United States District Court, Northern District of Illinois, E.D
October 11, 1985
UNITED STATES OF AMERICA EX REL. JACKIE HANCOCK, PETITIONER,
WARDEN STEVEN MCEVERS, RESPONDENT.
The opinion of the court was delivered by: Bua, District Judge.
MEMORANDUM AND ORDER
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.
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746 F.2d 1482 (7th Cir. 1984) (unpublished order), sets forth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
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
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
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 at 1354. See also United States v. Watson,
669 F.2d 1374 (5th Cir. 1982). In Silvern, the Seventh Circuit
Court of Appeals suggested that district courts consider
whether the need for supplemental instructions may be reduced
by sending into the jury room at the time the jury retires
either a written copy or a tape recording of the complete
instructions as given by the court. 484 F.2d at 883.
In light of Holman and Silvern, and in light of the Illinois
Appellate Court's holding that no reversible error occurred
regarding the written instructions, the Court concludes that no
constitutional error occurred. This conclusion is bolstered by
the state appellate court's finding that the jurors had
sufficient knowledge of the charges and instructions based on
the trial court's oral instructions. Therefore, the late entry
of written instructions after the jury deliberations began did
not prejudice the petitioner and did not constitute
constitutional error or a due process violation.
2. Prior Convictions
Hancock objects to the admission of evidence of his prior
conviction for armed robbery and argues that it denied him a
fair trial. According to the appellate court:
Defendant moved in limine to exclude evidence of
his prior convictions for theft of services in 1977
and for armed robbery
in 1973. The trial judge denied the motion and
certified copies of these convictions were
People v. Hancock, supra, 443 N.E.2d at 229, 66 Ill.Dec. at
547. The appellate court determined that the trial judge acted
within his discretion because at trial Hancock took the stand
and these crimes related directly to Hancock's credibility and
veracity. Id. at 228, 66 Ill.Dec. at 546 (quoting People v.
Ridley, 25 Ill. App.3d 596, 601, 323 N.E.2d 577 (1st Dist.),
leave to appeal denied, 58 Ill.2d 598 (1975)).
Trial rules regarding the admissibility of evidence in a
state criminal trial are matters of state law. United States ex
rel. Searcy v. Greer, 768 F.2d 906, 910 (7th Cir. 1985).
Violations of state evidentiary laws generally do not form the
basis upon which federal habeas corpus relief can be granted.
Id. Violations of state evidentiary rules may not be questioned
in federal habeas proceedings unless they render the trial so
fundamentally unfair as to constitute a denial of federal
constitutional rights. Id.; see also Brinlee v. Crisp,
608 F.2d 839, 850 (10th Cir. 1979), cert. denied, 444 U.S. 1047, 100
S.Ct. 737, 62 L.Ed.2d 733 (1980). In addition to Searcy, supra,
the Seventh Circuit Court of Appeals has elsewhere recognized
the well-settled principle that "[i]t is not the role of a
federal habeas court to correct state-court errors. . . .
Unless the claimed error amounted to a fundamental defect so
great that it inherently resulted in a complete miscarriage of
justice, the conviction should stand." Cramer v. Fahner,
683 F.2d 1376, 1385 (7th Cir.), cert. denied, 459 U.S. 1016, 103
S.Ct. 376, 74 L.Ed.2d 509 (1982). In Cramer, the Seventh
Circuit found that the admission of evidence in the state trial
regarding petitioner's marijuana use, adultery, professional
reputation for misconduct, and murder solicitations was not
sufficient ground for habeas corpus relief.
In the present case, the Illinois Appellate Court found that
the trial court did not abuse its discretion under Illinois
law when it admitted Hancock's prior two convictions with a
limiting instruction regarding their impact. While a finding
by the state appellate court that no error occurred is not
dispositive of the "fundamentally unfair" analysis, it is a
strong factor mitigating against a finding that the state
trial court's evidentiary ruling rendered the petitioner's
trial fundamentally unfair. United States ex rel. Searcy v.
Greer, supra, 768 F.2d at 910; see also Corpus v. Estelle,
571 F.2d 1378 (5th Cir.), rehearing denied, 575 F.2d 881, cert.
denied, 439 U.S. 957, 99 S.Ct. 359, 58 L.Ed.2d 350 (1978).
Another factor in support of the fairness of petitioner's trial
is the overwhelming evidence supporting the jury verdict of
guilty. People v. Hancock, supra, 443 N.E.2d at 231, 66
Ill.Dec. at 549. In light of these factors, the Court holds
that the admission of Hancock's prior convictions was proper
under the state evidentiary rules and did not render his trial
3. Rebuttal Evidence
Hancock claims that certain rebuttal testimony denied him a
fair trial. The appellate court made these findings of fact:
On cross-examination of the defendant, the State
inquired: "Were you ever on the phone with Mrs.
Mellis [Linda Mellis] that morning of the 27th?"
The defendant answered, "No, I wasn't." The State
then inquired as to whether defendant had told an
assistant State's Attorney and an investigator he
had received a telephone call from Linda Mellis;
and whether that call took approximately 1 hour
and 15 minutes. The defendant categorically
denied both of these statements.
On rebuttal, the State called assistant State's
Attorney Quinn. He testified he interviewed the
defendant shortly after arrest. Defendant told
him he had received a telephone call about 10:45
a.m. on the day in question. Defendant was at his
mother's home. The caller was Linda Mellis, a
psychiatric social worker at a hospital. She and
defendant spoke about the defendant's wife. This
conversation lasted 1 hour and 15 minutes. The
State also called Linda Mellis in rebuttal. She
testified she did not speak to
the defendant on the date in question, June 27,
1978. The witness specifically recalled on that
particular day she and her husband had doctor's
appointments at 10 a.m.
Defendant made no objection to the rebuttal
testimony given by either of these witnesses at
the time they testified. After final arguments
had been completed and after the jury retired,
counsel for defendant for the first time told the
court he wished to object to the testimony of
Linda Mellis on the ground that it was not proper
rebuttal. The trial court overruled this
objection and stated that the rebuttal was
443 N.E.2d at 228-29, 66 Ill.Dec. at 546-47. The appellate
court rejected Hancock's objection to the rebuttal testimony
on two grounds. First, it held that Hancock waived his
objection because it was untimely. Second, it concluded that
the testimony was properly admissible within the trial court's
discretion. 443 N.E.2d at 229, 66 Ill.Dec. at 547.
The general rule in Illinois is that an objection to the
introduction of evidence must be made at the time of admission
or it will be waived. People v. Baynes, 88 Ill.2d 225, 230, 58
Ill.Dec. 819, 430 N.E.2d 1070 (1981). In the present case, the
appellate court found that the petitioner made no objection to
the rebuttal testimony at the time the witnesses testified.
People v. Hancock, supra, 443 N.E.2d at 229, 66 Ill.Dec. at
547. Defense counsel's objection came after final arguments
were completed and the jury had retired. Id. Applying the
presumption of correctness to the appellate court's findings,
the Court finds no grounds on which to disturb the state
court's finding of waiver as to the rebuttal testimony.
In addition, the Court holds that the petitioner has failed
to meet his burden of showing that, if admission of the
rebuttal testimony was error, his trial was thereby rendered
fundamentally unfair. Following the analysis applied in the
previous section on admission of petitioner's prior
convictions, the Court finds support for its holding here in
the appellate court's holding that the rebuttal testimony was
properly admitted. Finally, the overwhelming weight of
evidence supporting the jury verdict of guilty suggests that
any prejudice to the petitioner caused by admission of the
rebuttal testimony did not render his trial fundamentally
4. Guilt Beyond A Reasonable Doubt
Hancock argues that the State failed to prove him guilty
beyond a reasonable doubt because the testimony of his cousin
Geraldine Gilliam and his family member Ernestine Gilliam is
adequate to overcome the massive and convincing evidence
supplied by the eye witnesses. The appellate court made the
following findings of fact:
We find from this record that defendant himself
was thoroughly discredited. . . . Insofar as the
witness Geraldine Gilliam testified her telephone
line at home was busy about that time for close
to two hours; her testimony is simply irrelevant
to any alibi. As for Ernestine Gilliam, she
testified defendant told her he was coming to
paint and install some burglary bars. Defendant
testified the work had not been done and he
agreed to do it on a later date. It seems clear
that the attempted alibi was weak and thoroughly
overcome by the overwhelming identification
testimony. The issues raised by defendant do not
affect the positive identifications but simply
raise an issue of credibility for the jury to
443 N.E.2d at 231, 66 Ill.Dec. at 549. The appellate court
concluded that "the verdict of the jury is most strongly
supported by the evidence beyond reasonable doubt to the point
of being overwhelming." Id.
The standard to be applied by a federal court on habeas
review in assessing the sufficiency of the evidence supporting
a state court conviction was set forth by the Supreme Court in
Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61
L.Ed.2d 560 (1979):
The applicant is entitled to habeas relief if it
is found that upon the record evidence adduced at
trial no rational trier of
fact could have found proof of guilt beyond a
The scope of habeas review being limited, the Court must not
attempt to fully reevaluate guilt but instead must only
determine if a rational fact finder could have found guilt
beyond a reasonable doubt. Finally, 28 U.S.C. § 2254(d) "gives
federal habeas courts no license to redetermine credibility of
witnesses whose demeanor has been observed by the state trial
court, but not by them." Marshall v. Lonberger, supra, 103
S.Ct. at 851.
In this case, the trial court and appellate court both
concluded upon the evidence adduced at trial that petitioner
was proved guilty beyond a reasonable doubt. This finding is
fairly supported by the record. Therefore, the Court believes
it must be upheld.
Hancock objects to the photographic and lineup
identifications as suggestive and untrustworthy. He concludes
that the trial court's denial of his motion to suppress
identification testimony constitutes reversible error.
Hancock's motion to suppress identification testimony sets
forth the following grounds: identification witnesses did not
have an adequate opportunity to view the person who robbed
them; after the robbery the individuals gave descriptions of
the offender which substantially differed from the
petitioner's description; identification was made by
photographs containing no other persons who resembled the
petitioner; the photographic identifications were made by the
witnesses in the presence of each other; and in the lineup
petitioner was identified by two people who were in the
presence of each other so that the identification evidence
should be suppressed.
Taking the first two grounds together, the reliability of an
identification is determined under Manson v. Brathwaite,
432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). See also United
States ex rel. Hudson v. Brierton, 699 F.2d 917 (7th Cir.
1983), cert. denied, 464 U.S. 833, 104 S.Ct. 114, 78 L.Ed.2d
115. The relevant factors in evaluating reliability are: the
opportunity of the witness to view the criminal at the time of
the crime, the witness' degree of attention, the accuracy of
the witness' prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and
the length of time between the crime and confrontation. Neil v.
Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d
401 (1972); accord Manson v. Brathwaite, supra, 432 U.S. at
114, 97 S.Ct. at 2253. In United States v. Wisniewski,
741 F.2d 138 (7th Cir. 1984), the Seventh Circuit Court of Appeals found
adequate opportunity to view the criminal when the witness
observed the defendant face-to-face for ten to fifteen seconds.
Id. at 144.
In the present case, it is clear that several, if not all
six, of the witnesses had adequate opportunity to view Hancock
at the time of the crime. The appellate court made the
following findings of fact:
The evidence shows clearly that the tavern in
question was well lighted. The front and rear
doors, and a window were all open. The holdup
took place about 11:30 a.m. There is no evidence
to the contrary. It is also agreed and verified
that the incident lasted from 3 to 5 minutes. The
defendant spoke to Rose Carter. At various times
all of the persons in the tavern were very close
to the defendant. Two witnesses testified the
defendant urged them to `take a good look' at
him. Beyond any reasonable doubt there was ample
and adequate opportunity for each and all of the
identification witnesses to see and observe the
443 N.E.2d at 229-30, 66 Ill.Dec. at 547-48. In light of
Wisniewski and the state appellate court findings, the Court
will not disturb the reliability of the identifications on the
first two grounds. See also United States v. Davies,
768 F.2d 893
, 903 (7th Cir. 1985) (identification upheld as reliable
even though witness told police officers on the evening of the
theft that the defendant was approximately 5'10" whereas he was
The third and fourth grounds address the suggestiveness of
the photographic identification. The test is whether the
photographic identification sessions were so "impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification," thus violating the
petitioner's right to due process under Simmons v. United
States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See
also United States v. Anderson, 714 F.2d 684 (7th Cir. 1983).
With respect to an assessment of possible misidentification,
the Court in Simmons offered several indicia of trustworthiness
of such a photographic session, including the well-lighted
setting of the robbery, the maskless state of the robber, the
opportunity of the witnesses to observe the robbery for several
minutes, the witnesses' isolation in viewing the photographs,
the lack of evidence that witnesses were told anything about
the progress of the investigation or were told that any
particular subject displayed was under suspicion, the fact that
all the witnesses unequivocally identified the defendant and,
notwithstanding cross-examination, unhesitatingly re-identified
the defendant at trial. Simmons, supra, 390 U.S. at 385-86, 88
S.Ct. at 971-72; Anderson, supra, 714 F.2d at 687.
In the present case, the Court has already upheld the
appellate court's finding that the tavern was well lighted,
443 N.E.2d at 229, 66 Ill.Dec. at 547, and the record contains
no reference to any mask or other object covering the
petitioner's face. In addition, there is no evidence in the
record that either Rose Carter or Theodore Peters were told
anything about a suspect or the progress of the investigation.
There is also no evidence that the witnesses were in each
other's presence at the photographic identifications. On the
contrary, Rose Carter testified that she was alone when the
police officer showed her the album of photographs. 443 N.E.2d
at 230, 66 Ill.Dec. at 548. Finally, in-court identification
by six credible witnesses would seem to eliminate any risk of
misidentification. Id. In light of these findings by the state
appellate court and supported on the record, the Court finds
that the petitioner has failed to meet his burden of showing a
very substantial likelihood of irreparable misrepresentation
due to the photographic identifications under the factors set
forth in Simmons.
The fifth and final ground attacks the reliability of the
lineup identification made by two witnesses, Peters and Thomas
Wright. Applying the same factors set forth in
Simmons, it is clear that factors concerning the adequate
opportunity to observe the petitioner and his uncovered face
are the same here and do not make the lineup identification
unreliable. Regarding the witnesses' isolation in viewing the
lineup, Peters and Wright testified that they were put in a
closed room together before the lineup but did not speak to
each other. 443 N.E.2d at 230, 66 Ill.Dec. at 548. In addition,
they were not together when they viewed the lineup. Id. In
light of these findings by the state appellate court and the
remaining factors in Simmons being satisfied, the Court holds
that the petitioner has failed to meet his burden of showing a
substantial likelihood of irreparable misidentification due to
the lineup identifications.
For the reasons stated above, respondent's motion to deny
the writ is granted.
IT IS SO ORDERED.
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