People v. Holiday

• Decision Date: 04 December 1970
• Docket Number: No. 42161,42161
• Citation: 265 N.E.2d 634,47 Ill.2d 300
• Parties: , 45 A.L.R.3d 948 The PEOPLE of the State of Illinois, Appellee, v. Thomas HOLIDAY, Appellant.
• Court: Illinois Supreme Court

Page 634

265 N.E.2d 634

47 Ill.2d 300, 45 A.L.R.3d 948

The PEOPLE of the State of Illinois, Appellee, v. Thomas HOLIDAY, Appellant.

No. 42161.

Supreme Court of Illinois.

Dec. 4, 1970.

Kenneth L. Gillis, Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane and John R. McClory, Asst. State's Attys., of counsel), for the People.

UNDERWOOD, Chief Justice.

A Cook County circuit court jury found defendant Thomas Holiday guilty of murder, and he was subsequently sentenced to imprisonment for a term of 75 to 100 years. On this appeal, he challenges the constitutionality of the alibi-notice statute (Ill.Rev.Stat.1967, ch. 38, par. 114--14); argues that admission of allegedly tainted identification testimony constituted a denial of due process; alleges several errors at trial; and finally contends that he was not proved guilty beyond a reasonable doubt.

Numerous arguments are raised in connection with the alibi statute. It is contended that the requirement of compliance with the State's pretrial request for a list of alibi witnesses violates the constitutional rights to remain silent, to equal protection, to due process and fundamental fairness, and to compulsory process for the attendance of witnesses. The United States Supreme Court recently addressed the fifth-amendment-right-to-remain-silent issue in the context of a challenge to Florida's notice-of-alibi rule (33 F.S.A. Rules of Criminal Procedure, Rule 1.200,), and concluded that 'the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witness. ¹⁴' (Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 1897, 26 L.Ed.2d 446.) The Supreme Court noted, in footnote 14 to its opinion, that the validity of the rule's sanction, I.e., denial of the right to present alibi witnesses not earlier disclosed in compliance with the requirements of the rule, was not in issue where the defendant had complied with the rule. The instant case comes before us in the same posture, defendant Holiday having complied with section 114--14, and not having been denied the opportunity to present any alibi witness. Therefore, we do not confront an issue arising upon restriction of the right to compulsory process. (U.S.Const. Amend. VI; Ill.Const. art. II, sec. 9, S.H.A.) The equal-protection argument raised by defendant is without merit. It is argued that the requirement that defendants with an alibi defense make a disclosure of pertinent facts and witnesses operates to discriminate against such defendants as opposed to defendants with other defenses not subject to disclosure. This equal-protection argument has merit only if we concede that there is no reasonable justification for the separate classification of defendants intending to present an alibi defense; however, the prospect of surprise alibi defenses is singularly undesirable and deserving of separate treatment, inasmuch as an alibi may be manufactured and, absent prior notice, difficult to refute. Thus, the separate classification, for discovery purposes, of defendants proposing to present alibi defenses is not an arbitrary denial of equal protection of the laws. See Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446.

The final argument presented by defendant is essentially a matter of 'fundamental fairness': the defendant must disclose his alibi witnesses, although the State is not required to make a reciprocal disclosure of alibi rebuttal witnesses. This question was not before the Supreme Court in Williams, since, in addition to liberal provisions for discovery by the defendant (see 33 F.S.A. Rules of Criminal Procedure, Rule 1.220), the Florida alibi notice rule itself required reciprocal disclosure by the State of alibi rebuttal witnesses. (33 F.S.A. Rules of Criminal Procedure, Rule 1.200.) However, the court suggested that its conclusions as to the validity of other alibi-notice statutes under due-process-fair-trial standards might depend upon 'an inquiry, for example, into whether the defendant enjoys reciprocal discovery against the State.' (Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 1896 n. 11, 26 L.Ed.2d 446.) In Illinois, the defendant is entitled to substantial discovery, including confessions and confession witnesses (Ill.Rev.Stat.1967, ch. 38, par. 114--10), evidence in the State's possession favorable to defendant (People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1; see also People v. Cagle, 41 Ill.2d 528, 244 N.E.2d 200; People v. Hoffman, 32 Ill.2d 96, 203 N.E.2d 873), prosecution witness's prior recorded statements, grand jury testimony, and reports, for use in impeachment (People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197, cert. den. 364 U.S. 874, 81 S.Ct. 119, 5 L.Ed.2d 96; People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399; People v. Neiman, 30 Ill.2d 393, 197 N.E.2d 8), and any document used by a prosecution witness, during or before his testimony, to refresh his present recollection (People v. Scott, 29 Ill.2d 97, 193 N.E.2d 814). In addition, section 114--9 of the Code of Criminal Procedure affords discovery of prosecution witnesses. (Ill.Rev.Stat.1967 ch. 38, par. 114--9(a).) However, as above noted, the alibi-notice statute does not provide for discovery of the State's alibi rebuttal witnesses (see Ill.Rev.Stat.1967, ch. 38, par. 114--14), and the provision entitling defendants to discovery of 'prosecution witnesses' expressly excludes 'rebuttal witnesses' from its purview. (Ill.Rev.Stat.1967, ch. 38, par. 114--9(c).) Provision for discovery of alibi-rebuttal witnesses would act to further implement the concept of a trial as a search for the truth, and we commend the matter as an appropriate subject for consideration by the General Assembly. Nevertheless, we do not feel that the discoverability of alibi-rebuttal witnesses is an essential element of due process where the defendant is otherwise accorded substantial discovery of prosecution witnesses. Indeed, the true parallel in the State's case to the alibi witness is the occurrence eyewitness, who is readily discoverable by the defendant. We hold, therefore, that the requirements of the alibi-notice statute, considered in conjunction with the defendant's discovery rights, are consonant with the fundamental-fairness-due-process concept.

Treatment of defendant's challenge to the admissibility of eyewitness identification testimony requires substantial review of the facts. Maurice Lee was walking with his 16-year-old wife, Sharon Lee, in an easterly direction on 47th Street in Chicago at approximately 2:00 A.M. on the morning of June 8, 1968. The couple, both Negroes, were accosted by a group of three or four young male Negroes who argued with Maurice Lee about the Blackstone Rangers and their 'territory'. They began fighting with Lee, and were joined by several other youths; after a few minutes Steve McCorry, who was convicted with Holiday in a joint trial, was dispatched to 'get the heat'. He returned a few minutes later with another youth, alleged to be Holiday, who shot Lee in the chest. The assailants ran, and Lee died shortly thereafter of the wound. Co-defendant McCorry was arrested within fifteen minutes; Holiday was arrested some three hours later as he was walking up the front porch steps to enter his home. Sharon Lee meanwhile enlisted the aid of a passing motorist to transport her husband to the hospital, where he was pronounced dead-on-arrival, and she there identified the recently arrested co-defendant McCorry. She then completed her report to the police at police headquarters, and went to her mother's home. At approximately 6:30 A.M., two officers brought Holiday to the home of the mother, Estelle Mobley, for Sharon Lee to view him. Mrs. Mobley apparently refused to permit the officers to disturb her daughter, and no show-up took place. At 11:00 A.M. two other officers arrived, and the challenged photographic viewing occurred in which Sharon Lee identified a 3-view color polaroid photo of Holiday as being the 'shooter'. She testified at trial as to this photo identification, and also made an in-court identification of Holiday. One other witness, Ernest Robinson, did likewise. He had been parked in his car headed west on 47th Street, and the altercation commenced within a few feet of his car. The group had moved east to a point 65--70 feet away, still on the sidewalk, when McCorry returned with the 'shooter'. Robinson was questioned at the scene by investigating officers, but declined to give his name at that time. The officer took his auto license number, however, and he was subpoenaed for the trial five months later. He was shown the three-view photos of each defendant at the time of trial before appearing as a witness, and testified to his identification of defendant's photo as well as his in-court identification.

Defendant Holiday moved prior to trial to suppress Sharon Lee's identification testimony, both as to photos and in-court, on the grounds that the photo identification procedure was conducted in the absence of counsel for defendant and was unnecessarily suggestive and lacking in fairness. The trial court dismissed the motion without an evidentiary hearing, apparently accepting the State's argument that the Wade-Gilbert cases were not applicable to photographic identifications and that therefore there was no need for a hearing. (See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.) The conclusion was apparently based upon a reading of the then recent decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, holding that a prearrest viewing by witnesses of defendant's photo did not violate the right-to-counsel strictures of Wade-Gilbert. As to witness Robinson, defendant did not move to suppress...