U.S. ex rel. Wandick v. Chrans, 86-3073

• Decision Date: 15 March 1989
• Docket Number: No. 86-3073,86-3073
• Citation: 869 F.2d 1084
• Parties: UNITED STATES of America ex rel. Bernard WANDICK, Petitioner-Appellant, v. James A. CHRANS & Neil Hartigan, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1084

869 F.2d 1084

UNITED STATES of America ex rel. Bernard WANDICK, Petitioner-Appellant, v. James A. CHRANS & Neil Hartigan, Respondents-Appellees.

No. 86-3073.

United States Court of Appeals Seventh Circuit.

Argued Jan. 20, 1989.

Decided March 15, 1989.

Bernard Wandick, Pontiac, Ill., Steven O. Ross, Chicago, Ill., for petitioner-appellant.

Arleen C. Anderson, Atty. Gen., Chicago, Ill., for respondents-appellees.

Before BAUER, Chief Judge, and KANNE, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Petitioner-Appellant Bernard Wandick appeals from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. After a bench trial in the Circuit Court of Cook County, Illinois, petitioner was convicted of murder, armed violence, and unlawful use of weapons. He was sentenced to twenty-five years imprisonment on the murder charge and a concurrent five-year sentence on the armed violence and unlawful use of weapons counts. The Illinois Appellate Court for the First Judicial District, on September 25, 1984, affirmed the conviction in an unpublished order, People v. Wandick, 127 Ill.App.3d 1164, 91 Ill.Dec. 384, 483 N.E.2d 730. On February 5, 1985, the Illinois Supreme Court denied leave to appeal. The District Court for the Central District of Illinois, on November 17, 1986, denied Wandick's petition for writ of habeas corpus.

On December 9, 1986, the district court granted his request for a certificate of probable cause as to one of his claims, but denied the request as to the other one. Our court, on April 9, 1987, issued an order that permitted petitioner to address only the issue for which the district court granted a certificate of probable cause. On June 8, 1988, our court, on our own motion, vacated the portion of our April 9, 1987, order permitting Wandick to address only the one issue. We ruled that the district court may not limit a certificate of probable cause to specific issues; we construed the district court's action in granting a certificate of probable cause as to one of two issues raised as a grant of an unlimited certificate. This appeal followed.

Wandick challenges his conviction on two grounds. First, he argues that he did not voluntarily and intelligently waive his right to a jury trial. Second, he contends that there was insufficient evidence in the record to prove his guilt beyond a reasonable doubt. For the reasons stated below, we affirm the district court's denial of the petition for writ of habeas corpus.

I.

The events involved in this case transpired on the evening of December 31, 1980, as several friends of Wandick were preparing to celebrate New Year's Eve. The State's case centered around the testimony of an eyewitness, Shirley Eaton. Eaton testified that after she returned from a store at approximately 8:40 p.m., she and the victim, Darnell Thompson, went to Sandra Broughton's apartment. While at the apartment, Eaton and Broughton, the petitioner's cousin, heard a car horn from the alley behind the building. Eaton then testified that Broughton said, "That's Tyrone." Eaton further testified that after Thompson left the apartment, she heard a gunshot. She said, "They're shooting already." Broughton then stated, "It's probably just Tyrone and them, clowning."

When Eaton looked out the rear window of the third-floor apartment, she saw Thompson lying in the alley. She testified that she and Broughton saw a young man jump out of the gangway with a long shotgun or rifle and aim it directly at Thompson. While Broughton and Eaton screamed, "Don't do it! Don't do it! Don't shoot Tyrone," petitioner shot the victim. Eaton further identified Wandick as the man she saw fire the shot and testified that she referred to him as Tyrone. After the shooting, the police arrived at the alley and questioned Eaton about it.

Eaton also testified that she had seen Wandick about ten times before the shooting and that his girlfriend and he had been to her apartment. She added that she had last seen him on Christmas Eve, about a week before the shooting. She gave the police Wandick's first name and told them that he stutters when he speaks. She also testified that an alley light illuminated the shooting area, and that she had not been drinking or using drugs on the night of the shooting.

Petitioner's defense consisted primarily of alibi testimony from his girlfriend and father. Edith Winder, petitioner's girlfriend, testified that she and Wandick went to Momence, Illinois on December 27, 1980, to visit petitioner's father. She further testified that she and petitioner stayed in Momence for more than two weeks and that petitioner did not leave his father's house at all on December 31, 1980. She explained that on the evening of December 31, 1980, she and Wandick were in the house playing cards and talking.

Petitioner's father, Avell Wandick, testified that his son and Winder arrived in Momence on December 27, 1980, and stayed until after New Year's Day. He further testified that his son and he went hunting on December 31, 1980, and that at approximately 9:00 p.m. his son was in his home watching television. Sandra Broughton, the petitioner's cousin, testified for the defense that Eaton was "very high" on the evening of the shooting and that the alley was not well lit. She also admitted having seen the shooting, but denied having seen the petitioner in the alley or having told the police that the petitioner shot the victim.

In rebuttal, Officers Ugorek and Magnine testified that the alley was well lit and that Eaton was not under the influence of drugs or alcohol on the night of the shooting. Officer Ugorek further testified that he had spoken with Broughton after the shooting and she had told him that she had seen the petitioner shoot the victim and had given the officers Wandick's addresses.

After the trial judge found the petitioner guilty, Wandick moved for a new trial based on the testimony of two additional witnesses. Both witnesses, friends of the petitioner's father, testified that they saw the petitioner hunting in Momence between 8:00 and 9:00 p.m. on the night of the shooting.

Additional facts will be discussed in the course of this opinion.

II.

Appellant's first argument on appeal is that he did not voluntarily and intelligently waive his right to a jury trial guaranteed by the sixth and fourteenth amendments to the United States Constitution. Specifically, he contends that the court's explanation to him of his right to trial by jury was inadequate. He claims that he was not informed that a jury verdict must be unanimous ¹ or that he had the right to participate in jury selection. Wandick further asserts that the fact that he never executed a jury waiver form indicates that he did not knowingly waive his right to a jury trial.

The right to trial by jury is fundamental in our system of criminal justice, and the sixth amendment's guarantee of the right to trial by jury applies to the states through the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). A defendant may waive his right to trial by jury and instead submit to trial by the court. Patton v. United States, 281 U.S. 276, 298, 50 S.Ct. 253, 258, 74 L.Ed. 854 (1930).

Since the right to trial by jury is such an important right, we can never presume waiver from a silent record. In a collateral proceeding, the record or independent evidence must indicate a valid waiver. See Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962) (waiver of counsel); cf. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969) (direct appeal of guilty plea). However, the defendant has the burden of proving that his waiver was not freely and intelligently made. See Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), amended on denial of petition for rehearing, 317 U.S. 605, 87 L.Ed. 568 (1943) (jury trial waiver); cf. Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 1024-25, 82 L.Ed. 1461 (1938) (right to counsel).

" 'Courts indulge every reasonable presumption against waiver' of fundamental constitutional rights...." Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023. "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Id. When waiving a constitutional right, one must do so voluntarily, knowingly, and intelligently with "sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). The determination of whether there has been a valid waiver must depend upon the unique circumstances in a particular case. See Adams, 317 U.S. at 278, 63 S.Ct. at 241.

With this background in mind, we consider what took place in the instant case. The following colloquy occurred at trial among the court, defense counsel, and the defendant:

The Court: Okay, this is a bench, I take it?

Mr. Howard [defense counsel]: Yes, sir.

The Court: Mr. Wandick, you have a right to trial by jury. That means twelve fair and impartial people will be selected in this court room [sic]. They would hear the facts of your case and pass on the issue of whether you're guilty or not guilty. You wish to waive a jury? [sic]

The Defendant: Yes, sir.

The Court: Mr. Howard, would you have him execute a jury waiver in writing?

Mr. Howard: Yes, sir.

Supp. Tr. at 7. Although the record on appeal contains no written jury waiver form, the half-sheet memorandum for the same date contains the handwritten notation: "Deft. advised as to his right to trial by jury (signs jury waiver)." People v. Wandick, 127 Ill.App.3d 1164, 91 Ill.Dec. 384, 483 N.E.2d 730 (Ill.1984).

The Illinois Appellate Court concluded that "the record itself refutes the defendant's claim that he did not knowingly and voluntarily waive his right to a...