Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 C 1041 -- Frank J. McGarr, Judge .
Before Cummings and Pell, Circuit Judges, and Grant, Senior District Judge.*fn*
The petitioner appeals from the judgment of the district court dismissing his petition under 28 U.S.C. § 2254 for relief from his 1973 Illinois conviction. In the district court the petitioner set forth several grounds for relief, three of which are the principal subjects of his appeal. According to the petitioner, he was denied due process by his trial before an eleven-member jury, by the use of perjured testimony, and by the prosecutor's prejudicial remarks in the presence of the jury. At the minimum, the petitioner requests that this court remand this action for a hearing on his claims pursuant to Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). We shall summarize the facts when necessary for our discussion of the issues.
We turn first to the petitioner's argument that his trial before an eleven-member jury*fn1 violated his Fourteenth Amendment right to due process. Of course, the petitioner is not entitled to a twelve-member jury in a state criminal trial as a matter of federal constitutional law. Williams v. Florida, 399 U.S. 78, 86, 90 S. Ct. 1893, 1898, 26 L. Ed. 2d 446 (1970). In Illinois, however, the right to a twelve-member jury is guaranteed by the constitution, Ill.Const.1970, art. 1, § 13; People v. Ward, 32 Ill.2d 253, 204 N.E.2d 741 (1965), cert. denied, 384 U.S. 1022, 86 S. Ct. 1947, 16 L. Ed. 2d 1026 (1966), and by statute, Ill.Rev.Stat. ch. 38, § 115-4(b). The petitioner alleged at his sentencing hearing in the state court, as he does here, that his attorney stipulated to a jury of less than twelve members without his consent and not in his presence,*fn2 and now argues that this procedure violated Ill.Rev.Stat. ch. 38, § 103-6, which requires that the right to a trial by jury be "understandingly waived by defendant in open court." The state court denied his post-trial motion. On appeal from his conviction, People v. Burnett, 35 Ill.App.3d 109, 341 N.E.2d 86 (1st Dist. 1975), the court held that the petitioner was not entitled to a hearing on his allegations, because the trial record was sufficient to show a waiver of the petitioner's rights under section 103-6 and the rule of People v. Murrell, 60 Ill.2d 287, 326 N.E.2d 762 (1975).*fn3 In the federal district court the petitioner again alleged that he did not consent to be tried by the eleven-member jury and that he was thus arbitrarily denied a state-created right in violation of the Fourteenth Amendment. According to the petitioner, these allegations state a claim for relief under 28 U.S.C. § 2254, and he asks us to remand this cause for a hearing in accordance with Townsend v. Sain to determine whether he consented to the trial procedures at issue.
We disagree with the petitioner's premise that "(t)he denial of petitioner's state-created right to a 12-person jury in this case is more than a sufficient basis for relief under the Fourteenth Amendment." The petitioner has the burden of alleging more than an error of judgment resulting in a denial of some state right, see United States ex rel. Curtis v. Illinois, 521 F.2d 717, 719 (7th Cir. 1975), cert. denied, 423 U.S. 1023, 96 S. Ct. 465, 46 L. Ed. 2d 397; the denial of the right must be the result of arbitrary action. Properly framed, then, the issue before us is whether the state court determination, based on the trial record, that the petitioner waived his state right to twelve jurors was without an adequate determining principle, unreasoned, see United States v. Carmack, 329 U.S. 230, 243-44 n. 14, 67 S. Ct. 252, 258-259, 91 L. Ed. 209 (1946), or had so little basis in law and fact as to constitute a denial of due process. See United States ex rel. Swimley v. Nesbitt, 608 F.2d 1130 (7th Cir. 1979); United States ex rel. Sampson v. Brewer, 593 F.2d 798 (7th Cir. 1979), cert. denied, 416 U.S. 994, 94 S. Ct. 2408, 40 L. Ed. 2d 773 (1974); United States ex rel. Smith v. Twomey, 486 F.2d 736 (7th Cir. 1973), cert. denied, 416 U.S. 994, 94 S. Ct. 2408, 40 L. Ed. 2d 773 (1974); United States ex rel. Walker v. Twomey, 484 F.2d 874 (7th Cir. 1973).
The first subject of examination for arbitrariness is the legal standard applied by the state court for determining waiver. The Illinois Appellate Court expressly applied the waiver standard of section 103-6. People v. Burnett, supra, 341 N.E.2d at 91. According to the appellate court, the rule of People v. Murrell, supra, sets forth what constitutes a knowing and voluntary waiver of the right to a twelve-member jury. In Murrell the Illinois Supreme Court held that "(a) defendant who permits his attorney, in his presence and without objection, to waive his right to a jury trial is deemed to have acquiesced in, and is bound by, his attorney's action." 326 N.E.2d at 764. The appellate court held that the facts of this case fit squarely into the Murrell rule and held that the right was waived.*fn4 The petitioner's primary objection to the ruling of the state appellate court is its failure to require an affirmative waiver of this right by the petitioner on the record. In support of this position, the petitioner cites two Illinois Appellate Court decisions, People v. Quinn, 46 Ill.App.3d 579, 4 Ill.Dec. 846, 360 N.E.2d 1221 (4th Dist. 1977); and People v. Rosen, 128 Ill.App.2d 82, 261 N.E.2d 488 (5th Dist. 1970); for the proposition that the Murrell standard for inferring waiver from a defendant's silence is not applicable if there is prejudice or lack of consent. This argument merely suggests, however, that the appellate court misinterpreted the Illinois Supreme Court authority. Errors in the interpretation of state authority are for the state supreme court to correct. This court will not take the extraordinarily intrusive action of setting aside a state criminal conviction in the guise of due process review, simply because we disagree with the state court's interpretation of state law.*fn5 See Wainwright v. Stone, 414 U.S. 21, 23-24, 94 S. Ct. 190, 192-193, 38 L. Ed. 2d 179 (1973); United States ex rel. Waters v. Bensinger, 507 F.2d 103, 104 (7th Cir. 1974). Furthermore, the circumstances of this case in no way indicate that the Illinois courts arbitrarily or discriminatorily misread the Illinois law of waiver for the purpose of sustaining the petitioner's conviction. Cf. Bouie v. City of Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958).
We now turn to a determination whether the inference of waiver from the petitioner's inaction, as dictated by the appellate court's reading of the Murrell rule, was so arbitrary that it constituted a violation of due process. The petitioner directs our attention to the waiver rules of other jurisdictions for the proposition that the better rule entitles a criminal defendant to be informed of his right to a twelve-member jury and to have his waiver appear expressly on the record. Perhaps this rule is preferable as a matter of policy, but the federal constitution does not for this reason mandate such a waiver rule for this state right. But see Walker v. State, 578 P.2d 1388 (Alaska 1978). The inference of waiver from a defendant's silence does not "render meaningless" the Illinois requirement of understanding waiver. Traditionally, the defense attorney has been considered the defendant's mouthpiece and therefore able to speak on behalf of his client. In fact, for this reason, this court has inferred the waiver of the federal right to a twelve-member jury, see Fed.R.Crim.P. 23(b), from the stipulation of defense counsel in the presence of the defendant and the defendant's silence. United State v. Pacente, 503 F.2d 543, 551-52 (7th Cir.1974) (en banc), cert. denied, 419 U.S. 1048, 95 S. Ct. 623, 42 L. Ed. 2d 642, Williams v. United States, 332 F.2d 36, 39 (7th Cir.1964), cert. denied, 379 U.S. 976, 85 S. Ct. 672, 13 L. Ed. 2d 566 (1965). The Fourteenth Amendment requires no more of the states.
Having found no constitutional defect in the formulation or substance of the waiver rule at issue here, we must now determine whether the Illinois court acted arbitrarily in applying the waiver rule on the basis of the trial record, despite the petitioner's request in that court for a remand to determine whether he disagreed with his attorney's stipulation to abide by the verdict of a jury of less than twelve.
The state trial transcript shows the following to have occurred at the petitioner's trial. During the selection of the jury, counsel for the prosecution and the defense orally stipulated that "in the event one or more jurors becomes unable to continue carrying out the responsibility as a juror, then both counsel stipulate that they will accept and abide by a verdict rendered by the remaining jurors." The trial court judge read this stipulation in open court. The transcript contains no express mention of the defendant's presence at the time the court made this statement, nor did the trial court judge question the petitioner about the agreement. During the trial, one of the jurors became ill and was dismissed without objection from counsel. Again the transcript contains no express mention of the petitioner's presence at the time of the dismissal, nor did the trial court judge question the petitioner. At the end of the trial, the eleven-member jury returned a guilty verdict.
We see no arbitrariness in the state court's determination on the basis of this record and without a remand for further hearings that a waiver occurred. Of course, the record does not reflect the defendant's presence at the very moment of the stipulation or the very moment of the dismissal of the juror, but it provides a basis for the court's finding of waiver sufficient to shield its decision from the petitioner's charge of arbitrariness.*fn6 See United States ex rel. Walker v. Twomey, supra. The petitioner made no in-court objection to the eleven-member jury until his trial was over and the guilty verdict returned. Thus, the only question before the Illinois Appellate Court was the requirement of the Murrell decision that the defendant be present when the stipulation is made. We have looked at the record and think that it leaves no doubt that the petitioner was present in court on both the day of the stipulation and the day of the dismissal.
We see no reason for departing from a realistic appraisal of the state court record and from such an examination we have no doubt that the petitioner was present in open court on both the day of the stipulation and the day of the dismissal. The transcript very carefully documents all deviations from the normal procedure of a court of record showing when proceedings occurred in the presence of the jury and in its absence, when a side bar conference occurred and what was said, or if a conference occurred which was out of the presence of the reporter, that fact was indicated. At the beginning of the proceedings the presence of the defendant was recorded. Indeed, on the first day of the trial, proceedings were delayed while it was being determined why the defendant had not been brought to the court room. A lapse of time was indicated after which the judge addressed the prospective jurors and identified the counsel and the defendant and had all of them successively stand up on identification.
It is not surprising that the record does not explicitly state at page after page that the defendant was still in the court room. His presence there having been established, the only reason for a further transcript reference to his presence would have been if that status no longer existed. We certainly do not require official reporters of court proceedings to engage in elaborating on or repeating the obvious. When the stipulation was announced by the judge in the open court, the record made it clear that it was not in the presence of the jury. We decline to believe that the absence of the defendant, if that had been a fact, would not have been similarly noted. Likewise, the dismissal of the juror occurred in open court with the judge discussing at some length the nature of the illness preventing the juror from attending and then announcing that the trial would proceed with eleven jurors. This was followed by an inquiry as to whether there were any questions. Counsel for the defense indicated there were none upon which the judge immediately called in the jury and the trial continued. As a further example of the meticulous recordation of the proceedings which occurred, we note that the record reflected that at the beginning of the afternoon session on the day the juror was excused, the judge noted the absence of the defense counsel and indicated that the trial would not start until he arrived.
As mentioned previously herein, the record sets forth in detail all colloquies occurring both within and without the presence of the jury unless not in the presence of the reporter, and, if that occurred, it was so specified. Indeed, in one instance when a question arose as to the right of the state to bring in a previously unidentified witness, the discussion of the motion, although occurring in the judge's chambers, was fully reported. This is mentioned only to show the complete recording of all that ...