¶1dissenting:
¶2In their opinion the majority reason that the State would not have had an opportunity to take statements from the alibi witnesses except for the defendant’s drastic and fundamental “concession.” They say, and it is true enough, that in Williams the Supreme Court of the United States held that such a fundamental “concession” was only valid if liberal reciprocal discovery is available to the defendant. The syllogism closes with, “Surely that discovery extends at least to statements which are in the State’s possession only because of and as a direct result of the disclosure of the defendant e ° * (and) the mandate of Williams for liberal reciprocal discovery is clear.” It is with this conclusion that I am in disagreement and therefore respectfully dissent.
¶3I believe the majority opinion represents a misapplication and misinterpretation of Williams v. Florida, that it is contrary to a statutory directive of the Illinois legislature and constitutes an unwarranted assumption of rule making power by an appellate court.
¶4The trial in this case was concluded on May 20, 1970. The opinion in the Williams case was filed over one month later on June 22- 1970. But notwithstanding the hiatus in time the majority expressly based their reversal upon the Williams case without even discussing its retroactive application. Yet, a few paragraphs later in their opinion they decline to apply a companion discovery rule permitting the taking and use of evidence depositions because of its non-retroactive application. Clearly the discovery process involved here is a procedural matter and retroactive, application seems totally unwarranted especially when it is considered that .such sacrosanct criminal procedure rulings as those involved in Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684; Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758; Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229, and Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 were held to have prospective application only. (See People v. Williams, 44 Ill.2d 334, 255 N.E.2d 385.) The State was taken to task for its failure to adhere to non-existent rules. But, in fact, the State, in declining to furnish copies of statements taken from defendant’s alibi witnesses, and the trial court in sustaining the position, were following the law applicable at the time of trial, viz., statements of-witnesses (other than the defendant himself) were not discoverable at the pretrial stage, but where the relevance and competence of a statement or report was established, the trial judge should order the document delivered directly to the accused for his inspection and use for impeachment purposes. People v. Cagle, 41 Ill.2d 528, 244 N.E.2d 200; People v. Neiman, 30 Ill.2d 393, 197 N.E.2d 8; People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197.
¶5. The question of retroactive application aside, I believe the majority to have misinterpreted the holding in Williams v. Florida. It is not authority for, and does not require, the result reached by the majority. The opinion pointedly omits to mention the fact that in the Williams case the State had taken a statement from defendant’s alibi witness and used it at the trial for impeachment purposes. The facts present in Williams and the case under consideration are in many respects similar, particularly in that in both cases defendant was required by statute to furnish the State the names of his alibi witnesses, and the State proceeded to take statements or depositions from such witnesses and later used them at the trial. In neither case was pretrial discovery of the statements granted to the defendant, In Williams the alibi witness was impeached upon cross-examination by use of the statement and in this case defendant (so it is argued) was prevented from calling one alibi witness because of the existence of the undisclosed statement which rendered defendant uncertain as to the reliability of his witness.
¶6The court in Williams stated that they need not linger over the suggestión that the discovery (of the names of alibi witnesses) permitted the State against petitioner deprived him of “due process” or a “fair trial.” The reason was that the Florida statute provided for liberal disT. covery by the defendant against the State and the notice-of-alibi is hedged with reciprocal duties requiring State disclosure to the defendant. The reciprocal duty imposed upon the State by the statute was that in exchange for defendant’s alibi witnesses the State was required to furnish defendant the names of witnesses it would use in presenting rebuttal evidence to defendant’s alibi. Thus, in Williams the existence of statements taken from defendant’s alibi witnesses was in noway involved in the court’s concern for reciprocity. In fact, majority approval of the use of undisclosed statements is indicated by the presence in the opinion of the following language:
“« « * armed with Mrs. Scotty’s (the alibi witness) name and address and the knowledge that she was to be petitioner’s alibi witness, the State was able to take her deposition in advance of trial and to find rebuttal testimony.”
¶7Later the Williams majority stated:
“Nor would there be self-incrimination problems if, during that continuance, the State was permitted to do precisely what it did here prior to trial: take the deposition of the witness and find rebuttal evidence.”
¶8It is thus seen that the Williams case, stated by the majority to compel the result they reach, in fact sanctions that which the majority says it condemns. This conclusion is buttressed by the significant fact that in the Federal court system there is no pretrial discovery of statements of either government or defense witnesses. Not only do the Federal Rules of Criminal Procedure not provide for such pretrial discovery of witness statements, they expressly exclude them. (Federal Rules of Criminal Procedure, 18 U.S.C.A., Rule 16(b).)
¶9Impliedly conceding that the Williams case does not “require” the conclusion they reach, the majority seek justification and support by adverting to other authorities. If the Williams case is the imperative claimed (which it is not) then one must concede that they were correct in extending and enlarging the criminal discovery rules adopted by our supreme court. But if the majority opinion is to be based on extra-Williams authority then clearly it is without authority or precedent and contrary to a governing statute. In 1964 the Illinois legislature provided in Ill. Rev. Stat., ch. 38, sec. 114 — 13 that: “Discovery procedures in criminal cases shall be in accordance with Supreme Court rules.” The majority opinion is in direct conflict with that statute.
¶10The majority rely upon the “rationale” of the case of People v. Crawford and certain provisions of the U.S. Constitution as justification for their result. But these are not such authorities.
¶11The Fourth District Appellate Court in deciding People v. Crawford expressly state that they were without authority to adopt rules of discovery, a statement apparently overlooked by the majority here. The Fourth District found an inherent power in the trial court to adopt criminal discovery rules when the State possesses information that would substantially affect or be of substantial benefit to a proper defense by a defendant.
¶12The Illinois Supreme Court granted the State leave to appeal in Crawford and appointed the “Supreme Court Committee on Discovery in Criminal Cases” to draft criminal discovery rules. The result was Supreme Court Rules 411 through 415, providing for discovery in criminal cases. Subsequent to the adoption of the rules the Crawford case was remanded without opinion to the circuit court with directions to proceed in accordance with the rules. The directive to the trial court to proceed with discovery in accordance with the rules was a clear limitation upon the “inherent power” of the trial court to develop discovery rules. The objections to such “inherent power” present in the Crawford case are equally present here and equally applicable to an Appellate Court. If an appellate court may adopt rules for criminal discovery an orderly process would be totally lacking and result in a hodgepodge of case-developed rules in each of the five appellate districts. For instance, as it mow stands, ■ discovery in criminal cases in Illinois is governed by Supreme Court • Rules 411 through 415 and the majority opinion in this case. What" further nuances to the supreme court’s criminal discovery rules will be spawned by the action of the majority here?
¶13In further justification of their position the majority cite the sixth amendment and the due process clause of the United States Constitution. Curiously they do not state that the result they reach is constitutionally required but seemingly insert those citations as though the only reason their criminal discovery rule was not included was an oversight by the founding fathers. Pretrial discovery in criminal cases never has been held to be constitutionally required. The majority incorporate a segment of an article appearing in 50 N.C.L. Rev. in which the author argues that several constitutional provisions are “well adapted” to the imposition of constitutional standards for criminal discovery, but despite the professorial argument the constitution has not been so invoked. That pretrial criminal discovery is not constitutionally required is also shown by the fact that the Federal Rules still specifically exclude it, as above stated.
¶14Even following the promulgation of the American Bar Association Standards Relating to Discovery and Procedure Before Trial there remains a great disparity of opinion as to whether statements of witnesses of either the prosecution or defendant should be disclosed to the opposite party in pretrial discovery. (See the commentary which accompanies the A.B.A. Standards.) The American Bar Association Standards nowhere provide that a party to a criminal case should be entitled to pretrial discovery of statements of its own witnesses. To hold, as the majority does here, that a party is entitled to pretrial discovery of statements taken from his own witnesses is totally unprecedented and unwarranted.
¶15The majority find certain comments by the prosecutor in his final argument to be improper. The defendant did not raise the question of the impropriety of final argument as one of his points on appeal.
¶16I would affirm the verdict and judgment.