U.S. ex rel. Kirk v. Director, Dept. of Corrections, State of Ill.

• Decision Date: 19 May 1982
• Docket Number: No. 81-2274,81-2274
• Citation: 678 F.2d 723
• Parties: UNITED STATES of America ex rel. John KIRK, Petitioner-Appellant, v. DIRECTOR, DEPARTMENT OF CORRECTIONS, STATE OF ILLINOIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 723

678 F.2d 723

UNITED STATES of America ex rel. John KIRK, Petitioner-Appellant, v. DIRECTOR, DEPARTMENT OF CORRECTIONS, STATE OF ILLINOIS Respondent-Appellee.

No. 81-2274.

United States Court of Appeals Seventh Circuit.

Argued April 20, 1982.

Decided May 19, 1982.

Timothy P. O'Neill, Asst. Public Defender, Chicago, Ill., for petitioner-appellant.

Ronald Lee Bell, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before WOOD, ESCHBACH and POSNER, Circuit Judges.

ESCHBACH, Circuit Judge.

In this appeal from the denial of a state prisoner's petition for habeas corpus, we are called upon to decide whether the rule forbidding trial judges from inquiring as to the jury's numerical division, enunciated by the Supreme Court in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), is binding on the states through the Fourteenth Amendment, or whether it is merely an exercise of the Supreme Court's supervisory jurisdiction over federal courts. We conclude that it is the latter and affirm the district court's judgment denying the petition.

I

In August 1977, petitioner was tried for murder in the Circuit Court of Cook County, Illinois. Following closing arguments and instructions, the case was submitted to the jury for verdict at 1:10 p. m. on August 10. When no verdict was forthcoming, the trial judge on his own initiative recalled the jury at 7:06 p. m. and asked them if they could arrive at a decision. The foreman asked for at least another hour, and the trial judge then tendered them a modified Allen ¹ charge and sent them back to their deliberations.

At 8:55 p. m., the trial judge received a note signed by the foreman indicating that the jury was unable to reach a verdict. After denying a defense request for a mistrial, the judge called out the jury and the following colloquy occurred:

The Court: Mr. Foreman, the Court has received your note. I am going to inquire of you, I don't want to know how the jury is voting, in which direction, but I would like to know the numerical count of your last ballot ..., do you recall?

The Foreman: The last ballot?

The Court: The last ballot, yes. But remember, I don't want-

The Foreman: Ten to two.

The Court: All right.

What we are going to do is, and this determination is not based upon the numerical count of your vote, that was just a matter of inquiry by the Court. What we are going to do is arrange for overnight accommodations for the jury so that you, as you know, you can't be separated during the period of your deliberations, and so we are going to arrange an overnight accommodations (sic) at a motel which we have already begun to arrange for.

The trial court then denied another defense request for a mistrial.

At 2:55 p. m. on the following day, some eighteen hours after the trial judge's inquiry, the jury informed the court they had reached a verdict. Following the denial of another defense motion for mistrial, the jury informed the court they had found petitioner guilty of murder. Petitioner was later sentenced to between thirty-five and seventy years in the custody of the Illinois Department of Corrections.

Petitioner appealed his conviction to the Illinois Appellate Court, claiming that the trial judge had committed reversible error in questioning the jury regarding its numerical division. Although the appellate court agreed that the trial court's inquiry constituted error, it held that it was not reversible error and affirmed the conviction. People v. Kirk, 76 Ill.App.3d 459, 31 Ill.Dec. 835, 394 N.E.2d 1212 (1979). Leave to appeal further was denied by the Illinois Supreme Court, and a petition for a writ of certiorari was likewise denied by the United States Supreme Court. Kirk v. Illinois, 447 U.S. 925, 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980).

His available state remedies thus exhausted, petitioner filed for federal habeas corpus relief in the United States District Court for the Northern District of Illinois on the ground that the trial court's inquiry as to the jury's numerical division denied him a fair trial. The district court denied the petition, and this appeal followed.

II

Petitioner contends that he is entitled to federal habeas relief under the rule of Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). In Brasfield, the Supreme Court reversed a number of convictions for violations of the National Prohibition Act on the ground that the trial court had improperly inquired of the jury how it was divided numerically when no verdict had been reached after several hours of deliberations. As in this case, the jury foreman informed the court of their numerical break-down without indicating whether the majority favored a guilty or not guilty verdict. The Court nevertheless condemned the practice of questioning the jury in this manner, stating:

We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

272 U.S. at 450, 47 S.Ct. at 135.

Although Brasfield involved a federal rather than state court conviction and the Court did not refer to any provision of the Constitution as the basis for its holding, petitioner argues that the strong language used by the Court in condemning the practice indicates that the rule against asking the jury where it stands numerically is of constitutional dimension. Whether or not the rule is constitutionally based is crucial in this case because, as a federal court reviewing a state conviction under 28 U.S.C. § 2254, the court is authorized to grant relief only if petitioner's conviction was "in violation of the Constitution or laws or treaties of the United States." Thus, if the Brasfield rule is not required by the Constitution, but instead represents merely an exercise by the Supreme Court of its supervisory authority over procedures to be followed in the lower federal courts, petitioner is not entitled to habeas corpus relief.

In support of his contention that the rule is mandated by the Constitution, petitioner cites Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). There the Court was required to decide whether the federal rule governing the time when jeopardy attaches in a jury trial is mandated by the Constitution or whether states are free to apply their own rules in evaluating double jeopardy claims. The Court held that because the federal rule is an integral part of the constitutional guarantee against double jeopardy, it is binding on the states. Petitioner argues that because the Brasfield rule is likewise an integral part of the Sixth Amendment guarantee to a jury trial, it too must be constitutionally mandated.

Admittedly, if the rule against inquiring as to the jury's numerical division were, as the Supreme Court seemed to say in Brasfield, "essential to the fair and impartial conduct of the trial," the court would be constrained to find it constitutionally required. For there can be no doubt that the Fourteenth Amendment guarantees to all persons accused of a crime the right to a fundamentally fair trial. Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). If in fact a rule prohibiting certain conduct at trial is essential to that right, then it too must be considered of constitutional stature. The question the court faces then is whether the Brasfield Court's characterization of its holding as "essential" to a fair trial must be taken literally.

At least two circuits have...