People v. Woods
Annotate this Case
NO. 4-96-0065
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
TERRANCE WOODS, ) No. 94CF597
Defendant-Appellant. )
) Honorable
) Diane L. Brunton,
) Judge Presiding.
_______________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In November 1995, a jury convicted defendant, Terrance
Woods, of first degree murder, home invasion, and armed robbery
(720 ILCS 5/9-1, 12-11, 18-2 (West 1994)). The trial court later
sentenced him to consecutive terms of 60, 30, and 30 years in
prison, respectively. Defendant appeals, arguing only that the
prosecutor committed reversible error by commenting during clos-
ing argument on defendant's failure to call an alibi witness. We
affirm.
I. BACKGROUND
We review the trial evidence only to the extent neces-
sary to put defendant's argument in context. Springfield police
officer Tim Young testified that as part of his investigation
into the murder of Bill Meyers, Young questioned defendant, who
told Young that on the night of the murder he had been at his
mother's house with his mother, Dorothy Williams, and his girl-
friend, Ira Jean Bolden. At trial, defendant presented an alibi
defense through the testimony of Williams, who corroborated the
story defendant gave Young. Defendant did not testify.
During closing argument, the prosecutor made the fol-
lowing comments:
"But remember what the [d]efendant said to
the police. He said my mother and my girl-
friend, [Bolden], can back up my story. They
can verify that I was home all day at my
mother's house.
And we heard a little bit about
[Bolden]. *** [B]ut at some point, somebody
decided that they didn't want you to hear
what [Bolden] had to say."
Defendant objected but the trial court overruled the objection,
noting that defense counsel had indicated in his opening state-
ment that he would call Bolden to testify regarding defendant's
whereabouts on the night of the shooting. In fact, defense coun-
sel had made no mention of Bolden as an alibi witness in opening
statement.
II. THE PROSECUTOR'S CLOSING ARGUMENT
Defendant argues the prosecutor committed reversible
error by commenting during closing argument on defendant's fail-
ure to call Bolden as an alibi witness. The State concedes the
trial court mischaracterized defendant's opening statement but
argues that the prosecutor's comments were nevertheless proper in
light of Williams' testimony. We agree with the State.
In People v. Fly, 249 Ill. App. 3d 730, 736, 619 N.E.2d 821, 825 (1993), quoting People v. Eddington, 129 Ill. App. 3d
745, 777, 473 N.E.2d 103, 125 (1984), this court wrote the fol-
lowing:
"'As a general rule, it is improper for the
prosecution to comment on a defendant's fail-
ure to present witnesses when such witnesses
are equally accessible to both parties.
[Citation.] An exception to the rule exists
where potential alibi witnesses are inter-
jected into the case by the defendant but are
not produced at trial.'"
Further, in People v. Kubat, 94 Ill. 2d 437, 498, 447 N.E.2d 247,
275 (1983), the supreme court addressed the defendant's conten-
tion that the prosecutor improperly commented upon the
defendant's failure to present an alibi witness where the State
initially had brought out at trial the name of the defendant's
alibi. In Kubat, a police officer testified that in response to
officers' questions after his arrest, the defendant stated that
he was with a female friend in another state on the date of the
offense. A witness later testified for the defense that she saw
the female friend with a man fitting defendant's description on
either the day before or the day of the offense. Consistent with
People v. Blakes, 63 Ill. 2d 354, 348 N.E.2d 170 (1976), the su-
preme court in Kubat (94 Ill. 2d at 498, 447 N.E.2d at 275) held
that "where a defendant injects into the case the name of an
alibi witness and then fails to call the witness, the prosecutor
may legitimately comment on the lack of such evidence although it
may not be relied upon as proof of the charge."
In Blakes, the supreme court held that it was not im-
proper for the prosecutor to comment on the defendant's failure
to produce any witnesses from the club where the defendant had
testified he spent five hours on the night of the offense. The
supreme court reasoned as follows:
"'[I]f it is developed in a trial that a
witness exists, presumably under the control
of a defendant, who can throw light upon a
vital matter, and he is not produced, cer-
tainly a jury may fairly consider that fact,
and, likewise, counsel would have a legiti-
mate right to comment thereon. ***
*** [T]hough failure to call a witness
or produce evidence may not be relied on as
substantial proof of the charge, nonetheless,
if other evidence tends to prove the guilt of
a defendant and he fails to bring in evidence
within his control in explanation or refuta-
tion, his omission to do so is a circumstance
entitled to some weight in the minds of the
jury, and, as such, is a legitimate subject
of comment by the prosecution.'" Blakes, 63 Ill. 2d at 359-60, 348 N.E.2d at 174, quoting
People v. Williams, 40 Ill. 2d 522, 528-29,
240 N.E.2d 645, 649 (1968).
Here, although the State initially brought up
defendant's alibi when Young testified about his conversation
with defendant at the detective bureau, defendant clearly inject-
ed Bolden's name into this case when Williams testified for the
defense that defendant had been with her and Bolden on the night
of the murder. Also, we note that defendant had indicated his
intention to inject Williams and Bolden into the case as alibi
witnesses irrespective of any State witness' testimony. Prior to
trial, defendant disclosed to the State that he intended "to ten-
der an alibi defense at any hearing or trial in this matter," and
he specifically listed Bolden and Williams as two of four alibi
witnesses. See People v. Nevitt, 135 Ill. 2d 423, 451, 450, 553 N.E.2d 368, 379 (1990) (where the supreme court held that the
prosecutor improperly commented on defendant's failure to call
alibi witnesses "when there is no that evidence a witness exists"
and "[d]efendant's only reference to an alibi was contained in a
pretrial pleading not in evidence").
Under these circumstances--where defendant clearly in-
jected Bolden's name into this case through Williams' testimony--
we conclude that the prosecutor's comments regarding defendant's
failure to call Bolden as an alibi witness were not improper.
In so concluding, we note that the cases defendant
relies upon are inapposite. In Eddington (129 Ill. App. 3d at
776-77, 473 N.E.2d at 125), this court held that the prosecutor
committed reversible error by commenting on the defendant's fail-
ure to call three alibi witnesses. However, crucial to this
decision was the fact that the existence of these potential alibi
witnesses was interjected into the case solely through a witness
for the State. As the Eddington court noted, "the only evidence
that [the three potential witnesses] could offer alibi testimony
was elicited by the State from its own witness." Eddington, 129
Ill. App. 3d at 777, 473 N.E.2d at 125. In contrast, here, de-
fendant called Williams to testify in support of his alibi, and
she testified defendant was with her and Bolden on the night in
question.
To the extent People v. Lawrence, 259 Ill. App. 3d 617,
631 N.E.2d 852 (1994), holds that this court's decision in
Eddington stands for anything more than the proposition that the
State may not comment on a defendant's failure to produce alibi
witnesses when the State, and the State only, suggests such alibi
witnesses exist, we decline to follow it. Moreover, we note that
in Lawrence--unlike the present case--the defendant had attempted
to subpoena at least one of the alibi witnesses upon whom the
State had commented in closing, and the evidence was close and
came down to the complainant's testimony versus the defendant's.
People v. Popely, 36 Ill. App. 3d 828, 345 N.E.2d 125
(1976), is likewise distinguishable. In Popely, the court con-
cluded that the defendant was denied a fair trial by the prosecu-
tor's prejudicial comments regarding the defendant's failure to
call a potential third-party witness to the crime. Popely in-
volved an occurrence witness, not an alibi witness who could be
expected to testify favorably to the defendant. The court in
Popely specifically noted that the defendant "in no way indicated
that this third party would support his theory of the case."
Popely, 36 Ill. App. 3d at 836, 345 N.E.2d at 131.
In sum, the prosecution may properly comment on a
defendant's failure to call alibi witnesses in certain circum-
stances. In general, the State may do so whenever the defendant
has injected the existence of such witnesses into a case. A
defendant may do so by suggesting in opening argument that such
witnesses exist and will be produced at trial. He may also in-
ject alibi witnesses into a case through the testimony of other
defense witnesses (as in this case) or his own testimony. We
fail to see what difference it makes whether the defendant is
testifying on cross-examination or on direct--in either case he
chooses to take the witness stand voluntarily. See People v.
Talley, 152 Ill. App. 3d 971, 984, 504 N.E.2d 1318, 1326 (1987)
(when a defendant gives such limited testimony on direct "that
the assertion of an alibi, as well as the names of potential
alibi witnesses, are raised first on cross-examination, he is not
automatically insulated from the inferences which naturally flow
from" his failure to present those witnesses); see also People v.
Anderson, 250 Ill. App. 3d 439, 454, 620 N.E.2d 1281, 1291 (1993)
(prosecutor properly commented on defendant's failure to call an
alibi witness where prosecutor brought out name of the alibi wit-
ness on cross-examination of defendant). To the extent People v.
Mays, 3 Ill. App. 3d 512, 277 N.E.2d 547 (1972), holds otherwise,
we decline to follow it. Nor does it matter that a State witness
initially suggests potential alibi witnesses to the trier of
fact. Only where the sole evidence of an alibi is introduced
through a State witness is the prosecution precluded from making
similar comments. Eddington, 129 Ill. App. 3d at 777, 473 N.E.2d
at 125.
Nonetheless, we note that the issue before this court--
namely, to what extent can the prosecutor comment upon the
defendant's failure to call an alibi witness who was first in-
jected into the case as a result of the testimony of a State
witness--should never have arisen. Indeed, the issue should
never have arisen in any of the following cases where similar
events occurred because it makes no sense for the State ever to
present a defendant's alibi through the State's witnesses: Kubat
(94 Ill. 2d at 498, 447 N.E.2d at 275 (where the State initially
had brought out at trial the name of the defendant's alibi wit-
ness yet a defense witness also testified regarding defendant's
alibi, the prosecutor properly commented upon defendant's failure
to call the witness)); Eddington (129 Ill. App. 3d at 777, 473 N.E.2d at 125 (where the only evidence of defendant's alibi wit-
nesses was introduced through a State witness, the prosecutor
improperly commented upon defendant's failure to call alibi wit-
nesses)); and
Lawrence (259 Ill. App. 3d at 627-28, 631 N.E.2d at 860 (where
the State initially had brought out at trial the defendant's ali-
bis and defendant later testified regarding numerous alibi wit-
nesses, the prosecutor improperly commented upon defendant's
failure to call alibi witnesses)).
In the present case, for example, Young testified that
he arrested defendant, who then said that he was not involved in
the murder nor did he know anything about it. He further told
the officer that, although he knew his alleged accomplices, he
had not seen them for a month.
After eliciting this testimony, the prosecutor then
asked Young if defendant said where he was on the evening in
question. In response, Young testified that defendant told Young
of the purported alibi, identifying his mother and Bolden as his
apparent alibi witnesses.
The record reveals no possible benefit to the prosecu-
tor's eliciting defendant's purported alibi from the police offi-
cer. Not only was doing so bad trial tactics, it also provided
defendant with his only argument that reversible error had been
committed by the prosecutor during his closing argument when he
commented upon defendant's failure to call Bolden to testify.
Defendant would have had no basis to challenge the
prosecutor's closing argument on this point if the prosecutor had
not initially presented defendant's alibi. Only because the
prosecutor first elicited reference to Bolden through the officer
does this court now have to address the issue regarding the al-
legedly improper closing argument.
Had the prosecutor not asked the officer about
defendant's whereabouts on the evening in question--thus estab-
lishing defendant's alibi through the officer's testimony--defen-
dant would not have been permitted on cross-examination of the
officer to elicit the same testimony. That is because statements
made by a party opponent are admissible as an exception to the
hearsay rule if otherwise relevant (People v. Shaw, 278 Ill. App.
3d 939, 951, 664 N.E.2d 97, 105 (1996))--here, the State could
introduce defendant's statements--but the party himself cannot
introduce his prior statements (People v. Patterson, 154 Ill. 2d 414, 452, 610 N.E.2d 16, 33 (1992) ("[s]elf-serving statements by
an accused are inadmissible hearsay"); People v. Barnwell, 285
Ill. App. 3d 981, 989, 675 N.E.2d 148, 154 (1996) (criminal
defendant's exculpatory statements made to police constitute
inadmissible hearsay, as would be the case with any out-of-court,
self-serving declaration by a party not subject to any exception
recognized by the hearsay rule); M. Graham, Cleary & Graham's
Handbook of Illinois Evidence 802.1, at 669-72 (6th ed. 1994)).
In almost all circumstances, if a defendant wishes to inform the
trier of fact of where defendant personally claims to have been
when the crime at issue was committed, he must testify at trial.
Perhaps uncertainty by prosecutors regarding this rule
accounts for the large number of cases in which the State first
presents the defendant's alibi through witnesses for the State.
As a matter of simple trial tactics, trial lawyers--including
prosecutors--should ask themselves when conducting direct exami-
nation of the witnesses they call, "how does eliciting the fol-
lowing information help my case and damage the other side?"
Judged accordingly, for a prosecutor to elicit a defendant's
alibi through State witnesses simply makes no sense.
III. DEFENDANT'S SUPPLEMENTAL PRO SE BRIEF
In January 1996, the trial court appointed the office
of the State Appellate Defender (OSAD) to represent defendant.
In December 1996, OSAD filed a brief on defendant's behalf in
this case. Defendant subsequently filed a pro se supplemental
brief, which set forth several issues OSAD did not raise. In
People v. Handy, 278 Ill. App. 3d 829, 836, 664 N.E.2d 1042, 1046
(1996), this court held that a pro se motion filed while defen-
dant in a criminal case is represented by counsel is "not prop-
erly before the court." In Handy, this court wrote:
"'[A trial court has] no responsibility
to entertain [a] defendant's pro se motions
during the time he was represented by coun-
sel. *** A defendant, when represented by
competent counsel, must not be permitted to
proceed unfettered, to file a stream of pro
se motions ***. ***
***
*** [A] defendant is not entitled to a
"hybrid trial" where he alternates between
proceeding pro se and being represented by
counsel.'" Handy, 278 Ill. App. 3d at 836,
664 N.E.2d at 1047, quoting People v.
Pondexter, 214 Ill. App. 3d 79, 87-88, 573 N.E.2d 339, 345 (1991).
In People v. Neal, 286 Ill. App. 3d 353, 355, 675 N.E.2d 130, 131
(1996), this court held that a pro se motion to reduce sentence
filed while the defendant was represented by appellate counsel
was not properly before the trial court. In so holding, this
court wrote as follows:
"[D]efendant had the benefit of trial counsel
who did not deem the filing of a motion to
reduce sentence to be appropriate. The de-
fendant had the benefit of the original ap-
peal upon all of the issues OSAD chose to
raise. Moreover, we note that OSAD, on this
appeal, rejected the grounds set forth in
defendant's pro se motion."
Although Handy and Neal address matters at the trial
level, their rule applies equally at the appellate level. If a
defendant is represented by appellate counsel (either appointed
or private), he has no right to a "hybrid appeal" in which he
alternates between being represented by counsel and proceeding
pro se by filing a supplemental pro se brief. Thus, on this
court's own motion, we strike defendant's pro se brief and de-
cline to address it or consider it in any way.
IV. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
KNECHT, J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
Judges in civil cases should be reluctant to give a
missing witness instruction (Illinois Pattern Jury Instructions,
Civil, No. 5.01 (3d ed. 1995) (hereinafter IPI Civil 3d No.
5.01)) unless the witness is truly accessible only to one party.
Cases should be decided on the basis of the evidence presented,
not by bickering over who is to blame for supposed evidence not
presented. If a party is compelled to call all possible witness-
es in order to avoid the missing witness instruction, cumulative
testimony and unduly lengthy trials will be the result. In crim-
inal cases judges must be even more careful than in civil cases.
There is no missing witness instruction in criminal cases, and
comment on missing witnesses may violate (1) the defendant's
right to remain silent and (2) the defendant's presumption of
innocence, as it is impermissible for the prosecution to attempt
to shift the burden of proof to the defendant. The State has the
burden of proving defendant guilty beyond a reasonable doubt as
to an alibi defense together with all the other elements of the
offense. 720 ILCS 5/3-2(b) (West 1994). Apart from
alibi cases, it is generally improper for the prosecution to
comment on an accused's failure to call a witness. People v.
Adams, 109 Ill. 2d 102, 120, 485 N.E.2d 339, 345 (1985). It is
impermissible for the prosecution to attempt to shift the burden
of proof to the defense. The defense is under no obligation to
present any evidence. People v. Phillips, 127 Ill. 2d 499, 527,
538 N.E.2d 500, 511 (1989). However, the prosecution may comment
on the fact that pieces of evidence stand undenied or unex-
plained. Fly, 249 Ill. App. 3d at 736-37, 619 N.E.2d at 825;
People v. Brown, 222 Ill. App. 3d 703, 718, 584 N.E.2d 355, 365-
66 (1991). Where the prosecution has presented evidence tending
to show guilt and defendant "fails to bring in evidence within
his control in explanation or refutation, his omission to do so
is a circumstance entitled to some weight in the minds of the
jury, and, as such, is a legitimate subject of comment by the
prosecution." Williams, 40 Ill. 2d at 529, 240 N.E.2d at 649
(ballistics expert testified regarding gun similar to
defendant's; defendant failed to produce his gun for tests);
Brown, 222 Ill. App. 3d at 718, 584 N.E.2d at 365-66; People v.
Howard, 147 Ill. 2d 103, 147, 588 N.E.2d 1044, 1062 (1991). It
is more likely that evidence will be under defendant's control
than it is that witnesses will be under defendant's control.
Where the comment is not directed to particular evidence or a
particular theory, but to defendant's general failure to produce
evidence, there is error. Nevitt, 135 Ill. 2d at 451-52, 553 N.E.2d at 379 (remarks focused "on the absence of witnesses to
show where the defendant was at that time"); Phillips, 127 Ill. 2d at 527, 538 N.E.2d at 511 (once a defendant has presented
evidence, that evidence is within the reach of appropriate com-
ment).
There are suggestions in some of the older cases that
comment is always appropriate when the defendant fails to call an
alibi witness, whether or not that witness is equally accessible
to the prosecution, that the only question is whether the "de-
fendant injects into the case the name of an alibi witness."
Kubat, 94 Ill. 2d at 498, 447 N.E.2d at 275; Mays, 3 Ill. App. 3d
at 514, 277 N.E.2d at 548 (potential alibi witnesses are "deemed
unavailable" to the prosecution). If that is correct, then a
defendant in a civil case has more protection than a defendant in
a criminal case. Comment is improper in a civil case where the
witness is equally available to the adverse party. See IPI Civil
3d No. 5.01. If the witness' testimony would be favorable, the
party should call that witness, not complain that the other party
has not done so.
There was a time when the prosecution in a criminal
case was unfairly disadvantaged with regard to alibi defenses.
As the court said in People v. Sanford, 100 Ill. App. 2d 101,
105, 241 N.E.2d 485, 487 (1968):
"There is nothing in the record to indicate
that the State knew prior to defendant's tes-
timony that he would claim an alibi or whom
he would name as witnesses to support his
story that he was in another place at the
time of the crime. The defendant knew who
they were and could have had them on hand,
the State could not. After the witnesses
were named, the trial would have had to be
recessed, perhaps to some other day, for the
State to have subpoenaed them."
Those problems were eliminated, however, once Supreme Rule 413
(134 Ill. 2d R. 413) was interpreted to require advance disclo-
sure of alibi defenses. See People ex rel. Carey v. Strayhorn,
61 Ill. 2d 85, 329 N.E.2d 194 (1975).
In the days when a party could not impeach his own
witness, there was an additional danger in calling a witness with
ties to the adverse party. Even if that witness could be located
and brought into court, there was always the possibility that the
witness would commit perjury, and the party calling the witness
would be stuck with the testimony. Under Rule 238 (134 Ill. 2d
R. 238), however, effective April 1, 1982, the credibility of a
witness may be attacked by any party, including the party calling
him. The rule allows the party calling such a witness to impeach
him by proof of prior inconsistent statements. The same rule
applies in criminal cases. See 134 Ill. 2d R. 433. The mere
fact that potential alibi witnesses are listed in defendant's
discovery answers does not establish that they are more accessi-
ble to the defense than to the prosecution. Lawrence, 259 Ill.
App. 3d at 626-27, 631 N.E.2d at 859; cf. People v. Navarrete,
258 Ill. App. 3d 39, 46, 629 N.E.2d 742, 747 (1994) (witness not
equally available if witness would likely be biased against the
State). If a defense alibi witness refuses to speak to the pros-
ecution, however, the witness should be considered inaccessible
to the prosecution.
The more recent cases make it clear that alibi witness-
es must in fact be unavailable to the prosecution before the
prosecution may comment on their absence. People v. Bramlett,
276 Ill. App. 3d 201, 205-06, 658 N.E.2d 510, 514 (1995); People
v. Alexander, 184 Ill. App. 3d 855, 863-64, 540 N.E.2d 949, 954
(1989); Eddington, 129 Ill. App. 3d at 777, 473 N.E.2d at 125.
Both in alibi cases and in nonalibi cases it must be shown that
the witness is more accessible to the defendant or under the
defendant's control before the prosecutor may comment on
defendant's failure to call him.
Witnesses are accessible only to the defendant where
the defendant refers to them by their first names only and dis-
closes neither an address nor a telephone number. Bramlett, 276
Ill. App. 3d at 206, 658 N.E.2d at 514; Adams, 109 Ill. 2d at
112-13, 485 N.E.2d at 341 (defendant said he was with Shirley
McClaine, but police found no evidence of a person by that name,
and defendant refused to take them to her home). When the dis-
closure is not made until trial, comment is appropriate. Ander-
son, 250 Ill. App. 3d at 453, 620 N.E.2d at 1291 (no mention of
Bobby Green until the prosecutor asked defendant at trial "who
were you with?"); Talley, 152 Ill. App. 3d at 984, 504 N.E.2d at
1326 ("alibi witnesses first asserted by the defendant in re-
sponse to cross-examination by the State"). Both aspects of
accessibility, lack of identification and late disclosure, were
present in Blakes (63 Ill. 2d 354, 348 N.E.2d 170). In Blakes,
defendant during discovery named four persons who could establish
his whereabouts at the time of the robbery, including the manager
of the Inman Hotel. At trial, however, defendant testified he
was at Neal's Lounge at the time of the robbery. On cross-exami-
nation defendant named several people who were there, whom he had
not named before, and "a lot of others, but I can't remember
everybody's name." Blakes, 63 Ill. 2d at 357, 348 N.E.2d at 172.
The prosecution was accordingly allowed to comment on defendant's
failure to call alibi witnesses.
Even where the issue of alibi is injected by the de-
fense, and even where the witness is inaccessible to the prose-
cution, there are situations where comment is improper. Comment
is not allowed where the witness is inaccessible both to the
prosecution and to the defense. Bramlett, 276 Ill. App. 3d at
206, 658 N.E.2d at 514; Lawrence, 259 Ill. App. 3d at 627, 631 N.E.2d at 859 (defendant attempted to subpoena witness, but ad-
dress was incorrect). Comment is not appropriate where there is
a reason for defendant's failure to call the witness, such as
where the witness could be impeached with a felony conviction.
Lawrence, 259 Ill. App. 3d at 627, 631 N.E.2d at 859. Comment is
not appropriate where the unproduced witness' testimony would be
merely cumulative. Chuhak v. Chicago Transit Authority, 152 Ill.
App. 3d 480, 489, 504 N.E.2d 875, 881 (1987). In contrast to
prosecutors, defendants are allowed to comment on the
prosecution's failure to call a witness only where the uncalled
witness has testimony unique to the case. Fly, 249 Ill. App. 3d
at 738, 619 N.E.2d at 826.
Nothing suggests Bolden was inaccessible to the prose-
cution in this case. Defendant had listed Bolden's name and
address in his response to discovery. Bolden was both identified
and timely disclosed. If the prosecution truly believed that
Bolden would have refuted defendant's alibi, the prosecution
would have called her to do so and not relied on a negative in-
ference.
The majority opinion limits its discussion to whether
the alibi defense here was injected into the case by defendant or
the prosecution. A defendant considering an alibi defense must
weigh the possibility that the jury will convict him, not because
it believes the prosecution case, but because it disbelieves his
evidence of alibi. United States v. Robinson, 602 F.2d 760, 762
(6th Cir. 1979) (instruction should explain that is improper);
see also 2 C. Wright, Federal Practice & Procedure 491 (2d ed.
1982). It is wrong for the prosecution to inject into the trial
a defense that the defendant chooses not to make, just so the
prosecution may comment on the defendant's failure to produce
witnesses. The majority offers some advice to prosecutors that
they should avoid presenting alibi evidence. My guess is that
prosecutors know better than we do what works with a jury and
that the frequent mention of alibis by prosecution witnesses is
no accident.
Giving notice of a potential alibi defense does not
obligate defendant to present that defense. Nevitt, 135 Ill. 2d
at 450, 553 N.E.2d at 378-79 (error to comment; defendant's only
reference to alibi contained in a pretrial pleading not in evi-
dence). That is not to say that the prosecution must ignore a
defendant's pretrial statement that he was with X at the time the
offense was committed. The prosecutor certainly may call X as a
witness to deny that defendant was with him and the prosecutor no
doubt would do that if that is what X would say.
The cases that have sought to prevent the prosecution
from injecting the alibi defense (or prevent the defense from in-
jecting it while avoiding comment on it) have attempted to lay
down some rules that have not worked well. A defendant in fact
may interject the defense without taking the stand, by simply
calling the alibi witness. A defendant who does take the stand
should not be allowed to avoid cross-examination on his statement
that he was not at the crime scene. Talley, 152 Ill. App. 3d
971, 504 N.E.2d 1318; Anderson, 250 Ill. App. 3d at 453, 620 N.E.2d at 1291 ("[w]ho were you with?" (emphasis added)). In
these cases, I would allow the prosecution to comment on
defendant's failure to call alibi witnesses, if they were not
equally accessible to the prosecution. Cf. Kubat, 94 Ill. 2d at
498, 447 N.E.2d at 275 (only question is whether "defendant in-
jects into the case the name of an alibi witness" (emphasis add-
ed)); compare Anderson, 250 Ill. App. 3d at 454, 620 N.E.2d at
1291.
The majority suggests it does not matter that a State's
witness initially suggests potential alibi witnesses to the trier
of fact and that defendant calls an alibi witness in response;
that the prosecutor should be allowed to comment in that situa-
tion. The cases have consistently used the word "inject" or
"interject" in addressing this issue, which indicates they are
concerned with who first brings the issue into the case. In the
present case, the prosecutor certainly injected the alibi defense
and the names of the alibi witnesses. If defendant had not then
called his mother, the prosecutor would have commented, not just
that defendant did not produce Bolden but that defendant did not
produce either witness. Perhaps the trial court would have sus-
tained an objection at that point, but the message would have
been received by the jury.
Comments that improperly suggest to the jury that de-
fendant has a burden to prove his innocence are a serious matter
and amount to constitutional error. In some cases, the appellate
court has reversed for a new trial even though the trial court
sustained an objection to the comment. Lawrence, 259 Ill. App.
3d at 628, 631 N.E.2d at 860; see Eddington, 129 Ill. App. 3d at
777, 473 N.E.2d at 125 (error not cured by general instructions
on purposes of argument and burden of proof). In Nevitt, the
supreme court stated that the comment could not have been a mate-
rial factor in defendant's conviction where the court had the
victim's statement and defendant had signed several confessions.
Nevitt, 135 Ill. 2d at 453, 553 N.E.2d at 380. In Fly, where the
trial court eventually gave a curative instruction and an under-
cover police officer testified that defendant had purchased co-
caine from him, the appellate court held that defendant had suf-
fered no prejudice. Fly, 249 Ill. App. 3d at 737, 619 N.E.2d at
825-26. In the present case, the prosecution's action was inten-
tional, there was no curative instruction, and the court's over-
ruling of the defense objection reinforced the jury's impression
that it could properly consider defendant's failure to call
Bolden. There was testimony from Jason Smith and Shain Ford that
defendant was the one who killed the victim, but Smith and Ford
were accomplices with a motive to exonerate themselves. I cannot
say the error here was harmless beyond a reasonable doubt. I
would reverse and remand for a new trial.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
TERRANCE WOODS, ) No. 94CF597
Defendant-Appellant. )
) Honorable
) Diane L. Brunton,
) Judge Presiding.
_______________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In November 1995, a jury convicted defendant, Terrance
Woods, of first degree murder, home invasion, and armed robbery
(720 ILCS 5/9-1, 12-11, 18-2 (West 1994)). The trial court later
sentenced him to consecutive terms of 60, 30, and 30 years in
prison, respectively. Defendant appeals, arguing only that the
prosecutor committed reversible error by commenting during clos-
ing argument on defendant's failure to call an alibi witness. We
affirm.
I. BACKGROUND
We review the trial evidence only to the extent neces-
sary to put defendant's argument in context. Springfield police
officer Tim Young testified that as part of his investigation
into the murder of Bill Meyers, Young questioned defendant, who
told Young that on the night of the murder he had been at his
mother's house with his mother, Dorothy Williams, and his girl-
friend, Ira Jean Bolden. At trial, defendant presented an alibi
defense through the testimony of Williams, who corroborated the
story defendant gave Young. Defendant did not testify.
During closing argument, the prosecutor made the fol-
lowing comments:
"But remember what the [d]efendant said to
the police. He said my mother and my girl-
friend, [Bolden], can back up my story. They
can verify that I was home all day at my
mother's house.
And we heard a little bit about
[Bolden]. *** [B]ut at some point, somebody
decided that they didn't want you to hear
what [Bolden] had to say."
Defendant objected but the trial court overruled the objection,
noting that defense counsel had indicated in his opening state-
ment that he would call Bolden to testify regarding defendant's
whereabouts on the night of the shooting. In fact, defense coun-
sel had made no mention of Bolden as an alibi witness in opening
statement.
II. THE PROSECUTOR'S CLOSING ARGUMENT
Defendant argues the prosecutor committed reversible
error by commenting during closing argument on defendant's fail-
ure to call Bolden as an alibi witness. The State concedes the
trial court mischaracterized defendant's opening statement but
argues that the prosecutor's comments were nevertheless proper in
light of Williams' testimony. We agree with the State.
In People v. Fly, 249 Ill. App. 3d 730, 736, 619 N.E.2d 821, 825 (1993), quoting People v. Eddington, 129 Ill. App. 3d
745, 777, 473 N.E.2d 103, 125 (1984), this court wrote the fol-
lowing:
"'As a general rule, it is improper for the
prosecution to comment on a defendant's fail-
ure to present witnesses when such witnesses
are equally accessible to both parties.
[Citation.] An exception to the rule exists
where potential alibi witnesses are inter-
jected into the case by the defendant but are
not produced at trial.'"
Further, in People v. Kubat, 94 Ill. 2d 437, 498, 447 N.E.2d 247,
275 (1983), the supreme court addressed the defendant's conten-
tion that the prosecutor improperly commented upon the
defendant's failure to present an alibi witness where the State
initially had brought out at trial the name of the defendant's
alibi. In Kubat, a police officer testified that in response to
officers' questions after his arrest, the defendant stated that
he was with a female friend in another state on the date of the
offense. A witness later testified for the defense that she saw
the female friend with a man fitting defendant's description on
either the day before or the day of the offense. Consistent with
People v. Blakes, 63 Ill. 2d 354, 348 N.E.2d 170 (1976), the su-
preme court in Kubat (94 Ill. 2d at 498, 447 N.E.2d at 275) held
that "where a defendant injects into the case the name of an
alibi witness and then fails to call the witness, the prosecutor
may legitimately comment on the lack of such evidence although it
may not be relied upon as proof of the charge."
In Blakes, the supreme court held that it was not im-
proper for the prosecutor to comment on the defendant's failure
to produce any witnesses from the club where the defendant had
testified he spent five hours on the night of the offense. The
supreme court reasoned as follows:
"'[I]f it is developed in a trial that a
witness exists, presumably under the control
of a defendant, who can throw light upon a
vital matter, and he is not produced, cer-
tainly a jury may fairly consider that fact,
and, likewise, counsel would have a legiti-
mate right to comment thereon. ***
*** [T]hough failure to call a witness
or produce evidence may not be relied on as
substantial proof of the charge, nonetheless,
if other evidence tends to prove the guilt of
a defendant and he fails to bring in evidence
within his control in explanation or refuta-
tion, his omission to do so is a circumstance
entitled to some weight in the minds of the
jury, and, as such, is a legitimate subject
of comment by the prosecution.'" Blakes, 63 Ill. 2d at 359-60, 348 N.E.2d at 174, quoting
People v. Williams, 40 Ill. 2d 522, 528-29,
240 N.E.2d 645, 649 (1968).
Here, although the State initially brought up
defendant's alibi when Young testified about his conversation
with defendant at the detective bureau, defendant clearly inject-
ed Bolden's name into this case when Williams testified for the
defense that defendant had been with her and Bolden on the night
of the murder. Also, we note that defendant had indicated his
intention to inject Williams and Bolden into the case as alibi
witnesses irrespective of any State witness' testimony. Prior to
trial, defendant disclosed to the State that he intended "to ten-
der an alibi defense at any hearing or trial in this matter," and
he specifically listed Bolden and Williams as two of four alibi
witnesses. See People v. Nevitt, 135 Ill. 2d 423, 451, 450, 553 N.E.2d 368, 379 (1990) (where the supreme court held that the
prosecutor improperly commented on defendant's failure to call
alibi witnesses "when there is no that evidence a witness exists"
and "[d]efendant's only reference to an alibi was contained in a
pretrial pleading not in evidence").
Under these circumstances--where defendant clearly in-
jected Bolden's name into this case through Williams' testimony--
we conclude that the prosecutor's comments regarding defendant's
failure to call Bolden as an alibi witness were not improper.
In so concluding, we note that the cases defendant
relies upon are inapposite. In Eddington (129 Ill. App. 3d at
776-77, 473 N.E.2d at 125), this court held that the prosecutor
committed reversible error by commenting on the defendant's fail-
ure to call three alibi witnesses. However, crucial to this
decision was the fact that the existence of these potential alibi
witnesses was interjected into the case solely through a witness
for the State. As the Eddington court noted, "the only evidence
that [the three potential witnesses] could offer alibi testimony
was elicited by the State from its own witness." Eddington, 129
Ill. App. 3d at 777, 473 N.E.2d at 125. In contrast, here, de-
fendant called Williams to testify in support of his alibi, and
she testified defendant was with her and Bolden on the night in
question.
To the extent People v. Lawrence, 259 Ill. App. 3d 617,
631 N.E.2d 852 (1994), holds that this court's decision in
Eddington stands for anything more than the proposition that the
State may not comment on a defendant's failure to produce alibi
witnesses when the State, and the State only, suggests such alibi
witnesses exist, we decline to follow it. Moreover, we note that
in Lawrence--unlike the present case--the defendant had attempted
to subpoena at least one of the alibi witnesses upon whom the
State had commented in closing, and the evidence was close and
came down to the complainant's testimony versus the defendant's.
People v. Popely, 36 Ill. App. 3d 828, 345 N.E.2d 125
(1976), is likewise distinguishable. In Popely, the court con-
cluded that the defendant was denied a fair trial by the prosecu-
tor's prejudicial comments regarding the defendant's failure to
call a potential third-party witness to the crime. Popely in-
volved an occurrence witness, not an alibi witness who could be
expected to testify favorably to the defendant. The court in
Popely specifically noted that the defendant "in no way indicated
that this third party would support his theory of the case."
Popely, 36 Ill. App. 3d at 836, 345 N.E.2d at 131.
In sum, the prosecution may properly comment on a
defendant's failure to call alibi witnesses in certain circum-
stances. In general, the State may do so whenever the defendant
has injected the existence of such witnesses into a case. A
defendant may do so by suggesting in opening argument that such
witnesses exist and will be produced at trial. He may also in-
ject alibi witnesses into a case through the testimony of other
defense witnesses (as in this case) or his own testimony. We
fail to see what difference it makes whether the defendant is
testifying on cross-examination or on direct--in either case he
chooses to take the witness stand voluntarily. See People v.
Talley, 152 Ill. App. 3d 971, 984, 504 N.E.2d 1318, 1326 (1987)
(when a defendant gives such limited testimony on direct "that
the assertion of an alibi, as well as the names of potential
alibi witnesses, are raised first on cross-examination, he is not
automatically insulated from the inferences which naturally flow
from" his failure to present those witnesses); see also People v.
Anderson, 250 Ill. App. 3d 439, 454, 620 N.E.2d 1281, 1291 (1993)
(prosecutor properly commented on defendant's failure to call an
alibi witness where prosecutor brought out name of the alibi wit-
ness on cross-examination of defendant). To the extent People v.
Mays, 3 Ill. App. 3d 512, 277 N.E.2d 547 (1972), holds otherwise,
we decline to follow it. Nor does it matter that a State witness
initially suggests potential alibi witnesses to the trier of
fact. Only where the sole evidence of an alibi is introduced
through a State witness is the prosecution precluded from making
similar comments. Eddington, 129 Ill. App. 3d at 777, 473 N.E.2d
at 125.
Nonetheless, we note that the issue before this court--
namely, to what extent can the prosecutor comment upon the
defendant's failure to call an alibi witness who was first in-
jected into the case as a result of the testimony of a State
witness--should never have arisen. Indeed, the issue should
never have arisen in any of the following cases where similar
events occurred because it makes no sense for the State ever to
present a defendant's alibi through the State's witnesses: Kubat
(94 Ill. 2d at 498, 447 N.E.2d at 275 (where the State initially
had brought out at trial the name of the defendant's alibi wit-
ness yet a defense witness also testified regarding defendant's
alibi, the prosecutor properly commented upon defendant's failure
to call the witness)); Eddington (129 Ill. App. 3d at 777, 473 N.E.2d at 125 (where the only evidence of defendant's alibi wit-
nesses was introduced through a State witness, the prosecutor
improperly commented upon defendant's failure to call alibi wit-
nesses)); and
Lawrence (259 Ill. App. 3d at 627-28, 631 N.E.2d at 860 (where
the State initially had brought out at trial the defendant's ali-
bis and defendant later testified regarding numerous alibi wit-
nesses, the prosecutor improperly commented upon defendant's
failure to call alibi witnesses)).
In the present case, for example, Young testified that
he arrested defendant, who then said that he was not involved in
the murder nor did he know anything about it. He further told
the officer that, although he knew his alleged accomplices, he
had not seen them for a month.
After eliciting this testimony, the prosecutor then
asked Young if defendant said where he was on the evening in
question. In response, Young testified that defendant told Young
of the purported alibi, identifying his mother and Bolden as his
apparent alibi witnesses.
The record reveals no possible benefit to the prosecu-
tor's eliciting defendant's purported alibi from the police offi-
cer. Not only was doing so bad trial tactics, it also provided
defendant with his only argument that reversible error had been
committed by the prosecutor during his closing argument when he
commented upon defendant's failure to call Bolden to testify.
Defendant would have had no basis to challenge the
prosecutor's closing argument on this point if the prosecutor had
not initially presented defendant's alibi. Only because the
prosecutor first elicited reference to Bolden through the officer
does this court now have to address the issue regarding the al-
legedly improper closing argument.
Had the prosecutor not asked the officer about
defendant's whereabouts on the evening in question--thus estab-
lishing defendant's alibi through the officer's testimony--defen-
dant would not have been permitted on cross-examination of the
officer to elicit the same testimony. That is because statements
made by a party opponent are admissible as an exception to the
hearsay rule if otherwise relevant (People v. Shaw, 278 Ill. App.
3d 939, 951, 664 N.E.2d 97, 105 (1996))--here, the State could
introduce defendant's statements--but the party himself cannot
introduce his prior statements (People v. Patterson, 154 Ill. 2d 414, 452, 610 N.E.2d 16, 33 (1992) ("[s]elf-serving statements by
an accused are inadmissible hearsay"); People v. Barnwell, 285
Ill. App. 3d 981, 989, 675 N.E.2d 148, 154 (1996) (criminal
defendant's exculpatory statements made to police constitute
inadmissible hearsay, as would be the case with any out-of-court,
self-serving declaration by a party not subject to any exception
recognized by the hearsay rule); M. Graham, Cleary & Graham's
Handbook of Illinois Evidence 802.1, at 669-72 (6th ed. 1994)).
In almost all circumstances, if a defendant wishes to inform the
trier of fact of where defendant personally claims to have been
when the crime at issue was committed, he must testify at trial.
Perhaps uncertainty by prosecutors regarding this rule
accounts for the large number of cases in which the State first
presents the defendant's alibi through witnesses for the State.
As a matter of simple trial tactics, trial lawyers--including
prosecutors--should ask themselves when conducting direct exami-
nation of the witnesses they call, "how does eliciting the fol-
lowing information help my case and damage the other side?"
Judged accordingly, for a prosecutor to elicit a defendant's
alibi through State witnesses simply makes no sense.
III. DEFENDANT'S SUPPLEMENTAL PRO SE BRIEF
In January 1996, the trial court appointed the office
of the State Appellate Defender (OSAD) to represent defendant.
In December 1996, OSAD filed a brief on defendant's behalf in
this case. Defendant subsequently filed a pro se supplemental
brief, which set forth several issues OSAD did not raise. In
People v. Handy, 278 Ill. App. 3d 829, 836, 664 N.E.2d 1042, 1046
(1996), this court held that a pro se motion filed while defen-
dant in a criminal case is represented by counsel is "not prop-
erly before the court." In Handy, this court wrote:
"'[A trial court has] no responsibility
to entertain [a] defendant's pro se motions
during the time he was represented by coun-
sel. *** A defendant, when represented by
competent counsel, must not be permitted to
proceed unfettered, to file a stream of pro
se motions ***. ***
***
*** [A] defendant is not entitled to a
"hybrid trial" where he alternates between
proceeding pro se and being represented by
counsel.'" Handy, 278 Ill. App. 3d at 836,
664 N.E.2d at 1047, quoting People v.
Pondexter, 214 Ill. App. 3d 79, 87-88, 573 N.E.2d 339, 345 (1991).
In People v. Neal, 286 Ill. App. 3d 353, 355, 675 N.E.2d 130, 131
(1996), this court held that a pro se motion to reduce sentence
filed while the defendant was represented by appellate counsel
was not properly before the trial court. In so holding, this
court wrote as follows:
"[D]efendant had the benefit of trial counsel
who did not deem the filing of a motion to
reduce sentence to be appropriate. The de-
fendant had the benefit of the original ap-
peal upon all of the issues OSAD chose to
raise. Moreover, we note that OSAD, on this
appeal, rejected the grounds set forth in
defendant's pro se motion."
Although Handy and Neal address matters at the trial
level, their rule applies equally at the appellate level. If a
defendant is represented by appellate counsel (either appointed
or private), he has no right to a "hybrid appeal" in which he
alternates between being represented by counsel and proceeding
pro se by filing a supplemental pro se brief. Thus, on this
court's own motion, we strike defendant's pro se brief and de-
cline to address it or consider it in any way.
IV. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
KNECHT, J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
Judges in civil cases should be reluctant to give a
missing witness instruction (Illinois Pattern Jury Instructions,
Civil, No. 5.01 (3d ed. 1995) (hereinafter IPI Civil 3d No.
5.01)) unless the witness is truly accessible only to one party.
Cases should be decided on the basis of the evidence presented,
not by bickering over who is to blame for supposed evidence not
presented. If a party is compelled to call all possible witness-
es in order to avoid the missing witness instruction, cumulative
testimony and unduly lengthy trials will be the result. In crim-
inal cases judges must be even more careful than in civil cases.
There is no missing witness instruction in criminal cases, and
comment on missing witnesses may violate (1) the defendant's
right to remain silent and (2) the defendant's presumption of
innocence, as it is impermissible for the prosecution to attempt
to shift the burden of proof to the defendant. The State has the
burden of proving defendant guilty beyond a reasonable doubt as
to an alibi defense together with all the other elements of the
offense. 720 ILCS 5/3-2(b) (West 1994). Apart from
alibi cases, it is generally improper for the prosecution to
comment on an accused's failure to call a witness. People v.
Adams, 109 Ill. 2d 102, 120, 485 N.E.2d 339, 345 (1985). It is
impermissible for the prosecution to attempt to shift the burden
of proof to the defense. The defense is under no obligation to
present any evidence. People v. Phillips, 127 Ill. 2d 499, 527,
538 N.E.2d 500, 511 (1989). However, the prosecution may comment
on the fact that pieces of evidence stand undenied or unex-
plained. Fly, 249 Ill. App. 3d at 736-37, 619 N.E.2d at 825;
People v. Brown, 222 Ill. App. 3d 703, 718, 584 N.E.2d 355, 365-
66 (1991). Where the prosecution has presented evidence tending
to show guilt and defendant "fails to bring in evidence within
his control in explanation or refutation, his omission to do so
is a circumstance entitled to some weight in the minds of the
jury, and, as such, is a legitimate subject of comment by the
prosecution." Williams, 40 Ill. 2d at 529, 240 N.E.2d at 649
(ballistics expert testified regarding gun similar to
defendant's; defendant failed to produce his gun for tests);
Brown, 222 Ill. App. 3d at 718, 584 N.E.2d at 365-66; People v.
Howard, 147 Ill. 2d 103, 147, 588 N.E.2d 1044, 1062 (1991). It
is more likely that evidence will be under defendant's control
than it is that witnesses will be under defendant's control.
Where the comment is not directed to particular evidence or a
particular theory, but to defendant's general failure to produce
evidence, there is error. Nevitt, 135 Ill. 2d at 451-52, 553 N.E.2d at 379 (remarks focused "on the absence of witnesses to
show where the defendant was at that time"); Phillips, 127 Ill. 2d at 527, 538 N.E.2d at 511 (once a defendant has presented
evidence, that evidence is within the reach of appropriate com-
ment).
There are suggestions in some of the older cases that
comment is always appropriate when the defendant fails to call an
alibi witness, whether or not that witness is equally accessible
to the prosecution, that the only question is whether the "de-
fendant injects into the case the name of an alibi witness."
Kubat, 94 Ill. 2d at 498, 447 N.E.2d at 275; Mays, 3 Ill. App. 3d
at 514, 277 N.E.2d at 548 (potential alibi witnesses are "deemed
unavailable" to the prosecution). If that is correct, then a
defendant in a civil case has more protection than a defendant in
a criminal case. Comment is improper in a civil case where the
witness is equally available to the adverse party. See IPI Civil
3d No. 5.01. If the witness' testimony would be favorable, the
party should call that witness, not complain that the other party
has not done so.
There was a time when the prosecution in a criminal
case was unfairly disadvantaged with regard to alibi defenses.
As the court said in People v. Sanford, 100 Ill. App. 2d 101,
105, 241 N.E.2d 485, 487 (1968):
"There is nothing in the record to indicate
that the State knew prior to defendant's tes-
timony that he would claim an alibi or whom
he would name as witnesses to support his
story that he was in another place at the
time of the crime. The defendant knew who
they were and could have had them on hand,
the State could not. After the witnesses
were named, the trial would have had to be
recessed, perhaps to some other day, for the
State to have subpoenaed them."
Those problems were eliminated, however, once Supreme Rule 413
(134 Ill. 2d R. 413) was interpreted to require advance disclo-
sure of alibi defenses. See People ex rel. Carey v. Strayhorn,
61 Ill. 2d 85, 329 N.E.2d 194 (1975).
In the days when a party could not impeach his own
witness, there was an additional danger in calling a witness with
ties to the adverse party. Even if that witness could be located
and brought into court, there was always the possibility that the
witness would commit perjury, and the party calling the witness
would be stuck with the testimony. Under Rule 238 (134 Ill. 2d
R. 238), however, effective April 1, 1982, the credibility of a
witness may be attacked by any party, including the party calling
him. The rule allows the party calling such a witness to impeach
him by proof of prior inconsistent statements. The same rule
applies in criminal cases. See 134 Ill. 2d R. 433. The mere
fact that potential alibi witnesses are listed in defendant's
discovery answers does not establish that they are more accessi-
ble to the defense than to the prosecution. Lawrence, 259 Ill.
App. 3d at 626-27, 631 N.E.2d at 859; cf. People v. Navarrete,
258 Ill. App. 3d 39, 46, 629 N.E.2d 742, 747 (1994) (witness not
equally available if witness would likely be biased against the
State). If a defense alibi witness refuses to speak to the pros-
ecution, however, the witness should be considered inaccessible
to the prosecution.
The more recent cases make it clear that alibi witness-
es must in fact be unavailable to the prosecution before the
prosecution may comment on their absence. People v. Bramlett,
276 Ill. App. 3d 201, 205-06, 658 N.E.2d 510, 514 (1995); People
v. Alexander, 184 Ill. App. 3d 855, 863-64, 540 N.E.2d 949, 954
(1989); Eddington, 129 Ill. App. 3d at 777, 473 N.E.2d at 125.
Both in alibi cases and in nonalibi cases it must be shown that
the witness is more accessible to the defendant or under the
defendant's control before the prosecutor may comment on
defendant's failure to call him.
Witnesses are accessible only to the defendant where
the defendant refers to them by their first names only and dis-
closes neither an address nor a telephone number. Bramlett, 276
Ill. App. 3d at 206, 658 N.E.2d at 514; Adams, 109 Ill. 2d at
112-13, 485 N.E.2d at 341 (defendant said he was with Shirley
McClaine, but police found no evidence of a person by that name,
and defendant refused to take them to her home). When the dis-
closure is not made until trial, comment is appropriate. Ander-
son, 250 Ill. App. 3d at 453, 620 N.E.2d at 1291 (no mention of
Bobby Green until the prosecutor asked defendant at trial "who
were you with?"); Talley, 152 Ill. App. 3d at 984, 504 N.E.2d at
1326 ("alibi witnesses first asserted by the defendant in re-
sponse to cross-examination by the State"). Both aspects of
accessibility, lack of identification and late disclosure, were
present in Blakes (63 Ill. 2d 354, 348 N.E.2d 170). In Blakes,
defendant during discovery named four persons who could establish
his whereabouts at the time of the robbery, including the manager
of the Inman Hotel. At trial, however, defendant testified he
was at Neal's Lounge at the time of the robbery. On cross-exami-
nation defendant named several people who were there, whom he had
not named before, and "a lot of others, but I can't remember
everybody's name." Blakes, 63 Ill. 2d at 357, 348 N.E.2d at 172.
The prosecution was accordingly allowed to comment on defendant's
failure to call alibi witnesses.
Even where the issue of alibi is injected by the de-
fense, and even where the witness is inaccessible to the prose-
cution, there are situations where comment is improper. Comment
is not allowed where the witness is inaccessible both to the
prosecution and to the defense. Bramlett, 276 Ill. App. 3d at
206, 658 N.E.2d at 514; Lawrence, 259 Ill. App. 3d at 627, 631 N.E.2d at 859 (defendant attempted to subpoena witness, but ad-
dress was incorrect). Comment is not appropriate where there is
a reason for defendant's failure to call the witness, such as
where the witness could be impeached with a felony conviction.
Lawrence, 259 Ill. App. 3d at 627, 631 N.E.2d at 859. Comment is
not appropriate where the unproduced witness' testimony would be
merely cumulative. Chuhak v. Chicago Transit Authority, 152 Ill.
App. 3d 480, 489, 504 N.E.2d 875, 881 (1987). In contrast to
prosecutors, defendants are allowed to comment on the
prosecution's failure to call a witness only where the uncalled
witness has testimony unique to the case. Fly, 249 Ill. App. 3d
at 738, 619 N.E.2d at 826.
Nothing suggests Bolden was inaccessible to the prose-
cution in this case. Defendant had listed Bolden's name and
address in his response to discovery. Bolden was both identified
and timely disclosed. If the prosecution truly believed that
Bolden would have refuted defendant's alibi, the prosecution
would have called her to do so and not relied on a negative in-
ference.
The majority opinion limits its discussion to whether
the alibi defense here was injected into the case by defendant or
the prosecution. A defendant considering an alibi defense must
weigh the possibility that the jury will convict him, not because
it believes the prosecution case, but because it disbelieves his
evidence of alibi. United States v. Robinson, 602 F.2d 760, 762
(6th Cir. 1979) (instruction should explain that is improper);
see also 2 C. Wright, Federal Practice & Procedure 491 (2d ed.
1982). It is wrong for the prosecution to inject into the trial
a defense that the defendant chooses not to make, just so the
prosecution may comment on the defendant's failure to produce
witnesses. The majority offers some advice to prosecutors that
they should avoid presenting alibi evidence. My guess is that
prosecutors know better than we do what works with a jury and
that the frequent mention of alibis by prosecution witnesses is
no accident.
Giving notice of a potential alibi defense does not
obligate defendant to present that defense. Nevitt, 135 Ill. 2d
at 450, 553 N.E.2d at 378-79 (error to comment; defendant's only
reference to alibi contained in a pretrial pleading not in evi-
dence). That is not to say that the prosecution must ignore a
defendant's pretrial statement that he was with X at the time the
offense was committed. The prosecutor certainly may call X as a
witness to deny that defendant was with him and the prosecutor no
doubt would do that if that is what X would say.
The cases that have sought to prevent the prosecution
from injecting the alibi defense (or prevent the defense from in-
jecting it while avoiding comment on it) have attempted to lay
down some rules that have not worked well. A defendant in fact
may interject the defense without taking the stand, by simply
calling the alibi witness. A defendant who does take the stand
should not be allowed to avoid cross-examination on his statement
that he was not at the crime scene. Talley, 152 Ill. App. 3d
971, 504 N.E.2d 1318; Anderson, 250 Ill. App. 3d at 453, 620 N.E.2d at 1291 ("[w]ho were you with?" (emphasis added)). In
these cases, I would allow the prosecution to comment on
defendant's failure to call alibi witnesses, if they were not
equally accessible to the prosecution. Cf. Kubat, 94 Ill. 2d at
498, 447 N.E.2d at 275 (only question is whether "defendant in-
jects into the case the name of an alibi witness" (emphasis add-
ed)); compare Anderson, 250 Ill. App. 3d at 454, 620 N.E.2d at
1291.
The majority suggests it does not matter that a State's
witness initially suggests potential alibi witnesses to the trier
of fact and that defendant calls an alibi witness in response;
that the prosecutor should be allowed to comment in that situa-
tion. The cases have consistently used the word "inject" or
"interject" in addressing this issue, which indicates they are
concerned with who first brings the issue into the case. In the
present case, the prosecutor certainly injected the alibi defense
and the names of the alibi witnesses. If defendant had not then
called his mother, the prosecutor would have commented, not just
that defendant did not produce Bolden but that defendant did not
produce either witness. Perhaps the trial court would have sus-
tained an objection at that point, but the message would have
been received by the jury.
Comments that improperly suggest to the jury that de-
fendant has a burden to prove his innocence are a serious matter
and amount to constitutional error. In some cases, the appellate
court has reversed for a new trial even though the trial court
sustained an objection to the comment. Lawrence, 259 Ill. App.
3d at 628, 631 N.E.2d at 860; see Eddington, 129 Ill. App. 3d at
777, 473 N.E.2d at 125 (error not cured by general instructions
on purposes of argument and burden of proof). In Nevitt, the
supreme court stated that the comment could not have been a mate-
rial factor in defendant's conviction where the court had the
victim's statement and defendant had signed several confessions.
Nevitt, 135 Ill. 2d at 453, 553 N.E.2d at 380. In Fly, where the
trial court eventually gave a curative instruction and an under-
cover police officer testified that defendant had purchased co-
caine from him, the appellate court held that defendant had suf-
fered no prejudice. Fly, 249 Ill. App. 3d at 737, 619 N.E.2d at
825-26. In the present case, the prosecution's action was inten-
tional, there was no curative instruction, and the court's over-
ruling of the defense objection reinforced the jury's impression
that it could properly consider defendant's failure to call
Bolden. There was testimony from Jason Smith and Shain Ford that
defendant was the one who killed the victim, but Smith and Ford
were accomplices with a motive to exonerate themselves. I cannot
say the error here was harmless beyond a reasonable doubt. I
would reverse and remand for a new trial.
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