The opinion of the court was delivered by: 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
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.
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746 F.2d 1482 (7th Cir. 1984) (unpublished order), sets forth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).
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 ...