United States ex rel. Hancock v. McEvers

• Decision Date: 11 October 1985
• Docket Number: No. 85 C 2163.,85 C 2163.
• Citation: 619 F. Supp. 882
• Parties: UNITED STATES of America ex rel. Jackie HANCOCK, Petitioner, v. Warden Steven McEVERS, Respondent.
• Court: U.S. District Court — Northern District of Illinois

619 F. Supp. 882

UNITED STATES of America ex rel. Jackie HANCOCK, Petitioner, v. Warden Steven McEVERS, Respondent.

No. 85 C 2163.

United States District Court, N.D. Illinois, E.D.

October 11, 1985.

COPYRIGHT MATERIAL OMITTED

Jackie Hancock, pro se.

Neil F. Hartigan, Atty. Gen. by Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for respondent.

MEMORANDUM AND ORDER

BUA, District Judge.

Jackie Hancock ("petitioner") was charged with armed robbery in the Circuit Court of Cook County, Illinois. After a jury trial, he was found guilty and sentenced to 15 years imprisonment. The Illinois Appellate Court affirmed the conviction. People v. Hancock, 110 Ill.App.3d 953, 443 N.E.2d 226, 66 Ill.Dec. 543 (1st Dist.1982).

After exhausting his state remedies, Hancock filed a petition for a writ of habeas corpus with this Court claiming that: (1) the trial court erred in denying defense counsel's motion for a mistrial when the jury began deliberations without written instructions; (2) the trial court abused its discretion when it admitted evidence of petitioner's prior convictions; (3) the trial court abused its discretion when it overruled an objection to certain rebuttal testimony; (4) the State failed to prove petitioner guilty beyond a reasonable doubt; and (5) the trial court denied defendant's motion to suppress identification testimony and curtailed questioning regarding the reliability of the identification at a pretrial hearing in violation of petitioner's due process rights. In response, the State ("respondent") has filed a motion to deny the writ.

After a careful review of the factual determinations of the Illinois Appellate Court and the Cook County Circuit Court, the Court grants respondent's motion to deny the writ. The Court's jurisdiction rests upon 28 U.S.C. § 2254.

I. SCOPE OF REVIEW

Regarding the proper scope of review by a federal court in a habeas proceeding, this Court's analysis in United States ex rel. Banks v. McGinnis, 563 F.Supp. 819 (N.D. Ill.1983), aff'd, 746 F.2d 1482 (7th Cir.1984) (unpublished order), sets forth the proper rule of a federal court. From that analysis, it is clear that a federal court on habeas must apply the "presumption of correctness" to state appellate court underlying factual determinations in mixed questions of law and fact, although it may draw different conclusions as to those facts as found. On the other hand, the federal court need not be bound by those underlying factual determinations, if it concludes that they are not "fairly supported by the record." Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981); see also Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983). Nor need the federal court apply the presumption if one of the first seven statutory exceptions to 28 U.S.C. § 2254(d) is found to exist or if the petitioner establishes by "convincing evidence" that the state court's findings are clearly erroneous. 28 U.S.C. § 2254(d).

The Court agrees with the state appellate court's underlying factual determinations. Since petitioner has not rebutted these determinations with "convincing evidence" and since none of the statutory exceptions exist, the Court will apply the "presumption of correctness" to these findings and apply the law accordingly.

II. PETITIONER'S CLAIMS

1. Jury Instructions

Petitioner objects because the jury was not immediately provided written copies of the jury instructions when they began deliberation. The following relevant facts were set out by the Illinois Appellate Court and are entitled to the presumption of correctness under 28 U.S.C. § 2254(d).

The trial court read to the jury all of the eleven written instructions. The jury then retired. Counsel for defendant then immediately spoke to the court concerning an objection to rebuttal evidence not previously made. After some colloquy the court overruled this objection. The jurors began their deliberation about 1:30 p.m. About 5 p.m. the jury informed the bailiff they had reached a verdict. It was then realized for the first time that the jury had not been given the written instructions and the verdicts to take with them to the jury room.

Defense counsel objected but the trial court ordered the bailiff to take the instructions and verdicts to the jury. This took place shortly after 5 p.m. About 5:30 there was a verdict and defendant's counsel moved for a mistrial because the jury had been permitted to deliberate without the written instructions. The court denied this motion. The individual jurors were all polled without incident. Defendant contends this incident constitutes reversible error.

All of the written instructions appear in the record. All of them are taken from IPI....

443 N.E.2d at 231-32, 66 Ill.Dec. at 548-49. The Illinois Appellate Court found that the trial judge acted promptly to rectify the absence of written instructions:

In the instant case, the attention of the trial judge may possibly have been diverted by the colloquy with counsel for defendant concerning a tardy objection to rebuttal evidence. Be that as it may, when the matter was brought to the attention of the trial judge he acted immediately. The instructions were forthwith given to the jury for their information without any further communication to them. No one knows the nature of the jury deliberation or the tentative result reached by them when they asked for the instructions. In fact, we may readily assume that the verdicts were delivered to the jury only with the written instructions.

443 N.E.2d at 232, 66 Ill.Dec. at 549.

On these facts, the Illinois Appellate Court concluded, by a 2-1 majority that, since written instructions were furnished to the jury before they completed deliberation and signed the verdicts, any conceivable error was harmless and therefore Illinois law was not violated. The appellate court noted that no juror raised any point or indicated any problem or lack of knowledge when the jury was polled. 443 N.E.2d at 233, 66 Ill.Dec. at 550. Therefore, the appellate court found no prejudice in the record. Id.

The State argues that the petitioner is not entitled to habeas corpus relief on the grounds of waiver and failure to show a constitutional error. In a habeas corpus action, the state court must have the opportunity to apply constitutional principles and correct any constitutional error committed by the trial court. United States ex rel. Sullivan v. Fairman, 731 F.2d 450 (7th Cir.1984). Therefore, the substance of a federal habeas claim must first be presented to the state courts. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). In other words, the claim must have been presented in such a way as to fairly alert the state court to any applicable constitutional grounds for the claim.

Just as the petitioner's state court argument in Sullivan, supra, was not presented in such a way as to alert the state court to any constitutional due process ramifications, Hancock's state court arguments were not presented in such a way as to fairly alert the state court to the constitutional ramifications Hancock now claims exist. Hancock simply argued that the trial court erred in denying his motion for a mistrial. Like Sullivan, Hancock did not present this state court argument in the context of a federal constitutional claim, he never used the term "due process," and the opinion of the Illinois Appellate Court indicates that it discerned no due process implications.

Even though Hancock's due process claim arises out of the same factual circumstances as his state court claim, his state court claim presented an entirely separate legal issue. See Wilks v. Israel, 627 F.2d 32, 38 (7th Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981). The state court, presented with a claim based upon the absence of written instructions when jury deliberations began, focused on whether these circumstances constituted reversible error. People v. Hancock, 443 N.E.2d at 231, 66 Ill.Dec. at 548. A due process inquiry is not constrained by these state law requirements. Sullivan, supra, 731 F.2d at 454. A due process inquiry in this context asks whether, as a matter of fundamental fairness, the state trial judge erred in denying the petitioner's motion for a mistrial under the circumstances presented. Id.

While Hancock's due process claims are based on errors he complained of in state court, the Court holds that under the circumstances of this case Hancock did not effectively alert the state court to the due process ramifications upon which he bases his habeas petition. Therefore, since Hancock has not attempted to meet the cause and prejudice requirements of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court holds that he has forfeited his right to raise his due process claims in federal court regarding the absence of written instructions at the beginning of jury deliberations. Sullivan, supra, 731 F.2d at 455.

Even if the petitioner has not forfeited his due process arguments regarding the absence of written instructions, the Court finds that he failed to show constitutional error. This Court has found no authority for the proposition that failure to give written instructions constitutes constitutional error. The general rule is that the submission of written instructions is within the sound discretion of the court. United States v. Holman, 680 F.2d 1340, 1354 (11th Cir.1982); United States v. Silvern, 484 F.2d 879, 883 (7th Cir.1973) (en banc). In Holman, the Eleventh Circuit Court of Appeals held that, in certain circumstances, the submission of tape recorded versions of jury instructions is proper and does not constitute error. 680 F.2d...