*1 ILLINOIS, Plaintiff-Appellee, v. OF THE STATE OF THE PEOPLE DOUTHIT, Defendant-Appellant. RICKY
Fifth No. 75-422 District August Opinion filed MORAN, J., dissenting.
G. J. Blandford, Rosborough Appellate Michael and Ann Hilbert both of State J. Vernon, student, Office, Eberspacher, Mt. Y. Defender’s and David law appellant. Irish, Byron, Attorney, (Bruce D.
Nicholas G. State’s of Edwardsville of Illinois student, Association, Attorneys Berglund, counsel), State’s and Thomas C. law People. Mr. KARNS opinion delivered the court: JUSTICE from his conviction of Defendant-appellant Ricky appeals Douthit burglary County. after a trial in the Circuit Court of Madison police early morning hours of March two Collinsville officers were dispatched to the Park Place Tavern to burglary (who was tried progress. Defendant and Donald Muench and separately) holding liquor, were observed inside the tavern bottles of “Let’s following one of the officers effect: overheard conversation get hurrying.” what “All I’m Defendant get right, out of here.” the tavern. apprehended shortly they and Muench were after left police Defendant was identified both officers. trial,
At affirmative raised the defense he was intoxicated incapable acting time of offense that he knowingly intentionally, required to commit crime burglary. (See Stat. pars. 3(a), Rev. He 1(a).) and Donald 6— 19 — done, Muench drinking both testified to the they beginning extensive a.m., in the early evening previous day ending about 3:30 shortly By time, testified, they before arrest. they were both so *2 they drunk that didn’t know what were they doing. Defendant testified trailer, that he nothing remembered from the time he left a friend’s at a.m., officers, however, about 3:00 until in jail. arresting he awoke The that, opinion although were of the defendant had been he drinking, instructed, realized what was going jury on. The in accordance 24.02, IPI criminally Criminal No. that an is person intoxicated responsible for unless him conduct his intoxication renders incapable acting of intentionally. guilty The a verdict burglary. returned denied, Defendant’s post-trial motion was and he to was sentenced to two years’ imprisonment. seven
Defendant appeal contends on that his rights constitutional compulsory process obtaining for in his favor and to of law were violated the court’s exclusion two witnesses State, because of response defendant’s failure to inform the in to its discovery motion that he intended to them at he Alternatively, call trial. urges that court’s judicial exclusion of the witnesses was abuse of discretion.
The following necessary understanding record reveals the facts arguments. of defendant’s Defendant March 1975. was indicted on public appointed April represent defender was him for on purposes arraignment only, as the court found that defendant was not indigent. days. He private was instructed retain counsel seven within That day, April attorney public same both the State’s and the defender filed inter discovery, motions for The State’s motion discovery. sought alia, any and defenses the defendant intended to make and the names addresses of at April witnesses he intended to call trial. On the State counsel, responded May to defendant’s motion. On retained discovery. filed another on motion for The case went to trial June trial, day On presented the second after the State had its case denied, defendant’s motion for directed verdict was defense counsel defendant, in indicated chambers that he intended call four witnesses: Muench, Muench, Rocky attorney Donald The State’s Gary Reed. objected to the of the latter two names not in response discovery argued been disclosed He motion. field, in had seen State’s defense counsel the criminal aware before, have been and should times many discovery motions Defense the prospective names of disclose the duty discovery requests or any motions never received stated that he had attorney. He continued: the State’s from *“* * I any further. I did not n seemed unusual. ago until a bit the court file why. I never looked didn’t ask them Yes, the court I looked coming up for trial. when the case was anything. asked me for file, any way in orally or he has never either * * * He didn’t fist of witnesses. me for He asked never ° * any value. any defense to be of consider knows the attorney and “is a trial that defense counsel The court stated ordered arraignment, that at rules this court local have going if we’re totally It’s unfair by the court. entered withhold the other side side ordered to have one last minute.” compliance until the
The court continued: “* o « not ease the contempt does Holding attorney testify. the witness to allowing the unfairness
problem of order Today Friday. Continuance Continuation out. obtain other trying State interview their witnesses If this case game. totally stage unfeasible at this witnesses is far a just how reviewing I court to outline goes appeal, want the *3 the good goose go. say I what is judge trial got has to then the defense comply, gander. going If the State is to two, these Reed to rule discovery going rule. I’m comply with Muench, testify in this case because not be allowed to discovery rule.” comply with the until then that Reed had been with Defense counsel stated testify would that defendant burglary, half an hour before the about asserted his head.” Counsel drinking night had been all and “was out of boy I learned that the trial the first time night that before this “[t]he drinking had been and had this defense.” However, ruling, stating: its the court held to in Madison and knows
“Mr. Massa is an discovery rule ordered arraignment time the * * If until the trial started. 0. in this file each He didn’t look have, that the order he discovered he would would have Further, the State’s 9, of it’s not April effective attorney who each Attorney discovery to file motions on appointed represent to the defendant.” the issue excellent brief on Despite appellate counsel’s defendant, portion that a criminal constitutionality, applied 110A, 1975, par. ch. (i) (Ill. Rev. Stat. Supreme 415(g) Court Rule 754
415(g)
authorizing
a
(i))
comply
exclusion
evidence for failure to
with
rule,1
issue,
appeal,
we deem that
first
raised
time on
(See
Amerman,
196,
have
v.
279
People
been waived.
50 Ill. 2d
N.E.2d
383, 263
(1971);
Eubank,
353
Ill.
People
(1970);
v.
46
2d
N.E.2d 869
People
Nelson,
227,
v.
(5th
1975).)
26 Ill.
3d
wonders defense he had what intended to make.
755 and the notify the State promptly counsel by This failure defense case the instant distinguishes the witnesses intention to call court (5th Dist. 283, 1274 People Rayford, v. 356 N.E.2d Ill. 3d App. 43 from Rayford, that there found this court 1976), by cited defendant. failed to actually as to whether question “some that indicates The record discovery rules. with the his and the relevance this witness aware of defense became immediately informed begun trial had testimony only after the witness its desire to offer the court of prosecutor as Thus, disclose soon met its the defense defense. formed, trial court’s and then the the witness was intent to call than to rather surprise [citation], safeguard against simply (43 discovery rule.” comply with a impose a sanction for 283, 387, 1277.) 356 N.E.2d App. 3d in Rayford concluded, therefore, circumstances that under the The court flagrant violation case, fell “far short of the defendant’s conduct 43 Ill. measure as exclusion.” use such a drastic might justify which N.E.2d 1277-78. App. 3d case, we have in the instant of the record After a careful examination violation, justifying flagrant such a concluded does reveal knowledge of the Despite his the sanction of exclusion. court’s resort days, at least two defense existence of the two witnesses case, its and after defendant’s presented until after the State had waited denied, making known his before motion for a directed verdict had been court could draw We think that the trial intention to call the witnesses. good faith on inference of lack of justifiable these circumstances from Scott, 203, 537 See State v. P.2d App. 24 Ariz. part of defense counsel. reaching the same result. (1975), strikingly similar case an abuse sanction was not that the use of the exclusion Our conclusion was not thus that defendant strengthened of discretion is the fact defense. The intoxication entirely presenting from precluded not, think, testimony these two witnesses was exclusion of the Johnson, People App. 47 Ill. prejudicial as the action of the court deprived that defendant was 362 N.E.2d we held where a witness who had fault the exclusion of testimony material without his There we sequestration of a order. remained courtroom violation attorney or his suggestion that defendant pointed out that there was “no rule, and that violation of any way responsible” was in for the witness’ witness, as testimony of the excluded jury might well have found the racial fraught in a case and a man officer of the court white that of defendant’s other implications, more credible than here, defense diligence the lack of These factors are absent where the issue this cumulative counsel alone in the loss of resulted of intoxication. *5 reasons, foregoing
For the judgment of the Circuit Court of Madison is affirmed.
Affirmed.
JONES, J., concurs. Mr. MORAN, GEORGE dissenting: JUSTICE J. Both the trial court and the majority of this court have assumed that the power court has to exclude witnesses lawyer when the and not the party does comply not Supreme with 413(d)(i) (Ill. Court Rule Rev. Stat. 110A, par. 413(d)(i)) which in part reads as follows:
“(d) Subject Defenses. to constitutional limitations within reasonable time filing State, after the of a written by motion defense counsel shall inform the State defenses which he intends to make at a hearing or trial and shall furnish the State with the following material and within possession information his or control: (i) The names and last known persons addresses of he intends to * °
call as witnesses It is crystal clear that this applies only rule lawyer and not his client. duty to furnish witnesses he intends to call is lawyer and not the client for a lawyer reason. The has to make the decision as to what witnesses he will use in his client’s defense. This decision strictly lawyer’s prerogative, it is for he who has the to conduct the defense through all stages of the It proceeding. stands to reason he does not have to disclose witnesses unfavorable to his client’s defense even though those may witnesses by furnished to him his client.
The authority to exclude witnesses found in Supreme Court Rule 415(g)(i) (ii) which reads:
“(g) Sanctions.
(i) If at any time during the course of the proceedings it is brought to the attention of the court that a has party failed to comply with applicable discovery rule order issued thereto, pursuant may court order such party permit disclosed, of material previously and information not continuance, grant evidence, exclude such or enter such other just order as it deems the circumstances.
(ii) Wilful violation counsel of an applicable discovery rule or an order pursuant issued subject thereto appropriate sanctions the court.” Since the to furnish pursuant Rule Supreme Court 413(d) is the lawyer’s and not the party’s, lawyer’s failure to disclose witnesses, whether intentionally negligently, cannot be the fault of the lawyer’s However, for his being punished client party. transgression. 415(g) for for Rule punishments provided two separate
There are 415(g) (i) provides Rule rules. By lawyer. punishment 415(g) (ii) punishment party the one Rule seeks to sanction describing separately, sanctions violation, i.e., may be if the Rule he party violates responsible violation, may be if rule he for his while violates the sanctioned punished his It follows that a cannot be sanctioned for violation. lawyer’s transgression punishment is meted his and vice versa. Here transgression. out to the one who is innocent of the lawyer’s punishing Prior to the defendant this case for violation rule, fact the trial court attention to the called *6 able knew the lawyer lawyer, defendant’s arraignment time “the practice custom and in Madison that at * # this party rule on each Under ordered is to suffer. lawyer, likely rationale the more able the the more client illegal Preclusion of is a harsh sanction a case where evidence discovery rules. threatens lawyer and not the violates the It party may of an for which conviction individual who be innocent crime wrong— charged lawyer’s he is of a separate because of commission a the failure to furnish information which furnish. right
The defendant in this case has been of a fundamental deprived him United guaranteed the sixth to the Constitution of the amendment States. right compel
“The to offer attendance, their if a necessary, right present is in terms plain defense, the facts as right present the defendant’s version of the may well as the where prosecution’s decide right truth lies. as an has the to confront accused Just prosecution’s purpose challenging witnesses establish testimony, right present he has the his own witnesses to a defense. is a element of right This fundamental Texas, 14, 19, 18 L. Washington law.” 388 U.S. Ed.