675 F.2d 913 (7th Cir. 1982), 81-2005, Alicea v. Gagnon

Docket Nº:81-2005.
Citation:675 F.2d 913
Party Name:Luis Albert ALICEA, Petitioner-Appellant, v. John R. GAGNON, Superintendent, and the Attorney General of Wisconsin, Respondents-Appellees.
Case Date:April 14, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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675 F.2d 913 (7th Cir. 1982)

Luis Albert ALICEA, Petitioner-Appellant,


John R. GAGNON, Superintendent, and the Attorney General of

Wisconsin, Respondents-Appellees.

No. 81-2005.

United States Court of Appeals, Seventh Circuit

April 14, 1982

Argued Dec. 9, 1981.


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Mark Lukoff, Wis. Public Defender, Wis. Dept. of Justice, Milwaukee, Wis., for petitioner-appellant.

Jerome S. Schmidt, Wis. Dept. of Justice, Madison, Wis., for respondents-appellees.

Before SPRECHER and BAUER, Circuit Judges, and ROSZKOWSKI, [**] District Judge.

BAUER, Circuit Judge.

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(1)(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 The Wisconsin Court of Appeals affirmed Alicea's conviction in an unpublished decision.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, 97 Wis.2d 759, 295 N.W.2d 835 (1980). Thereafter, Alicea sought discretionary review in the Wisconsin Supreme Court, which refused to consider his case. State v. Alicea, 95 Wis.2d 748, 293 N.W.2d 926 (1980).

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.


Shortly before noon on April 5, 1978, Robert Behling went to apply for a job at a

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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 car 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, and 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 description 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.

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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 simply 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, American 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 enhanced. See Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82 (1973). Second, the likelihood of government investigation following advance notice discourages defendants from fabricating alibis, a deterrent that is lost when alibis can be introduced without warning during the trial.

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See Epstein, Advance Notice of Alibi, 55 J.Crim.L.C. & P.S. 29, 31 (1964). Finally, notice rules promote the orderly administration of justice by preventing unnecessary continuances and by eliminating trials in those instances where post-notice investigation reveals an alibi's merit. Id. at 32.

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, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court upheld Florida's alibi-notice statute against a charge that it violated the defendant's privilege against compelled self-incrimination under the fifth and fourteenth amendments. The Court rejected the constitutional objection, noting that under Florida law the defendant had an unfettered choice to present or abandon his alibi defense.

A few years later the Supreme Court decided Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), in which Oregon's alibi-notice statute was struck down. Neither the statute nor Oregon's criminal rules granted the defendant reciprocal discovery opportunities against the state. In effect, the Oregon scheme required the defendant to divulge his alibi evidence while simultaneously subjecting his evidence to surprise refutation by the state. The Supreme Court considered the lack of discovery reciprocity fundamentally unfair and therefore held the statute unconstitutional on fourteenth amendment due process grounds.

We have had occasion to review questions concerning similar statutes 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.2d 110 (1979) (Illinois). But neither our decisions nor those of the Supreme Court have resolved the precise issue raised by Alicea regarding the constitutionality of applying an exclusion sanction against the testimony of...

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