLATE COURT’S FINDING OF

FACT THAT IT WAS RESPONDENT WHO

WAS FILMED ON VIDEOTAPE BY A CON-

CEALED CAMERA DURING A DRUG SALE,

WHERE PROPER APPLICATION OF THE

PRESUMPTION WOULD HAVE LED TO A

FINDING THAT THE CONSTITUTIONAL

ERRORS WERE HARMLESS BEYOND A

REASONABLE DOUBT ..........-.seeeees 11

CONCLUSION .....ccccccccccccccccccccccess 17

iii

APPENDIX

A— Order of the United States Court of Appeals

for the Seventh Circuit, dated January 14,

| PFT CTUTT PT TT Ce eT oUTT TTT TTT Teer App. 1

B— Order of the United States District Court

for the Central District of Illinois, dated

I FEE Wo Sn tadds Shh sbdocvccese App. 3

C— Order of the United States Court of Appeals

for the Seventh Circuit Denying Rehearing,

dated February 11, 1985 ............... App. 21

TABLE OF AUTHORITIES

Cases PAGE

Chapman v. California, 386 U.S. 18 (1967) .... 14

Maggio v. Fulford, 462 U.S. 111 (1988) ....... 11, 12

Marshall v. Lonberger, 459 U.S. 422 (1983) ... 11

People v. Robinson, 104 Ill. App. 3d 20, 482 N.E.

re ee dn vuinducseedevesece 9,12

Rushen v. Spain, _.. U.S. ____, 104 S.Ct. 453

DM itis verendienskettuesnndece wes 12, 15

Sumner v. Mata, 455 U.S. 591 (1982) ......... li

Sumner v. Mata, 449 U.S. 552 (1981) ...... 11, 12, 14

United States ex rel. Robinson v. McGinnis, 593

a me, SO GAR EL TORO 20 cc cwccccsce 1,13

Wainwright v. Witt, __. U.S. ___ , 105 S.Ct. 844

ib edith a habeehwe disdhonbdwesan ee 12

Statutes

i hock es cece bes cowenc ess e's passim

In THe

Supreme Court of the United States

Octoser Term, 1984

Petitioners,

ALAN D. ROBINSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

tO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The order of the United States Court of Appeals for

the Seventh Circuit is unpublished pursuant to Circuit

Rule 35. A copy of the order is attached to this petition

as Appendix A. The order of the United States District

Court for the Central District of Illinois is reported at

United States ex rel. Robinson v. McGinnis, 593 F. Supp.

175 (C.D. Ill. 1984). A copy of the order is attached to

this petition as Appendix B.

=§—

JURISDICTION

The court of appeals on January 14, 1985, affirmed the

district court’s grant of respondent’s application for a writ

a Petition for Writ of Certiorari. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254()).

STATUTE INVOLVED

(1) that the merits of the factual dispute were not

resolved in the State court hearing;

(2) that the factfinding procedure employed by the

Bisto court wan ust adsqecie ty Giiedl 6 an eal Sa

Bt HH

ita

23,

Nh

any

332 HH

—4—

STATEMENT OF THE CASE

A. State Court Proceedings.

Respondent, Alan D. Robinson, on January 8, 1980, was

charged by information filed by the Knox County Illinois

State’s Attorney with the offense of unlawful delivery of

a controlled substance in that on November 13, 1979, he

knowingly and unlawfully delivered to Ronald Guerrero

30 grams or more of a substance containing cocaine in

violation of Ill. Rev. Stat. ch. 56%, § 1401(aX2). On July

ry order was entered by the

circuit court, which provided in part:

On

> 2

6. If the defendant intends to prove an alibi,

spetitie intimation 20 to tp pinse stese So may

tains he was at the time of alleged offense.

Respondent filed, on October 3, 1980, a discovery re-

sponse which stated in part:

1. Defendant claims he is not guilty and his defenses

are as follows:

a. Not guilty beyond a reasonable doubt.

=f

b. The Defendant was, at the time of the alleged

offense herein, at the following location:

Peoria, Illinois

ec. The names and last known addresses of persons

the Defendant intends to call as witnesses:

1. Thomas B. Esten, Jr., My eps of Law En-

forcement, Illinois. Prior criminal convic-

tions are wn, memoranda and reports already

available to State.

2. Mr. Gill, Western Illinois University, Macomb,

Illinois.

3. Mr. John Stringer, 444 South Stewart Robert,

Creve Coeur.

The proof of service indicated that respondent’s discovery

response was served on the Knox County State’s Attor-

ney on October 3, 1980, at 3:00 p.m.

On the day of trial, October 6, 1980, defense counsel

sought to amend the discovery response to indicate re-

spondent was in Creve Coeur, Illinois, not Peoria, Illinois,

at the time of the offense. Counsel further advised the

court that “the defendant will testify . . . that he was,

on November 13th, 1979 at . . . 10:30 P.M. in the pres-

ence of Jim Henderson in Peoria, and that he was in the

presence of Mr. John Stringer of Creve Coeur, Illinois at

11:00 P.M.” The prosecution made a motion in limine to

exclude an alibi defense and the court granted the mo-

tion by stating: “I think if an alibi defense was going to

be used it should have been—even though the names of

the individuals are not known, I think the fact should have

been stated.”

Following the empanelling of the jury, opening state-

ments were made, the State called its first witnesses,

and the court recessed until October 7, 1980. On October

-

7, 1980, the case was continued until October 14, 1980,

because respondent was involved in an automobile

accident.

On October 10, 1980, respondent filed a Motion to Re-

instate wherein he moved for leave to prove an alibi

defense and to call witnesses identified on the notice of

alibi defense attached to the motion. The Notice of Alibi

Defense disclosed that:

1. On November 13, 1979, at the time of the alleged

offense herein, the Defendant was at the following

location: Creve Couer, [sic] Illinois.

2. The names and last known addresses of persons

the Defendant intends to call as witnesses in order

to prove this Alibi Defense are:

a. Jim Henderson, Room 35, Siesta Motel, Canton,

Illinois.

b. John Stringer, 445 S. Stewart, Creve Couer,

[sic] Illinois.

The proof of service disclosed that the Motion to Reinstate

and the Notice of Alibi were served on the Knox Coun-

ty State’s Attorney at 4:00 p.m. on October 10, 1980.

On October 14, 1980, the trial reconvened. After argu-

ment on respondent’s Motion to Reinstate the alibi de-

fense, the court denied the motion stating:

I am going to deny the motion. It was made on Fri-

day [October 10, 1980] at 4:00 p.m. I think it comes

too late again, and yesterday, ea ta was a holiday,

Columbus Day, so had the motion been filed or made

at the beginning of the continuance I might have con-

sidered it.

As part of the State’s case in chief, Ronald Guerrero

testified that he had arranged to purchase cocaine from

respondent on November 13, 1979. Guerrero informed

om

Dick Flanagan, an agent with the Department of Criminal

Investigation, of the purchase. On November 13, 1979,

respondent arrived at Guerrero’s residence between 10:30

and 11:00 p.m. Guerrero testified that when respondent

“came into the kitchen he pulled a bag out and showed

it to me and I looked at it . . . and I handed him the

money and he did some figuring on how much it was

going to be and how much I was getting back and he

counted the money and left.” Guerrero testified he paid

respondent $2,925 from the $3,000 he received from Dick

Flanagan. The transaction occurred in the kitchen and

lasted twenty minutes.

Kerry Galloway, an agent with the Illinois Department

of Law Enforcement, Division of Criminal Investigation,

testified that on November 13, 1979, he installed a video

camera in the residence of Ronald Guerrero at 13862 Monroe

Street in Galesburg. The camera was placed on a shelf

in the living room in the direction of the counter in the

kitchen. A video monitor and video recorder were placed

in the garage. The equipment was installed with Ronald

Guerrero’s permission. Galloway identified Plaintiff's Ex-

hibit 2 as the videotape that was made on the night of

November 13, 1979 at Guerrero’s residence. Galloway iden-

tified respondent as the subject he observed while view-

ing the video monitor in the garage.

Michael Townsend, special agent with the Illinois Divi-

sion of Criminal Investigation, testified that on November

13, 1979, he was present in Ronald Guerrero’s house with

agent Galloway and Guerrero. He viewed a video monitor

in the garage from ‘about 11:30 p.m. till 10 minutes to

midnight” with agent Galloway. While viewing the moni-

tor, he viewed respondent and Guerrero enter the kitchen.

Respondent placed a brown bag on the kitchen counter

call aa

anifes

and Guerrero opened the bag and removed a plastic

baggie containing a white powder substance. Guerrero

removed money from his shirt pocket and gave the money

to respondent.

A forensic scientist with the Illinois Department of Law

Enforcement, Steven Hampton, testified that he analyzed

the substance purchased by Guerrero from respondent.

In his opinion the substance was cocaine and weighed 41.6

grams.

At the conclusion of the State’s case in chief respon-

dent presented his defense. Cecil McDougall, employed

by the State of Illinois crime laboratory in Springfield,

Illinois, testified that he conducted a fingerprint com-

parison between a document containing unknown finger-

prints and a document containing respondent’s finger-

prints. The document containing the unknown fingerprints

was obtained from Guerrero on November 18, 1979 at his

residence. As a result of the comparison, McDougall could

not identify any fingerprints on the unknown document

as respondent’s fingerprints. However, respondent could

have handled the document and not left fingerprints.

Thomas Estep, a document examiner with the Illinois

Department of Law Enforcement, testified he made a

comparison between a questioned document containing

handwriting and a known document which contained re-

spondent’s handwriting. The questioned document was the

same document examined by Cecil McDougall. Based upon

his examination, “the questioned writing was too limited

to make any determination whether Alan Robinson wrote

the questioned exhibit.” Estep testified that there was

distortion in the known handwriting of respondent in that

“throughout much of the known writing it was slowly

written and rather unnatural in appearance.” From this

sail

observation, the witness concluded that “the known

writing was indicating possible distortion of the writer’s

natural writing habits.”

Respondent, testifying on his own behalf, denied ever

possessing cocaine while with Guerrero or delivering co-

caine to him. Respondent specifically denied being with

Guerrero at 1362 Monroe Street in Galesburg on Novem-

ber 13 or 14, 1979. Respondent stated he did not appear

on the videotape played to the jury. The State objected

when respondent sought to testify to where he was on

November 13, 1979. The court sustained the objection and

refused to allow respondent to testify that he was in

Creve Coeur, Illinois, at the time of the offense. Respon-

dent was allowed to testify that he was not at the crime

scene.

Following deliberations by the jury, a verdict of guilty

was returned. A judgment of conviction was entered and

the court sentenced respondent to twenty years imprison-

ment.

From a judgment of conviction, respondent appealed to

the Illinois Appellate Court, Third District. The court af-

firmed the conviction. People v. Robinson, 104 Ill. App.

3d 20, 432 N.E.2d 340 (3d Dist. 1982). The Illinois ap-

pellate court made the following findings with respect to

the issue of respondent’s identification:

Ronald Guerrero had been arrested on November 6,

1979, for selling % gram of cocaine, and he offered

to assist the police in return for leniency. The de-

livery was made by Robinson on November 13, 1979,

to Guerrero in his home in Galesburg, Illinois, and

was filmed on videotape by a camera previously in-

stalled by the police with Guerrero’s consent. The

camera was placed upon a living room shelf pointing

towards the kitchen. The film showed defendant prim-

we

arily.in profile, giving Guerrero a bag in exchange

for money. The price was $1,950 per ounce. During

the transaction, defendant stated that he might be

able to get some more... .

Id. at 22, 4382 N.B.2d at 343.

B. Federal Court Proceedings.

Upon exhausting state court remedies, respondent filed

an application for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 in the United States District Court for the

Central District of Illinois. On August 20, 1984, the dis-

trict court granted respondent’s application for habeas

corpus relief. The district court ordered that respondent

be discharged unless respondent is retried within 120

days. Petitioners appealed from the grant of the writ to

the United States Court of Appeals for the Seventh Cir-

cuit. The court on January 14, 1985, affirmed the judgment

of the district court in an unpublished order. Petitioners

filed on January 28, 1985, a Petition For Rehearing and

Suggestion For Rehearing En Banc. The court on Feb-

ruary 11, 1985 denied the petition for rehearing.

&

a

REASONS FOR GRANTING CERTIORARI

THE COURTS BELOW FAILED TO APPLY THE PRE-

SUMPTION OF CORRECTNESS REQUIRED BY 28 U.S.C.

§ 2254(d) TO THE ILLINOIS APPELLATE COURT’S FIND-

ING OF FACT THAT IT WAS RESPONDENT WHO WAS

FILMED ON VIDEOTAPE BY A CONCEALED CAMERA

DURING A DRUG SALE, WHERE PROPER APPLICA-

TION OF THE PRESUMPTION WOULD HAVE LED TO

A FINDING THAT THE CONSTITUTIONAL ERRORS

WERE HARMLESS BEYOND A REASONABLE DOUBT.

The Seventh Circuit’s order affirming the district court’s

grant of the petition for writ of habeas corpus represents

an erosion of this Court’s holding in Sumner v. Mata, 455

U.S. 591 (1982). In Sumner, this Court held that the

federal courts in habeas corpus proceedings must “show

a high measure of deference to the fact findings made by

state courts.” Jd. at 598. This holding was a reaffirmance

of the position taken by this Court in Sumner v. Mata,

449 U.S. 552 (1981).

This Court’s decisions in Swmner v. Mata were intended

to provide guidance to the lower federal courts as to how

the courts should implement the provisions of 28 U.S.C.

§ 2254(d), which provides in part:

In any proceeding instituted in a Federal court by

an application for a writ of habeas corpus by a per-

son in custody pursuant to the judgment of a State

court, a determination after a hearing on the merits

of a factual issue made by a State court of compe-

tent jurisdiction . . . evidenced by a written finding,

written opinion, or other reliable and adequate writ-

ten indicia, shall be presumed to be correct... .

This standard has been reaffirmed by this Court in Mar-

shall v. Lonberger, 459 U.S. 422 (1983), Maggio v. Fulford,

=

462 U.S. 111 (1983), Rushen v. Spain, __. U.S. __.,

104 S.Ct. 453 (1983), and most recently in Wainwright v.

Witt, __ U.S. ___., 105 S.Ct. 844 (1985).

In this case, the Illinois appellate court on direct ap-

peal made the following findings of fact with respect to

the issue of respondent’s identification, all of which are

entitled to section 2254(d)’s presumption of correctness:

Ronald Guerrero had been arrested on November 6,

1979, for selling 4% gram of cocaine, and he offered

to assist the police in return for leniency. The de-

livery was made by Robinson on November 13, 1979,

to Guerrero in his home in Galesburg, Illinois, and

was filmed on videotape by a camera previously in-

stalled by the police with Guerrero’s consent. The

camera was placed upon a living room shelf pointing

towards the kitchen. The film showed defendant prim-

arily in profile, giving Guerrero a bag in exchange

for money. The price was $1,950 per ounce. During

the transaction, defendant stated that he might be

able to get some more... .

People v. Robinson, 104 Ill. App. 3d 20, 22, 432 N.E.2d

340, 343 (3d Dist. 1982).

“Section 2254(d) by its terms ... applies to factual

determinations made by state courts, whether the court

be a trial court or an appellate court.” Swmner v. Mata,

449 U.S. 589, 547 (1981). Consequently, the finding of fact

that respondent was filmed in Guerrero’s residence giv-

ing Guerrero a bag in exchange for money should have

ended the matter and resulted in the denial of respon-

dent’s application for a writ of habeas corpus. Neverthe-

less, despite the statutory language and this Court’s in-

terpretation thereof, the United States District Court for

the Central District of Illinois ignored the Illinois court’s

findings of fact and substituted its findings for those of

the state court:

= =

This court has reviewed the videotape and finds that

standing alone, the tape is not conclusive that Alan

D. Robinson is the person shown on the tape. In fact,

without corroborating testimony from other witnesses

it would be impossible to conclude that the person

seen in the videotape was the petitioner, Alan D.

Robinson.

United States ex rel. Robinson v. McGinnis, 593 F. Supp.

175, 184 (C.D. Ill. 1984).

The district court’s disregard for section 2254(d) was not

rectified by the court of appeals. Indeed, it is evident from

the court of appeals’ order that that court too failed to

show the requisite measure of deference to the fact find-

ings made by the Illinois appellate court, and did not

apply the presumption of correctness which is mandated

by the statute. Indeed, the court’s order does not refer

to section 2254(d) or give any other indication that sec-

tion 2254(d) was considered:

The exclusion of Robinson’s alibi defense at trial

violated his right under the fifth, sixth and fourteenth

amendments to testify on his own behalf. There is

no evidence that Robinson suppressed his alibi evi-

dence duriryg pretrial discovery to obtain any tactical

advantage. Even if the presentation of Robinson’s

alibi defense was a surprise to the state, the trial

court could have granted a continuance to enable the

state to investigate the alibi. Preclusion was an in-

appropriate remedy in this case. Alicea v. Gagnon,

675 F.2d 913, 924 (7th Cir. 1982). Since there is a

reasonable possibility that the trial court’s ruling af-

fected the jury’s verdict, it cannot be deemed harm-

less error. Allison v. Gray, 603 F.2d 633, 634 (7th

Cir. 1979).

(Appendix A at 1-2) This failure is clearly at odds with

this Court’s pronouncement that “{wJhen Congress pro-

vided in § 2254(d) that a habeas court could not dispense

="

with the ‘presumption of correctness’ embodied therein

unless it concluded that the factual determinations were

not supported by the record, it contemplated at least some

reasoned written references to § 2254(d) and the state-

court findings.” Sumner v. Mata, 449 U.S. 539, 549 (1981)

(emphasis ‘in original). As important, this Court further

held in that case that “{iIn order to ensure that this man-

date of Congress is enforced . . . a habeas court should

include in its opinion granting the writ the reasoning

which led it to conclude that any of the first seven fac-

tors were present, or the reasoning which led it to con-

clude that the state finding was ‘not fairly supported by

the record.’” Id. at 551.

It is clear that the Court of Appeals for the Seventh

Circuit failed to observ. the limitations on its authority

specifically set forth in 28 U.S.C. §2254(d). From a

reading of the court’s order, it is clear that the court could

not have even implicitly relied on paragraphs 1 through

7 of section 2254(d) in reaching its decision to affirm the

district court. Moreover, it is impossible to tell whether

the court relied on paragraph 8 in that its order gives

no indication that section 2254(d) was even considered.

This case requires application of the corrective process

which only the grant of the petition for writ of certiorari

can now provide. The Seventh Circuit has ignored the reli-

ability of the fact finding process of the Illinois courts and

has not used the facts so found to determine whether the

alleged constitutional errors were harmless beyond a rea-

sonable doubt.

Petitioners maintain that the findings of fact were suf-

ficient to establish beyond a reasonable doubt that the

alleged errors were harmless. Chapman v. California, 386

U.S. 18, 24 (1967). In deciding the issue of harmless error,

"a

the federal courts may give different weight to the facts

as found by the state court and may reach a different

conclusion upon consideration of the legal standard, but

the questions of fact that underlie this ultimate conclu-

sion are governed by the statutory presumption of 28

U.S.C. § 2254(d). Whether respondent was recorded by the

video equipment at Guerrero’s residence is a question of

fact as to which the statutory presumption applies. Thus,

the court of appeals failed to afford the requisite presump-

tion of correctness to the state court findings in apply-

ing the doctrine of harmless error to the alleged errors.

As the court completely failed to state with any spe-

cificity the reasons upon which to predicate their refusal

to accord the presumption of correctness to the express

state court findings or to even acknowledge such require-

ment, further review is warranted so as to evaluate the

extent to which compliance with the requirement of 28

U.S.C. § 2254(d) is required. Had the court of appeals

applied the presumption of correctness to the findings of

_ fact which conclusively established respondent was at

Guerrero’s residence at the time of the sale of cocaine,

the court would have necessarily found that the error was

harmless beyond a reasonable doubt. Rushen v. Spain,

anaes , , 104 S.Ct. 453, 457 (1983). Based

upon a finding of fact that respondent was filmed on

videotape a more compelling case of guilt would be diffi-

cult to imagine.

As in Sumner v. Mata, this case presents an important

question regarding the role to be played by the federal

courts in the exercise of habeas corpus jurisdiction. By

the decision of the court of appeals it is clear the court

failed to accept this Court’s leadership in the area of

federal-state relations.

=i§—

A writ issued upon the application of a state prisoner

under 28 U.S.C. § 2254 in effect overturns either the fac-

tual or legal conclusion reached by the state-court system

under whose judgment the prisoner stands convicted. Ad-

herence to the requirements of 28 U.S.C. § 2254(d) will

ensure that the writ will only issue when that result is

ultimately required. However, this Court is only left to

guess as to the reasons for granting habeas corpus relief

where the Seventh Circuit neither applied the presump-

tion of correctness nor explained why it had not notwith-

standing the provisions of section 2254(d). By its decision,

the Seventh Circuit affirmed the district court’s findings

of fact as to the identity of the seller of cocaine even

though they were at odds with the findings made by the

Illinois appellate court. Consequently, the court reached

a conclusion that the alleged constitutional errors were

not harmless beyond a reasonable doubt and did so on

the basis of fact findings that were clearly in conflict with

those made by the Illinois appellate court. For this Court

to allow the decision of the court of appeals to stand

would deprive the statutory presumption of correctness

of any significance in habeas corpus litigation.

= =

CONCLUSION

For the above-advanced reasons, a writ of certiorari

should issue to review the judgment and order of the

United States Court of Appeals for the Seventh Circuit.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

JILL WINE-BANKS

Solicitor General, State of Illinois

MARK L. ROTERT *

188 W Randolph Street, Suite

est 2200

, Illinois 60601

(312) 2570

Counsel for Petitioners

Kennetu A. Fepinets

Assistant Attorney General

Of Counsel * Counsel of Record

App. 1

APPENDIX A

[UNPUBLISHED ORDER Not To Be Cirep PER Circuit RULE 35)

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 7, 1984

January 14, 1985.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. JESSE E. ESCHBACH, Circuit Judge

Hon. Ropert A. GRANT, Senior District Judge*

UNITED STATES OF AMERICA ex rel. ALAN D. ROBINSON,

Petitioner-Appellee,

No. 84-2515 vs.

KENNETH MCGINNIS and NEIL F. HARTIGAN,

Respondents-Appellants.

Appeal from the District Court

for the Central District of Illinois.

Harold A. Baker, Judge.

* Honorable Robert A. Grant, Senior District Judge for the

Northern District of Indiana, is sitting by designation.

App. 2

ORDER

The State of Illinois appeals from a decision of the dis-

trict court for the Central District of Illinois granting a

writ of habeas corpus to petitioner Alan D. Robinson. For

the reasons set forth below, we AFFIRM the decision of

the district court.

The trial court excluded Robinson’s alibi defense because

it found that Robinson failed to provide the State with

specific alibi information within a “reasonable time,’”’ as

required by the Illinois notice-of-alibi statute, Ill. Rev.

Stat. ch. 110A, § 413(d).

The exclusion of Robinson’s alibi defense at trial violated

his right under the fifth, sixth and fourteenth amendments

to testify on his own behalf. There is no evidence that

Robinson suppressed his alibi evidence during pretrial

discovery to obtain any tactical advantage. Even if the

presentation of Robinson’s alibi defense was a surprise

to the state, the trial court could have granted a continu-

ance to enable the state to investigate the alibi. Preclusion

was an appropriate remedy in this case. Alicea v. Gagnon,

675 F.2d 9138, 924 (7th Cir. 1982). Since there is a reason-

abie possibility that the trial court’s ruling affected the

jury’s verdict, it cannot be deemed harmless error. Alli-

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

Conclusion

The decision granting Robinson a writ of habeas cor-

pus is AFFIRMED, and that he shall be discharged from

custody unless retried for these offenses within 120 days

herefrom.

App. 3

APPENDIX B

[Filed August 20, 1984]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

UNITED STATES ex rel. ALAN D. ROBINSON,

Petitioner,

No. 83-2433 vs.

KENNETH MCGINNIS, et al.,

Respondents.

ORDER

This matter is before the court on the petitioner’s mo-

tion for summary judgment. The motion presents two

issues: (1) Whether it is constitutionally permissible in a

state criminal prosecution for the trial judge to refuse to

permit material alibi witnesses to testify because the

defense failed to give timely notice of its intended alibi

defense, and (2) whether it is constitutionally permissible

in a state criminal prosecution for the trial judge to refuse

to allow the defendant to testify concerning his where-

abouts on the date in question because the defense failed

to give timely notice of its intended alibi defense.

I. PROCEDURAL POSTURE

The petitioner, Alan D. Robinson, an inmate at the

Logan Correctional Center, filed this action seeking a writ

App. 4

of habeas corpus pursuant to 28 U.S.C. § 2254. Follow-

ing a jury trial in the Circuit Court, Ninth Judicial Cir-

cuit, Knox County, Illinois, the petitioner was convicted

of delivery of more than thirty (30) grams of cocaine in

violation of Ill. Rev. Stat. ch. 56%, § 1401(aX2) (1979).

Following his conviction, the plaintiff was sentenced to

a term of imprisonment of twenty years.

The petitioner filed an appeal from the judgment of con-

viction to the Appellate Court of Illinois, Third District.

On appeal, the petitioner raised eight separate grounds

for reversal. The Appellate Court rejected each of the pe-

titioner’s claims and affirmed his conviction. People v.

Robinson, 104 Ill. App.3d 20, 482 N.E.2d 340 (1982). Sub-

sequently, the petitioner filed this petition for writ of

habeas corpus, alleging that he was denied his constitu-

tional right to testify, to present a defense, and to call

witnesses on his own behalf. See Petition at p. 5.

II. STATEMENT OF FACTS

The relevant facts are as follows: On November 6, 1979,

Ronald Guerrero was arrested for selling one-half gram

of cocaine. He offered to assist the police in setting up

a drug buy with his dealer in return for leniency. On

November 138, 1979, the petitioner allegedly delivered co-

caine to Guerrero in his home in Galesburg, Illinois, and

was filmed on video tape by a camera previously installed

by the police with Guerrero’s consent. The camera was

placed upon a living room shelf pointing towards the kit-

chen. The film showed a man, allegedly the petitioner,

primarily in profile, giving Guerrero a bag in exchange

for money. During the transaction, the seller stated that

he might be able to get some more cocaine for Guerrero.

On December 5, 1979, pursuant to a court order, the

App. 5

police installed a wire tap on a hotel telephone in Gales-

burg from which Guerrero called the petitioner three

times to try to arrange a purchase of cocaine. The trans-

action, however, was never completed.

The petitioner was charged with delivery of cocaine on

January 8, 1980, but he was not arrested until June of

1980. Subsequently, the petitioner was ordered to file an

answer to the State’s pre-trial discovery request by

August 5, 1980. The petitioner filed no response until 4:00

p.m. on Friday, October 3, at which time he submitted

a discovery answer indicating that he would present an

alibi defense consisting of evidence that he was in Peoria

at the time of the offense and that he would call John

Stringer as an alibi witness. The petitioner’s trial was

scheduled for October 6, 1980, three days after the plain-

tiff submitted his discovery answer. Immediately prior to

trial, defense counsel explained that he had first learned

Stringer’s name on October 2. He also added that the pe-

titioner had been in a different town, Creve Coeur, the

night of the offense, and not in Peoria as previously

stated. Defense counsel stated that Stringer was in the

courthouse and available to the State for an interview.

The trial court, however, granted the State’s motion in

limine and excluded the alibi defense on the grounds that

it was not timely filed and that the State would not have

an adequate opportunity to investigate the asserted alibi.

The trial began on Monday, October 6, but was recessed

for one week when the petitioner was injured in an auto-

mobile accident on October 7, 1980. Late on Friday, Oc-

tober 10, defense counsel filed a motion to reinstate the

alibi defense and listed a second witness. The court denied

the motion as untimely, and the trial was reconvened on

Tuesday, October 14.

App. 6

III. DISCUSSION

Summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and ad-

missions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a mat-

ter of law.” Fed. R. Civ. P. 56(c). In determining whether

summary judgment is proper, a court ordinarily must view

the record in the light most favorable to the party op-

posing the motion, drawing all inferences most favorable

to that party. Rose v. Bridgeport Brass Co., 487 F.2d 804,

808 (7th Cir. 1973).

A. EXCLUSION Or DEFENDANT-PETITIONER’S WITNESSES

Illinois Supreme Court Rule 415g) grants trial courts

the authority to exclude evidence if it is brought to the

attention of the trial court that a party has failed to com-

ply with an applicable discovery rule. Ill. Rev. Stat. ch.

110A, § 415(gXi) (1979). The Illinois Supreme Court held

in People ex rel. Carey v. Strayhorn, 61 Ill.2d 85, 329

N.E.2d 194 (1975), that the Supreme Court Rules for dis-

1 The Illinois notice-of-alibi statute, Ill. Rev. Stat. ch. 110A,

§ 413(d) provides that:

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

tion by the State, defense counsel shall inform the State of

any defenses which he intends to make at .. . 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 in-

tends to call as witnesses . . .; and

(iii) And if the defendant intends to prove an alibi, specific

information as to the place where he maintains he was at the

time of the alleged offense.

App. 7

covery in criminal cases, including Rule 415, apply to the

defense of alibi.

It is well-settled that the right of an accused in a crim-

inal trial to present witnesses in his defense is a funda-

mental right guaranteed by the Sixth Amendment of the

United States Constitution and made applicable to the

states by the Due Process Clause of the Fourteenth

Amendment. Washington v. Texas, 388 U.S. 14 (1967);

Chambers v. Mississippi, 410 U.S. 284 (1973). In the pres-

ent case, the State trial court precluded the defense from

calling alibi witnesses as a discovery sanction. The IIli-

nois Appellate Court affirmed the trial court and stated:

Whether alibi evidence should be excluded in a par-

ticular case is, of course, a matter for the discretion

of the trial judge who must weigh all applicable fac-

tors in order to reach a just result. Some cases have

stated that it was error, in the circumstances there

present, to exclude alibi witnesses if the witnesses

were disclosed in time for the prosecution to inter-

view them before they testified. However, there are

other cases which have held that exclusion of alibi

witnesses was an appropriate sanction, justified by

the facts and circumstances of those cases. (Citations

omitted.)

People v. Robinson, 104 Ill. App.3d at 23.

In People v. Williams, 55 Ill. App.3d 752, 370 N.E.2d

1261 (1977), the Illinois Appellate Court reversed the con-

viction of a defendant for rape and burglary, where all

defense witnesses were excluded from testifying because

the defense had failed to comply with the discovery pro-

cedures in Ill. Rev. Stat. ch. 116, § 415(g) (1971). In

Williams, defense counsel became involved as counsel for

the defendant one week before the trial with the under-

standing that the case was to be dismissed by the State

due to the difficulty the State had in locating the com-

App. 8

plaining witness. As a result, the defense counsel claimed

that he did not know who his witnesses would be. More-

over, the State had included one of the defendant’s alibi

witnesses on its list of witnesses even though the State

did not call that witness to testify. The defense counsel

tendered no list of alibi witnesses to the state prior to

trial; however, counsel offered to let the State interview

all defense witnesses before they testified. Williams, 55

Ill. App.3d at 757

In reversing the conviction, the Appellate Court held:

Even without the presence of these factors, we would

still hold that the imposition of the particular sanc-

tion in the case at bar was an improper exercise of

the trial judge’s discretion. The exclusion of all the

defense witnesses effectively deprived defendant of

an opportunity to present a defense. Such a result

offends our system’s fundamental tenets of due proc-

ess. We doubt that the Committee, in drafting our

Supreme Court rules, intended this particular sanc-

tion to be applied where it would result in the com-

plete elimination of an accused’s right to present a

defense. Rather, the trial judge could have applied

a sanction that was not as harsh and would still have

promoted the enforcement of our discovery process.

(Emphasis supplied.)

55 Ill. App.3d at 757-58.

Likewise, in People v. Osborne, 114 Ill. App.3d 433, 451

N.E.2d 1 (1983), the Illinois Appellate Court held that the

sanction of excluding testimony of alibi witnesses was ex-

treme and constituted error. In Osborne, the defendant

was convicted of two counts of forgery and one count of

misdemeanor theft. The State’s evidence showed that the

defendant and three confederates obtained checks belong-

ing to a Dennis Goodwin. Between April 24, 1982, and

April 26, 1982, the defendant signed Goodwin’s name to

App. 9

two of the checks and one of his confederates cashed the

checks. The proceeds were then divided among the de-

fendant and two of his partners. One partner, Bowen, was

the principal witness against the defendant and testified

that she had pleaded guilty to attempt theft and had re-

ceived probation for her part in the offense. Forgery

counts against her were dismissed. 114 Ill. App.3d at 434.

Subsequently, informations were filed against Osborne.

He was later arraigned, and the cause was set for jury

trial. On June 4, 1982, the State filed its motion for dis-

covery. On July 16, 1982, the defendant filed his answer

to the State’s motion for discovery and in it raised an

alibi defense: “2. Defendant did not commit the offenses

as charged, and at the time of the alleged offenses, he

was at Pierson Construction Company, Quincy, IIlinois.”’

114 Ill. App.3d at 435. The defendant also stated:

6. Defendant attaches a copy of his time sheet for

employment at Pierson Construction and a copy of

his W-4 form is not in possession of defense counsel

at this time, but will be provided when that docu-

ment is received.

7. Defendant intends to use an alibi defense, name-

ly that he was, at the time of the alleged offense,

at the location of Pierson Construction Company near

Quincy, Illinois.

114 Ill. App.3d 435.

The defendant’s trial began on August 19, 1982. How-

ever, it was not until August 16—three days prior to

trial—that the defendant filed a supplement to his dis-

covery answer in which he stated that he intended to call

as a witness Diane Dade Buckner. At the conclusion of

the State’s evidence, the prosecutor successfully moved

to exclude Buckner as a witness. In ruling to exclude

Buckner, the trial judge stated:

App. 10

. .. I don’t believe that the response to the State’s

motion for discovery complies with the rule, because

they don’t give a specific place. They name an em-

ployer, but that is all.

Accordingly, I’m going to sustain Mr. Cameron’s

[State’s Attorney] motion to exclude the testimony

of Miss Buckner as it relates to accompanying the

defendant to the Quincy Soybean Company on the

day of April the 26th of 1982.

114 Ill. App.3d at 436.

The Illinois Appellate Court stated that the disclosure

of an alibi defense by a defendant “is almost precisely

analogous to answering an interrogatory in a civil case.

The remedy for an incomplete or evasive answer is well

known: an objection to the answer and a motion to make

it more definite and certain.” 114 Ill. App.3d at 436. Argu-

ing that the purpose of the notice of alibi statute was to

avoid vague generalities which would be humanly impossi-

ble to investigate, the court continued:

In the instant case the information furnished

delineated prima facie a specific location within the

knowledge of the defendant and if the State’s Attor-

ney found it inadequate, it was his duty to seek clari-

fication. Under Supreme Court Rule 415(b) (87 I1l.2d

R. 415(b)) there is a continuing duty to disclose on

both parties. We believe there is a corollary duty on

both parties to seek clarification of disclosure which

they deem i uate or evasive. In this context the

instant case is unlike People v. Braxton (1980), 81 Til.

App.3d 808, 401 N.E.2d 1062, and People v. Short,

(1978), 60 Ill. App.3 640, 337 N.E.2d 389, both cited

by the State for its position. In each of those cases

the defendant completely failed to notify the State

of any asserted alibi prior to trial.

App. 11

.. . It is a fundamental right of a defendant to pre-

sent his theory of the case, no matter how over

blown or specious it might appear.

114 Ill. App.3d at 437.

Federal courts have also held that discovery rules

similar to the Illinois notice-of-alibi statute cannot be en-

forced against a noncomplying defendant by precluding

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

Cir. 1983),? the trial court refused to permit the petitioner

to call certain defense witnesses because he had not listed

their addresses on his pre-trial list. Listing defense wit-

nesses was required by State discovery rules. The court

noted that it was unclear whether the Sixth Amendment

strictly prohibited witness preclusion as a discovery sanc-

tion or rather required an examination of all attendant

circumstances. 728 F.2d at 1185-87. Applying a balancing

test, the court held that the trial court had committed

constitutional error. One of the defendarit’s witnesses was

a key witness on a crucial issue in the case. The court

further found that the prosecution would not have been

prejudiced by the witness’ testimony since the prosecu-

tion already had the witness’ name and lacked only his

address. 728 F.2d at 1189. But assuming arguendo that

the defendant’s noncompliance was willful, the court stated

that the preclusion of witnesses was “too high a price to

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

Hackett v. Mulcahy, 493 F.Supp. 1329 (D.N.J. 1939).

3 The Fendler balancing test begins with a presumption against

the exclusion of witnesses and then considers the following fac-

tors: (1) was the defendant’s failure to comply with the discovery

order “‘willfu)”; (2) how important was the witness; and (3) was

the possible prejudice (to the prosecution) substantial enough to

overcome the defendant’s Sixth Amendment right to present a

defense? 728 F.2d at 1188-90.

App. 12

pay to exact for failure to comply with discovery orders

issued pursuant to general discovery rules.” 728 F.2d at

1190.

Finally, in United States ex rel. Enoch v. Lane, 581 F.

Supp. 423 (N.D. Ill. 1984), a district court held that an

Illinois state court denied a defendant convicted of rape

and aggravated kidnapping due process and a fair trial

by precluding the testimony of a material defense wit-

ness whose name had not been included on the pre-trial

discovery list. The witness’ identity was first learned by

defense counsel after the State had rested. The excluded

witness, Patricia Griffin, would have testified about an

altercation she had observed between the victim of the

alleged rape and a man other than the defendant-peti-

tioner which took place on the morning of the alleged

rape. In holding that the exclusion of Griffin’s testimony

was unconstitutional, Judge Marshall reasoned:

. [A]s we have noted, there is no evidence that

petitioner willfully withheld Griffin's name from ~

court or the rosecution. ioe was no

presump

sion of otherwise robative and defense

evidence. See Wi v. Texas, 388 U.S. at 19,

87 S. Ct. at 1923; Fi " 798 F 2d at 1188 We hold

that the state court committed constitutional error

in precluding Griffin’s testimony. (Citation omitted.)

Enoch, 581 F. Supp. at 432.

App. 13

In the case at bar, it is the petitioner’s position that

on October 3, 1980, defense counsel filed his answer to

the State’s motion for discovery, indicating that petition-

er’s defense would be “that he could not be proven guilty

of the alleged offense beyond a reasonable doubt in that

Petitioner was in Peoria, Illinois, at the time of the of-

fense (C. 136).” Petitioner’s Memorandum in Support of

Summary Judgment Motion, p. 6. The petitioner’s discov-

ery answer named three prospective witnesses, including

John Stringer.

The trial began on October 6, 1980, and prior to jury

he intended to present. (Record 12-13.) At that time,

defense counsel states that he had just learned of John

Stringer’s name on October 2, 1980, and that Stringer was

in the courthouse available to the State for an interview.

(R. 12.) Counsel also corrected the location of the alibi

to show that the petitioner was in Creve Coeur, Illinois,

rather than Peoria, Illinois. (R. 12-13.) Counsel represented

that the petitioner, himself, would testify as to the alibi

defense. (R. 14.) Finally, defense counsel disclosed

Stringer’s prior conviction in accordance with Illinois Su-

preme Court Rules.

Defense counsel also stated that Jim Henderson of Can-

ton, Illinois, of whom counsel had just learned that morn-

ing, would also testify as to the petitioner’s whereabouts

on the date in question. (R. 13.) Counsel explained that

August, 1980, but had just recently located them. (R.

17-18.) Despite defense counsel’s representations to the

court, the State moved to exclude the presentation of alibi

testimony on the grounds of untimeliness and the trial

court granted the motion. (R. 21.)

App. 14

The petitioner argues that there is nothing in the record

of the proceedings to indicate that the petitioner’s failure

to give timely notice of his intended alibi defense was

“willful and deliberate’. The petitioner argues that no

such finding was ever made by the trial court in consider-

ing whether to permit or to exclude the alibi defense. “In

fact, the only finding made was that the notice was ‘late’

and the defense was excluded. (R. 20-21).” Petitioner’s

Memorandum, at p. 7. After reviewing the transcript of

the petitioner’s trial and the supporting documents filed

by the parties in this lawsuit, the court concludes that

the petitioner’s argument is meritorious.

There was no suggestion of prejudice by the prosecu-

tion or any indication that great delay would have been

occasioned had the petitioner’s witnesses been allowed to

testify. Cf Enoch, 581 F. Supp. at 432. Moreover, as the

petitioner points out, there is nothing in the record of the

proceedings to indicate that his failure to give timely

notice of his intended alibi defense was “willful and

deliberate”. In fact, defense counsel represented to the

trial court that he had learned the name of one witness

on the day before the defense submitted a discovery

answer indicating that there would be an alibi defense.

Defense counsel learned the identity of a second witness

on the morning of the petitioner’s trial.

The court concludes that exclusion of the petitioner’s

witnesses was too sever a punishment for failure to com-

ply with the Illinois notice-of-alibi statute in light of the

court’s limited inquiry into the petitioner’s failure to raise

an alibi defense in a timely fashion. Cf. Fendler, 728 F.2d

at 1190.

The respondents argue that the court should follow a

line of cases which upholds the severe sanction of

App. 15

precluding witnesses from testifying because a party has

failed to comply with a discovery rule. The court finds

the respondents’ argument unpersuasive.

The respondents rely principally on the case of United

States v. Nobles, 422 U.S. 225 (1975), and People v. Braz-

ton, 82 Ill. App.3d 808, 401 N.E.2d 1062 (1980). In Nobles,

the question presented was whether a federal trial court

may compel the defense to reveal the relevant portions

oi an investigator’s report for the prosecution’s use in

cross-examining him. The Nobles court did not pass on

the question raised in the case sub judice. Consequently,

the respondents’ reliance on Nobles is helpful only in-

asmuch as it supports the general proposition that failure

to comply with discovery requirements may serve as a

bar to the presentation of evidence in a criminal action.

Cf. Nobles, 422 U.S. at 229-30.

Regarding People v. Braxton, the case at bar is distin-

guishable on its facts. In Braxton, defense counsel sought

to amend his discovery answer to assert an alibi defense

on the day of trial. Defense counsel sought to include the

wife of the defendant as a witness. The trial court refused

to allow the defendant to amend his discovery answer to

add the alibi defense. The Illinois Appellate Court, in af-

firming the trial court, commented:

Here, the defendant waited until the 117th day of

his term to notify the State of his alibi defense. The

sudden discovery of the alibi and production of ne

wife as an alibi witness at this late date

cent fabrication, particularly in light of the fact that

the defendant and his wife were married two days

prior to trial. Furthermore, no evidence was

showing that the defendant was unaware of his alibi

defense and the existence of the alibi witness prior

to this date. Therefore, the trial judge did not

App. 16

- his discretion in denying the motion to amend the

answer to discovery.

81 Ill. App.3d at 815.

In the instant case, defense counsel did not seek to raise

an alibi defense on the date of trial; he had indicated that

he would present an alibi defense on Friday, October 3,

when he submitted his discovery answer. In Braxton,

however, defense counsel made no mention of an alibi

defense until the morning of trial. The Braxton court

denied the motion to amend the discovery answer because

it feared that the alibi defense had beer. recently fabri-

cated. 81 Ill. App.3d at 815.

The respondents’ assertions and arguments notwith-

standing, the court is of the opinion that the state

trial court’s limited findings do not support the conclu-

sion that the petitioner’s failure to give timely notice of

his intended alibi defense was “willful and deliberate”’.

This court concludes that the trial court committed con-

stitutional error on October 6, 1980, when the petitioner

first sought to present his alibi defense and on October

10, 1980, when defense counsel filed a motion to reinstate

the alibi defense. The committee which drafted the Illi-

nois Supreme Court Rules did not intend that the peti-

tioner be denied the opportunity to present witnesses in

his defense because the identity of those witnesses was

not known until the week preceding his trial. Such an ap-

plication of Illinois Supreme Court Rule 415(g) violates

the Sixth Amendment to the United States Constitution.

B. EXCLUSION OF DEFENDANT’S TESTIMONY

In its rulings of October 6, 1980, and Octoher 14, 1980,

the trial court in People v. Robinson, not only refused

to permit material alibi witnesses to testify on behalf of

App. 17

the defendant but also precluded testimony by the defen-

dant regarding his alibi defense. The court finds that this

ruling by the trial court also violated the plaintiff's Sixth

Amendment right to testify and to present a defense.

In Alicea v. Gagnon, 675 F.2d 913 (7th Cir. 1982), the

Seventh Circuit held that it was unconstitutional to pre-

vent a defendant from testifying on his own behalf as a

sanction for noncompliance with a state notice-of-alibi rule.

In Alicea, the defendant failed to notify the prosecution

that he intended to raise an alibi defense. At trial, the

defendant sought to testify in his defense that he was at

home at the time the alleged robbery occurred. The pros-

ecution objected to the admission of this alibi testimony

because the trial court had granted the prosecution’s mo-

tion in limine to exclude alibi testimony. The trial court

sustained the prosecution’s objection and ruled that the

petitioner could not testify in his own defense about his

alibi because he had failed to give timely notice to the

state as required by Wisconsin’s notice-of-alibi statute. At

trial, however, Alicea did manage to testify that he was

at home at the time the crime was committed. He also

denied committing the robbery. The jury was not in-

structed as to his alibi defense, however, and the defen-

dant was convicted.

In ruling that the defendant was entitled to testify in

his own behalf, the Court of Appeals applied a balancing

test, weighing the competing interests underlying Wiscon-

sin’s alibi-notice rule and the constitutional policies favor-

ing the petitioner’s right to testify. 675 F.2d at 923. The

court stated:

To be sure, Wisconsin has a legitimate interest in

preventing the truly guilty from escaping justice by

means of fabricated alibis. But we cunnot see how

that interest is promoted by precluding a defendant’s

App. 18

testimony for failure to give notice. The principal

reason for notice rules, as we noted at the outset of

this opinion, is prevention of surprise to the state,

not punishment of the accused for mere technical er-

rors or omissions. In this situation it is difficult to

see how the government can claim’ surprise. . . .

In addition, we do not consider Wisconsin’s interest

in facilitating the orderly administration of justice suf-

ficiently important to override the ’s right to

tell his version of the story. If a defendant takes the

stand and denies his presence during the crime, the

state can readily rebut his denial on cross-examination

= asking the defendants to address the state’s evi-

ence. ...

675 F.2d at 923-24.

In this action, the state cannot claim that it was sur-

prised by the alibi defense. Defense counsel did notify the

court and the prosecutor of the intended alibi defense in

the discovery answer. Even though defense counsel filed

the discovery answer in the week preceding petitioner’s

trial, it is not unreasonable to expect that the govern-

ment could have anticipated that the petitioner might

testify, particularly since the trial court excluded all of

the defense’s material witnesses. Additionally, this court

does not consider Illinois’ interest in facilitating the order-

ly administration of justice sufficiently important . over-

ride the petitioner’s fundamental right to tell his own ver-

sion of the occurrence in question. Cf. Alicea, 675 F.2d

at 924. The court concludes that the trial court violated

the petitioner’s Sixth Amendment right to testify when

the court refused to permit the petitioner to take the

stand and testify concerning his whereabouts at the time

of the alleged drug transaction.

App. 19

C. HARMLESS ERROR

In light of the court’s holding that the preclusion sanc-

tions as applied to the petitioner violated his constitutional

right to testify and to call defense witnesses on his behalf,

the court must address the state’s argument that the con-

stitutional error was harmless beyond a reasonable doubt.

See Chapman v. California, 386 U.S. 18, reh. denied, 386

U.S. 987 (1967). The test is:

“Whether there is a reasonable possibility” that the

error affected the jury’s verdict. In answering this

question, the court must assess the ‘‘probable impact

of the [error] on the minds of an average jury.” Alli-

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

Chapman, 386 US. at 24, 87 S. Ct. at 828, and Har-

rington v. California, 395 U.S. 250, 254, 89 S. Ct.

1726, 1728, 23 L.Ed.2d 284 (1969)).

Enoch, 581 F. Supp. at 4382.

After reviewing the evidence presented at trial and the

representations of counsel, this court cannot conclude

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

ror was harmless. Cf. Chapman, 386 U.S. at 24. Here,

the petitioner was charged with the delivery of more than

thirty grams of cocaine on January 8, 1980, but he was

not arrested until June, 1980. Additionally, the respon-

dents claim that the state video taped a drug buy which

shows the petitioner delivering cocaine to a state infor-

mant. However, the petitioner’s counsel represented to

this court, without contradiction, that the jury deliberated

for more than eight hours even though it saw the video

tape. This court has reviewed the video tape and finds

that, standing alone, the tape is not conclusive that Alan

D. Robinson is the person shown in the tape. In fact,

without corroborating testimony from other witnesses it

App. 20

would be impossible to conclude that the person seen in

the video tape was the petitioner, Alan D. Robinson. Con-

sequently, the court must conclude that there was a rea-

sonable possibility that the trial court’s constitutional er-

ror affected the jury’s verdict. Cf. Allison v. Gray, 603

F.2d 633, 634 (7th Cir. 1979).

IV. CONCLUSION

In summary, the court finds that the state trial court

committed constitutional error in denying the petitioner’s

request to present his alibi defense, to call witnesses on

his behalf, and to testify in his own defense. The court

further finds that the trial court committed error of such

significance that habeas corpus should be granted. Con-

sequently, the petitioner’s motion for summary judgment

is allowed. See Fed. R. Civ. P. 56(c). See also 28 U.S.C.

§ 2241(a).

IT IS THEREFORE ORDERED that the petitioner’s

motion for summary judgment be, and hereby is, allowed.

IT IS FURTHER ORDERED that the petition for a

writ of habeas corpus be, and hereby is, allowed.

IT IS FURTHER ORDERED that the petitioner, Alan

D. Robinson, be discharged from custody, unless, within

one hundred twenty (120) days after the entry of this

order, the petitioner is retried for the offenses for which

he is currently incarcerated.

ENTER this 20th day of August, 1984.

fal Harold A. Baker

United States District Judge

Oe eT. epee nee

App. 21

APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

February 11, 1985.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. JESSE E. ESCHBACH, Circuit Judge

Hon. ROBERT A. GRANT, Senior District Judge*

UNITED STATES OF AMERICA ex rel. ALAN D. ROBINSON,

Petitioner-Appellee,

No. 84-2515 vs.

KENNETH MCGINNIS,

Respondent-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 83-2433—Harold Baker, Judge.

* The Honorable Robert A. Grant, Senior District Judge for the

Northern District of Indiana, is sitting by designation.

App. 22

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing en banc filed in the above-entitled

cause by respondent-appellant Kenneth McGinnis, no judge

in active service has requested a vote thereon, and all

of the judges on the original panel have voted to deny

a rehearing.

It Is ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

Res tet hss on 0 on en he ASAIO