Petition for Writ of Certiorari — Bosek v. Illinois

~ /

No. Bcd me

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

NORMAN BOSEK,

Petitioner.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

Petition For Writ Of Certiorari To The Illinois

Appellate Court, Second District

PETITION FOR WRIT OF CERTIORARI

M. JACQUELINE WALTHER

Counsel of Record

KIELIAN & WALTHER

538 W. Jackson Blvd., Suite 205

Chicago, Illinois 60604

(312) 663-0842

GEORGE P. LYNCH

GEORGE PATRICK LYNCH, LTD

100 W. Monroe St., Suite 1900

Chicago, Illinois 60603

(312) 782-8520

Counsel for Petitioner

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTIONS PRESENTED FOR REVIEW

I. Whether the jury instructions given violated Bosek’s

constitutional rights to due process and trial by jury

where the instructions failed to advise the jury of the

presumption of innocence and proper burden of proof as

to the offense of second degree murder and conflicted with

precedent of this Court as to instructions which shift to

the defendant the burden of proof as to mitigating factors.

II. Whether Bosek’s rights to due process and trial by

jury were violated when, in a prosecution for murder in

which a defense of self-defense was raised, the trial court

refused to instruct the jury on the theory of defense

relating to the decedent’s prior violent and aggressive

behavior.

III. Whether the State failed to eliminate all reasonable

doubt of Bosek’s guilt.

il

LIST OF PARTIES TO THE PROCEEDINGS

1. Norman Bosek, Petitioner

Counsel for Mr. Bosek:

M. Jacqueline Walther

Kielian & Walther

53 West Jackson Boulevard, Suite 205

Chicago, Illinois 60604

(312) 663-0842

George P. Lynch

George Patrick Lynch, Ltd.

100 West Monroe Street, Suite 1900

Chicago, Illinois 60603

(312) 782-8520

The Petitioner is an individual.

2. The People of the State of Illinois, Respondent

Counsel for the People:

James E. Ryan

DuPage County State’s Attorney

505 North County Farm Road

Wheaton, Illinois 60187

(708) 682-7050

William L. Browers

Deputy Director

State’s Attorney’s Appellate Prosecutor

2032 Larkin Avenue

Elgin, Illinois 60123

(708) 697-0020

Roland W. Burris

Illinois Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 814-3000

ill

The parties before the Supreme Court and the parties

below are identical except that the Illinois Attorney Gen-

eral was not a party to proceedings in the Illinois Appel-

late Court. Mr. Bosek was represented by other counsel

at trial. In the appellate proceedings below, Mr. Bosek

was represented by Mr. Lynch alone.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...

LIST OF PARTIES

TO THE PROCEEDINGS .................

eS Es ce iseteebcnseeneecabes:

IE 445s caine vccarye cebu 4004 6s

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................

STATEMENT OF THE CASE ..............

REASONS FOR GRANTING THE WRIT ....

SB

The jury instructions given violated Bosek’s

constitutional rights to due process and trial

by jury where the instructions failed to advise

the jury of the presumption of innocence and

proper burden of proof as to the offense of sec-

ond degree murder and conflicted with prece-

dent of this Court as to instructions which

shift to the defendant the burden of proof as

OD WD. PRISED occ penccevsecnseess:

PAGE

bo

16

V

Il.

Bosek’s rights to due process and trial by jury

were violated when, in a prosecution for mur-

der in which a defense of self-defense was

raised, the trial court refused to instruct the

jury on the theory of defense relating to the

decedent’s prior violent and aggressive be-

OUND ooo os ccc wadkenie ene eee 27

III.

The State failed to eliminate all reasonable

oe: So cg ere errr es 29

CORC LATINO 0 acd cdeveeics¥rersseeneeee 30

APPENDIX

(Separate Appendix) PAGE

OPINION OF THE ILLINOIS

APPEL AAT Gate woe ook cvdeuswensaces A-l

ORDER OF THE ILLINOIS SUPREME COURT

DENYING LEAVE TO APPEAL .......... A-40

ORDER OF THE ILLINOIS SUPREME COURT

STAYING THE MANDATE ............... A-41

JURT INSTRUCTIONS sicccscivevancsveeceat A-42

vi

TABLE OF AUTHORITIES

Cases: PAGE

Allison v. United States, 160 U.S. 203 (1895) .. 28

Brown v. United States, 256 U.S. 335 (1921) .... 29

Cage v. Louisiana, 111 S. Ct. 328 (1990) ....... 17, 20

Carella v. California, 491 U.S. 263 (1989) ...... 20, 21

Coffin v. United States, 156 U.S. 432 (1895) .... 16, 17

Connecticut v. Johnson, 460 U.S. 73 (1983) ..... 24

Cool v. United States, 409 U.S. 100 (1972) ..... 20, 22

Estelle v. Williams, 425 U.S. 501 (1976) ....... 16

Francis v. Franklin, 471 U.S. 307 (1985) .... 20, 21, 23

Hankerson v. North Carolina, 432 U.S. 233 (1977) .. 26

Herring v. New York, 422 U.S. 853 (1975) ...... 27

Hopper v. Evans, 456 U.S. 605 (1982) ........ 25

In re Winship, 397 U.S. 358 (1970) .......... 17, 29, 30

Kentucky v. Whorton, 441 U.S. 786 (1979) ...... 18

Lopez v. United States, 373 U.S. 427 (1963) ..... 24

Martin v. Ohio, 480 U.S. 228 (1987) ....... 22, 25, 26, 27

Mullaney v. Wilbur, 421 U.S. 684 (1975) ....... 25, 26

Patterson v. New York, 432 U.S. 197 (1977) .... 25, 26

People v. Buchanan, 91 Ill. App. 3d 13, 414 N.E.

2G BEE CIGGE) 0c ccncsevents0e eee 28

People v. Daniel, 191 Ill. App. 3d 837, 548 N.E.

eG rey em 24

People v. Ellis, 107 Ill. App. 3d 603, 437 N.E. 2d

GOO (TORR on ccc cvesenuuenseseee eee 25

vil

People v. Fausz, 95 Ill. 2d 535, 449 N.E. 2d 78

GOED is nndaded bbe eee eta emer ee ae eer eats 25

People v. Flowers, 138 Ill. 2d 218, 561 N.E. 2d 674

CON a bbxkecutanesar cs deeee ieee ween 24

People v. Lynch, 104 Ill. 2d 194, 470 N.E. 2d 1018

GU sccansivuacisevcnrcssebeeenaee 27, 28

People v. Reddick, 123 Ill. 2d 184, 526 N.E. 2d 141

GU hbo.0} 0 cdceesseucneerescce eee 24

People v. Scott, 97 Ill. App. 3d 899, 424 N.E. 2d

Oe CHD nc udevncdesncuesssoeceneeiee 18, 29

People v. Shumpert, 126 Il. 2d 344 (1989) ..... 24, 25

People v. Vincent, 165 Ill. App. 3d 1023, 520 N.E.

Be Dee SUD ik eons tccnececebiueneescves 24

Sandstrom v. Montana, 442 U.S. 510 (1979) ..... 21, 23

Taylor v. Kentucky, 436 U.S. 478 (1978) .. 16, 17, 18, 20

Thompson v. United States, 155 U.S. 271 (1894) .. 28

Yates v. Evatt, 111 S. Ct. 1884 (1991) ........ 23

Constitutional Provisions, Statutes, and Rules:

es RR OI Seip ees erebusecawenes 2

a: SA MN Es ve cudwscuden see esae ees 2

te CA OU SRS. Scenes cease ecto 2

Rules of the Supreme Court of the United States,

SE SEE Cascavacekscueeeaenecer oe aeese wens 2

Illinois Supreme Court Rule 45l(c) ............ 15, 24

Illinois Supreme Court Rule 615(a) ............ 15

iP ee er ey ea ey ee AD 2

Ill. Rev. Stat. ch. 38, par. 7-1 (1987) .......... 2,19

i

Nl. Rev. Stat. ch. 38, § 9-1 (1987, as amended by

P.A. 84-1450, § 2, eff. July 1, 1987) ©... 3, 14, 19, 25

Vili

Ill. Rev. Stat. ch. 38, § 9-2 (1987, as amended by

P.A. 84-1450, § 2, eff. July 1, 1987) .. 3, 14, 19, 24, 25

Illinois Pattern Jury Instructions (IPI) Criminal,

No. 4.18 (2d ed. 1981; 1987 Supp.) ......... 21

Illinois Pattern Jury Instructions (IPI) Criminal,

No. 24-25.06 (2d ed. 1981) ........-ceceeees 21

Illinois Pattern Jury Instructions (IPI) Criminal,

me UU A errr 21, 28

Illinois Patterr. Jury Instructions (IPI) Criminal,

NO. ZE-ae.1) Gd OG. TSB) ...cccccccccsccce 21, 28

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

||

|

NORMAN BOSEK, at

Petitioner,

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The Illinois Appellate Court for the Second District af-

firmed Bosek’s conviction, in an opinion reported at 210

Ill. App. 3d 573, 569 N.E. 2d 551 (1991). The Hlinois Su-

preme Court denied Bosek’s petition for leave to appeal,

in an order not yet published (A. 40). These opinions are

reproduced in the appendix.

= =

JURISDICTION

The opinion of the Illinois Appellate Court was filed on

March 18, 1991. No petition for rehearing was filed. A

timely petition for leave to appeal was filed in the Illinois

Supreme Court on April 22, 1991. The petition for leave

to appeal was denied, in an order entered on October 2,

1991.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a), and this petition is timely, under Rule 13.1 of

the Rules of the Supreme Court of the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. V:

“No person ... shall be . . . deprived of life, liber-

ty, or property, without due process of law. . .”

U.S. Const. amend. VI:

“In all criminal prosecutions, the accused shall en-

joy the right to... trial by an impartial jury... .”

U.S. Const. amend. XIV:

‘“. . No state shall . . . deprive any person of life,

liberty, or property, without due process of law . . .

Ill. Rev. Stat. ch. 38, § 7-1 (1987):

“A person is justified in the use of force against an-

other when and to the extent that he reasonably be-

lieves that such conduct is necessary to defend him-

—3—

self or another against such other’s imminent use of

unlawful force. However, he is justified in the use

of force which is intended or likely to cause death

or great bodily harm only if he reasonably believes

that such force is necessary to prevent imminent

death or great bodily harm to himself or another, or

the commission of a forcible felony.”

Ill. Rev. Stat. ch. 38, § 9-1(a) (1987, as amended by P.A.

84-1450, §2, eff. July 1, 1987):

“A person who kills an individual without lawful jus-

tification commits first degree murder if, in perform-

ing the acts which cause the death:

(1) he either intends to kill or do great bodily harm

to that individual or another, or knows that such acts

will cause death to that individual or another; or

(2) he knows that such acts create a strong probabil-

ity of death or great bodily harm to that individual

or another .. .”

Ill. Rev. Stat. ch. 38, § 9-2 (1987, as amended by P.A. 84-

1450, § 2, eff. July 1, 1987):

“(a) A person commits the offense of second degree

murder when he commits the offense of first degree

murder as defined in paragraphs (1) or (2) of subsec-

tion (a) of Section 9-1 of this Code and either of the

following mitigating factors are present .. .

(2) At the time of the killing he believes the circum-

stances to be such that, if they existed, would justify

or exonerate the killing under the principles stated

in Article 7 of this Code, but his belief is unreason-

ae

(c) When a defendant is on trial for first degree mur-

der and evidence of either of the mitigating factors

defined in subsection (a) of this Section has been pre-

sented, the burden of proof is on the defendant to

prove either mitigating factor by a preponderance of

the evidence before the defendant can be found guilty

per tee

of second degree murder. However, the burden of

proof remains on the State to prove beyond a rea-

sonable doubt each of the elements of first degree

murder and, when appropriately raised, the absence

of circumstances at the time of the killing that would

justify or exonerate the killing under the principles

stated in Article 7 of this Code. In a jury trial for

first degree murder in which evidence of either of

the mitigating factors defined in subsection (a) of this

Section has been presented and the defendant has

requested that the jury be given the option of find-

ing the defendant guilty of second degree murder,

the jury must be instructed that it may not consider

whether the defendant has met his burden of proof

with regard to second degree murder until and unless

it has first determined that the State has proven be-

yond a reasonable doubt each of the elements of first

degree murder.”

STATEMENT OF THE CASE

Petitioner, Norman Bosek, is a mechanical engineer. He

was employed at the Fermi National Accelerator Labora-

tory for over eleven years. Bosek had been continually

employed since he graduated, from the University of Illi-

nois, in 1963. He was the sole support of his family (C.

941-43). Co-workers and supervisors attested to his respon-

sibility and excellent work performance (C. 1281-86). Bosek

had no criminal record (C. 1298).

Bosek was married in 1962. He and his wife, Janice,

had five children, ages 24 through 11. Mr. and Mrs. Bosek

lived together from that time until November 21, 1988

(C. 941-42, 944). Mrs. Bosek did not work outside the

home (C. 539). The family moved to Wayne, Illinois in

=

mid-1988 (C. 943). Wayne is a small, rural area in DuPage

County, Illinois.

Michael, the Boseks’ eldest son, introduced Lucien Gil-

bert to his parents in January 1988 (C. 495-96, 944-45).

Thereafter, Bosek saw Gilbert several times (C. 945-47).

In August 1988, Bosek found Gilbert at the Bosek home,

shooting a .357 Magnum in the backyard. While Gilbert

stopped at Bosek’s request, Bosek learned that Gilbert

had been there shooting three or four days earlier (C.

947-48).

Gilbert made a practice of carrying the .357 Magnum.

Although he was not authorized to do so, Gilbert routinely

kept the .357 Magnum with him while on duty as a secu-

rity guard (C. 1067-68, 1071-72, 1077-78). He would set

booby traps in the areas he was guarding, a practice

which was neither authorized nor customary (C. 1068-69).

Gilbert was ultimately fired, as a result of this behavior,

death threats Gilbert made against a customer of the se-

curity firm, and his use of alcohol while working (C. 10€7,

1072-74). Gilbert was a very heavy drinker (C. 558-59,

1053). When he drank, he had a bad temper (C. 1058-59).

When Bosek saw Gilbert, Gilbert was typically dressed

in combat boots, with khaki pants, and a bandanna around

his head. Gilbert also carried a hunting knife, with a

12-inch blade (C. 948-49, 1104). Gilbert was known, to co-

workers, and Mrs. Bosek, by the nickname “‘Rambo”’ (C.

563, 1087).

On Friday, September 16, 1988, Mrs. Bosek told her

husband that she wanted to marry Gilbert (C. 949-50).

Mrs. Bosek and Gilbert had been having an affair for

several months, unbeknown to Bosek (C. 571-73, 575).

Bosek attempted to save the marriage; he talked to his

a

wife about it ali weekend, he asked her to see a priest,

and he began trying to be especially nice to his wife (C.

587, 600-01, 950-52, 956-57). After that weekend, Mrs.

Bosek began to have mixed emotions about the affair (C.

589).

The following Monday, September 19, 1988, Bosek re-

ceived a call at work from Gilbert. Gilbert told Bosek that

there was nothing Bosek could do about the affair, and

that the two men would have to settle it between them.

Gilbert stated: ‘we can settle it with guns or knives and

. we are going to settle it with guns. We are going

to have a ‘shoot-out at the OK Corral’... . “I am com-

ing to get you” (C. 953-54).

Bosek hung up the phone and immediately reported this

threat to Wayne police (C. 816-19, 953-54, Def. Ex 31).

The officer who took the complaint testified that, at that

time, Bosek expressed fear that Gilbert might be at the

Bosek home that night and that there might be an alter-

cation (C. 818-19).

Nothing occurred that night. However, after the call,

Bosek began keeping a loaded .38 revolver in his dresser

drawer (C. 955).

Two and a half weeks later, Gilbert called Bosek at

home. Gilbert said that he had fought in Vietnam and was

not going to be pushed around by anyone. Gilbert told

Bosek that he was going to come and get Bosek (C. 958-

59). Bosek called the Wayne police. Receiving no answer,

as the number he dialed was not a 24-hour number, Bosek

went to the Wayne police station, but no one was there.

There was a sign on the door, which gave a number to

call after 5:00 p.m. Bosek wrote that number down and

returned home (C. 958-59). In the interim, Mrs. Bosek,

who knew of the call, telephoned Gilbert and told him not

~ =

to come (C. 605, 959). Mrs. Bosek told her husband of this

when he returned, and Gilbert did not come over that

day (C. 959-60). Bosek got his gun, put it in his pocket,

and walked around the house with it for a while. He took

no other action (C. 959).

Gilbert called Bosek again in October 1988. During that

conversation, Gilbert told Bosek that he had killed in Viet-

nam and could do it again. Gilbert told Bosek that he was

coming to get Bosek and that he, Gilbert, had his gun

loaded. Bosek hung up; the call made him nervous (C.

961).

Gilbert called frequently after that; each time, once he

knew it was Gilbert, Bosek hung up the phone (C. 960-61).

Gilbert wrote Mrs. Bosek many letters (C. 506). In one

letter, Gilbert told Mrs. Bosek to “tell Norman I’m go-

ing to be there” (Def. Ex. 30). In another letter, Gilbert

stated that he had been cut off in traffic. Gilbert indicated

that he wanted to give the other driver “a first class face

lift’’, and track him down and beat him (C. 616-18; Def. Ex.

21). Following a disagreement with Mrs. Bosek’s brother,

Phil Rysinka, Gilbert wrote that Gilbert would “rip (Ry-

sinka’s) lips off’ and show Rysinka “what it’s like to spill

blood, because I have gone through gallons” (C. 620-21;

Def. Ex. 22).

Mrs. Bosek continued her affair with Gilbert (C. 610-11,

962-63).

On November 8, 1988, Gilbert wrote a letter to the

Boseks’ 24-year old son Michael, asking Michael to get

certain documents which Gilbert wanted to have to use

against Bosek in contemplated divorce proceedings be-

tween the Boseks (C. 608-10, Def. Ex. 23). Michael did

not respond (C. 1105).

en

Thereafter, Gilbert called Michael at work and de-

manded the records. Michael was angry and afraid (C.

1106-09).

Gilbert wrote another letter, which Michael received o

November 19, 1988. Michael was so upset by this letter

that he telephoned his father, who was at a party at a

friend’s home, and told Bosek that he was afraid (C. 973-

74, 1089, 1092, 1109-11). The next day, Sunday, November

20, Michael showed the letter to his parents (C. 1111-12).

Bosek read the letter (C. 975). In the letter, Gilbert told

Michael:

“Michael, you declared war on me... I have enough

firepower to wipe out 20 people with one flick of the

wrist. Don’t think for a second I won’t use it...

I had to kill people for real and I’m not going to be

intimidated by some 23-year old punk who doesn’t

know what it’s like to cut another man’s throat or

blow off another man’s head . . . Come and get me

... You (i.e. Michael, Rysinka and Bosek) should join

forces and come after me. I need a good excuse to

go on a killing rampage again and you guys could

provide me with that opportunity . . . The conse-

quences could be fatal . .. I'll send you a hand

grenade just to even things up. . .”’ (Def. Ex. 26).

Bosek told his son that they would take the letter to

Bosek’s attorney (C. 977, 1113). Bosek decided to go to

the attorney, rather than the police, as nothing had hap-

pened when he reported the prior threats to police (C.

977).

The next morning, November 21, 1988, Bosek went to

work (C. 977).

At 10:30 a.m., Gilbert went to the Bosek home. Mrs.

Bosek let him in. Gilbert was wearing a holster with a

gun in it (C. 510, 513). Gilbert was drinking beer out of

a Tupperware container (C. 559-60).

=

Gilbert showed Mrs. Bosek a rifle (C. 513). This rifle

was an AK-47, an extremely powerful semi-automatic

weapon (C. 873, 886-88, 897). Gilbert bought this weapon,

and 90 rounds of ammunition, on November 13, 1988 (C.

937). The gun’s magazine held 30 cartridges (C. 873-74).

An AK-47 is capable of being converted to a fully auto-

matic weapon; when so converted, the weapon can dis-

charge 30 rounds of ammunition in less than three seconds

(C. 885-86). Although this particular AK-47 was in a semi-

automatic mode (“. 873-74), a person standing several feet

away would have no way of knowing whether the rifle

was fully automatic or not (C. 886).

Mrs. Bosek and Gilbert left the house in Gilbert’s car,

a Chevette hatchback (C. 164, 389-90, 514). They went to

the Pratt Wayne forest preserve, arriving about 11:30

a.m. (C. 516-17). They sat in the car for a time (C. 519).

Bosek came home for lunch at about 11:30 a.m. Finding

no one home, he drove to the store and then the post

office, thinking that he wife might have gone shopping

or to get the mail (C. 977-78). When he did not find his

wife, Bosek figured that she was either with her sister

or with Gilbert. He was concerned that, if she were with

Gilbert, Gilbert might be at the home when Bosek re-

turned (C. 979-80). As he feared a confrontation with Gil-

bert, Bosek put his gun in a compartment in the driver’s

side door of his car, so it would be accessible to him (C.

979-82).

Bosek left the house around noon and went to look for

his wife. At that time, he did not know where she was.

He drove past a couple of restaurants, where he thought

she might be if she were with her sister (C. 982-83).

He then drove into the Pratt Wayne Forest Preserve.

As he entered, he saw Gilbert’s car. Gilbert was in the

driver’s seat. Mrs. Bosek was sitting next to him (C. 983-

86). This was about 12:20 p.m. (C. 519).

Mrs. Bosek saw Bosek approaching. She said to Gilbert

“there’s Norm” (C. 519-20).

Bosek saw Gilbert look at him (C. 985-86). Gilbert im-

mediately got out of his car and proceeded to the back

of it (C. 520, 727, 986). Mrs. Bosek, who assumed that

the AK-47 and the .357 Magnum were in the car, said

as Gilbert got out, ‘don’t shoot Norm” (C. 728).

Bosek pulled up behind the Chevette (C. 521, 986). He

attempted to roll his window down, to call his wife and

take her home. As the window stuck, he opened the door,

got out, and called to his wife. Mrs. Bosek was still in

Gilbert’s car (C. 986). She indicted that she remained in

the Chevette for a while and that she heard voices. She

could not understand what was being said (C. 521).

Bosek testified that, at this point, Gilbert had opened

the hatchback of his car and was holding the AK-47 (C.

987). Gilbert’s back was to Bosek, but Bosek saw the

AK-47, with the clip in it, and Bosek saw Gilbert mov-

ing some lever on the gun (C. 987-89). Seeing the clip and

considering Gilbert’s weapon to be a machine gun, Bosek:

got out his gun and shot at Gilbert as fast as he could

(C. 989). About three seconds passed between-the time

Bosek saw Gilbert with the gun in his hands and the time

he shot Gilbert (C. 989). Bosek testified that Gilbert fell

back, with his arms at his sides and the rifle across his

knees (C. 990).

Bosek watched Gilbert for a few seconds and he was not

doing anything. Then Bosek was distracted by his wife,

who had exited the Chevette, and was running around

screaming (C. 990-91).

a

Bosek testified that his attention was then drawn back

to Gilbert. He saw Gilbert move his right hand toward

the rifle. Bosek then shot Gilbert again (C. 991). Fifteen

to thirty seconds passed between the first shot and the

second shots (C. 173, 398-400, 424-25, 528). As he saw no

indication that Gilbert had been hit, Bosek retreated be-

hind his car (C. 991).

Mrs. Bosek stated that, when she got out of the Che-

vette, she saw Bosek standing near his car, a Lincoln Con-

tinental, with the gun in his hand. The hatchback of the

Chevette was raised, and Gilbert was leaning into the

hatchback (C. 522, 740). According to Mrs. Bosek, Bosek

first pointed the gun at her, then moved and pointed it

at Gilbert (C. 523). She did not tell this to police (C. 732-

33). At the time of the first shot, the hatchback was open

and Gilbert was leaning into it (C. 740). While Mrs. Bosek

said that she did not see a weapon, she could not see

Gilbert’s hands. She was watching Bosek, not Gilbert (C.

740).

After the first shot, Mrs. Bosek ran to a nearby car

to get help (C. 526). She did not see a rifle at that time.

However, she did see the rifle over Gilbert’s legs below

his knees, when she returned (C. 529-31).

Mrs. Bosek had not seen Gilbert move prior to the sec-

ond two shots (C. 525-26, 528). However, she had gone

to several cars in an unsuccessful attempt to get help (C.

529-30).

Mrs. Bosek indicated that, when she saw the rifle over

Gilbert’s legs, she moved it, trying to get it off of his

legs. However, as it was heavy, she was only able to

move it a little way (C. 530-31, 743). Mrs. Bosek also

moved Gilbert’s right arm (C. 742-43, 747).

= =

Other people were in the area at the time. The first

thing Kristian Johnson noticed was a cracking sound (C.

163-66, 179-80). He then saw Gilbert lying on his back

behind the Chevette and Bosek, with a gun in his hand,

standing nearby (C. 167). At that time, Johnson did not

see anything in Gilbert’s hands or on the ground (C. 168-

69). Johnson saw Bosek lower his arm and heard 3-4 more

shots (C. 171). Johnson had not seen Gilbert move (C. 173).

However, Johnson was concerned for his own safety; after

hearing the first gunshot, began to quickly leave the area.

He was not looking around (C. 171, 182-88). As Johnson

drove away, the Lincoln Continental was between him and

the two other men (C. 184).

Brenda Cash was with Gary Smythe, in Smythe’s car.

They were parked 50-75 feet from the Chevette (C. 389-90,

422-24),

Cash and Smythe were talking (C. 424). Cash saw Gil-

bert exit his vehicle and go to the back of it. She did

not see anything in his hands. She saw Bosek with a gun,

standing outside of his car. Cash heard arguing (C. 393-96).

Cash then began looking at Smythe (C. 398). She did not

tell him anything about a gun (C. 412, 437-388). Cash heard

a pop and looked back. Cash saw Bosek with his gun

pointed down. She could no longer see Gilbert. She heard

two more pops (C. 398-400). As Smythe drove away, Cash

did not see a weapon near Gilbert (C. 400-02). However,

she did not notice that the hatchback was up (C. 410).

Cash was not looking at the scene at the time of the first

pop. When Cash heard the other two pops, she could not

see Gilbert at all (C. 411-13). She also was seared (C. 414).

Smythe heard the shots, but he did not witness the

shooting (C. 424-25, 488-39). As he drove away, Smythe

saw that the hatchback was raised (C. 441-42).

=

Johnson and Smythe drove to the ranger’s station, a

quarter mile away, and reported the incident (C. 174, 416,

427, 430). When they returned to the parking lot, Johnson,

Cash, and Smythe noticed the rifle lying across Gilbert’s

legs (C. 175-76, 403, 482).

After the shooting, Bosek stayed behind his car for

about ten seconds. He then asked his wife to go with him

to the police station (C. 532, 744, 992). She refused. Bosek,

thinking that something should be done quickly, got into

his car and began driving toward the Wayne police sta-

tion, which was nearby (C. 745, 992).

Upon leaving the forest preserve, Bosek saw a police

car. He stopped, got out, and told the officer, Officer

Read, that he had just shot a person. Bosek told Read

that the man might still be alive and to call an ambulance.

Bosek led Officer Read back to the parking lot (C. 773-75,

992-94).

Both Officer Read, and paramedics, who were dispatched

at 12:29 p.m., saw Gilbert lying on the ground, with his

feet near the rear of the hatchback, and a rifle across his

legs (C. 447, 776-77). Read stated that the rifle was about

three inches above Gilbert’s ankles (C. 780). The para-

medic testified that the gun was midway between Gil-

bert’s knee and ankle, with the butt of the gun to his

right (C. 448).

Read took the rifle and placed it in the hatchback (C.

784-85). The hatchback was open, and a revolver was also

there (C. 456, 779; see C. 480).

According to investigating officers, when questioned at

the scene, Bosek told police that the incident wa. not an

accident (C. 482). One officer, who was walking past an-

other officer who was questioning Bosek, stated that he

="

heard Bosek say he intended to do something like this

(C. 829). The officer questioning Bosek, however, testified

that, although Bosek said something, he could not hear

what it was (C. 482). At the station, Bosek told police

that Gilbert had threatened his son and that if he, Bosek,

“would have waited a couple seconds longer, (he) would

be the one lying on the ground” (C. 489).

Gilbert died due to the second set of gunshot wounds

(C. 695, 700-01, 704). The first wound would not have caused

death (C. 666, 705). Gilbert’s blood alcohol content was

found to be .22, over twice the level at which, in Illinois,

intoxication is presumed (C. 702-03 706).

Th: first shot hit Gilbert’s spinal cord (C. 653-56, 694,

697-99). It would have paralyzed him from mid-chest down

(C. 660). However, Gilbert would have retained the use

of his arms (C. 669). While he would not have actually

been able to reach a rifle between his knees and ankles

(C. 666), if he reached the rifle, he could have used it (C.

673). Further, an observer would not have had any idea

of the nature and extent of the injury (C. 670).

Bosek was charged with first degree murder (C. 3-6),

i.e. an intentional homicide, without justification. Ill. Rev.

Stat. ch. 38, § 9-1 (a) (1987, as amended by P.A. 84-1450,

§ 2, eff. July 1, 1987). Following a jury trial, Bosek was

convicted of second degree murder (C. 80), a killing per-

formed under an unreasonable belief that the action is

justified as self-defense. Ill. Rev. Stat. ch. 38, § 9-2 (1987,

as amended by P.A. 84-1450, § 2, eff. July 1, 1987).

Bosek’s trial attorney tendered a jury instruction that

evidence of Gilbert’s violent and aggressive character

could be considered, along with the other facts, to show

who was the aggressor. The trial court refused this in-

struction, as it was not a pattern instruction, Illinois Pat-

tern Jury Instructions (IPI), Criminal (2nd ed. 1981), and

as it singled out one aspect of the case (C. 1131-33). The

jury was instructed, ever defense objection, as to the use

of force by an aggressor (C. 74-75, 1128-31). Trial counsel

also preserved issues as to the sufficiency of the evidence

(C. 127, 1160-61).

Substitute counsel appeared for Mr. Bosek in the trial

court and presented, with leave of court, further post-trial

motions (C. 129-38), which raised additional issues as to

the trial court’s failure to instruct the jury on the State’s

burden of proof, and the presumption of innocence, oi sec-

ond degree murder (Supp. Rec. C. 1, 4-5).

Bosek’s post-trial motions were denied. He appealed (C.

155), raising the above issues, and others, including inef-

fective assistance of counsel.

The Illinois Appellate Court for the Second District af-

firmed. The appellate court rejected Bosek’s reasonable

doubt argument on the theory that the State’s evidence,

if believed, established that Gilbert was not going to fire

his rifle or that, even if he wished to, he was unable to

fire it (Appendix (“‘A.’’) 31). The appellate court rejected

Bosek’s argument that the jury should have been in-

structed on his theory of defense, on the same grounds

as the trial court (A. 32-33).

Given trial counsel’s failure to otherwise object to the

instructions, the appellate court found the issue as to the

propriety of the instruction on second degree murder

waived. However, before reaching that conclusion, the

appellate court considered whether or not the jury was

properly instructed (A. 27-30). This analysis was required

by the Illinois plain error rule, under which errors not

properly preserved at trial are not waived if they are

plain errors affecting substantial rights. Illinois Supreme

Court Rule 615 (a); see Supreme Court Rule 451 (c).

= =

The Court concluded that, because the jury was advised

of the presumption of innocence and burden of proof as

to first degree murder, no similar instructions were re-

quired as to second degree murder (A. 29). The court

noted that the jury was supposed to find the defendant

guilty of first degree murder before considering whether

he was guilty of second degree murder (A. 29). The ap-

pellate court also noted the statutory provision that the

burden of proof remained upon the State to show a lack

of justification (A. 29).

Bosek filed a petition for leave to appeal to the illinois

Supreme Court, raising each of the above issues. That

petition was denied, without opinion (A. 40).

Bosek seeks a writ of certiorari from this Court.

REASONS FOR GRANTING THE WRIT

I.

The jury instructions given violated Bosek’s constitu-

tional rights to due process and trial by jury where the

instructions failed to advise the jury of the presumption

of innocence and proper burden of proof as to the offense

of second degree murder and conflicted with precedent

of this Court as to instructions which shift to the defen-

dant the burden of proof as to mitigating factors.

The presumption of innocence is a basic component of

a fair trial, the enforcement of which lies at the founda-

tion of our judicial system. Taylor v. Kentucky, 436 U.S.

478, 479, 483 (1978); Estelle v. Williams, 425 U.S. 501,

503 (1976); Coffin v. United States, 156 U.S. 4382, 453

(1895).

—17—

A jury must be instructed on the presumption of inno-

cence, in order to insure that the jury is apprised of the

importance of the defendant’s right to have his er her

guilt determined solely on the basis of the evidence pre-

sented at trial. Taylor, 436 U.S. at 484-86. The instruc-

tion provides the lay juror with important guidance, by

cautioning the juror to disregard all of the suspicion which

arises from the charges against the defendant. Taylor, 436

U.S. at 484.

An instruction on the presumption of innocence is re-

quired even where the jury is instructed that the prose-

cution bears the burden of proving the elements of the

offense beyond a reasonable doubt. Taylor, 436 U.S. at

488-89; Coffin, 156 U.S. 482, 155 S.Ct. 394, 402-03. This

is because the presumption of innocence serves the unique

function of requiring an acquittal of the defendant, unless

the prosecution meets its burden of proof. See Coffin, 155

S.Ct. at 404.

It is also axiomatic that, in order to obtain a convic-

tion, the prosecution must prove each and every element

of the offense, beyond a reasonable doubt. In re Winship,

| 397 U.S. 358 (1970). This fundamental rule, constitutional-

ly required by due process guarantees, is the primary

safeguard for reducing the risk of an erroneous convic-

tion. Cage v. Louisiana, 111 S.Ct. 328, 329 (1990); Win-

ship, 397 U.S. at 363. The reasonable doubt standard pro-

vides concrete substance for the presumption of innocence,

the bedrock principle of our jurisprudence. Winship, 397

U.S. at 363.

In this case, the jury was instructed as to the elements

of first and second degree murder (A. 44-45). The jurors

were told that the State had the burden of proving first

degree murder and that, if the State met this burden,

Bosek would have the burden of proving, by a preponder-

ance of the evidence, the presence of a mitigating factor

(A. 42). The instructions informed the jurors that they

could return a verdict of not guilty, guilty of first degree

murder, or guilty of second degree murder (A. 43). The

instructions advised the jury that Bosek was presumed

to be innocent of the charge of first degree murder (A.

42; C. 1253). The jury was never instructed that the pre-

sumption of innocence also applied to the offense of sec-

ond degree murder (C. 1249-61).

While reversal is not automatically required in every

case in which an instruction on the presumption of inno-

cence is omitted, the omission of such an instruction may

well warrant reversal, depending on the totality of the

circumstances. Kentucky v. Whorton, 441 U.S. 786, 789-90

(1979). These circumstances include the instructions given,

the arguments made, the weight of the evidence presented,

and other relevant factors. Whorton, 441 U.S. at 789.

Several members of the Court have concluded that an in-

struction on the presumption of innocence is constitutional-

ly required in every case. Whorton, 441 U.S. at 791

(Stewart, Brennan, Marshall, J.J., dissenting). The impor-

tance of such an instruction remains clear. See Taylor,

436 U.S. 478.

In this case, a separate instruction on the presumption

of innocence as to the offense of second degree murder

was necessary to ensure that Bosek received a fair trial.

The evidence against Bosek was far from overwhelm-

ing. Under Illinois law, the difference between a homicide

justified by self-defense, and warranting acquittal, and

second degree murder depended upon the reasonableness

of the defendant’s belief, based on the circumstances con-

fronting the defendant at the time, that his conduct was

—19—

necessary for his own safety. See Ill. Rev. Stat. ch. 38,

§ 7-1, 9-1 (a), 9-2 (a) (1987, as amended by P.A. 84-1450,

§ 2, eff. July 1, 1987); see People v. Scott, 97 Ill. App.3d

899, 902-03, 424 N.E.2d 70 (1981). That was the pivotal

issue here. Bosek shot a man who had threatened him

and his son several times. Gilbert routinely carried weap-

ons. Before the first shot was fired, Gilbert had seen

Bosek approaching, jumped out of his car, and was reach-

ing into the open hatchback of his vehicle. In that area,

in addition to a .357 Magnum, Gilbert had a loaded AK-47.

Bosek testified that he saw Gilbert with the AK-47 before

he fired the first shot. Bosek testified that he fired the

second shot, seconds later, after seeing Gilbert reach for

the AK-47 which was on Gilbert’s legs. Medical testimony

indicated that Gilbert was capable of moving his arms.

This powerful weapon was seen, and moved further down

Gilbert’s legs, by Mrs. Bosek when she returned to the

area seconds later, and seen by police and paramedics.

Even assuming, arguendo, that this evidence could be con-

sidered sufficient, it is far from overwhelming.

The jury was not instructed as to the presumption of

innocence for the offense of second degree murder. How-

ever, the fact that the jury was expressly instructed that

the defendant was presumed innocent of first degree mur-

der may well have suggested to the jurors that this same

presumption did not apply to the offense of second degree

murder. Thus, this is not simply a case in which an in-

struction on the presumption of innocence was omitted,

but rather one in which the instructions given may well

have misled the jurors into believing that the presump-

tion did not exist.

The arguments exacerbated the problem. The prosecu-

tor’s argument focused, in large part, upon the credibility

of Bosek’s testimony that Gilbert moved, prior to the sec-

—~20—

ond set of shots. The prosecutor asserted that Bosek was

lying, that he could have put the rifle on Gilbert’s legs

himself, and that Gilbert was incapable of moving after

the first shot. The prosecutor also asserted that any mo-

tion by Gilbert was not sufficient to justify Bosek in

shooting him a second time (C. 1183-84, 1187, 1195-200).

The defense countered by arguing that Bosek’s conduct

was reasonable self-defense (C. 1202, 1226-30).

The issue here is not whether or not the prosecutor’s

arguments were improper; rather, the issue is the impact

of the arguments and the corresponding importance of an

instruction on the presumption of innocence. Taylor v.

Kentucky, 436 U.S. 478, 487 n. 14 (1978). The focus of

the arguments, particularly the prosecutor’s, suggested

that Bosek had to establish his innocence, and that the

jury could convict him if he had not done so. Therefore,

an instruction on the presumption of innocence was nec-

essary to insure that Bosek received a fair trial. Taylor,

436 U.S. at 486-90.

The instructions given were also constitutionally defec-

tive in the way in which they shifted the burden of proof

to the defense. Given the fundamental nature of the re-

quirement that the prosecution bear the burden of proving

guilt beyond a reasonable doubt, this Court has rejected,

as violative of due process and the right to a jury trial,

instructions which tend to reduce the prosecution’s burden

of proof. Cage v. Louisiana, 111 S.Ct. 328 (1990); Carella

v. California, 491 U.S. 263 (1989); Cool v. United States,

409 U.S. 100 (1972). The critical issue is not how a review-

ing court would interpret the instructions, but rather how

a reasonable juror might have interpreted the instructions

as a whole. Cage, 111 S.Ct. at 329-30; Francis v. Frank-

lin, 471 U.S. 307, 316 (1985). Constitutional error arises if

the jury might have understood the instructions to either

—2|—

create a presumption or to shift the burden of persuasion

on an element of the offense. Carella, 109 S.Ct. at 2421;

Francis, 471 U.S. 307; Sandstrom v. Montana, 442 U.S.

510 (1979).

The instructions here advised the jury of the elements

the State was required to prove to obtain a conviction

for first degree murder. They then advised the jury that,

if it found those elements were proven, to continue de-

liberating, to determine whether a mitigating factor had

been proven, such that Bosek was guilty of the lesser of-

fense of second degree murder. The jurors were told that

the State’s burden was one of proof beyond a reasonable

doubt. The instructions then advised the jurors that the

defendant had the burden of proving, by a preponderance

of the evidence, the existence of a mitigating factor (A.

44-45).

With regard to the contested element, of justification,

the jurors were instructed:

1) that a lack of justification was an element of the

State’s proof (A. 44);

2) that the mitigating factor, which Bosek was re-

quired to prove by a preponderance of the evidence,

was that he believed that the circumstances justi-

fied the deadly force he used, but that his belief

was unreasonable (A. 44-45).

The jury was also given a definition of the justifiable

use of force and instructed at some length on the lack

of justification for the use of force by an aggressor, or

someone who provokes the use of force against himself

(C. 74-76). Illinois Pattern Jury Instructions (IPI), Criminal

Nos. 24-25.06, 24-25.09, 24-25.11 (2d ed. 1981).

The standard of preponderance of the evidence was de-

fined for the jurors; reasonable doubt was not (C. 70). IPI

Criminal No. 4.18 (2d ed. 1981, 1987 Supp.).

atic,

The error in these instructions is that they did not clear-

ly guide the jury on what standard to employ in assess-

ing the reasonableness of Bosek’s belief that his action

was justified.

As noted above, this was the pivotal issue in this case.

The jury clearly found that Bosek believed that he was

in danger.

However, the jurors were basically told that, once hav-

ing found that Bosek had that belief, they had to convict

him of second degree murder, if they found that his belief

was unreasonable (A. 44-45). The jurors were never clearly

told what to do if they had a doubt as to the reasonable-

ness of his belief or how to evaluate evidence concerning

his belief. See Martin v. Ohio, 480 U.S. 228, 238-40 (1987)

(Powell, Brennan, Marshall, Blackmun, J.J., dissenting).

Evidence which might suffice to create a reasonable doubt

on the elements of the State’s case may fall short of prov-

ing an affirmative defense by a preponderance of the evi-

dence. See Martin v. Ohio; 480 U.S. 228, 234 (1987). Such

evidence, however, warrants acquittal, under the princi-

ple that the State must prove its case beyond a reason-

able doubt as to each element of the crime charged.

Under the instructions given to this jury, once having

reached the issue of second degree murder, the jury had

only two options, to convict Bosek of first degree murder

or to convict him of second degree murder. The jurors

were not clearly given the constitutionally required alter-

native of acquitting Bosek if they had a doubt as to the

reasonableness of his betief, or if they disagreed on the

reasonableness of his belief.

By thus failing to afford the defendant the full benefit

of the presumption of innocence, the instructions here can-

not pass constitutional muster. See Cool v. United States,

409 U.S. 100 (1972). Although these instructions do not

—23—

specify an express presumption as to an element of the

offense, there remains a risk that the jurors might have

erroneously concluded that they had to convict Bosek of

some offense, even if a doubt remained as to the reason-

ableness of his belief or even if some jurors viewed his

belief as reasonable and others did not. See Sandstrom

v. Montana, 442 U.S. 510, 516-17 (1979). Either way, the

proper result was acquittal, consistent with the require-

ment that the State prove all elements of the offense be-

yond a reasonable doubt. See Sandstrom, 442 U.S. at 523-

24; see also Yates v. Evatt, 111 S.Ct. 1884 (1991); Fran-

cis v. Franklin, 471 U.S. 307 (1985).

Significantly, the confusion was exacerbated by the

court’s oral charge to the jury. Although the written

instruction stated that the jury should find Bosek not

guilty if any one of the elements of first degree murder

was not proven (A. 44), the court, in its oral charge,

stated:

“(if you find from your consideration of all the evi-

dence that each one of these propositions has been

proved beyond a reasonable doubt, you should find

the defendant not guilty”

(C. 1256-57) (emphasis added).

Thus, Bosek’s jury was never clearly and correctly told

what findings would warrant acquittal.

The appellate court failed to analyze these issues.

Rather, the appellate court looked to whether the instruc-

tions given accurately stated the law under the new IIli-

nois homicide statutes. Upon concluding that they did, the

appellate court found that the instructions were not er-

roneous. Having reached this conclusion, the appellate

court found that the issue was waived (A. 28-30).

Under Illinois law, the failure to tender jury instruc-

tions on an issue, or to interpose a contemporaneous ob-

—24—

jection at trial to instructions given, waives errors in in-

structions, unless the error is a substantial defect and the

interests of justice require consideration of the issue. Su-

preme Court Rule 451 (c); People v. Flowers, 138 Ill. 2d

218, 232, 561 N.E. 2d 674 (1990). The Illinois courts will

apply this exception to the waiver rule when, inter alia,

the error in instructions might have affected the outcome

or where the instructions fail to correctly set forth the

State’s burden of proof. See People v. Reddick, 123 Ill.

2d 184, 526 N.E. 2d 141 (1988); People v. Daniel, 191 IIl.

App. 3d 837, 844-45, 548 N.E. 2d 354 (1989); People v.

Vincent, 165 Ill. App. 3d 1023, 1030-31, 520 N.E. 2d 913

(1988). This Court utilizes a similar standard, which allows

for review of issues as plain error. See generally, Lopez

v. United States, 373 U.S. 427, 436 (1963).

Applying these standards, and given the nature of the

error in instructions here, consideration of the merits of

this issue was warranted. Further, because the appellate

court did consider the merits of this issue, in conducting

its plain error analysis, this Court could reach the issue

as well. See generally, Connecticut v. Johnson, 460 U.S.

73, 80 n. 8 (1983) (reviewing, on the merits, an issue which

was waived, but which the state courts reviewed on the

merits).

The instructions given to the jury here reflect recent

changes in the Illinois homicide statutes. Under the new

statutory scheme, the defendant has the burden of pro-

duction, and of persuasion, by a preponderance of the evi-

dence, as to the mitigating factors which would warrant

a reduction in the degree of the offense from first, to sec-

ond, degree murder. Ill. Rev. Stat. ch. 38, § 9-2 (1987, as

amended by P.A. 84-1450, § 2, eff. July 1, 1987); People

v. Shumpert, 126 ill. 2d 344, 351-52 (1989). While the new

statute still leaves the State with the burden of proving

the elements of first degree murder, beyond a reasonable

—25—

doubt, the State is no longer required to prove, beyond

a reasonable doubt, the absence of the factors in mitiga-

tion in order to obtain a conviction for first degree mur-

der. Shumpert, 126 Ill. 2d at 351-52. This is a departure

from prior Illinois law. See People v. Ellis, 107 Ill. App.

3d 603, 610, 487 N.E. 2d 409 (1982). The new statute also

provides that the burden of proof, beyond a reasonable

doubt, remains on the State with regard to the offense

of second degree murder. Ill. Rev. Stat. ch. 38, § 9-2 (1987,

as amended by P.A. 84-1450, § 2, eff. July 1, 1987). This

is consistent with case law holding that a defendant may

only be convicted of a lesser offense if he or she is proven

guilty of all of the elements of that lesser offense. See

Hopper v. Evans, 456 U.S. 605, 611 (1982); People v.

Fausz, 95 Ill. 2d 535, 449 N.E. 2d 78 (1983).

The instructions given here, however, do not make it

clear that the State retains the burden of proof as to sec-

ond degree murder.

Further, the instructions given run afoul of this Court’s

precedents as to when the burden of persuasion may be

shifted to the defense.

Like the statutory scheme at issue in Mullaney v. Wil-

bur, 421 U.S. 684, 697-98 (1975), the new Illinois statutes

distinguish, in levels of culpability, between those who kill

in the presence or absence of a mitigating factor, i.e. a

genuine but unreasonable belief that the killing is neces-

sary to defend oneself. Ill. Rev. Stat. ch. 38, § 9-1, 9-2

(1987, as amended by P.A. 84-1450, § 2, eff. July 1, 1987).

Mullaney held that it was constitutionally impermissible

for the State, in such a situation, to shift to the defense

the burden of proving the mitigating factor.

While other cases have found that other burden-shifting

statutes could survive constitutional scrutiny, Martin v.

Ohio, 480 U.S. 228 (1987); Patterson v. New York, 432

—%6—

U.S. 197 (1977), the Mullaney principle has survived. In

fact, this Court has considered the Mullaney holding to

be so important to the goals of reducing the possibility

that an innocent person would be convicted and overcom-

ing an aspect of a criminal trial that substantially impaired

the truth-seeking process, that the Court has given the

Mullaney ruling retroactive effect. Hankerson v. North

Carolina, 432 U.S. 233, 241-44 (1977).

Under Mullaney, the instructions given to this jury

were constitutionally flawed, as they tended to shift the

burden of proof to the defense on the key issue of jus-

tification. Under the instructions as given, as noted above,

this jury may well have treated the burden as being on

the defendant to persuade as to the reasonableness of his

belief. If he failed to convince them that his belief was

reasonable, this jury may well have concluded that a con-

viction was required, even if the evidence left a reasonable

doubt as to the legitimacy of Bosek’s belief.

Significantly, even under those cases in which the chal-

lenged statutory scheme shifted the burden of persuasion,

the instructions given here would not suffice. In Martin

v. Ohio, 480 U.S. 228 (1987), this Court expressly noted

that the jury, to find guilt of any offense, had to be con-

vinced that none of the evidence raised a reasonable doubt

of guilt; further, the Court specifically noted that the jury

was instructed that it could acquit if found the presence

of an affirmative defense, by a preponderance of the evi-

dence. Martin, 480 U.S. at 233. In Patterson v. New York,

432 U.S. 197 (1977), the jury instructions “focused empha-

tically and repeatedly on the prosecution’s burden of prov-

ing guilt beyond a reasonable doubt.” Patterson, 432 U.S.

at 199-200, 200 n. 5.

The instructions here failed to do either. Bosek’s jury

was not clearly instructed that it had to acquit if, after

considering the proof of mitigation, a reasonable doubt

=

about the existence of any element remained. This is a

different, and far lesser, threshold than proof of the miti-

gating factor by a preponderance of the evidence. See

Martin, 480 U.S. at 234.

Under all of these circumstances, the instructions given

impermissibly deprived Bosek of the presumption of in-

necence and relieved the State of its constitutionally re-

quired duty to prove each and every element of the of-

fense beyond a reasonable doubt. As the Appellate Court

failed to apply the proper standards and failed to remedy

this serious constitutional violation, certiorari should be

granted to review this issue, particularly in light of the

impact of the new Illinois homicide statutes.

Il.

Bosek’s rights to due process and trial by jury were

violated when, in a prosecution for murder in which a

defense of self-defense was raised, the trial court refused

to instruct the jury on the theory of defense relating to

the decedent’s prior violent and aggressive behavior.

A defendant in a criminal case has an elementary right

to present a defense to the trier of fact. See generally,

Herring v. New York, 422 U.S. 853 (1975).

In this case, Bosek’s defense was predicated largely

upon evidence of the aggressive behavior and character

of the decedent, Lucien Gilbert. Consistent with this posi-

tion, Bosek’s attorney sought to have the jury instructed

that:

‘“(e)vidence of the victim’s aggressive and violent

character may be considered by you along with the

other facts and circumstances to show who was the

aggressor”

(C. 83, 1181-33). This instruction was refused (C. 1131-33).

That instruction was an accurate statement of Illinois

law. See People v. Lynch, 104 Ill. 2d 194, 199-200, 470

~ =

N.E. 2d 1018 (1984); People v. Buchanan, 91 Ill. App. 3d

13, 16, 414 N.E. 2d 262 (1980). It also states a principle

historically recognized by this Court. See e.g. Allison v.

United States, 160 U.S. 203 (1895); Thompson v. United

States, 155 U.S. 271 (1894).

Particularly given the circumstances of this case, the

refusal by the trial court to give this instruction deprived

Bosek of his due process right to present a defense. Bosek’s

defense depended upon the reasonableness of his belief

that he needed to use deadly force to defend himself. In

this regard, Gilbert’s violent and aggressive nature was

highly relevant, to show both the reasonableness of Bosek’s

belief and the likelihood that Gilbert, not Bosek, was the

aggressor. See Lynch, 104 Ill. 2d at 199-200, 470 N.E. 2d

1018. The instruction tendered, on this theory of defense,

informed the jury that this was a legitimate matter for

their consideration. The trial court’s refusal to give the

instruction thus tended to deprive Bosek of this theory

of defense.

In this case, it was essential to the defense that the

jury be clearly and distinctly advised of the use it could

make of this evidence, given the critical nature of the evi-

dence of Gilbert’s character to the defense position. Cf

Allison, 160 U.S. at 216. Further, the instruction held

even greater importance in light of the instructions given,

over defense objection, which tended to suggest that

Bosek was the initial aggressor and which, consequently,

limited the availability to him of a justification defense

(C. 74-75, 103-06). Illinois Pattern Jury Instructions,

Criminal Nos. 24-25.09, 24-25.11 (2d ed. 1981). The ques-

tion of who was the aggressor was clearly in issue; the

instruction tendered by the defense legitimately would

have placed additional facts necessary for resolution of this

issue before the jury.

—29—

If.

The State failed to eliminate all reasonable doubt of

Bosek’s guilt.

As noted above, the defendant in a criminai case has

a fundamental constitutional right not to be convicted un-

less the prosecution proves him or her guilty beyond a

reasonable doubt, on each and every element of the of-

fense charged. In re Winship, 397 U.S. 358 (1970).

When a defendant raises a defense of justification, such

as self-defense, in a prosecution for murder, the reason-

ableness of the defendant’s conduct cannot be judged ac-

cording to a standard of calm, detached reflection; rather,

the reasonableness of the defendant’s conduct must be

assessed based on the circumstances confronting the de-

fendant at the time of the homicide. See Brown v. United

States, 256 U.S. 335 (1921); see generally People v. Scott,

97 Ill. App. 3d 899, 902-03, 424 N.E. 2d 70 (1981).

The facts of this case have been detailed in the State-

ment of the Case. In summary, those facts demonstrate

that Bosek was confronted with an aggressive and violent

man, who had threatened Bosek, and his son, before. Gil-

bert typically carried weapons. Bosek feared Gilbert.

Upon seeing Bosek drive toward him, Gilbert got out of

his car and was headed for an AK-47, a very powerful,

semi-automatic rifle. For all Bosek knew, the rifle may

well have been in an automatic mode, and, thus, the ‘‘ma-

chine gun’’, which Bosek perceived it to be. Gilbert was

holding, or at least reaching for, this rifle, at the time

of the first shot.

At the time of the second shots, Bosek had seen Gilbert

moving his right arm toward the AK-47, which was across

his legs. Bosek would have had no way of knowing that

Gilbert would not have been able to reach the rifle, and

Bosek reacted, in seconds, to the danger which he per-

ceived.

Under these circumstances, it cannot be said that the

State eliminated all reasonable doubt of guilt, and Bosek’s

conviction should have been reversed by the Appellate

Court, consistent with the principles of Winship. The Ap-

pellate Court erroneously looked to what Gilbert actual-

ly could have done, not to Bosek’s perception, and disre-

garded the fact that Gilbert was reaching for this highly

dangerous weapon (A. 31). The Appellate Court thus failed

to afford Bosek the protection of the standard of proof

beyond a reasonable doubt.

CONCLUSION

Wherefore, for the foregoing reasons, petitioner, Norman

Bosek, respectfully requests that this Honorable Cw: rt

grant certiorari to review the decision of the Illinois Ap-

pellate Court, Second District, and the denial, by the Illi-

nois Supreme Court, of the petition for leave to appeal,

and, upon such review, reverse his conviction or, in the

alternative, reverse his conviction and remand for a new

trial.

Respectfully submitted,

M. JACQUELINE WALTHER

Counsel of Record

KIELIAN & WALTHER

53 W. Jackson Blvd., Suite 205

Chicago, Illinois 60604

GEORGE P. LYNCH

GEORGE PATRICK LYNCH, LTD.

100 W. Monroe St., Suite 1900

Chicago, Illinois 60603

Counsel for Petitioner

a

“a

"ie

nie

7

ene

a i ane

, -

'

ne

a

i oh

; a

a

ve