On November 17, 1978, after a jury trial in the Circuit Court of Milwaukee County, Wisconsin, petitioner Luis Alicea was convicted of armed and masked robbery in violation of Wis.Stat. §§ 943.32(l)(b), 943.-32(2), & 946.62 (1977). On October 15, 1979, the trial court denied Alicea’s motion for a new trial. The Wisconsin Court of Appeals affirmed Alicea’s conviction in an unpublished decision.
State v. Alicea,
Having exhausted his state remedies, petitioner turned to the federal courts for relief. Judge Terence T. Evans of the United States District Court for the Eastern District of Wisconsin denied Alicea’s writ of habeas corpus petition on May 27, 1981. Alicea now appeals Judge Evans’ decision. We affirm.
Facts
Shortly before noon on April 5,1978, Robert Behling went to apply for a job at a *915 Sentry Food Store on south 76th Street in Milwaukee. While crossing the store’s parking lot, Behling noticed a green Mustang parked facing the wrong direction in a no parking zone a few feet from the store’s entrance. The ear had a damaged hood and missing grille. Behling also noticed that the occupant of the car was dressed in coveralls. Behling continued past the car, entered the store, and obtained an employment application at the front counter.
While Behling was completing the application, a short, stocky, broad-shouldered man wearing coveralls, yellow gloves, anil a green and red ski mask entered the store, approached assistant manager Richard Klingbeil, and said, “This is for real, I want the money out of the drawers.” Klingbeil found the man most persuasive and immediately escorted him to the store’s office, where Beverly Konzcal was working. Konczal also found the drawn pistol quite convincing and quickly placed $1040 in the man’s gym bag. The masked man, whose physical description matched petitioner’s, 1 left the office, ran past Behling standing at the counter with his job application, and exited the store.
Klingbeil then rushed to the store’s backdoor and watched a green Mustang speed from the parking lot, but was unable to read the car’s bent rear license plate. Behling, Konczal, and Klingbeil later supplied matching descriptions of the robber’s height, build, and attire, with Behling noting that the same coveralls were worn by the robber and the man Behling had observed earlier in the parked green Mustang.
Approximately one hour later, Lieutenant Thomas Perlewitz located a green Mustang fitting the desсription of the car used in the Sentry armed robbery. Closer inspection of the vehicle revealed its damaged front end and bent rear license plate. Underneath the car Perlewitz discovered coveralls and a green and red ski mask, inside of which was a pair of yellow gloves. The car’s overnight parking permit and license plates were issued to petitioner and petitioner’s live-in girlfriend, Donna Sarnowski, respectively.
Later the same day, Sentry job applicant Behling positively identified the Mustang by its damaged front end. He also selected a picture of Kelmit Alicea, petitioner’s brother, from a collection of 600 police photographs. Although the collection did not include a picture of petitioner, Behling did state that Kelmit Alicea closely resembled the man Behling had seen sitting in the Mustang in the Sentry parking lot. 2
The following day police confronted petitioner’s girlfriend, Sarnowski, with the coveralls found under the Mustang. She told Detective James Metz, “Those are Louie’s coveralls.” She also told police that some of the other items discovered under the Mustang belonged to petitioner or were similar to items petitioner owned.
The foregoing evidence was adduced by the prosecution at trial, along with numerous government exhibits. Petitioner sought to testify in his defense that he was at home and received telephone calls at the time the robbery occurred. The government objected to the admission of this alibi testimony based on the trial court’s prior grant of the government’s motion in limine to exclude alibi testimony. The trial court sustained the prosecution’s objection, ruling that petitioner could not testify in his own defense about his alibi because petitioner had failed to give notice to the state as required by Wisconsin’s notice-of-alibi statute. Nevertheless, Alicea did manage to testify that on the morning of the robbery he was at home at 11:45 a. m., the time the crime was committed. He also denied committing the robbery. The jury, however, was not instructed as to his alibi defense and Alicea was convicted.
*916 Background
Petitioner’s principal argument poses a constitutional challenge to the state trial court’s application of Wisconsin’s notice-of-alibi statute, Wis.Stat. § 971.23(8) (1977). 3 Alicea claims that the trial court violated his constitutional right to testify and to present a defense under the fifth, sixth, and fourteenth amendments to the United States Constitution when it excluded his alibi testimony simрly because he failed to notify the prosecution that he intended to raise such a defense. The government, on the other hand, contends that a court may preclude either a defendant or a defense witness from giving alibi testimony if the defendant fails to comply with the statute’s notice requirements because the statute serves the legitimate state purposes of uncovering truth and preventing surprise. In the government’s view, exclusion of all alibi evidence is the only adequate remedy for noncompliance with the statute.
We begin our analysis of this question of first impression in this Circuit by briefly reviewing the history and purposes of alibi-notice statutes. Although pretrial discovery in criminal cases was virtually unknown until fairly recently, see generally Everett, Discovery in Criminal Cases — In Search of a Standard, 1964 Duke L.J. 477, one area long subject to discovery has been the alibi defense. Indeed, Amеrican alibi-notice statutes trace their antecedents to a Scottish law enacted in 1887. See Epstein, Advance Notice of Alibi, 55 J.Crim.L.C. & P.S. 29, 29 (1964). Following a seminal 1920 article in which Professor Robert Millar criticized alibi defenses as “one of the main avenues of escape of the guilty” and then proposed an alibi-notice rule modeled after Scotland’s, 4 states began as early as 1927 to impose restrictions on raising an alibi defense absent notice to the prosecution. Today federal and state rules governing notice of alibis and other defenses are common. 5
The legitimate state objectives furthered by alibi-notice laws are obvious. First and foremost, by requiring the accused to reveal his alibi defense in advance, the element of surprise is greatly reduced and the fairness of the adversary system thereby enhancеd. See
Wardius
v.
Oregon,
Despite their relative longevity and legitimate purposes, alibi-notice provisions have come under attack on constitutional grounds in recent years. For example, in
Williams v. Florida,
A few years later the Supreme Court decided
Wardius
v.
Oregon,
We have had occasion to review questions concerning similar statutes enacted by the states within the Seventh Circuit.
See Bruce v. Duckworth,
Although commentators agree that excluding a defendant’s alibi testimony for lack of notice should be unconstitutional,
7
few courts have reached the constitutional issue. Instead, most courts have relied on narrow statutory construction or application to guide them through this area. In the earliest case to consider the problem,
People v. Rakiec,
A somewhat different approach was taken by the Michigan Supreme Court in
People
v.
Merritt,
The Michigan Supreme Court rested its reversal of the trial court’s decision to exclude Merritt’s alibi testimony on two bases. First, the supreme court held that the triаl court’s statutorily conferred discretion to impose the preclusion sanction against the defendant was limited to egregious cases. This limitation was justified by the sanction’s severity and Michigan precedent. In the Merritt court’s opinion, it was improper to exclude the alibi defense where neither abuse of the defense by the defendant nor prejudice to the government’s case had been shown. 9
A second reason for proscribing the preclusion sanction as applied to Merritt derived from statutory construction considerations analogous to those enunciated in the
Rakiec
decision. Michigan’s statute
10
provided that “the [trial] court may in its discretion exclude
evidence
offered by [the] defendant for the purpose of establishing an alibi.”
In contrast to this flexible approach emphasizing the circumstances surrounding a dеfendant’s failure to supply notice and the purposes underlying alibi-notice laws, a number of state courts have adhered to rigid interpretations of their notice statutes and have refused to admit defendants’ alibi testimony absent proper notice, regardless of the reasons for noncompliance. The first to do so was the Kansas Supreme Court in
State v. Rider,
Other state courts which have allowed preclusion of a defendant’s testimony as a sanction also have noted their legislature’s power to limit a defendant’s right to testify.
See, e.g., Smetana v. Smith,
Unlike the previously discussed state decisions,
Simos
directly confronted the constitutionality of excluding a defendant’s testimony as a sanction. The
Simos
court first noted that the accused’s right to be heard in all criminal cases was guaranteed by Art. I, § 7 of the Wisconsin Constitution. The court then stated that even assuming the defendant’s right to testify as a witness in his own behalf under either or both the United States and Wisconsin Constitutions, it did not follow that all procedural conditions upon that right were forbidden.
The Wisconsin Supreme Court presented the following analysis:
When any witness takes the stand, he swears or affirms that he will tell the truth, the whole truth and nothing but the truth. What is constitutionally protected is thе right of a defendant to testify truthfully in his own behalf. An alibi is not one of several alternative defenses that can be simultaneously asserted. If what the statute terms an alibi is founded in truth and in fact, the defendant was not present to commit the offense charged. If this is the situation, the defendant suffers no prejudice by the requirement of advance notice of intention to establish such fact. If we are discussing the right of a defendant to defer until the moment of his testifying the election between alternative and inconsistent alibis, we have left the concept of the trial as a search for truth far behind. Where this situation was presented to this court, .we rejected the claimed right of a defendant to abandon the alibi of which he had given notice and substitute a new and different one at the time of trial. Where there is even a рretrial change of alibi, this court has permitted cross-examination and introduction of the initial alibi notice as tearing upon an issue raised by the choice and change of mind of the defendant. These decisions, and the statute on which they are based, do not limit in any way the right of a defendant to testify truthfully in his own behalf. The condition of prior notice as to alibi testimony, like the test as to materiality and relevancy, does not invade the right of a defendant to testify in his defense.
Id.
at 137-38,
As is apparent from our extended analysis of United States Supreme Court and state cases examining alibi-notice laws, none of these decisions except Simos addressed the constitutional dimensions of applying the preclusion sanction against a defendant. For the reasons expressed below, we decline to follow the position adopted in Simos.
Federal Constitutional Considerations
As a predicate to our constitutional discussion, it is important to emphasize the particular posture of this case. Review of a state prisoner’s habeas corpus petition is premised upon an underlying state deprivation of a federal right found in the Constitution, laws, or. treaties of the United States. See 28 U.S.C. § 2241(c)(3) (1976). Because Alicea offered no alibi evidence other than his own testimony, the limited scope of our habeas review prevents us from considering his challenges to Wisconsin’s notice rule unless Alicea first can establish a federal constitutional right to testify in his own behalf. Absent this constitutional basis, we must conclude that petitioner’s right to testify under the laws of Wisconsin has been permissibly qualified by Wisconsin’s notice rule as construed by the Wisconsin Supreme Court in Simos.
Thе United States Supreme Court has never expressly held that a defendant in a criminal trial has a constitutional right to testify in his own behalf. Given the fundamental nature of such a right, the absence of Supreme Court precedent directly on point seems surprising until it is recalled that a criminal defendant was incompetent to testify in his own behalf at common law. 12 Because this common-law incompetency has been abrogated by federal and state statutes in every jurisdiction in the United States, 13 as a practical matter a defendant’s right to testify is rarely questioned, which perhaps explains the dearth of Supreme Court authority on the subject.
Generally speaking, however, the Supreme Court seems to favor constitutional recognition of a defendant’s right to testify. For example, in
In re Oliver,
*921
Observations in more recent Supreme Court decisions comport with the tenor of
Oliver.
In
Harris v. New York,
*922
In contrast, this Court in
Sims v. Lane,
Further evidence that the precedential force of
Sims
on this point has eroded can be found in several recent federal cases. In
Ashe v. North Carolina,
A more complete discussion of the constitutional foundation of the right to testify appears in
United States ex rel. Wilcox v. Johnson,
Particularly persuasive authority that
Sims
is obsolete is Judge Godbold’s dissent in
Wright v. Estelle,
In light of the developments since our decision in Sims, we are convinced that Sims must be partially overruled. If the search for truth is to have meaning, surely the most important figure in the controversy, whose very freedom hangs in the balance, must have a right to participate directly. We believe the fifth, sixth, and fourteenth amendments require no less. We therefore hold that a criminal defendant has a constitutional right to testify in his own behalf under the fifth, sixth, and fourteenth amendments.
Striking a Balance Between Federal Constitutional Rights and State Procedural Rules
Having established petitioner’s constitutional right to testify in his own behalf, we must next consider whether the procedural limitations upon that right under Wisconsin’s alibi-notice statute are constitutionally permissible. The appropriate analysis of this question is set forth in the Supreme Court’s decisions in
Chambers v. Mississippi,
Every state is generally free to exercise its sovereign prerogative as to the evidence it will admit in its courts. The federal constitution, however, imposes a limited restraint upon state evidentiary rules where exculpatory evidence is excluded by arbitrary state rules. Washington v. Texas,388 U.S. 14 ,87 S.Ct. 1920 ,18 L.Ed.2d 1019 (1967). The genesis of this restriction is found in the defendant’s sixth amendment right to “compulsory process for obtaining witnesses in his favor.”. The Constitution imposes this limitation because the state may not deny an accused in a criminal trial the right to a fair opportunity to defend against the state’s accusations. Chambers v. Mississippi,410 U.S. 284 , 294,93 S.Ct. 1038 , 1045,35 L.Ed.2d 297 (1973). However, “the right of a defendant to present relevant and competent evidence is not absolute and [may] ‘bow to accommodate other legitimate interests in the criminal trial process,’ ” Hughes v. Mathews,576 F.2d 1250 , 1258 (7th Cir.), cert. dismissed,439 U.S. 801 ,99 S.Ct. 43 ,58 L.Ed.2d 94 (1978) (citing Chambers,410 U.S. at 295 ,93 S.Ct. at 1045 ), although the competing state interests must be substantial to overcome the claims of the defendant.
In balancing the competing interests underlying Wisconsin’s alibi-notice rule and the constitutional policies favoring petitioner’s right to testify, we must closely examine the justification for the state interest.
See Chambers v. Mississippi,
In addition, we do not consider Wisconsin’s interest in facilitating the orderly administration of justice sufficiently important to overridе the accused’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 by asking the defendant to address the state’s evidence. If for some reason the state considers its evidence significantly weakened by a defendant’s unsubstantiated testimony, it should seek a continuance for further investigation, rather than seeking total preclusion of the defendant’s testimony. 18 It is unlikely, however, that such defense testimony would ever have enough impact to necessitate a continuance unless the defendant’s explanation was so persuasive that his innocence became apparent, in which case the proper measure would be to end the trial, not to continue it.
We are aware of only one federal decision examining the validity of the preclusion sanction as applied to a defendant’s testimony.
19
In
Rider v. Crouse,
*925 The problems with Rider are plain. First, the Tenth Circuit was unaware of the Kansas statute’s possible constitutional infirmities because Rider preceded the Supreme Court’s pronouncements in Williams and Wardius, both of which suggested the importance of the preclusion issue. Second, Rider antedated Washington and Chambers, in which the Supreme Court struck a new balance between state procedural rules and federal constitutional rights. Finally, Rider also predated the Supreme Court’s line of decisions commencing with Harris which intimate a constitutional basis for the right to testify. The unmistakable significance of these post-Rider developments clearly undercuts the precedential value of Rider. Hence, we decline to follow the Tenth Circuit’s holding.
Perhaps there are situations where preclusion is a necessary sanction, 20 such as a defendant’s intentional suppression of alibi evidence to gain tactical advantage, but this is not such a case. To exact so great a price to further a rule which serves little or no purpose in this context is both illogical and impermissible. We therefore hold that the Wisconsin alibi-notice statute’s preclusion sanction was unconstitutionally applied against petitioner.
Harmless Error
In light of our holding that the preclusion sanction as applied to petitioner violated his constitutional right to testify and to present a defense, we must address the state’s contention that the error was harmless beyond a reasonable doubt.
Chapman v. California,
We believe the error in this case was harmless beyond a reasonable doubt for two reasons. First, the evidence against petitioner was overwhelming. His car was positively identified as the one used in the robbery. The robber wore clothes identical to those owned by petitioner and found undеr petitioner’s car. The robber even had the same unusual muscular build as petitioner. For the jury to find petitioner innocent under these circumstances, it would have had to conclude that either someone built just like Alicea stole Alicea’s clothes and car and then committed a robbery or that the robber’s physique as well as taste in clothing and cars were remarkably similar to Alicea’s. We think it impossible that a jury would believe such strange misfortunes (or coincidences) could befall any man.
Cf. United States v. Smith,
Second and more significantly, petitioner managed to introduce his alibi testimony despite the trial judge’s preclusive ruling. During the state court trial petitioner’s counsel asked whether pеtitioner had occasion to leave home on the morning of the Sentry robbery. Petitioner responded, “No.” In his offer of proof after the trial court excluded his remaining alibi testimony, petitioner merely sought to repeat that he was at home and had received telephone calls at about the time the robbery took place. We are persuaded that no reasonable jury would have accepted petitioner’s bald assertions over the strong evidence *926 adduced by the state. Because the state’s evidence was overwhelming and petitioner succeeded in presenting his alibi testimony in spite of the trial court’s ruling, we conclude the erroneous ruling was harmless beyond a reasonable doubt.
We also reject petitioner’s contentions concerning the trial court’s failure to give an alibi instruction. It was essential for the prosecution to prove petitioner’s presence at the Sentry Food Store and the jury was so instructed. Since the jury was informed that Alicea’s presence was necessary for conviction, nothing woúld have been added by instructing that his absence would require acquittal. Because such an instruction would have been redundant, we find no error in its omission.
Ineffective Assistance of Counsel
Petitioner’s final argument raises the familiar ineffective assistance of counsel claim. In
United States ex rel. Williams v. Twomey,
Conclusion
For the foregoing reasons, the district court’s denial of Alicea’s habeas corpus petition is
AFFIRMED.
Notes
. Petitioner was a powerfully built weight-lifter who could lift 650 pounds, a substantial amount for a man of any size, particularly one five foot three inches tall.
. On April 10, 1978, Behling viewed petitioner and three other Hispanic men in a line-up and identified petitioner as the man in the Sentry parking lot immediately prior to the robbery. This identification was not revealed at trial, however, because the trial court had granted a pretrial defense motion to suppress.
. The statute provides:
(8) Notice of alibi.
(a) If the defendant intends to rely upon an alibi as a defense, the defendant shall give notice to the district attorney at the arraignment or at least 15 days before trial stating particularly the place where the defendant claims to have been when the crime is alleged to have been committed together with the names and addresses of witnesses to the alibi, if known. If at the close of the state’s case the defendant withdraws the alibi or if at the close of the defendant’s case the defendant does not call somе or any of the alibi witnesses, the state shall not comment on the defendant’s withdrawal or on the failure to call some or any of the alibi witnesses. The state shall not call any alibi witnesses not called by the defendant for the purpose of impeaching the defendant’s credibility with regard to the alibi notice. Nothing in this section may prohibit the state from calling said alibi witnesses for any other purposes.
(b) In default of such notice, no evidence of the alibi shall be received unless the court, for cause, orders otherwise.
(c) The court may enlarge the time for filing a notice of alibi as provided in par. (a) for cause.
(d) Within 10 days after receipt of the notice of alibi, or such other time as the court orders, the district attorney shall furnish the defendant notice in writing of the names and addresses, if known, оf any witnesses whom the state proposes to offer in rebuttal to discredit the defendant’s alibi. In default of such notice, no rebuttal evidence on the alibi issue shall be received unless the court, for cause, orders otherwise.
. Millar, The Modernization of Criminal Procedure, 11 J.Crim.L. & C. 344, 350 (1920). See also Millar, The Statutory Notice of Alibi, 24 J.Crim.L. & C. 849, 849 (1934).
. Representative state rules are collected in 6 J. Wigmore, Evidence in Trials at Common Law § 1855(b) (rev. ed. Chadboume 1976). Their federal counterparts are rules 12.1 and 12.2, Fed.R.Crim.P.
. A separate but related topic is the constitutionality of excluding the testimony of defense witnesses
other than the defendant
for noncompliance with an alibi-notice statute. That issue is currently pending before this court in
United States ex rel. Veal v. Wolff,
. See Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind.L.Rev. 711, 830-41 (1976); Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 137-39 (1974); Note, The Preclusion Sanction — A Violation of the Constitutional Right to Present a Defense, 81 Yale L.J. 1342, 1364 (1972).
. Similar analysis was employed by the South Dakota Supreme Court in
State v. Hibbard,
. The Ohio Supreme Court adopted a similar view in
State v. Smith,
The court in
State v. Francis,
. The court noted that subsequent to Merritt’s trial the Michigan Legislature amended the statute to make preclusion mandatory.
. In addition, the Simos court offered the following discussion:
*920 If a criminal trial is viewed as a draw poker game with all cards to be held close to the chest until played, [alibi notice] can be seen as requiring a tipping of one’s hand in advance. However, if a criminal trial is viewed as a search for the truth, with every protection provided for investigation and preparation and to insure against the conviction of the innocent, notice requirements forward the purpose of the process. Viewed thusly, the notice of alibi statute is not only justified as protecting the state from fraudulent, surprise defenses presented without time for investigation of their merits, but also as consistent with “The modern trend in discovery ... to broaden access to material facts and reduce belated surprise.” We find no infringement or abridgment of the defendant’s Fifth Amendment rights in the notice of alibi statute.
. The primary reason for this common-law rule was that the accused, as an interested party fearing punishment, would perjure himself. The defendant’s testimony was therefore excluded as unreliable. See generally Ham-merman, A Criminal Defendant’s Constitutional Right to Testify — The Implications of United States ex rel. Wilcox v. Johnson, 23 Vill.L.Rev. 678 (1978); Popper, History and Development of the Accused’s Right to Testify, 1962 Wash. L.Q. 454.
. The federal statute governing this point is 18 U.S.C. § 3481 (1976). Pertinent state laws are collected in Note, Due Process v. Defense Counsel’s Unilateral Waiver of the Defendant's Right to Testify, 3 Hastings Const.L.Q. 517, 541 -42 (1976).
.
This passage was recently quoted with approval in
Jenkins v. Anderson,
. Similarly, in his dissent in
United States v. Salvucci,
The accused in a federal case has an absolute constitutional right to plead not guilty, and if he does elect to go to trial an absolute statutory right to testify in his own behalf. 18 U.S.C. § 3481 (1976 ed.). I cannot believe that the latter is not also a constitutional right, for the right of a defendant under the Sixth and Fourteenth Amendments “to make his defense,” Faretta v. California,422 U.S. 806 , 819,95 S.Ct. 2525 , 2533,45 L.Ed.2d 562 , surely must encomрass the right to testify in his own behalf. See Ferguson v. Georgia,365 U.S. 570 , 602 (Clark, J., concurring).
Id.
A number of lower federal courts also have couched the right to testify in constitutional terms,
see, e.g., Winters v. Cook,
The Ninth Circuit has yet to decide whether the right to testify is of constitutional magnitude. In
Yates v. United States,
. We express no opinion on the validity of other aspects of Sims.
. See note 14, supra.
. Professor Clinton’s observations on this рoint are most persuasive:
Excluding the accused’s evidence regarding an affirmative defense is a peculiarly ironic and inappropriate way to further “the search for truth.” The sanction leaves the parties no better prepared; rather, it inhibits the search for truth by rendering the criminal trial virtually an ex parte proceeding in which only the prosecution’s case is presented. Not only is this result inconsistent with the purposes of the [alibi-notice] rule, but it obviously conflicts with the right to defend and the American jurisprudential assumptions of the importance and necessity for the adversary system in the search for truth.
Clinton,
The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials,
9 Ind.L.Rev. 711, 836 (1976).
Cf. United States v. Nixon,
We have elected to employ an adversary system of criminal justice in which the parties contest all issues before а court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.
. Respondents suggest
Johns v. Perini,
.
Compare Braswell v. Florida,