dissenting:
The requirement of notice of an alibi defense, like the rules relating to discovery in criminal cases, serves the useful purpose of avoiding surprise. Notice of alibi and information obtained by discovery aid in the truth-finding process of a trial and reduce the tactical fencing of former days. Noncompliance with discovery orders or noncompliance with the requirement of disclosure of alibi is subject to sanctions — sanctions designed to accomplish the purpose of pretrial disclosure of relevant and material information and the elimination of the tactical advantage of surprise.
Such sanctions as are invoked by the court should be aimed at accomplishing that objective and that purpose and not aimed at encroaching upon a fair trial. Thus, in People v. Endress, 106 Ill.App.2d 217, 245 N.E.2d 26, this court, prior to the promulgation of rules of discovery in criminal cases, upheld an order for discovery and in commenting upon the willful refusal of the prosecutor to comply, we noted that an order suppressing the evidence, the discovery of which was denied by the prosecutor, had the effect of decreasing the equality necessary for a fair trial. Excluding evidence by an order of suppression was there said to be a sanction which affected the prosecution and not the prosecutor who refused to comply with the order. The clear import of our opinion in Endress was that a more meaningful and effective sanction was available other than denying the admission of relevant evidence to establish guilt. In this connection, it should be noted that Supreme Court Rule 415(g) provides for sanctions and gives wide discretion to the trial judge, but the sanctions there enumerated are aimed at obtaining the discovery and not at frustrating the trial as to either party.
In People v. Adams, 8 Ill.App.3d 62, (N.E.2d), this court discussed the action of the trial court in permitting certain witnesses to testify whose names had not been furnished the defendant as required. We there held that the trial court could permit such testimony in the exercise of its discretion. If the defendant was surprised by the evidence, such could be cured by a continuance so as to eliminate the surprise. The circuit court there properly admitted the testimony and offered a continuance.
While the statutory provision with reference to disclosure of alibi defense does have language to the effect that nondisclosure may result in an order excluding the offered evidence, a reading of the entire provisions of Section 114 — 14 (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 14), indicates that the trial judge has discretion not unlike the discretion afforded by the Supreme Court Rules relating to discovery. The court “may” exclude evidence and the court is permitted to allow the defendant to amend his notice of alibi defense. (Emphasis added.)
The even-handed administration of the the rules for discovery and the statutory requirement of disclosure of alibi defense clearly suggests that the sanction here employed was in excess of that which was necessary, indeed was unnecessary, and an abuse of discretion. The alibi witness may or may not have been believed or believable — such is beside the point. The prosecutions case here is based essentially upon testimony of accomplices, which testimony, while sufficient to convict, is viewed with caution and circumspection.
Accordingly, I dissent from the opinion which approves such a severe sanction as the exclusion of possibly meaningful testimony.