Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78-C-500 - George N. Leighton, Judge.
Before Sprecher and Tone, Circuit Judges, and Kilkenny, Senior Circuit Judge.*fn*
Gentry appeals from the judgment of the district court denying his petition for a writ of habeas corpus. We affirm.
Appellant was arrested on October 8, 1974, and charged with disorderly conduct in violation of the Chicago Municipal Code and with resisting arrest in violation of the Illinois Criminal Code. After retaining private counsel, appellant demanded a jury trial and the case was assigned to the Criminal Jury Court. On May 1, 1975, he was tried before a court sitting without a jury and convicted on both charges.
On appeal to the Appellate Court of Illinois, appellant contended he was denied his right to a jury trial. The appellate court reversed the disorderly conduct conviction on other grounds and affirmed the conviction for resisting arrest. See People v. Gentry, 48 Ill.App.3d 900, 904-905, 6 Ill.Dec. 617, 363 N.E.2d 146 (1977). The appellate court held that even though the transcript was silent as to a jury waiver, the record*fn1 reflected a waiver of a jury trial. The court stated that, under these circumstances, the record is presumed to be correct.
Appellant's petition for leave to appeal to the Supreme Court of Illinois was later denied. Following this denial, he filed in the district court his petition for a writ of habeas corpus demanding his discharge from custody on the same ground.
At the district court hearing held on February 27, 1978, the government called two witnesses and introduced in evidence the complete state court record on which the appellant was convicted.
Clinton Bristow, Jr., the appellant's privately retained attorney in the state case, was the state's first witness. He testified that he represented appellant and his three codefendants in the state court prosecution and appeared with appellant on December 27, 1974, in the Circuit Court of Cook County to demand a jury trial on appellant's behalf. This appearance, omitting the caption, is recorded in the state court entry of that date.*fn2 Bristow testified that between the December date and the eventual trial date of May 1, 1975, he met with the appellant and the other defendants on "numerous occasions" at which time they discussed trial strategy, including the advantages of a bench or jury trial. He further testified that he sat down with appellant and told him what was involved in a jury trial and about the advantages and disadvantages of this procedure. Likewise, he advised appellant that a decision had to be made prior to the May 1, 1975, trial date. These conversations on trial tactics were held in the presence of members of appellant's family, including his codefendants, mother and brother.
In response to a question from the district court, Bristow testified:
"I also indicate to them that strategically sometimes it is better to waive a jury and go with a bench trial and that it is a determination we will have to make before we appear before the Judge because the Judge will ask us whether we want a jury trial or whether we want a bench trial and if we don't want a jury we will waive the jury and go with a bench trial."
With reference to the initial demand for a jury trial, Bristow testified:
"When we appeared before Judge Welfeld on December 27th, I demanded a trial by jury just to transfer it from the Branch Court over to Branch 46, again a strategic point. And then in a subsequent conversation with the defendants, We came to the conclusion that we would prefer to have a bench trial and subpoenaed all the witnesses in for the May 1, 1975 trial date." (Emphasis supplied.)
Bristow said that on the day of the trial, the case was initially called in the morning at the beginning of the court call. He was there representing all defendants. At that time, Bristow and his clients approached the bench, stated that the defendants were ready for trial and indicated that they would waive their right to a jury trial. The state's attorney asked the court to pass the case so that he could ...