Allison v. Gray

Citation603 F.2d 633
Decision Date30 July 1979
Docket NumberNo. 77-1543,77-1543
PartiesWalter ALLISON, Jr., Petitioner-Appellant, v. Ramon L. GRAY, Warden, etc., et al., Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Laurence E. Norton, III, Legal Services, Inc., Carlisle, Pa., for petitioner-appellant.

Pamela Magee-Heilprin, Asst. Atty. Gen., Madison, Wis., for respondents-appellees.

Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and JAMESON, Senior District Judge. *

SWYGERT, Circuit Judge.

This appeal presents the question whether precluding a criminal defendant from presenting any alibi evidence, under an unconstitutional, non-reciprocal notice of alibi statute, constituted harmless error. 1 On the facts of this case, we cannot say that this federal constitutional error was harmless beyond a reasonable doubt and, therefore, we reverse the district court's denial of habeas corpus relief.

The petitioner in this case, Walter Allison, Jr., was convicted of rape and sexual perversion in 1972. At Allison's jury trial, the Wisconsin trial court prevented Allison from explaining where he was at the time of the crime and from calling an available alibi witness. On appeal, the Wisconsin Supreme Court held that the non-reciprocal notice of alibi statute applied in Allison's case was unconstitutional under Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). The court affirmed Allison's conviction, however, on the ground that the error in excluding Allison's alibi evidence was harmless. Allison v. State, 62 Wis.2d 14, 214 N.W.2d 437, Cert. denied, 419 U.S. 1071, 95 S.Ct. 659, 42 L.Ed.2d 667 (1974). 2 Allison then applied to the district court for habeas corpus relief, contending that the exclusion of his alibi evidence violated his right to present a defense under the Sixth and Fourteenth Amendments. The district court adopted the analysis of the Wisconsin Supreme Court and held that the error in excluding the alibi evidence was harmless.

The harmless error test to be applied to violations of federal constitutional rights is well settled. To hold such error harmless, the court must find it "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The question is "whether there is a reasonable possibility" that the error affected the jury's verdict. Id. In answering this question, the court must assess the "probable impact of the (error) on the minds of an average jury." Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969).

There are two fundamental difficulties with the analysis made by the Wisconsin court and adopted by the district court. First, both courts stated that "the existence of a notice of alibi statute without reciprocal discovery does not affect the totality of the fact finding process and does not render the accuracy of the verdict suspect." Allison v. State, supra, 62 Wis.2d at 29, 214 N.W.2d at 445. This statement improperly focuses the harmless error inquiry on the statute itself. It was the application of the unconstitutional statute to exclude alibi evidence which affected Allison's rights. As we have recently held, such exclusion of alibi evidence under an unconstitutional notice of alibi statute does undermine the fact finding process. United States ex rel. Hairston v. Warden, 597 F.2d 604, 609 (7th Cir. 1979).

The second difficulty is that in applying the harmless error test to Allison's case, the Wisconsin court simply reviewed the prosecution evidence against Allison, and, while noting some weaknesses in the evidence, found it "overwhelming." The court made no attempt to assess the probable impact of the exclusion of Allison's alibi on the jury. Both Chapman and Harrington warn against "giving too much emphasis to 'overwhelming evidence' of guilt," where constitutional error affects substantial rights. Harrington, 395 U.S. at 254, 89 S.Ct. 1726, 1728, Chapman, 386 U.S. at 23, 87 S.Ct. 824.

Applying the proper harmless error test to the facts of this case, we are unable to conclude that the complete exclusion of any alibi evidence by Allison or on his behalf was harmless beyond a reasonable doubt. The primary obstacle to such a conclusion is that nowhere in the record before us, or in the Wisconsin court's opinion, is there any indication of what alibi evidence Allison wished to introduce. Nor is there any indication of who Allison's other alibi witness is or what her relationship to Allison was, if any. We cannot see how the probable impact of the exclusion of Allison's alibi could be assessed without knowing something about its nature.

At Allison's trial, the victim identified Allison as the perpetrator of the crime. However, the Wisconsin court pointed out a number of weaknesses in the identification. Aside from the...

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  • Braunskill v. Hilton
    • United States
    • U.S. District Court — District of New Jersey
    • February 27, 1986
    ...In reviewing the evidence, "the court must assess the `probable impact of the error on the minds of an average jury.'" Allison v. Gray, 603 F.2d 633, 634 (7th Cir. 1979) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828 The Appellate Division, in reviewing this case, stated regarding the no......
  • Alicea v. Gagnon
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 14, 1982
    ...enacted by the states within the Seventh Circuit. See Bruce v. Duckworth, 659 F.2d 776 (7th Cir. 1981) (Indiana); Allison v. Gray, 603 F.2d 633 (7th Cir. 1979) (Wisconsin); United States ex rel. Hairston v. Warden, 597 F.2d 604 (7th Cir.), cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.......
  • United States ex rel. Veal v. Wolff
    • United States
    • U.S. District Court — Northern District of Illinois
    • November 20, 1981
    ...because the defendant's inability to prevent his alibi defense at trial undermined the fact-finding process.13 In Allison v. Gray, 603 F.2d 633 (7th Cir. 1979), the petitioner sought habeas corpus relief on the ground that exclusion of his alibi evidence under the Wisconsin non-reciprocal n......
  • U.S. ex rel. Smith v. Rowe
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 21, 1980
    ...Ill.2d 516, 322 N.E.2d 33 (1975). See also United States ex rel. Hairston v. Warden, 597 F.2d 604, 608 (7th Cir. 1979); Allison v. Gray, 603 F.2d 633 (7th Cir. 1979). 8 Respondents have also argued that the comments were harmless beyond a reasonable doubt by virtue of certain jury instructi......
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