United States ex rel. Ross v. Franzen

688 F.2d 1181

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 24, 1982
• Docket: No. 80-1118
• Status: Published

Opinions

PELL, Circuit Judge.

Petitioner Ross appeals the dismissal of his petition for a writ of habeas corpus. Ross had been found guilty of murder in an Illinois court. He claimed in his federal habeas petition that the state trial court’s failure to submit a “not guilty” verdict form to the jury violated his Sixth and Fourteenth Amendment rights. At issue on appeal is whether the district judge correctly found that Ross had not contested his commission of the homicide but had relied solely on a defense of insanity.

I. FACTS

A. State Trial Court Proceedings

The evidence giving rise to the state court conviction is detailed in People v. Ross, 63 Ill.App.3d 884, 20 Ill.Dec. 688, 380 N.E.2d 897 (1978). We summarize parts of that evidence pertinent to this appeal.

On March 10, 1975, the victim’s son found his mother’s body in their apartment, in a bathtub full of bloody water. She had been beaten and had received multiple stab wounds. He summoned the police. The victim’s son also testified that his mother and Ross had frequently had coffee together in the apartment. The police chief testified that, after inspecting the scene and conferring with neighbors, he located Ross whom he placed under arrest. He recovered a paper bag filled with damp clothes from Ross. Ross was advised of his constitutional rights, taken to the place of the crime and then to the police station. He was given his Miranda warnings, signed a form indicating his understanding of the warnings, and was then interrogated by police. During the interrogation, Ross originally made several conflicting statements. He then conferred privately with his pastor and his girlfriend. Following further questioning, Ross confessed to the murder.

The confession depicted a brutal murder: fifteen to twenty seconds of repeated stabbing; beating the victim with a two-by-four on the arms and the head; ensuring the victim’s silence by jamming a knife down her throat.¹ This confession was introduced into evidence, with no objection from the defense.

Both the police chief, who had known Ross for some time, and the Assistant State’s Attorney testified that they believed Ross was capable of conforming his conduct to the requirements of the law.

The defense motion for a directed verdict at the close of the State’s case was denied. Ross then called as witnesses his mother, girlfriend, three psychologists, and one psychiatrist. The testimony of each was directed toward establishing Ross’ mental incapacity. Ross’ girlfriend described various instances of strange conduct by the defendant. Ross’ mother related the strange accidents and behavior that had affected Ross. The psychologists and psychiatrist testified that Ross suffered from a latent schizophrenic disorder.

At the close of the evidence, a conference on instructions was held in the judge’s chambers. The State submitted four verdict forms to be given to the jury: (1) guilty; (2) not guilty; (3) not guilty by reason of insanity and in need of further mental treatment; and (4) not guilty by reason of insanity and not in need of further mental treatment. The following colloquy then ensued:

Court: Let’s go over the verdicts now .... They brought up four verdicts, one for plain not guilty. I don’t think you even want that in there, do you?

Defense Counsel: Yes, your Honor.

Court: So he can walk out on the street without going to the hospital? Three verdicts will be given. No objections. . . .

In closing argument, defense counsel first summarized the evidence supporting a verdict of not guilty by reason of insanity. He then invited the jury to consider whether the State had really proved that Ross had committed the acts in question. To this end, he attacked the State’s tangible evidence and pointed out that only Ross’ confession directly linked him to the crime. Defense counsel referred to Ross’ close relationship with the police, suggesting that the confession was a product thereof. Ross’ attorney then reviewed again the evidence relating to Ross’ claimed insanity.

The three verdict forms agreed upon at the instructions conference were then submitted to the jury. The judge instructed the jury: “When you have unanimously agreed upon your verdict you will select the form which reflects your verdict and sign it as I have stated.” A verdict of guilty was returned. Ross was sentenced to a prison term of 100-150 years.

B. State Appellate Court Proceedings

Petitioner argued to the state appellate court that the trial court erred in omitting the plain not guilty verdict from the verdict forms given to the jury. Although the appellate court recognized the defense’s failure to object properly to this alleged error at trial, the court decided the issue on the merits. The appellate court stated:

From the opening argument of this case, through the testimony of the prosecution’s witnesses, through the reading of the defendant’s confession to the jury, the conference on instructions, through the closing arguments, through the pretrial and post-trial motions and liberal argument thereupon, the question of fact as to whether or not the defendant had committed the acts in question which resulted in the death of the victim was never raised. Counsel for both sides, in effect, stipulated to the fact the defendant had committed the acts in question. The only defense raised by the defendant’s very able trial counsel was the issue of the sanity of the defendant at the time of the commission of the act. . . . While as a general rule, we could not condone the actions of the trial judge and counsel for the prosecution and defense in omitting a “not guilty” verdict, given the peculiar set of facts presented by this record, we believe the trial judge acted correctly when he only gave the “not guilty by reason of insanity” verdicts.

C. District Court Proceedings

In his petition for a federal writ of habeas corpus, Ross alleged that the trial court had in effect directed a verdict against him and had deprived him of the right to have a jury determine whether he was guilty of each element of the charged crime beyond a reasonable doubt. The district judge found that the Illinois Appellate Court’s holding that Ross had not contested his actual commission of the murder was entitled to a presumption of correctness under 28 U.S.C. § 2254(d)(1976) and that Ross’ arguments did not cast doubt on the presumption. The judge below also determined that he was bound by the finding of the appellate court that Ross’ counsel had stipulated to the acts in question. Concluding that the state trial judge had not erred in submitting only the three verdict forms, Judge Leighton dismissed the petition.

II. DISCUSSION

Initially, we note that the petitioner’s failure to make a formal objection to the alleged error at trial does not bar us from now addressing the issue on which this appeal turns because the state appellate court decided the merits of the constitutional claim despite the lack of preservation. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). In Sumner, a constitutional challenge to identification procedures was first raised before the California appellate court which found the procedures constitutional. The defendant later petitioned for a federal writ of habeas corpus. In considering the case, the United States Supreme Court stated that “if the state appellate court . . . had declined to rule on the . . . issue because it had not been properly raised in the trial court, the federal court would have been altogether barred from considering it absent a showing of ‘cause’ or ‘prejudice.’ ” Id. at 547,101 S.Ct. at 769. Because the appellate tribunal had addressed the issue, however, the Supreme Court recognized that it could be properly raised in a petition for a writ of habeas corpus. See id.

A. Presumption of Correctness

Factual findings of a state trial or appellate court are entitled to a presumption of correctness in a federal habeas proceeding. 28 U.S.C. § 2254(d)(1976); Sumner, 449 U.S. at 547, 101 S.Ct. at 769. We must first consider whether the Illinois Appellate Court’s findings regarding Ross’ “never contesting that he committed the acts in question” is a factual finding warranting the presumption of correctness. The Supreme Court stated in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the precursor of section 2254(d), that the phrase “issues of fact” refers “to what are termed basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators ....’” Id. at 309 n. 6, 83 S.Ct. at 755 n. 6 (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953)(opinion of Frankfurter, J.)). By contrast, in Cuyier v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-1715, 64 L.Ed.2d 333 (1980), the Supreme Court held that if the issue is one requiring an application of legal principles to the historical facts of the ease, the presumption does not apply and the state court holding is open to review de novo in a federal habeas proceeding. See Brewer v. Williams, 430 U.S. 387, 403-04, 97 S.Ct. 1232, 1241-42, 51 L.Ed.2d 424 (1977).

The issues raised in Brewer and Cuyier are illustrative of those which the Court has characterized as requiring an application of law to fact. In Brewer, the question whether a defendant had waived his right to counsel was held not to be a factual determination within the meaning of section 2254. 430 U.S. at 395-97, 402-04, 97 S.Ct. at 1237-39, 1241-42. In Cuyier, the Court held that the roles played by attorneys representing co-defendants was a question of historical fact but the determination whether the attorneys’ actions constituted multiple representation was a mixed question of law and fact. 446 U.S. at 342, 100 S.Ct. at 1715. If the Supreme Court had not touched on this issue since Cuyier, we would be compelled to find that the district court erred in applying a presumption of correctness to the state court’s finding that Ross did not contest his having committed the alleged acts.

In the more recent case of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), however, the Court held that section 2254(d) was applicable to the determination whether pretrial identification procedures were impermissibly suggestive. Justice Brennan, in a dissent joined by Justices Marshall and Stevens, strongly questioned the applicability of section 2254(d) to this issue, which he regarded as analogous to the determinations required in Cuyier and Brewer. 449 U.S. at 555-59, 101 S.Ct. at 773-775 (Brennan, J., dissenting).

In light of Sumner, we find it difficult to conclude that the issue presented in the case at bar was clearly outside the scope of section 2254(d). Rather than premising our disposition of this case on Supreme Court precedent that would appear to be in a state of evolution, however, we will assume for purposes of this appeal, that the presumption of correctness was inapplicable.

B. Prima Facie Case of Constitutional Violation

When a district court is confronted with a habeas petition alleging a constitutional violation which requires the application of federal law to the facts, the court must first determine whether the petitioner has stated a prima facie case of a constitutional violation. United States ex rel. Grundset v. Franzen, 675 F.2d 870, 877 (7th Cir. 1982). In making this determination, the court should first examine the state court record. Id. at 877-78. Such review of the state proceedings may be dispositive, especially if the issue is one regarding which the petitioner would be unable to adduce additional evidence at a further evidentiary hearing. Id. at 877-80.

The judge below specifically indicated in his disposition of Ross’ habeas petition that he had reviewed the entirety of the state record. What such a review demonstrates is, first, that Ross pleaded not guilty. We do not think this is dispositive as to the issue before this court — whether Ross ever contended that he had not committed the acts in question — because at the time Ross entered his not guilty plea, a defendant in an Illinois court had no option but so to plead if he wanted to raise the defense of insanity. Illinois procedure did not provide for a plea of “not guilty by reason of insanity.” 111. Rev. Stat. ch. 38, § 113-4(a) (1975).² Ross’ not guilty plea is therefore consistent with his claim of mental incompetency at the time of the slaying. Second, defense counsel indicated in his opening argument that Ross was raising a defense of insanity; he gave no indication that Ross was claiming he never committed the alleged acts. Third, the record reveals the petitioner’s confession. This was no mere admission of guilt; rather, it was a gruesome account of the precise manner in which the murder was accomplished. Common sense suggests that one able to describe the murder in such detail had more than passing knowledge of the event. Fourth, the defense moved for a directed verdict. In this case, that motion was completely consistent with the defense’s claim that the State’s case lacked sufficient demonstration of mens rea due to Ross’ alleged mental problems. Fifth, all of the witnesses called by Ross directed their testimony to the defendant’s mental capacity; in fact, three of the five witnesses called by the defendant were mental health practitioners. Finally, after the in-chambers conference on verdict forms, which we discuss infra, defense counsel made his closing argument. He both began and finished with argument relating to Ross’ mental state. He did, in the midst of argument, point out that only the confession linked Ross directly to the crime and further suggested that this confession was a product of Ross’ demonstrated interest in maintaining a close relationship with the police. Although this argument arguably represents some attempt to suggest Ross might not have performed the acts he described so vividly in his confession, counsel’s argument also suggests yet another demonstration of a mentally unfit person, someone who would concoct a chilling murder confession in order to “please” the authorities whom he respected.

Before closing argument, a conference regarding verdict forms to be submitted to the jury was held in the chambers of the trial judge. The relevant portion of that conference is quoted in Section I, supra. The transcript of this conference demonstrates that defense counsel initially requested a straight not guilty verdict form. The court suggested that this was inappropriate and then stated, “No objections.” Even if “No objections” was stated emphatically, it would seem that defense counsel intent on arguing that his client did not commit the alleged acts would have at least attempted to make some statement for the record. Although the fact that counsel failed to preserve this issue in appropriate form does not preclude a federal court from considering the issue on petition for habeas, see Section 11(A) supra, we do feel that counsel’s failure to object is relevant to the merits of the argument urged before this court.

Our review of the record leaves little, if any, doubt, therefore, that Ross did indeed premise his claim of not guilty solely on his mental capacity at the time the crime was committed and did not challenge the State’s claim that he performed the acts in question. If this were the case, the judge below could properly have held that Ross failed to state a prima facie case of a constitutional violation, even if no presumption of correctness were accorded the findings of the Illinois Appellate Court.

We recognize, however, that the instant case is distinguishable from United States v. Harper, 460 F.2d 705 (5th Cir. 1972), on which the judge below relied. In Harper, the defense counsel had stipulated in open court that the allegations contained in the indictment were true. Id. at 707. Following this stipulation, the trial court instructed the jury that: “ ‘The only issue for your determination .is whether the Defendant is guilty or not guilty by reason of insanity at the time of the offenses charged in the indictment.’ ” Id. at 707 n. 2. The Fifth Circuit held that the instruction was proper under the circumstances of that case. Ross is correct in distinguishing Harper on the ground that the present case involves no such explicit stipulation as to whether he committed the acts of the murder.

Further, in United States v. Brown, 428 F.2d 1100 (D.C. Cir. 1970), the District of Columbia Circuit held that when a criminal defendant seeks to waive trial on all issues except insanity, the trial judge should address the defendant personally in determining whether the waiver is made voluntarily and with an understanding of the consequences, unless the stipulation is made in open court. Id. at 1103-04. Nothing in the record of the instant case suggests that the trial judge held any discussion with Ross regarding whether he was stipulating to commission of the alleged acts.³

Even if the district judge did err, which is by no means clear in our view, in concluding from his review of the record as well as the review made by the state appellate court, that Ross had not denied his performance of the murderous acts, the dismissal of Ross’ petition must be upheld if we find that any error committed by the State trial court was harmless.

C. Harmless Error

The Sixth Circuit ease of Krzeminski v. Perini, 614 F.2d 121 (6th Cir. 1980), cert. denied, 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84, involves a factual situation similar to that presented in Ross’ case. Krzeminski was convicted of murder in state court. He had admitted to several witnesses, and subsequently admitted at trial, that he had committed the murder. He defended himself on the ground that he was not guilty by reason of insanity or, in the alternative, could be found guilty only of manslaughter because of his extreme anger at the time of the killing. The trial judge explicitly instructed the jury that a verdict of straight not guilty could not be returned because of Krzeminski’s admission that he performed the alleged acts. 614 F.2d at 124. The Sixth Circuit found that this instruction constituted an error of constitutional dimension. Nevertheless, the court found the error harmless under the standard enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The court found that the only effect of the judge’s instruction that the jury could not acquit the defendant was to minimize the possibility of jury nullification. “Only an irrational jury could have acquitted the defendant outright.” 614 F.2d at 125.

The Sixth Circuit’s statement regarding jury nullification is equally applicable to the case at bar. In one sense, Krzeminski is not compelling precedent for the application of harmless error to the instant case. Like Harper, Krzeminski involved an express stipulation that the defendant had committed the acts charged. In another sense, however, the present case presents stronger reasons than Krzeminski did for applying the harmless error doctrine. Nothing in the record before this court suggests that the judge in Ross’ case gave an express instruction that precluded a verdict of not guilty. In fact, Instruction No. 11, which specified what the State was required to prove in order to sustain the charge of murder included the propositions: “That the defendant performed the acts which caused the death of Margaret Abrams” (emphasis added). The following instruction to the jury .was: “When you have unanimously agreed upon your verdict you will select the form which reflects your verdict and sign it as I have stated.” Instruction No. 12. Although this instruction could be read as implying that a straight not guilty verdict was impossible, in light of the forms offered, we believe that it would have been less inhibiting to a jury determined to find the defendant innocent than the explicit instruction given in Krzeminski. Reading Instructions Nos. 11 and 12 together, a reasonable jury would necessarily have concluded that, unless Ross had performed the alleged acts, he could not be found “guilty” whatever verdict forms were presented. We hold therefore that any error committed by the state trial judge was harmless and that Ross’ petition for habeas relief was properly dismissed.

CONCLUSION

The district court applied a presumption of correctness to state appellate court findings that Ross had never contested his commission of the alleged acts. Utilizing the section 2254(d) presumption would appear consistent with Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

Even if the district court erred in deferring to the state court findings, we believe the petition was properly dismissed because Ross failed to state a prima facie case of constitutional violation. An independent review of the state transcript, which was made by the district judge, strongly suggests that Ross did not contest his commission of the charged acts. Even if defense counsel’s closing argument is read as putting in issue whether Ross performed the alleged acts of the murder, we believe that any error committed by the state judge was harmless. On these grounds the district judge properly found that Ross had not raised a constitutional issue requiring a further evidentiary hearing.

Although the procedure employed by the state trial judge in this case is not one to be generally condoned, we believe that in this particular case the defendant is not entitled to the issuance of a writ of habeas corpus.

The judgment of the district court dismissing Ross’ petition is therefore

Affirmed.

1 . The confession is reported in greater detail in the Appendix to the dissent of the original panel decision in this case, United States ex rel. Ross v. Franzen, 668 F.2d 933, 945-46 (7th Cir. 1982).

2 . Ill. Rev. Stat. ch. 38, 115 2(b) (1981), addresses the circumstances under which an Illinois trial court may now accept a plea of guilty but mentally ill.

3 . Brown can be distinguished from the instant case on the ground that it was governed by Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 was, of course, inapplicable to Ross’ state court trial. Nonetheless, we recognize that the Brown court suggested that a colloquy between judge and defendant was essential to preservation of the defendant’s constitutional rights. 428 F.2d at 1103.