# People v. Salazar

> Illinois Supreme Court · September 22, 1994 · 162 Ill. 2d 513

URL: https://www.frixlaw.com/law-library/cases/9862495

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MANUEL SALAZAR, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** September 22, 1994
- **Citations:** 162 Ill. 2d 513; 205 Ill. Dec. 407; 643 N.E.2d 698; 1994 Ill. LEXIS 120
- **Precedential status:** Published
- **Opinion:** Dissent by Miller
- **Judges:** McMorrow, Bilandic, Heiple, Miller
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9862495

## How later opinions describe it (automated extraction)

- stating that the supreme court would not have reviewed the defendant’s postconviction claim — which he had not raised on direct appeal — but for the fact that the defendant based his argument on being denied effective assistance of appellate counsel

## Opinion text

JUSTICE MILLER, dissenting:
Unlike the majority, I would not grant the defendant relief on his post-conviction claim regarding the jury instructions used at trial for the offenses of murder and voluntary manslaughter. The judge in the proceedings below properly rejected this argument following an evidentiary hearing on the allegations of the defendant’s post-conviction petition, and I would uphold that determination.
Properly framed, the pertinent question in the present case is whether the defendant was denied the effective assistance of counsel by his attorney’s failure to raise, on direct appeal before this court, any challenge to the jury instructions used in this capital case to instruct the jury on murder and voluntary manslaughter. The same attorney represented the defendant both at trial and on appeal; he was assisted by a different attorney each time. While the defendant’s direct appeal was pending before this court, this court held, in People v. Reddick (1988), 123 Ill. 2d 184 , that the then-existing jury instructions for the offenses of murder and voluntary manslaughter failed to properly assign the burden of establishing the mitigation necessary for a conviction on the less serious offense. The court decided the present defendant’s appeal about five months after the decision in Reddick. At no time did counsel for the present defendant raise the Reddick issue or ask the court to reconsider the defendant’s appeal, while it was pending in this court, in light of the earlier holding in Reddick.
The majority initially concludes that the defendant received ineffective assistance of counsel because of his attorney’s failure to raise the Reddick issue on appeal from the judgment of conviction. (162 Ill. 2d at 521-22.) After reaching that conclusion, however, the majority goes on to address what it apparently believes is a distinct issue in the case. The majority phrases this separate, additional question as whether the defendant must be granted a new trial because of the Reddick violation. (162 Ill. 2d at 522.) In the discussion that follows, I will examine first the difficulties of this latter question, and I will then consider the merits of the defendant’s ineffective-assistance claim.
I
A defendant is not entitled to a new trial even on grounds of constitutional error if it can be said that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18 , 17 L. Ed. 2d 705 , 87 S. Ct. 824 .) In determining whether the present defendant is entitled to a new trial because of Reddick error, the majority’s discussion accepts without question the State’s assumption that a Reddick violation is constitutional in nature and hence subject to the Chapman test.
I realize, of course, that both this court and the United States Court of Appeals for the Seventh Circuit have characterized various errors in the former jury instructions for murder and voluntary manslaughter as constitutional in nature. (See Flowers v. Illinois Department of Corrections (7th Cir. 1992), 962 F.2d 703 ; Taylor v. Gilmore (7th Cir. 1992), 954 F.2d 441 , rev’d (1993), 508 U.S. 333 , 124 L. Ed. 2d 306 , 113 S. Ct. 2112 ; United States ex rel. Fleming v. Huch (7th Cir. 1991), 924 F.2d 679 ; Rose v. Lane (7th Cir. 1990), 910 F.2d 400 ; Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129 ; People v. Shields (1991), 143 Ill. 2d 435 ; People v. Flowers (1990), 138 Ill. 2d 218 .) The time might be ripe to reexamine this issue, however, in light of a number of recent opinions on this subject by the Seventh Circuit, as well as one by the United States Supreme Court.
A close examination of Reddick reveals that the opinion "reads like a statutory decision.” (Flowers v. Illinois Department of Corrections, 962 F.2d at 708 (Easterbrook, J., concurring).) Although the court in Red-dick characterized the problem with the pattern jury instructions as "grave error” (Reddick, 123 Ill. 2d at 198 ), the court did not describe the error as constitutional in origin or effect. Only once in the Reddick opinion does the word "constitutional” appear — and then in the course of the court’s conclusion that the prosecution is not required to present evidence of a mitigating mental state to sustain a conviction for voluntary manslaughter. Reddick, 123 Ill. 2d at 195 ("we further recognize the long-established constitutional, common law and statutory principle that, to sustain a conviction, the People must prove beyond a reasonable doubt every element of an asserted crime”).
In concluding that the then-current pattern jury instructions on murder and voluntary manslaughter misallocated the burden of proof, Reddick relied not on the United States or Illinois Constitution, but on section 3 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 3 — 2), which governs affirmative defenses. Under that provision, the defendant must present "some evidence” to raise an affirmative defense; if an affirmative defense other than insanity is properly raised, the burden then falls on the prosecution to disprove it.
The Reddick court noted that section 3 — 2 was silent on what issues should be regarded as affirmative defenses in homicide trials, but the court nonetheless found that the legislature must have intended for that statute to apply to the mitigating mental states at issue in voluntary manslaughter. (Reddick, 123 Ill. 2d at 195-97 .) The court based this decision on its reading of the language of section 3 — 2 and on the legislative history of that provision. The court concluded:
"Thus, under the 1961 Code, if a defendant in a murder trial presents sufficient evidence to raise issues which would reduce the charge of murder to voluntary manslaughter, then to sustain the murder conviction, the People must prove beyond a reasonable doubt that those defenses are meritless, and must also prove beyond a reasonable doubt the statutory elements of murder.
The burden-of-proof instructions regarding both voluntary manslaughter and murder in both of these cases were thus incorrect in placing upon the People the burden of proving the existence of intense passion or unreasonable belief in justification. The instructions should have placed upon the People the burden of disproving the existence of either of these two states of mind.” Reddick, 123 Ill. 2d at 197 .
In reexamining this question, the Seventh Circuit stated, in Taylor v. Gilmore (7th Cir. 1992), 954 F.2d 441, 449 , rev’d on other grounds (1993), 508 U.S. 333 , 124 L. Ed. 2d 306 , 113 S. Ct. 2112 , "Reddick, therefore, does not rest upon federal due process principles, but rather is controlled solely by the Illinois Criminal Code ***. Any indications to the contrary in our prior decisions are disavowed.” Just as the instructional defect found by Reddick does not establish a violation of the United States Constitution and thus would not by itself form the basis for Federal habeas relief (Estelle v. McGuire (1991), 502 U.S. 62 , 116 L. Ed. 2d 385 , 112 S. Ct. 475 ), the same defect should not present an independent ground for relief under the Illinois Post-Conviction Hearing Act, which provides a forum only for allegations of constitutional error, Federal or State. 725 ILCS 5/122 — 1 through 122 — 7 (West 1992); People v. Hall (1993), 157 Ill. 2d 324, 330-31 ; People v. Enoch (1991), 146 Ill. 2d 44, 50 .
The Supreme Court’s recent decision in Gilmore v. Taylor (1993), 508 U.S. 333 , 124 L. Ed. 2d 306 , 113 S. Ct. 2112 , is not to the contrary. In that case, the court considered the holding of the Seventh Circuit that the Illinois jury instructions used for murder and voluntary manslaughter violated due process because they could allow the jury to return a verdict of murder without having considered whether the defendant was guilty of voluntary manslaughter instead. In concluding that such a decision would be deemed to have announced a "new rule” that could not be given retroactive effect, the Supreme Court rejected the defendant’s argument that existing constitutional precedent had dictated the circuit court’s ruling. To the same effect here, if the rule in Reddick is also not dictated by existing constitutional precedent, one may wonder whether it is constitutionally based at all.
Even if it is granted that Reddick violations are constitutional in nature, the majority is using an incorrect standard of review when it simply asks whether the violation in this case was harmless beyond a reasonable doubt. (162 Ill. 2d at 522.) What this analysis forgets is the manner in which the issue comes before us for review.
This is not a direct appeal from a judgment of conviction, but instead an appeal in a post-conviction proceeding. The Post-Conviction Hearing Act provides an offender with the opportunity to challenge his conviction and sentence for violations of Federal and State constitutional rights. (725 ILCS 5/122 — 1 through 122 — 7 (West 1992).) "The function of a post-conviction proceeding is not to relitigate the defendant’s guilt or innocence but to determine whether he was denied constitutional rights. [Citation.]” (People v. Shaw (1971), 49 Ill. 2d 309, 311 .) Considerations of res judicata and waiver limit the scope of post-conviction review "to constitutional matters which have not been, and could not have been, previously adjudicated.” (People v. Winsett (1992), 153 Ill. 2d 335, 346 .) Accordingly, a post-conviction court will not ordinarily consider issues that were previously raised in the appeal from the underlying judgment of conviction, nor will it consider issues that could have been raised on appeal but were not. People v. Collins (1992), 153 Ill. 2d 130, 135 ; People v. Ruiz (1989), 132 Ill. 2d 1, 9 .
Because defense counsel could have argued the Red-dick issue on direct review but failed to do so, the only proper question in this case, a collateral challenge to the defendant’s convictions, is whether counsel was constitutionally ineffective for failing to raise that issue. Under Strickland v. Washington (1984), 466 U.S. 668 , 80 L. Ed. 2d 674 , 104 S. Ct. 2052 , a defendant cannot prevail on an ineffective-assistance claim unless he establishes that he was prejudiced by a deficiency in counsel’s performance.
The Strickland standard for judging claims of ineffective assistance of counsel differs in several important respects from the test of Chapman v. California (1967), 386 U.S. 18 , 17 L. Ed. 2d 705 , 87 S. Ct. 824 , for assessing the harmlessness of constitutional errors. Under Strickland, the burden properly falls on the defense rather than the prosecution, and the defendant must show both that counsel was professionally deficient and that he was prejudiced as a consequence of counsel’s performance. In contrast, Chapman requires the State to establish the harmlessness of the constitutional error beyond a reasonable doubt.
The differences between these two standards are substantial. As the Supreme Court has explained, the outcome under the sixth amendment ineffectiveness inquiry will not always be the same as the outcome under the standard appropriate to the underlying substantive claim. (Kimmelman v. Morrison (1986), 477 U.S. 365, 380-82 , 91 L. Ed. 2d 305, 323-24 , 106 S. Ct. 2574, 2586-87 .) Discussing this question in the fourth amendment context, the Court has stated:
"As is obvious, Strickland’s standard, although by no means insurmountable, is highly demanding. More importantly, it differs significantly from the elements of proof applicable to a straightforward Fourth Amendment claim. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like respondent’s, a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief. Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ and will be entitled to retrial without the challenged evidence.” Morrison, 477 U.S. at 382 , 91 L. Ed. 2d at 323-24 , 106 S. a. at 2586-87.
Indeed, the substantial differences between the Strickland test and other standards of review remove any incentive for defense counsel to "sandbag,” or to deliberately withhold the presentation of an argument at trial or on direct appeal in the hope or expectation of later achieving a favorable result under the guise of an ineffective-assistance claim. As the Morrison Court explained, again in relation to the fourth amendment issue involved there:
"[W]hen an attorney chooses to default a Fourth Amendment claim, he *** loses the opportunity to obtain direct review under the harmless-error standard of Chapman v. California [citation], which requires the State to prove that the defendant was not prejudiced by the error. By defaulting, counsel shifts the burden to the defendant to prove that there exists a reasonable probability that, absent his attorney’s incompetence, he would not have been convicted.” Morrison, 477 U.S. at 382 n.7, 91 L. Ed. 2d at 324 n.7, 106 S. Ct. at 2587 n.7.
What the Morrison Court stated in the fourth amendment context is equally relevant here. The present defendant’s challenge to the jury instructions used in his case must be evaluated through the sixth amendment lens provided by Strickland, rather than under Chapman’s harmless-error test, assuming the latter standard applies to our consideration, on direct appeal, of a Reddick violation.
II
I need not repeat here the prudential concerns that mandate application of the Strickland test to the present defendant’s claim, and the principles of law that guide our resolution of this constitutional question are well settled. Under Strickland, a defendant who raises a claim of ineffective assistance of counsel must show both that counsel was deficient and that counsel’s deficiency was prejudicial to the defendant. If no prejudice ensued from counsel’s representation, a court may dispose of the ineffectiveness claim on that ground alone, without considering separately whether counsel was deficient for the reason alleged by the defendant. (Strickland, 466 U.S. at 697 , 80 L. Ed. 2d at 699 , 104 S. Ct. at 2069 .) Contrary to the majority’s determination, the record here establishes that the defendant was not prejudiced by counsel’s failure on appeal to argue Reddick error.
The circuit judge in the proceedings below granted the defendant an evidentiary hearing on his post-conviction petition. Following a lengthy and exhaustive hearing, the judge denied the petition. With respect to the Reddick claim, the judge specifically found that defense counsel was not ineffective in failing to raise the Reddick issue on direct review. The judge believed that the evidence was not such that the defendant would have been found guilty of the less serious offense of voluntary manslaughter even if jury instructions satisfying the concerns of Reddick had been used at trial. More generally, the judge found that it was highly unlikely that a reasonable jury could have reached a different result in this case, and that the defendant’s testimony was so contradicted by the other evidence that his claim of self-defense was highly improbable. It is clear that the post-conviction judge did not believe that the defendant had made the requisite showing of prejudice by establishing "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694 , 80 L. Ed. 2d at 698 , 104 S. Ct. at 2068 .) I see no reason to depart from this assessment by the circuit judge, who carefully considered the allegations in the defendant’s post-conviction petition, the evidence introduced at trial, and the testimony presented by the parties at the post-conviction hearing.
The conclusions reached by the post-conviction judge are consistent with this court’s own findings on direct appeal — findings that the majority now ignores. In its earlier opinion, this court affirmed the defendant’s conviction for murder and rejected his contentions that he did not possess a mental state necessary for murder, that he was acting in self-defense, and that he could be guilty only of the lesser offenses of voluntary or involuntary manslaughter. Although the court was not asked at that time to consider application of the Reddick decision to the defendant’s case, its findings on direct appeal are clearly relevant here.
As was stated in the earlier opinion, the trial evidence showed that the defendant was a fleeing felon at the time of the attempted arrest, that the entire incident was brief, lasting only a few minutes, and that the defendant shot the police officer five times during that period. This court concluded then that the officer received the brunt of the beating, while the defendant escaped "basically unscathed.” (Salazar, 126 Ill. 2d at 451.) In addition, the court rejected the defendant’s contention that the officer initiated the fight, and found instead that the defendant was the aggressor and, moreover, was the dominant figure in the battle. Salazar, 126 Ill. 2d at 450-54.
On this record, I do not believe that it can be said that the defendant was prejudiced by his attorney’s failure to raise the Reddick issue on appeal from the judgment of conviction. This court’s earlier findings demonstrate that reversal for a new trial would not have been warranted, even if counsel on appeal had argued Reddick error; by the same token, the outcome of the original trial was not made unreliable by counsel’s failure to press the same contention at that earlier level.
For the reasons stated, I do not agree with the majority’s conclusion that defense counsel was ineffective for failing to raise the Reddick issue in the original appeal, and I would consider here the remaining issues asserted by the defendant in this post-conviction proceeding.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9862495. Public record. Not legal advice.