Appeal from the United States District Court, Southern District of Illinois. No. 78-4056 -- James L Foreman, Judge.
Before Cummings, Pell and Tone, Circuit Judges.
In May 1974, the petitioner, Michael J. Henderson, was adjudged guilty of murder by an Illinois court. In 1978, Henderson filed a petition in the federal district court for relief from this judgment under 28 U.S.C. § 2254 alleging that certain procedures at his jury trial violated the Sixth and Fourteenth Amendments. The district court denied the relief sought, and Henderson appeals from that judgment.
The facts are simple and essentially uncontested. The defendant was tried before a jury of twelve regular and two alternate members. At the conclusion of the jury instructions,*fn1 the two alternate jurors were discharged, and the other jurors retired for deliberations. After two and one-half hours of deliberations, one of the jurors suffered a heart attack and was taken to the hospital. After stopping deliberations, the trial court recalled the two alternate jurors and counsel for the State and the defendant Henderson. The court questioned the alternate jurors about their activities since discharge. The first alternate juror admitted discussing the facts of the case with his wife, but added that she expressed no opinion. Both alternate jurors assured the court of having reached no conclusion about the defendant's guilt. The trial court then conferred with counsel outside the presence of the jurors about possible courses of action. The defendant's attorney refused to stipulate to an eleven-member jury, but did say:
If Mr. Pickett (the ailing juror) is deemed unavailable and could not continue, the only alternative would be the choosing of the alternate jurors in the order in which they are serving.
I don't know that I have to enter a stipulation to the twelve. It is the Court ruling, and that is why we have the alternate.
The trial court decided to recall the first alternate juror, although Henderson's attorney said, "It is certainly not by stipulation of counsel." The alternate was reinstated as a member of the jury, and a guilty verdict was returned five hours later. Henderson was not personally present when the substitution was made.
After the verdict was returned, Henderson moved for a new trial, charging that the reinstatement of the alternate juror was erroneous. This motion was unsuccessful. Henderson made the same argument in the Illinois Appellate Court. According to Henderson, Ill.Rev.Stat. ch. 38, § 115-4(g)*fn2 forbade reinstatement of alternate jurors after deliberations began. The appellate court did not reach the merits of this argument, determining that the acquiescence of counsel in the procedure was sufficient in the absence of prejudice to bind Henderson and to constitute a waiver of any statutory rights. People v. Henderson, 45 Ill.App.3d 798, 4 Ill.Dec. 76, 359 N.E.2d 909 (1977).*fn3 The Illinois Supreme Court denied Henderson's petition for leave to appeal.
According to the petitioner, the substitution was a denial of his right to a trial by jury under the Sixth and Fourteenth Amendments. Without his presence in open court, the petitioner argues that a proper waiver of his right to jury trial was impossible. Alternatively, the petitioner argues that the substitution proceedings were at a critical stage of his trial and that his presence was constitutionally required. We turn first to the petitioner's nonwaiver theory, considering the preliminary issue whether the substitution of the alternate juror after deliberations began contravened the Sixth and Fourteenth Amendments.
In determining the constitutionality of the substitution procedure, we must consider whether the procedure preserves the "essential feature" of the jury, defined by the Supreme Court as
the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence.
Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 1906, 26 L. Ed. 2d 446 (1970).
From the district court's opinion it is evident that the petitioner relied heavily for his challenge on federal decisions under Fed.R.Crim.P. 24(c).*fn4 See United States v. Lamb, 529 F.2d 1153 (9th Cir. 1975) (en banc); United States v. Allison, 481 F.2d 468 (5th Cir. 1973), Cert. denied, 416 U.S. 982, 94 S. Ct. 2383, 40 L. Ed. 2d 759; United States v. Beasley, 464 F.2d 468 (10th Cir. 1972); United States v. Hayutin, 398 F.2d 944 (2d Cir. 1968), Cert. denied, 393 U.S. 961, 89 S. Ct. 400, 21 L. Ed. 2d 374; United States v. Virginia Erection Corp., 335 F.2d 868 (4th Cir. 1964). Of the Rule 24(c) decisions, United States v. Lamb is probably the closest factually to the case at hand.*fn5 In Lamb an alternate juror who was previously discharged was substituted for a juror who became incapable of continuing deliberations, and the court held this procedure reversible error under Fed.R.Crim.P. 24(c). Although Lamb did not expressly reach the issue, the opinion implied that the substitution procedure might raise constitutional problems by "significantly limit(ing) the accused's right to a mistrial if the original jury cannot reach agreement." 529 F.2d at 1156. In Lamb the forced unanimity resulting from the substitution was apparent.*fn6 Coercion to vote with the majority to reach a verdict may well force a juror to feign illness to avoid the burden of making a choice. See 529 F.2d at 1156. In this way, substitution undermines the unanimity requirement of Fed.R.Crim.P. 23(b). The Supreme Court, however, has held that in state prosecutions nonunanimous verdicts, a procedure that impinges even more directly than this substitution procedure on the "mistrial right" are constitutionally permissible. Apodaca v. Oregon, 406 U.S. 404, 411, 92 S. Ct. 1628, 1633, 32 L. Ed. 2d 184 (1972) (opinion of White, J.) ("Requiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit. But in either case, the interest of the defendant in having the judgment of his peers interposed . . . is equally well served.")
The other facet of the petitioner's first challenge to the substitution compares the use of the dismissed alternate to the use of a complete stranger to the proceedings in determining guilt. The petitioner's analogy exaggerates the effect of the brief separation on the alternate's abilities as a juror. The petitioner has not shown any irregularities in the initial selection of the alternate juror; the alternates were subject to the same selection procedures as the regular jurors. The petitioner does not dispute that because of these procedures the trial court generally may substitute an alternate for a regular juror should cause arise during trial, without first consulting the defendant or his counsel. See United States v. Garafolo, 385 F.2d 200 (7th Cir. 1967), Vacated on other grounds, 390 U.S. 144, 88 S. Ct. 841, 19 L. Ed. 2d 970 (1968); United States v. Houlihan, 332 F.2d 8 (2d Cir. 1964), Cert. denied, 379 U.S. 828, 85 S. Ct. 56, 13 L. Ed. 2d 37.*fn7 The petitioner's constitutional argument is thus narrowed in its focus to the reinstatement procedures. The alternate jurors heard the evidence and were instructed on the law with the regular jurors. The petitioner's defense attorney was present during the reinstatement proceedings and was permitted to examine the alternate juror about ...