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UNITED STATES EX REL. HANCOCK v. MCEVERS

October 11, 1985

UNITED STATES OF AMERICA EX REL. JACKIE HANCOCK, PETITIONER,
v.
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 the writ.

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 Banks v. McGinnis, 563 F. Supp. 819 (N.D.Ill. 1983), aff'd, 746 F.2d 1482 (7th Cir. 1984) (unpublished order), sets forth the proper rule of a federal court.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 law accordingly.

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 ...


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