Petition for Writ of Certiorari — Illinois Department of Corrections v. Flowers
Supreme Court brief1992
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1992
ILLINOIS DEPARTMENT OF CORRECTIONS,
Petitioner,
MARVIN FLOWERS,
Respondent.
Petition for Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit
PETITION FOR WRIT OF CERTIORARI
ROLAND W. BURRIS
Attorney General, State of Illinois
ROSALYN B. KAPLAN
Solicitor General, State of Illinois
TERENCE M. MADSEN
Assistant Attorney General
MARK E. WILSON
Assistant Attorney General
STEVEN J. ZiICK
Assistant Attorney General
Counsel of Record
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 814-2139
Counsel for Petitioner
rror -
Printed by Authority of the State of Illinois (P.O. 35527—55—%-5-92)
i
QUESTIONS PRESENTED
An Illinois jury, instructed with pattern jury instruc-
tions on murder and voluntary manslaughter, found Marvin
Flowers guilty of murder on October 11, 1980. About ten
years later, the Seventh Circuit held in Falconer v. Lane,
905 F.2d 1129 (7th Cir. 1990), that use of the twenty-year-
old pattern instructions violated the Fourteenth Amend-
ment’s Duc Process Clause because the instructions per-
mitted a jury to find murder without considering evidence
to support voluntary manslaughter, a lesser offense, as
provided by state law. In Flowers v. Illinois Department
of Corrections, 962 F.2d 703 (7th Cir. 1992), the decision
below, the Seventh Circuit held that Falconer v. Lane
did not announce a “new rule” under Teague v. Lane,
489 U.S. 288 (1989), thereby permitting Flowers to take
advantage of Falconer’s holding retroactively in this
habeas corpus action.
This petition presents the following questions for review:
1. Did the Seventh Circuit err by holding that exist-
ing precedent “‘dictated’”’ Falconer’s holding under
Teague v. Lane even though (a) many opinions from
the Seventh Circuit, the Illinois Supreme Court, the
Illinois Appellate Court and federal district courts
irreconcilably conflict with Falconer on the constitu-
tionality of the pattern instructions, (b) Falconer
radically extends criminal defendants’ Due Process
rights by effectively requiring correct jury instruc-
tions on affirmative defenses provided by state law,
and (c) other circuit courts have expressly rejected
the Falconer court’s reasoning?
2. When state law requires a judge to instruct a jury
on a lesser offense if only ‘‘very slight evidence”
supports the defense, does a federal court on habeas
corpus review commit error by relying on the mere
giving of the instruction in finding reversible ©~ror?
il
TABLE OF CONTENTS
QUESTIONS PRESENTED ..................
TABLE: OF AUTEUR EEIS 560s ccncstacnndeen
fog h te ei reer Try rr ery
FUME TET 6 6 006 0ceaccens eee eeepaeees
CONSTITUTIONAL AND STATUTORY
PRUV ECU AL MOWED 660s vues necasd sae
STATEMENT OF THE CASE ...............
REASONS FOR GRANTING THE WRIT....
I.
FALCONER v. LANE, 905 F.2d 1129 (7th Cir.
1990), RADICALLY AND UNPREDICTABLY
EXTENDED CONSTITUTIONAL LAW BY
GRANTING CRIMINAL DEFENDANTS A
DUE PROCESS RIGHT TO CORRECT JURY
INSTRUCTIONS ON AN AFFIRMATIVE DE-
PERIUEE ii svateortecesusd ous kh eaneeeee eee
A. The Pattern Jury Instructions at Issue .
B. State and Federal Courts Have Disagreed
Radically on the Constitutionality of the
Instructions Invalidated in Reddick...
C. Falconer and Taylor Radically Extend
Criminal Defendants’ Due Process Rights
by Effectively Requiring Correct Jury In-
structions on Affirmative Defenses Pro-
vicod ty Shake Eee «oacivacnecste ees
D. Other Circuit Courts Have Expressly Re-
jected the Falconer and Taylor Courts’
| PPPoE rer hee
PAGE
La)
qr
~
vo)
13
ill
II.
THE MERE GIVING OF AN INSTRUCTION
CANNOT CONSTITUTE REVERSIBLE ERROR
WHEN STATE LAW REQUIRED THE TRIAL
JUDGE TO GIVE THE INSTRUCTION EVEN
IF ONLY “VERY SLIGHT EVIDENCE” SUP-
Cee ee eek kate oe 6 «8 19
NE GE 21
APPENDICES
APP.
PAGE
A—Flowers v. Illinois Department of Corrections,
oon pime foo (itm Cir. 1002) ............... 1
B—People v. Flowers, 138 Ill. 2d 218, 516 N.E.2d
ea encseunsseseee 19
iv
TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES PAGE(S)
Arizona v. Fulminante, 111 S. Ct. 1246 (1991) . 20
Beck v. Alabama, 447 U.S. 625 (1980) ......... 15
Boyde v. California, 494 U.S. 370 (1990) ...... 16, 18
Butler v. McKellar, 494 U.S. 407 (1990) ....... 7,12
Connecticut v. Johnson, 460 U.S. 73 (1983) .... 14
Cupp v. Naughten, 414 U.S. 141 (1973)....... 16, 18
Engle v. Isaac, 456 U.S. 107 (1982) ..... 11, 13, 14, 17
Delaware v. Van Arsdall, 475 U.S. 673 (1986) ... 20
Martin v. Ohio, 480 U.S. 228 (1987) .. 11, 12, 13, 14, 15, 17
Patterson v. New York, 432 U.S. 197 (1977) ....
AOE eee ee ee Pp. Lp 11, 12, 18, 14, 17
Penry v. Lynaugh, 492 U.S. 302 (1989) ........ 7
Pope v. Illinois, 481 U.S. 497 (1987) .......... 20
Sawyer v. Smith, 110 S. Ct. 2822 (1990) ...... 7,9, 12
Stringer v. Black, 112 S. Ct. 1130 (1992)...... 7
Teague v. Lane, 489 U.S. 288 (1989) .......... passim
OTHER CASES
Allen v. Redman, 858 F.2d 1194 (6th Cir. 1988) .. 18
Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990) ..
Flowers v. Illinois Dep’t of Corrections, 767 F.
ee, CE TU PD i 6 ov i Kes enccccces 2,4
vV
Flowers v. Illinois Dep’t of Corrections, 962 F.2d
eR: SS! A Re ye Pore rn ry passim
People v. Arnold, 139 Ill. App. 3d 429, 487 N.E.2d
See Ce ED ska eU RS ceeecaneeae cee’ 19
People v. Bolden, 181 Ill. App. 3d 481, 586 N.E.2d
1308 (4th Dist.), appeal denied, 542 N.E.2d 116
i Te eiwissssarcccnti eae 9
People v. Brooks, 175 Ill. App. 3d 136, 529 N.E.2d
732 (1st Dist. 1988), appeal denied, 124 Ill. 2d
557, 535 N.B.2d 916 (1989) ............000. 10
People v. Flowers, 109 Ill. App. 3d 1211, 451
N.E.2d 1039 (ist Dist. 1962) ............... 1
People v. Flowers, 192 Ill. App. 3d 292, 548 N.E.2d
Wee Ge Se SI 6 hah ck n an dagectvoaneeys 2,3
People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674
| PEEP Pree Pe ee Cer yee 2, 4, 6, 10, 14
People v. Garcia, 169 Ill. App. 3d 618, 523 N.E.2d
992 (1st Dist.), appeal denied, 122 Ill. 2d 584,
SOO N.B.2d 255 (1GGE) . ww. ccc cccsvccssces 19, 20
People v. Howard, 139 Ill. App. 3d 755, 487 N.E.2d
ee Ge GI. MD Ak ko hab htaddinaccawevaws 9
People v. McGee, 110 Ill. App. 3d 766, 443 N.E.2d
Sees Ge Rs GG oka ca ckcckeveeksss cae 9
People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141
(RE W040i 65 ash nen de ceuas eae eee ee passim
People v. Shields, 143 Ill. 2d 435, 575 N.E.2d 538
CRONED Keck dcenve chanel wecceuneess tens 10
People v. Taylor, 181 Ill. App. 3d 538, 536 N.E.2d
1312 (4th Dist.), appeal denied, 545 N.E.2d 127
PE Tee ee erro ee 9
vi
People v. Williams, 205 Ill. App. 3d 751, 563 N.E.
ie Be ee ee 19
Rose v. Lane, 910 F.2d 400 (7th Cir.), cert. denied,
i es M0 UD eee eee 19
Taylor v. Gilmore, 954 F.2d 441 (7th Cir.), peti-
tion for cert. filed, 60 U.S.L.W. 3783 (May 19,
BD RENO. DO ACUE hc ccaccnniucnacanswee 6a passim
United States ex rel. Fleming v. Gramley, 735 F.
Supp. 302 (C.D. Ill. 1990), rev’d sub nom. United
States ex rel. Fleming v. Huch, 924 F.2d 679
Se, UE a Dah ccd ans ue eeadesaeeses en )
United States ex rel. Fleming v. Huch, 924 F.2d
ee ns Coke eeene een 10, 19
Walker v. Endell, 850 F.2d 470 (9th Cir.), cert.
denied, 488 U.S. 926 (1988) ................ 18
Wood v. Marshall, 790 F.2d 548 (6th Cir. 1986),
cert. denied, 479 U.S. 1036 (1987) .......... 18
FEDERAL CONSTITUTION AND STATUTES
as . GUO. ALV, OE os cccavceccncnsas
PP Rese ULE) COMO vac ccenadcnsenesncss
ee Ps BOE COUUED onc cccncanssanvasscen
ILLINOIS STATUTES
Ill. Rev. Stat. ch. 38, 7-1 (1985) .............
Ill. Rev. Stat. ch. 38, 79-1 (1985) .............
Ill. Rev. Stat. ch. 38, 79-2 (1985) ............. 7,8
IN THE
Supreme Court of the United States
OCTOBER TERM, 1992
ILLINOIS DEPARTMENT OF CORRECTIONS,
Petitioner,
Vv.
MARVIN FLOWERS,
Respondent.
Petition for Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit
PETITION FOR WRIT OF CERTIORARI
The Petitioner respectfully asks this Court to issue a
writ of certiorari to the United States Court of Appeals
for the Seventh Circuit to review that court’s judgment
and opinion entered on May 7, 1992.
OPINIONS BELOW
The October 11, 1980, order of the Circuit Court of Cook
County, Illinois, and the November 1, 1982, decision of
the Illinois Appellate Court are unpublished. See People
v. Flowers, 109 Ill. App. 3d 1211, 451 N.E.2d 1039 (1st
Dist. 1982) (decision table). The February 1, 1983, order
of the Illinois Supreme Court denying Flowers leave to
appeal is unpublished. The Circuit Court of Cook Coun-
ty’s August 12, 1986, denial of Flowers’s petitic \ for post-
conviction relief is unpublished. The December 18, 1989,
=
decision of the Illinois Appellate Court is published at 192
fll. App. 3d 292, 548 N.E.2d 766 (1st Dist. 1989) (“Flowers
I’). The September 26, 1990, decision of the Illinois
Supreme Court is published at 138 II]. 2d 218, 561 N.E.2d
674 (1990) (“Flowers II’’), and is reprinted in the appen-
dix to this petition at pages App. 19 to App. 38. The May
16, 1991, decision of the United States District Court for
the Central District of Illinois is published at 767 F. Supp.
880 (N.D. Ill. 1991) (“Flowers IIT’). The May 7, 1992, de-
cision of the United States Court of Appeals for the
Seventh Circuit is reported at 962 F.2d 703 (7th Cir. 1992)
(‘“Fiowers [V’’), and is reprinted in the appendix to this
petition at pages App. 1 te App. 17.
JURISDICTION
The United States Court of Appeals for the Seventh
Circuit entered its judgment on May 7, 1992 (App. 18).
The Petitioner invokes this Court’s jurisdiction under 28
U.S.C. § 1254(1) (1988).
CONSTITUTIONAL AND STATUTORY
PROVISIONS AT ISSUE
This case puts in issue the Fourteenth Amendment’s
Due Process Clause: “No State shall . . . deprive any per-
son of life, liberty, or property, without due process of
law ....” U.S. Const. amend. XIV, § 1. The case also
puts in issue 28 U.S.C. § 2254 (1988): “The Supreme
Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is
in custody in violation of the Constitution . . . of the
United States.”
willis
STATEMENT OF THE CASE
I. Flowers’s State Criminal Trial and Appeal.
In 1979, Marvin Flowers repeatedly clubbed Robert
Murray with a baseball bat until Murray died. Flowers
then stole Murray’s car, along with other items, and drove
away. An Illinois jury found Flowers guilty of murder,
armed violence and armed robbery on October 11, 1980,
and the Circuit Court of Cook County accordingly sen-
tenced him to concurrent forty- and fifteen-year sentences.
Flowers appealed to the Illinois Appellate Court, which
affirmed on November 1, 1982, in an unpublished order.
The Illinois Supreme Court denied his petition for leave
to appeal on February 1, 1983.
II. Flowers’s State Post-conviction Hearing and Appeal.
Flowers then filed a petition for post-conviction relief
under the Illinois Post-conviction Hearing Act, which the
Circuit Court of Cook County denied on August 12, 1986.
Flowers again appealed to the Illinois Appellate Court.
After Flowers filed his appeal, the Illinois Supreme Court
issued its opinion in People v. Reddick, 123 Ili. 2d 184,
526 N.E.2d 141 (1988), which appeared to invalidate the
pattern murder and voluntary manslaughter instructions
used at Flowers’s trial on state law grounds.
The Illinois Appellate Court reversed, granting Flowers’s
petition for post-conviction relief. The court noted that
Reddick would not automatically apply to Flowers’s con-
viction because the Illinois Supreme Court decided it while
Flowers’s case was on appeal. Flowers J, 548 N.E.2d at
769. Believing, however, that Reddick ‘‘was clearly predi-
cated upon well-settled principles of law,’”’ the court ap-
plied Reddick retroactively. Jd.
insiliien
The Illinois Supreme Court reversed. The court affirmed
the lower court’s decision that Reddick had announced a
holding grounded in federal constitutional law rather than
just state criminal law. It cited the Seventh Circuit’s re-
cent decision in Falconer v. Lane, 905 F.2d 1129 (7th Cir.
1990), to support that holding. The court refused, however,
to apply Reddick retroactively. The court adopted, for Ili-
nois post-conviction relief claims, this Court’s holding in
Teague v. Lane, 489 U.S. 288 (1989). Finding that Red-
dick announced a “‘new rule” under Teague, it refused
to apply the rule retroactively. Flowers II, 561 N.E.2d
at 681-84 (App. 33-38).
III. Flowers’s Federal Habeas Corpus Proceeding.
Flowers proceeded to federal court, filing a petition for
a writ of habeas corpus in the United States District
Court for the Northern District of Illinois. That court com-
pletely rejected the Illinois Supreme Court’s Teague v.
Lane analysis, holding that the Illinois Supreme Court had
asked the wrong question in analyzing retroactivity. The
issue, in the district court’s opinion, was not whether Fed-
dick should apply retroactively, but whether Falconer
should apply retroactively. Flowers III, 767 F. Supp. at
894. Finding that Falconer did not announce a new rule
under Teague, the court granted Flowers’s petition. /d.
The Seventh Circuit affirmed in the decision below,
citing its recent decision in Taylor v. Gilmore, 954 F.2d
441 (7th Cir.), petition for cert. filed, 60 U.S.L.W. 3783
(May 19, 1992) (No. 91-1738).! Flowers IV, 962 F.2d at
705 (App. 4). Judge Easterbrook concurred. Although he
1 On June 9, 1992, this Court requested a brief in opposition to
the Taylor petition for certiorari.
ae
believed that stare decisis required the court to follow
current Seventh Circuit precedent, Judge Easterbrook
argued that a Reddick error does not violate the Due
Process Clause at all. Jd. at 707-12 (App. 7-17).
The Illinois Department of Corrections seeks a writ of
certiorari from this Court to review this judgment and
opinion of the Seventh Circuit.
REASONS FOR GRANTING THE WRIT
The decision below has ominous national implications.
In this habeas corpus action, the Seventh Circuit retro-
actively applied an earlier case that invalidated, on novel
constitutional grounds, pattern murder jury instructions
that state and federal courts had considered constitutional
for twenty years. In doing so, the court severely limited
the scope of Teague v. Lane, 489 U.S. 288 (1989), in which
the Court held that a case announces a “new rule” when
“the result was not dictated by precedent existing at the
time the defendant’s conviction became final.” Jd. at 301
(plurality opinion). The Court should review this issue to
reverse the Seventh Circuit’s momentous decision below
and to resolve a circuit split on the proper scope of the
Due Process Clause.
The lower court’s harmless error decision aiso requires
reversal because it fundamentally misapplies harmless error
analysis. In finding reversible error, the Seventh Circuit
erroneously assumed that the state court’s decision to give
the jury instruction necessarily meant “that the evidence
presented at trial could support either a voluntary man-
slaughter verdict or a murder verdict.” Flowers IV, 962
F.2d at 706 (App. 4-5). That statement is patently untrue
under settled Illinois law. If allowed to stand, the deci-
sion below effectively clears the way for hundreds of con-
a oe
victed murderers to by-pass the harmless error standard
for this jury instruction error. This Court should prevent
such a calamity from occurring by reversing the Seventh
Circuit’s incorrect decision below.
I.
FALCONER v. LANE, 905 F.2d 1129 (7th Cir. 1990), RADI-
CALLY AND UNPREDICTABLY EXTENDED CONSTITU-
TIONAL LAW BY GRANTING CRIMINAL DEFENDANTS
A DUE PROCESS RIGHT TO CORRECT JURY INSTRUC-
TIONS ON AN AFFIRMATIVE DEFENSE.
In holding that Falconer v. Lane announced an old rule
that applies retroactively, the Seventh Circuit dismissed
rank confusion in the state and federal courts about why
these twenty-year-old pattern jury instructions used at
Flowers’s trial might violate the Constitution. Indeed,
after a series cf inconsistent opinions from the Seventh
Circuit itself, Judge Easterbrook concurred below specifi-
cally to argue that the instructions do not violate the Due
Process Clause at all. 962 F.2d at 707-12 (App. 7-17)
(Easterbrook, J., concurring). He noted that the Seventh
Circuit was “at loggerheads with the Supreme Court of
Illinois, which held in this very case . . . that [Reddick]
would not [apply retroactively].’”’ Jd. at 707 (App. 7) (cita-
tions omitted). See Flowers II, 561 N.E.2d at 683 (App.
36-37) (finding that Reddick announced a new rule of crim-
inal procedure). These facts alone establish that Falconer
announced a new rule under Teague v. Lane.
Moreover, even if Falconer correctly revealed a consti-
tutional problem with these instructions, no decision of
this Court “dictated” that result. To the contrary, Falconer
oppugns a line of cases from this Court that suggest that
criminal defendants have no Due Process right to affirm-
ative defense instructions required by state law. Further-
=<
more, Falconer is patently inconsistent with cases from
other circuits that have relied on this same line of cases
when faced with similar issues. Falconer established a
starkly new rule of criminal procedure that the court
should not have applied retroactively to Flowers’s con-
viction.
A federal court generally cannot grant habeas corpus
relief to a prisoner based on a “new rule” of criminal pro-
cedure. Teague v. Lane, 489 U.S. at 301 (plurality opin-
ion); Penry v. Lynaugh, 492 U.S. 302, 314 (1989). A deci-
sion announces a new rule if the result was not dictated
by precedent existing at the time the defendant’s convic-
tion became final. Stringer v. Black, 112 S. Ct. 1180, 1135
(1992). If “reasonable jurists may disagree” as to whether
an earlier decision “‘dictates’”’ a later one, then the later
decision announced a “new rule” under Teague. Sawyer
v. Smith, 110 S. Ct. 2822, 2827 (1990). As the Court ex-
plained in Butler v. McKellar, 494 U.S. 407 (1990), ‘‘[t]he
‘new rule’ principle . . . validates reasonable, good-faith
interpretations of existing precedents made by state
courts even though they are shown to be contrary to later
decisions.” Jd. at 414. Under these settled principles, the
Seventh Circuit erred by holding that Falconer announced
an old rule that it could apply retroactively to Flowers’s
conviction.
A.
The Pattern Jury Instructions at Issue.
Under the Illinois Criminal Code of 1961 (the ‘‘Code’’),
a person committed murder if he killed someone with
an intent to kill or commit great bodily harm. Ill. Rev.
Stat. ch. 38, ¢ 9-1 (1985). In another statutory section, the
Code also provided for a lesser crime of voluntary man-
slaughter. Ill. Rev. Stat. ch. 38, 49-2 (1985). A person
oe ee
committed voluntary manslaughter rather than murder if
the evidence established the two elements of murder
noted above as well as a ‘‘mitigating circumstance.” See
People v. Reddick, 123 Ill. 2d 184, 193-97, 526 N.E.2d 141,
144-45 (1988). The Code provided for two mitigating cir-
cumstances: (a) that the defendant killed while acting
under sudden and intense passion resulting from serious
provocation, or (b) that the defendant had an unreasonable
belief at the time of the killing that he had to protect
himself. Ill. Rev. Stat. ch. 38, 49-2 (1985).2
In Reddick, the Illinois Supreme Court held that the
mitigating circumstances described in the Code were par-
tial affirmative defenses to a murder charge. Reddick, 123
Ill. 2d at 195-96, 526 N.E.2d at 145-46. The court held
that defendants have the burden of producing evidence
to warrant the instruction on voluntary manslaughter, but
once the defendant raised the issue, the State had the
burden of disproving the existence of the mitigating cir-
cumstance beyond a reasonable doubt. /d., 123 Ill. 2d at
197, 526 N.E.2d at 146. The pattern jury instructions on
these crimes—first published in 1968 and likely used in
hundreds of criminal trials—did not accurately reflect the
burdens of proof that the Reddick court announced. Ac-
cordingly, the Reddick court invalidated them. Jd., 123
Ill. 2d at 197, 526 N.E.2d at 146. Flowers’s jury was in-
structed with the same instructions invalidated on state-
law grounds in Reddick.
2 If the defendant had a reasonable belief that he had to defend
himself (7.e., if he acted in self-defense), a separate section of the
Code provided for full acquittal. Ill. Rev. Stat. ch. 38, 7-1 (1985).
~
B.
State and Federal Courts Have Disagreed Radically on the
Constitutionality of the Instructions Invalidated in Reddick.
Since Reddick, federal and state courts, including the
Seventh Circuit itself as well as the Illinois Supreme
Court, have issued markedly inconsistent opinions as to
whether Reddick errors violate the Due Process Clause.
Because disagreement among reasonable jurists estab-
lishes that a constitutional principle is “‘new’’ under
Teague, Falconer announced a new rule. Sawyer, 110 S.
Ct. at 2827.
Before the Seventh Circuit decided Falconer, many
courts held that a Reddick error did not violate the Due
Process Clause. These courts typically reasoned that, if
anything, a Reddick errvr deprived a defendant of an af-
firmative defense, and the Due Process Clause does not
guarantee defendants the right to receive an affirmative
defense instruction. See, e.g., People v. Bolden, 181 Ill.
App. 3d 481, 487-88, 536 N.E.2d 1308, 1311-12 (4th Dist.),
appeal denied, 542 N.E.2d 116 (Ill. 1989); People v. Taylor,
181 Ill. App. 3d 538, 540, 5386 N.E.2d 1312, 1313 (4th
Dist.), appeal denied, 545 N.E.2d 127 (Ill. 1989); United
States ex rel. Fleming v. Gramley, 735 F. Supp. 302, 305-
08 (C.D. Ill. 1990), rev’d sub nom. United States ex rel.
Fleming v. Huch, 924 F.2d 679 (7th Cir. 1991). See also
People v. McGee, 110 Ill. App. 3d 766, 775, 4438 N.E.2d
1057, 1063-64 (2d Dist. 1982) (affirming convictions on
direct review after trials using the pattern instructions);
Peopie v. Howard, 139 Ill. App. 3d 755, 760-61, 487 N.E.2d
656, 660-61 (2d Dist. 1985) (same). As the Bolden Court
explained, ‘‘No United States Supreme Court case has
held that due process is denied when an imperfect instruc-
tion is given in regard to an included offense.” 181 III.
App. 3d at 487, 536 N.E.2d at 1312.
=
Other courts, however, including the Seventh Circuit
and the Illinois Supreme Court, disagreed with this rea-
soning. These courts held that the Reddick court reversed
on constitutional rather than state-law grounds even though
the instructions related to an affirmative defense. See, e.g.,
Falconer v. Lane, 905 F.2d at 1134 & n.5; Flowers II,
138 Ill. 2d at 235-37, 561 N.E.2d at 680-81 (App. 31-33);
People v. Shields, 143 Ill. 2d 435, 442-48, 575 N.E.2d 538,
542 (1991); People v. Brooks, 175 Ill. App. 3d 136, 142,
529 N.E.2d 732, 736 (1st Dist. 1988), appeal denied, 124
Ill. 2d 557, 585 N.E.2d 916 (1989).
These courts either held or strongly suggested that Red-
dick itself announced a Due Process holding, because the
Reddick court considered the jury instruction error to vio-
late a defendant’s alleged fundamental right to accurate
jury instructions. As the Falconer court stated, ‘“‘{all-
though the Reddick Court itself did not use the magic
words ‘due process’ as the petitioner did, the Court obvi-
ously considered the errors resulting from the invalid in-
structions to be of constitutional magnitude.” 905 F.2d at
1134. The court explicitly approved of various Illinois Ap-
pellate Court decisions, including People v. Brooks, which
held that Reddick announced a constitutional rule because
‘(t]he right of an accused to have the State prove all the
elements of his alleged crime is incontestably of constitu-
tional dimension.”’ Brooks, 175 Ill. App. 3d at 142, 529
N.E.2d at 736 (citation omitted). See Falconer, 905 F.2d
at 1134 & n.5 (adopting Brooks and other Illinois Appel-
late Court decisions).
As the Seventh Circuit later recognized, however, ‘‘an
ambiguity exist{ed] as to the precise nature of the due
process violation.” United States ex rel. Fleming v. Huch,
924 F.2d 679, 682 (7th Cir. 1991). In particular, earlier
statements in the Seventh Circuit’s decisions never ex-
Tan
plained why Reddick errors did not merely violate state
law since, at most, they deprived a defendant of his state-
law right to present an affirmative defense. See Patter-
son v. New York, 482 U.S. 197, 210 (1977) (state need not
“disprove beyond a reasonable doubt every fact constitut-
ing any and all affirmative defenses related to the culpa-
bility of an accused’’); Engle v. Isaac, 456 U.S. 107, 119-21
(1982) Gury instruction error could not be challenged on
habeas review because it related to an affirmative defense,
not an element of the crime); Martin v. Ohio, 480 U.S.
228, 233 (1987) (states may shift burden of proving self-
defense to accused in homicide case). See infra § 1.C., pp.
13-17.
Only in Taylor v. Gilmore, 954 F.2d 441 (7th Cir.), peti-
tion for cert. filed, 60 U.S.L.W. 3783 (May 19, 1992) (No.
91-1738), did the Seventh Circuit finally clarify why it be-
lieved that using these instructions violated the Constitu-
tion. The court held that constitutional error occurred
because (a) a reasonable likelihood existed that the jury
applied the challenged instruction in ‘“‘an invalid manner,”
and (b) the jury might not have “weigh[ed] evidence that
may have led to an acquittal on the charge of conviction.”
954 F.2d at 452-53.
This novel holding went far beyond the earlier, irrecon-
cilable efforts to resolve this issue by the Seventh Cir-
cuit, the Illinois Supreme Court, the Illinois Appellate
Court, and the federal district courts in Illinois. Indeed,
Judge Easterbrook below charged the Taylor court with
“abandon[ing]” Falconer’s holding and substituting a new
one, with which he also disagreed. 962 F.2d at 709-12
(Easterbrook, J., concurring) (App. 11-17). Because many
reasonable jurists had addressed this issue but had ar-
rived at divergent results, neither Falconer nor Taylor,
-
which modified Falconer’s holding, were “dictated” by
existing precedent.
Judge Easterbrook concurred below specifically because
he thought that the Seventh Circuit erred in Falconer
and Taylor by finding a Due Process violation. 962 F.2d
at 707-12 (App. 7-17) (Easterbrook, J., concurring). He ex-
plained: “{I}f a state could choose to do something—choose,
for example, to make self-defense an affirmative defense
to murder . . .—then the federal inquiry is over; whether
the state has indeed so chosen is a question of its domes-
tic law.”’ Id. at 711 (App. 15) (citing Patterson and Mar-
tin). Although some panels of the Seventh Circuit believe
that Reddick errors violate the Due Process clause, Judge
Easterbrook does not. As a “reasonable jurist[ },” Judge
Easterbrook’s concurrence below necessarily means that
Falconer and Taylor established a new rule. Sawyer, 110
S. Ct. at 2827.
In holding that Falconer did not announce a new rule
under Teague, the Seventh Circuit has effectively declared
that Judge Easterbrook’s concurrence, as well as earlier
opinions of the Seventh Circuit, the Illinois Supreme
Court, the Illinois Appellate Court and the federal district
court, were products of unreasonable jurists. Sawyer, 110
S. Ct. at 2827; Butler v. McKellar, 494 U.S. 407, 415
(1990). This holding cannot stand. These judges did not
reach divergent opinions because they were ‘‘unreason-
able’; to the contrary, the opinions differ because the
courts were simply grappling with how best to apply exist-
ing precedent, which does not squarely resolve the consti-
tutional question presented by these pattern instructions.
Accordingly, Falconer and Taylor present a quintessen-
tially new rule under Teaque. This Court should issue a
writ of certiorari to correct the Seventh Circuit’s error
and to preclude the federal courts from applying Falconer’s
~~.
novel holding to potentially hundreds of long-final murder
convictions in Illinois.
C.
Falconer and Taylor Radically Extend Criminal Defendants’
Due Process Rights by Effectively Requiring Correct Jury
Instructions on Affirmative Defenses Provided by State Law.
Falconer and Taylor held that use of these instructions
violated a defendant’s right to Due Process despite Patter-
son v. New York, 432 U.S. 197 (1977), Engle v. Isaac, 456
U.S. 107 (1982), and Martin v. Ohio, 480 U.S. 228 (1987),
all of which strongly suggest that a defendant has no such
Due Process right. Indeed, two circuits have rejected ar-
guments that the Seventh Circuit applied in Falconer and
Taylor specifically because of Patterson and later cases.
See infra §1.D., pp. 17-19. Even if the Seventh Circuit
correctly decided Falconer and Taylor, therefore, they an-
nounced a new rule because they went far beyond earlier
pronouncements of this Court on the scope of a criminal
defendant’s Due Process right to an affirmative defense
jury instruction.
Since Patterson v. New York, this Court has held, ap-
parently uniformly, that in noncapital cases the Due Proc-
ess Clause requires proof beyond a reasonable doubt of
the elements of a charged offense, but affirmative defenses
are matters of state law. In Patterson, for example, the
Court held that a state could legitimately, under the Due
Process Clause, place the burden of proof of an affirmative
defense upon a defendant. 432 U.S. at 205-11. Similarly,
in Engle v. Isaac, the Court held that jury instructions
that violated state law by placing the burden of proof of
an affirmative defense upon a defendant did not violate
the Due Process Clause. 456 U.S. at 119-21. Lastly, in
Martin v. Ohio, the Court held that a state may place
=
the burden of proof of an affirmative defense on a defen-
dant even if evidence that supports the affirmative
defense would negate one of the elements of the charged
offense. 480 U.S. at 233-36.
Falconer and Taylor contradict the rationale of these
cases. If the Due Process Clause allows states to convict
defendants with jury instructions that misallocate the
burden of proof of an affirmative defense (Engle v. Isaac,
456 U.S. at 119-21), then the Due Process Clause should
also allow states to convict defendants with instructions
that effectively deprive a defendant of an affirmative de-
fense. Falconer and Taylor announce holdings directly
contrary to this reasoning. Even if Falconer and Taylor
are correct, therefore, Engle, Patterson and Martin dispel
any possibility that existing precedent “dictated” their
constitutional holdings. Indeed the Illinois Supreme Court
reached this very result. See Flowers II, 561 N.E.2d at
683 (holding that Reddick will not apply retroactively,
in part, because Reddick’s constitutional holding ‘did
not necessarily flow” from its statutory analysis given
Patterson).
The Taylor court, addressing the retroactivity of Falconer,
relied on Connecticut v. Johnson, 460 U.S. 73 (1983), to
hold that “permitting a jury to reach a murder verdict
without considering evidence that would warrant mitiga-
tion to voluntary manslaughter . . . violates due process.”’
954 F.2d at 453. As the court itself recognized, however,
Johnson involved instructions on an element of a crime,
not an affirmative defense. Jd. The court considered this
distinction from Johnson “insignificant,” however, stating:
What ultimately mattered in Johnson was that the
jury could not weigh evidence that may have led to
an acquittal on the charge of conviction—regardless
of whether the evidence related to an element of the
~~
crime or an affirmative defense. In a state that de-
fines manslaughter and murder as separate crimes,
and at a trial where a defendant is constitutionally
entitled to voluntary manslaughter instructions, a
homicide committed under a sudden and intense pas-
sion is no more a murder than a homicide committed
without the intent to kill.
Id. This passage misapplies the law for at least three
reasons.
First, to the extent that the pattern instructions might
prevent the jury from acquitting the defendant of murder
even though he presented evidence of an affirmative de-
fense, the instructions only violated state law. The Due
Process Clause does not place on a state the burden of
proving the absence of an affirmative defense, even if the
existence of the affirmative defense might negate an ele-
ment of the charged crime. Martin v. Ohio, 480 U.S. at
233-36. It necessarily follows that a defendant has no Due
Process right to have a jury consider evidence that is only
relevant to an affirmative defense.
Second, the Taylor court cited no authority for the
proposition that a defendant is ‘constitutionally entitled
to voluntary manslaughter instructions.” 954 F.2d at 453.
This Court has apparently never held that criminal defen-
dants have such a right in noncapital cases. See Beck v.
Alabama, 447 U.S. 625, 637 (1980) (noting that the Court
has “never held that a defendant is entitled to a lesser
included offense instruction as a matter of due process’’).
Third, although the court correctly stated that a homi-
cide committed “‘under a sudden and intense passion is
no more a murder than a homicide committed without the
intent to kill’ (954 F.2d at 453), the issue in a habeas
corpus case is not whether the habeas petitioner com-
mitted murder; the issue is whether the conviction violates
=~ =
the Constitution. Whether evidence establishes murder
under state law is a fundamentally different question from
whether the Constitution requires that the jury instruc-
tions permit the jury to consider that evidence. As Judge
Easterbrook concluded below, “Jf Illinois wishes to use
these instructions, it may; whether it wishes to do so is
none of our business.’’ 962 F.2d at 712 (App. 17) (Easter-
brook, J., concurring).
The Taylor court also justified its holding on another
line of cases from this Court which control the scope of
habeas review of improper jury instructions. The court
never acknowledged, however, that this Court has ap-
parently never applied this second line of cases to instruc-
tions that effectively deprive a defendant of only an af-
firmative defense.
The Due Process Clause requires a new trial when ‘an
ailing instruction by itself so infected the entire trial tha:
the resulting conviction violates due process.’’ Cupp v.
Naughten, 414 U.S. 141, 147 (1973). In reviewing jury in-
structions, a collateral court must assess “whether there
is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consid-
eration of constitutionally relevant evidence.” Boyde v.
California, 494 U.S. 370, 380 (1990). The Seventh Circuit
purported to apply this rule in Taylor, but restated the
Boyde test in a novel and expansive way. Rather than
asking whether the jury was likely to have applied the
instruction in a way “that prevents its consideration of
constitutionally relevant evidence,”’ as the Court stated
in Boyde, the court inquired whether the jury was likely
to have applied the instruction “in an invalid manner,”
by which it meant in a manner that deprived the defen-
dant of an affirmative defense permitted by state law. 954
F.2d at 452-53.
a
This slight difference in wording makes the Falconer
and Taylor holdings radical indeed. A Reddick error prej-
udices a defendant because the instructions effectively pre-
vent a jury from considering, as required by state law,
the lesser crime of voluntary manslaughter as an alter-
native to murder. Falconer, 905 F.2d at 1136. But, as this
Court’s reasoning in Patterson and later cases suggests,
defendants have no Due Process rights to jury instruc-
tions on affirmative defenses in noncapital cases. Engle
v. Isaac, 456 U.S. at 119-21; Patterson v. New York, 432
U.S. at 210; Martin v. Ohio, 480 U.S. at 233. It may have
been “invalid” under state law for the pattern instruc-
tions to prevent Flowers’s jury from considering evidence
of voluntary manslaughter; such evidence is plainly not, how-
ever, “constitutionally relevant evidence” under Patterson.
D.
Other Circuit Courts Have Expressly Rejected the Falconer
and Taylor Courts’ Reasoning.
At least two circuits have properly rejected the reason-
ing contained in Taylor’s restatement of the Falconer
holding specifically because of Patterson and its progeny.
This circuit split illustrates the national dilemma posed
by the decision below, which found Taylor controlling. In
at least two circuits, criminal defendants have no right
to correct jury instructions relating to an affirmative de-
fense in any circumstance because affirmative defenses are
the subject of state law under Patterson. The Seventh
Circuit’s decision below, however, confirms that criminal
defendants not only have such a right despite Patterson,
but that the existence of this Due Process right was dic-
tated by this Court’s precedent. This Court should grant
certiorari to correct the Seventh Circuit’s error and re-
solve the split in the circuits over this fundamental rule
of criminal procedure.
wltie
Both the Sixth and the Ninth Circuits have rejected the
reasoning underlying the court’s décision below. In Allen
v. Redman, 858 F.2d 1194 (6th Cir. 1988), for example,
the habeas petitioner argued that his state jury instruc-
tion on the affirmative defense of insanity was incorrect
in that it permitted the jury to convict him of the charged
crime without considering his sanity. He argued that the
instruction completely “infected”’ the trial so as to deprive
him of Due Process under Cupp. The court rejected his
argument, holding that “the language from Cupp, stating
that the ‘resulting conviction violates due process,’ brings
the analysis . . . back to whether sanity is an element
of the crimes involved.” 858 F.2d at 1200. Because sani-
ty was not an element of the charged crime, the Cupp-
Boyde rule did not apply in the petitioner’s case. Id. See
also Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir.
1986), cert. denied, 479 U.S. 1036 (1987) (confusing jury
instructions on an affirmative defense to murder could not
violate Due Process).
Similarly, in Walker v. Endell, 850 F.2d 470 (9th Cir.),
cert. denied, 488 U.S. 926 & 981 (1988), the petitioner
argued that Due Process required correct instructions on
“criminal recklessness.”’ Jd. at 475-76. Criminal reckless-
ness only negated the defense of duress, however, and
therefore was not an element of the charged crime. /d.
at 476. Accordingly, the court held that “the failure to
give an instruction defining recklessness is at most an
error of state law.” Id.
Walker, Wood and Allen all reach the opposite conclu-
sion of Falconer, Taylor and the decision below, 1.e., that
confusing or incorrect jury instructions that at most
deprive a defendant of an affirmative defense can still
violate the Due Process Clause. Given this dispute among
=
reasonable jurists as to the scope of Due Process limita-
tions on incorrect affirmative defense jury instructions,
Falconer’s holding (as clarified in Taylor) constitutes a
new rule under Teague. This Court’s grant of certiorari
would allow it to resolve this circuit conflict over the
scope of the Due Process Clause.
Il.
THE MERE GIVING OF AN INSTRUCTION CANNOT
CONSTITUTE REVERSIBLE ERROR WHEN STATE LAW
REQUIRED THE TRIAL JUDGE TO GIVE THE INSTRUC-
TION EVEN IF ONLY “VERY SLIGHT EVIDENCE” SUP-
PORTED IT.
The lower court stated that the Illinois trial judge had
an “‘apparent belief . . . that the evidence presented at
trial could support either a voluntary manslaughter ver-
dict or a murder verdict”’ simply because “‘he tendered a
voluntary manslaughter instruction to the jury.” 962 F.2d
at 708 (App. 4). The Seventh Circuit has applied similar
reasoning in all its Reddick cases. Taylor, 954 F.2d at
454 (finding the pattern instructions “inherently preju-
dicial’’); United States ex rel. Fleming v. Huch, 924 F.2d
at 683 (same); Rose v. Lane, 910 F.2d 400, 403 (7th Cir.),
cert. denied, 111 S. Ct. 515 (1990) (same); Falconer, 905
F.2d at 1136-37 (“({T]Jhe trial court determined that the
jury should have the opportunity to return a verdict of
voluntary manslaughter’’). In doing so, it has fundamen-
tally misapplied Illinois law.
At Flowers’s trial, the judge had to tender the volun-
tary manslaughter instruction if even “very slight evi-
dence”’ supported the charge. People v. Williams, 205 Ill.
App. 3d 751, 765, 563 N.E.2d 762, 770 (1st Dist. 1989);
People v. Arnold, 139 Ill. App. 3d 429, 434, 487 N.E.2d
997, 1000 (1st Dist. 1985); People v. Garcia, 169 Ill. App.
—~20—
3d 618, 620, 523 N.E.2d 992, 994 (1st Dist.), appeal denied,
122 Ill. 2d 584, 5380 N.E.2d 255 (1988). By the case below
and its predecessors, however, whenever only “very slight
evidence” supports voluntary manslaughter, a Reddick
error cannot be harmless simply because the trial judge
decided to tender the instruction to the jury. The exist-
ence of “‘very slight evidence”’ of voluntary manslaughter,
however, plainly does not preclude a jury from finding
that the defendant actually committed murder. The Seventh
Circuit’s declared method of harmless error analysis for
Reddick errors, therefore, presumes prejudice; it does not
even address the only relevant question, 1.e., whether ‘“‘it
can be said beyond a reasonable doubt that the jury’s ver-
dict . . . was not affected by the erroneous instruction.”’
Pope v. Illinois, 481 U.S. 497, 502 (1987).
The harmless error doctrine “‘preserve[s] the ‘principle
that the central purpose of a criminal trial is to decide
the factual question of the defendant’s guilt or innocence,
and promotes public respect for the criminal process by
focusing on the underlying fairness of the trial rather than
on the virtually inevitable presence of immaterial error.’ ”
Arizona v. Fulminante, 111 S. Ct. 1246, 1264 (1991)
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 681
(1986)). The Seventh Circuit has thwarted this policy by
summarily dismissing the very real chance that a jury
would have found a defendant guilty of murder even though
the law technically required a marslaighter instruction.
The Court should grant certiorari to reverse the Seventh
Circuit’s decision.
—
CONCLUSION
The Seventh Circuit’s decision contravenes this Court’s
precedent, solidifies a circuit split on a fundamental rule
of criminal procedure, and wrongly gives a colorable
habeas corpus claim to potentially hundreds of convicted
murderers. Moreover, it fundamentally misapplies the
harmless error standard required by numerous decisions
of this Court. Accordingly, the Court should issue a writ
of certiorari.
Respectfully submitted,
ROLAND W. BURRIS
Attorney General, State of Illinois
ROSALYN B. KAPLAN
Solicitor General, State of Illinois
TERENCE M. MADSEN
Assistant Attorney General
MARK E. WILSON
Assistant Attorney General
STEVEN J. ZICK
Assistant Attorney General
Counsel of Record
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 814-2139
Counsel for Petitioner
APPENDICES
App. 1
APPENDIX A
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Nos. 91-2330 and 91-2415
MARVIN FLOWERS,
Petitioner-Appellant
Cross-Appellee,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS,
Respondent-Appellee
Cross-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 90 C 6505—William T. Hart, Judge
ARGUED JANUARY 7, 1992—DecipED May 7, 1992
Before POSNER and EASTERBROOK, Circuit Judges, and
ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge. An Illinois jury con-
victed Marvin Flowers of murder under a version of mur-
der and voluntary manslaughter instructions found con-
Sstitutionally deficient by this court in Falconer v. Lane,
905 F.2d 1129 (7th Cir. 1990), and earlier found statutor-
ily deficient by the Illinois Supreme Court in People v.
Reddick, 123 I1l.2d 184, 526 N.E.2d 141 (1988). After ex-
hausting his state remedies, Flowers petitioned for federal
habeas corpus relief, claiming that his Fourteenth Amend-
ment due process rights were violated by the written and
App. 2
oral instructions tendered to the jury and that his rights
against double jeopardy, as guaranteed to him by the
Fifth and Fourteenth Amendments, were violated in the
state proceedings. The district court granted Flowers re-
lief on the due process grounds, vacating his murder con-
viction, but denied relief on the double jeopardy ground,
thereby allowing Illinois to retry Flowers within ninety
days. Both Flowers and Iilinois appealed, and their ap-
peals were consolidated for our review. For the reasons
that follow, we affirm.
&
The facts of this case have been detailed extensively
in several reported opinions including Judge Hart’s com-
prehensive order below, see United States ex rel. Marvin
Flowers v. Illinois Department of Corrections, 767 F.
Supp. 880 (N.D. Ill. 1991); consequently, we will not repeat
them here except as necessary for our discussion. See also
People v. Flowers, 192 Ill.App.3d 292, 548 N.E.2d 766
(1989) (ordering new murder trial) [Flowers I]; People v.
Flowers, 138 Ill.2d 218, 561 N.E.2d 674 (1990) (reinstating
murder conviction) [Flowers IJ]. In short, Marvin Flowers
admitted that he killed his employer, Robert Murray, with
a baseball bat, but maintained that the killing was either
in self defense or constituted voluntary manslaughter rather
than murder. The trial court determined that the evidence
required jury instructions on both murder and voluntary
manslaughter. R. 22-23; S.R. 1181-84. The instructions
given to Flowers’ jury, however, allowed the jury to con-
vict Flowers of murder without regard to the presence
or absence of those mitigating circumstances that distin-
guish voluntary manslaughter from murder, which has
been held to violate the federal due process clause, see
Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), and IIli-
nois law, see People v. Reddick, 123 Il.2d 184, 526 N.E.2d
141 (1988).
Flowers’ case demonstrates the jury confusion to which
Falconer and its progeny is addressed: initially Flowers’
App. 3
jury returned verdicts finding him guilty of both murder
and voluntary manslaughter. S.R. 24. A judge, who had
stepped in to receive the verdicts in the absence of the
trial judge, ordered the jury to deliberate further, in-
structing them to return either the murder or the volun-
tary manslaughter verdict form, but not both. R. 24-27.
The judge twice attempted to clarify the written instruc-
tions with little success (as we discuss post). Eventually,
the jury returned a murder verdict and Flowers was sen-
tenced to forty years for the offense of murder. R. 31-32.
After exhausting his state remedies, Flowers petitioned
for federal habeas relief. See Flowers, 767 F. Supp. at
884-85 (detailing Flowers’ state court history).
Il.
Flowers asserts that he is entitled to federal habeas
relief because the written and supplemental oral jury in-
structions violated his due process rights under the Four-
teenth Amendment. First, Flowers correctly asserts that
his written jury instructions violate federal due process.
Taylor v. Gilmore, 954 F.2d 441 (7th Cir. 1992); United
States ex rel. Fleming v. Huch, 924 F.2d 679 (7th Cir.
1991); Rose v. Lane, 910 F.2d 400 (7th Cir. 1990); Falconer
v. Lane, 905 F.2d 1129 (7th Cir. 1990). Illinois concedes
this point, see Brief of Respondent-Appellee, Cross Appel-
lant at 5-6, but argues that the judge’s supplemental oral
instructions cured any deficiency. After a thorough discus-
sion of the judge’s supplemental oral instructions, the
district court concluded that the oral instructions “were
not sufficient to cure the inherent confusion” in the writ-
ten instructions. Flowers, 767 F. Supp. at 892. Our own
view of the record reinforces the district court’s conclu-
sion: the judge’s oral instructions further muddled an al-
ready confused jury through a series of misstatements and
the use of undefined legal terminology such as “lesser in-
cluded offense.” R. 1078-81. Neither did the oral instruc-
tions correct the erroneous written instructions because
the jury was not told that it could not convict Flowers
of murder if it found that Flowers believed that he was
App. 4
justified in killing Murray, even if this belief was unrea-
sonable.
Illinois next argues that even if the jury instructions
violate federal due process, Flowers is nevertheless not
entitled to collateral relief. Illinois contends that granting
Flowers relief on his due process claim would constitute
retroactive application of a new rule of criminal procedure
in violation of Teague v. Lane, 489 U.S. 288 (1989). The
district court held that Falconer did not announce a “new
rule” under Teague and that Flowers was accordingly en-
titled to its application. Our recent decision in Taylor
makes clear that the district court was correct. Taylor,
954 F.2d at 453 (holding that “Falconer is not a new
rule’). Flowers is entitled to the benefit of Falconer.
Finally, we consider Illinois’ argument that the errors
in Flowers’ jury instructions were harmless beyond a rea-
sonable doubt. See Rose v. Clark, 478 U.S. 570 (1986); Chap-
man v. California, 386 U.S. 18 (1967). Considering that
the Flowers’ [sic] jury initially returned verdicts for both
murder and voluntary manslaughter, Illinois’ argument
here seems particularly barren—although we note that IIli-
nois itself does not spend much time pursuing this point.!
Moreover, we have rejected similar contentions in the past
in this context, see Fleming, 924 F.2d at 688; Rose, 910
F.2d at 403; Falconer, 905 F.2d at 1137, particularly
where a defendant stakes his entire defense on a miti-
gating mental state rather than innocence. Taylor, 954
F.2d at 454. Our review of the record confirms the state
trial judge’s apparent belief, given that he tendered a
voluntary manslaughter instruction to the jury, that the
evidence presented at trial could support either a volun-
1 Flowers’ motion to strike portions of Illinois’ reply brief was
carried with this case. We grant that motion only as to the portion
seeking to strike Argument I from Illinois’ reply brief as improper
surrebuttal. We deny the remaining two counts of that motion
(pertaining to arguments III and IV of Illinois’ reply brief). We
deem it unnecessary for Illinois to file a new brief with Argument
I stricken.
App. 5
tary manslaughter verdict or a murder verdict. Conse-
quently, we conclude that the error at Flowers’ trial was
not harmless beyond a reasonable doubt; he is entitled
to federal habeas relief on his due process claim.
Ii.
Flowers also seeks habeas corpus relief on the basis of
an alleged violation of the Double Jeopardy Clause dur-
ing his state proceedings. Flowers asserts that the jury’s
initial return of a voluntary manslaughter verdict consti-
tuted a murder acquittal because it reflected a finding,
beyond a reasonable doubt, of the presence of those miti-
gating circumstances that reduce murder to voluntary
manslaughter. The jury’s simultaneous return of a murder
verdict did not negate or contradict that finding, argues
Flowers, because the faulty murder instruction did not
require the jury to make a determination as to the pres-
ence or absence of the mitigating circumstances. Thus,
Flowers insists, the Double Jeopardy Clause prohibits re-
jection of the jury’s finding and resubmission of the mur-
der issue to the jury.?
But Flowers was not expressly acquitted of murder; he
cannot prevail unless the jury’s alleged finding as to his
mental state impliedly acquitted him of murder. See Ohio
v. Johnson, 467 U.S. 493, 497-99 (1984) (citations omitted).
2 The district court declined to accept Flowers’ double jeopardy
argument, reasoning that it should defer to the Illinois Supreme
Court’s resolution of this issue in Flowers IJ, 561 N.E.2d at 678.
See Flowers, 767 F. Supp. at 892. The Illinois Supreme Court de-
termined that what Flowers’ jury intended was speculative and
that its initial verdicts were legally inconsistent so as to permit
further deliberations, see Flowers ir, 561 N.E.2d at 678, a deter-
mination that the district court characterized as one of “fact and
procedure.” Flowers, 767 F. Supp. at 892. We need not decide
whether the district court properly characterized tne Illinois Su-
preme Court’s determination as a factual one entitled to deference,
see 28 U.S.C. § 2254, because we agree with its conclusion even
if it is one of law or a mixed question of fact and law.
App. 6
Flowers cannot meet his burden of demonstrating an im-
plied acquittal because the confusing and ambiguous jury
instructions in this case make it impossible to know what
the jury intended when it returned both verdicts. See ante
at 3-5; Falconer, 905 F.2d at 1136. Although Flowers was
being tried for both murder and voluntary manslaughter,
the judge never explained to the jury that voluntary man-
slaughter is not a lesser included offense of murder and
that Flowers could not be guilty of both crimes simulta-
neously.? The jury may have believed that a murder con-
viction required or included a voluntary manslaughter con-
viction as well. Had the judge made clear to the jury the
relationship between murder and voluntary manslaughter,
then the potential for jury confusion that drives Falconer
and its progeny may not have been present in this case.
See Falconer, 905 F.2d at 1136 (instructions are faulty
precisely because the murder instruction “read[s] as though
voluntary manslaughter did not exist as a crime” although
both murder and manslaughter are at issue); Taylor, 954
F.2d at 450 (noting while discussing Falconer that the in-
structions “({w]hen read together [are] susceptible to more
than one reasonable interpretation”’).
Accordingly, while it is theoretically possible that the
jury wanted to acquit Flowers of murder but felt com-
pelled not to by the faulty instructions, it is also possi-
ble that the jury found Flowers guilty of murder and be-
lieved that that finding compelled them to find him guilty
of voluntary manslaughter as well. Flowers’ petition gives
us no reason to favor his speculation. Consequently, we
hold that Flowers has not met his burden on federal ha-
3 Indeed, Flowers does not dispute that a court may reject legally
inconsistent verdicts without running afoul of the Double Jeopar-
dy Clause, see Hoffer v. Morrow, 797 F.2d 348, 352 (7th Cir. 1986);
lowers, 767 F. Supp. at 24 (and cases cited therein), or that these
verdicts were inconsistent with the substantive law of Illinois. See
People v. Almo, 90 Tll.Dec. 885, 889, 483 N.E.2d 203, 207 (Ill. 19835).
App. 7
beas review of demonstrating that he has been denied his
rights guaranteed by the Double Jeopardy Clause.
* * *
We AFFIRM the district court’s grant of Flowers’ peti-
tion for a writ of habeas corpus. The writ shall issue,
thereby releasing Flowers from custody, unless the State
of Illinois elects to retry him within ninety (90) days from
the issuance of this Court’s final mandate.
AFFIRMED
EASTERBROOK, Circuit Judge, concurring. We are at
loggerheads with the Supreme Court of Illinois, which
held in this very case (People v. Flowers, 138 Ill. 2d 218,
561 N.E.2d 674 (1990)), that People v. Reddick, 123 IIl.2d
184, 526 N.E.2d 141 (1988), would not be applied to per-
sons whose convictions became final before its rendition
on June 20, 1988. Falconer v. Lane, 905 F.2d 1129 (7th
Cir. 1990), and Taylor v. Gilmore, 954 F.2d 441 (7th Cir.
1992), create this conflict and support our decision today.
Although I join the court’s opinion (except for Part II),
I write separately to explain why I would not have de-
cided Falconer and Taylor in the same way. At oral argu-
ment counsel for Illinois informed us that these decisions
undercut hundreds of convictions for murders that predate
1987 (when the state enacted a new murder statute), and
that petitions for writs of habeas corpus seeking the bene-
fit of these cases are being filed at the rate of two per
week.
Most trial judges in Illinois use pattern jury instructions
prepared by the Committee on Pattern Jury Instructions
appointed by the Supreme Court of Illinois. The /llinois
Pattern Jury Instructions §27.01 (2d ed. 1981), recom-
mended that when the accused in a murder prosecution
raises self-defense, the jury should be instructed as follows:
App. 8
To sustain the charge of murder, the State must
prove the following propositions:
First: That the defendant performed the acts which
caused the death of [the victim]; and
Second: That when the defendant did so, he in-
tended to kill or do great bodily harm to [the vic-
tim]; or he knew that his acts would cause death or
great bodily harm to [the victim]; or he knew that
his acts created a strong probability of death or great
bodily harm to [the victim]; and
Third: That the defendant was not justified in us-
ing the foree which he used.
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 guilty.
To sustain the charge of voluntary manslaughter,
the State must prove the following propositions:
First: That the defendant performed the acts which
caused the death of [the victim]; and
Second: That when the defendant did so, he in-
tended to kill or do great bodily harm to [the vic-
tim]; or he knew that his acts would cause death or
great bodily harm to [the victim]; or he knew that
his acts created a strong probability of death or great
bodily harm to [the victim]; and
Third: That when the defendant did so he believed
that circumstances existed which would have justified
kalling [the victim]; and
Fourth: That the defendant’s belief that such cir-
cumstances existed was unreasonable.
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 guilty.
eS
App. 9
Flowers’ jury received a charge of this kind. (He was
tried in 1980, but many judges used such instructions be-
fore the formula was enshrined in the pattern book.)
The first and second “propositions” of murder and man-
slaughter are identical. The third element of murder is
similar to the fourth element of voluntary manslaughter.
The third element of manslaughter is unique to that of-
fense. Despite the overlap, these instructions do not in-
clude a rule of preference. They do not say, for example,
that if the jury finds that the defendant had an actual,
but unreasonable, belief in the need to apply deadly force,
it should convict of voluntary manslaughter and stop.
Reddick considered whether this pair of instructions is
appropriate. The court concluded that it is not. First, the
court held, once the defendant satisfies a burden of pro-
duction on the subject of justification, a conviction for
murder is proper only if the prosecution shows beyond
a reasonable doubt that the accused lacked a belief in the
justification for his deeds. Second, the court deleted the
belief in justification as an element of manslaughter, so
that a person who has either no belief in justification, or
an objectively unreasonable one, will be convicted of man-
slaughter if the prosecution fails to carry its burden on
the murder charge. To obtain an acquittal on voluntary
manslaughter, the defendant must carry the burden of
showing an actual, and objectively reasonable, belief in
justification. These adjustments ended the overlap be-
tween murder and voluntary manslaughter.
The court did not reach its conclusion in Reddick under
compulsion of the statute. The law that governed between
1961 and 1987 defined murder this way: ‘“‘A person who
kills an individual without lawful justification commits
murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to
that individual or another. . .; or (2) He knows that such
acts create a strong probability of death or great bodily
harm to that individual or another; or (3) He is attempt-
ing or committing a forcible felony other than voluntary
App. 10
manslaughter.”’ Ill. Rev. Stat. ch. 38 49-1(a). The pattern
jury instructions track the statutory elements. Reddick
added the fourth, negation-of-belief, requirement, and allo-
cated the burdens of persuasion, to distinguish murder
from voluntary manslaughter in self-defense cases.
Reddick reads like a statutory decision. It discusses
state law and when specifying the burdens of persuasion
says that “this issue is controlled by section 3-2 of the
Criminal Code of 1961’, 526 N.E.2d at 145. The court
wraps up, id. at 146: “Thus, under the 1961 Code... .”.
Our opinion in Falconer came two years later. We noted
that Illinois interpreted its law so that an actual, but ob-
jectively unreasonable, belief in the need to use deadly
force calls for a manslaughter rather than a murder con-
viction. Yet ‘(t]he murder instruction . . . read as though
voluntary manslaughter did not exist as a crime. No mat-
ter how clearly either the State or the defense proved
the existence of the mitigating ‘manslaughter defenses,’
the jury could nevertheless return a murder verdict in
line with the murder instruction as given. Far from set-
ting aside an interpretation of state law by state courts,
the district court’s decision [issuing a writ of habeas cor-
pus] effectuated the holding of Reddick through the vehi-
cle of the Due Process Clause.” 905 F.2d at 1136. The
constitutional problem, in other words, was that the pat-
tern instruction did not represent the authentic state law.
See also Rose v. Lane, 910 F.2d 400 (7th Cir. 1990); Flem-
ing v. Huch, 924 F.2d 679 (7th Cir. 1991). The panel did
not explain why 28 U.S.C. §2254, which surely does not
allow a federal court to ‘‘set{ ] aside an interpretation of
state law by state courts’’, does authorize it to “effectu-
ate[ }” an interpretation of state law by the state courts.
The writ may issue only when the custody violates federal
law (including the Constitution). E.g., Estelle v. McGuire,
112 S. Ct. 475, 479-80 (1991); Lewis v. Jeffers, 110 S. Ct.
3092, 3102 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984);
Smith v. Phillips, 455 U.S. 209, 221 (1982); Rose v. Hodges,
423 U.S. 19, 21-22 (1975); Brecht v. Abrahamson, 944 F.2d
1363, 1366 (7th Cir. 1991); Bates v. McCaughtry, 934 F.2d
App. 11
99, 102 (7th Cir. 1991); Bell v. Duckworth, 861 F.2d 169
(7th Cir. 1988); Jones v. Thieret, 846 F.2d 457, 459 (7th
Cir. 1988). That a state court violated state law “‘is no
part of a federal court’s habeas review of a state convic-
tion.” Estelle, 112 S. Ct. at 480.
Next the Supreme Court of Illinois had to decide whether
to apply Reddick retroactively. It accepted our view that
Reddick must have been a constitutional decision (although
it did not say why, any more than we had). Treating the
decision as constitutional summoned up Teague v. Lane,
489 U.S. 288 (1989), which holds that new constitutional
decisions do not apply retroactively on collateral review
unless they place conduct beyond the power of the state
to penalize or establish rules fundamental to a free soci-
ety. Reddick did not do either of these things; rather it
specified the dividing line between murder and voluntary
manslaughter in Illinois. So the court had to decide whether
Reddick created a new rule. It answered yes: ‘Though
Reddick was doctrinally consistent with existing laws re-
garding affirmative defenses and burdens of proof, it was
the first time this court applied these legal principles to
the specific situation of the murder and voluntary man-
slaughter instructions. ... [Llong-standing practice in the
trial courts was to instruct the jury on murder and volun-
tary manslaughter consistent with the Illinois Pattern
Jury Instructions. This court also did not invalidate these
instructions in other cases it reviewed prior to Reddick.”’
561 N.E.2d at 683.
Two turns for Illinois, and then a second turn for this
court when Taylor considered the retroactive application
of Reddick. The first step in applying Teague is to
characterize the rule. This produced something of an em-
barrassment, for characterizing the rule as “effectuat[ing]
the holding of Reddick through the vehicle of the Due
Process Clause” shows that we do not have a constitu-
tional rule at all. Taylor therefore abandoned the rationale
of Falconer and substituted a new one: the defendant is
entitled to be free of instructions so vague and confusing
that the jury cannot make a rational decision. 954 F.2d
App. 12
at 448-50. That is an old rule, long predating Reddick.
So, we concluded, the parties had been mistaken in ask-
ing us to decide whether Reddick applied retroactively.
Id. at 450. The only question was whether the instruc-
tions satisfied the established requirement of clarity. Con-
cluding that they did not, we directed the district court
to issue a writ of habeas corpus.
Taylor avoids confounding a violation of state law with
a violation of the Constitution. But in rescuing Falconer
from a charge of usurpation of power, we turned that case
and Reddick on their heads. For their objection to the
pattern instructions was not their vagueness but their
clarity. These instructions tell the jury that a person who
slays another, having an objectively unreasonable belief
in justification, is guilty of both murder and voluntary
manslaughter. If-however the defendant lacks any belief
in the justification of his acts, the jury is to convict of
murder but not voluntary manslaughter (for the instruc-
tions say that such a belief is an element of manslaughter
but not of murder). The instructions tell a jury precisely
what to do. According to Reddick, they tell the jury the
wrong thing to do, for Illinois wants a rule in which an
actual, but unreasonable, belief in justification reduces the
crime to voluntary manslaughter. It was the substance
of the instructions, and not any lack of clarity, that un-
derlay both Reddick and Falconer. Flowers’ jury did just
as instructed if it found that he had an actual, but objec-
tively unreasonable, belief in justification: first it returned
guilty verdicts on both offenses, and then when told to
choose one it picked the more serious. Where is the con-
fusion?
The perspective I have offered—that the pattern instruc-
tion is clear but unfortunate—follows scholarly commentary
on these instructions. See James B. Haddad, Allocation
of Burdens in Murder-Voluntary Manslaughter Cases: An
Affirmative Defense Approach, 59 Chi.-Kent L. Rev. 23
(1982); Haddad, Second Degree Murder Replaces Volun-
tary Manslaughter in Illinois: Problems Solved, Problems
Created, 19 Loyola U. L.J. 995 (1988); Timothy P. O’Neill,
App. 13
“With Malice Toward None”: A Solution to an Illinois
Homicide Quandary, 32 DePaul L. Rev. 107 (1982). Pro-
fessor Haddad, who represents Flowers, implored the Su-
preme Court of [Illinois to deal with the problem by re-
quiring the prosecutor to prove the absence of a belief
in justification in order to obtain a conviction for murder,
while making justification an affirmative defense to man-
slaughter charges. This is what the Court did. And Pro-
fessor Haddad’s principal argument to us is that Flowers’
murder conviction violates the double jeopardy clause pre-
cisely because the instructions are clear. A jury that finds
the accused guilty of both murder and voluntary man-
slaughter must have concluded that he possessed an ac-
tual, but unreasonable, belief in justification. Reddick then
calls for judgment on the manslaughter verdict rather
than the murder verdict. This is a solid argument—al-
though I think under state law rather than the double
jeopardy clause—but it is inconsistent with the rationale
Taylor constructs for applying Falconer retroactively.
One can of course treat any substantive error as scrambled
communication. The communicative failure is that the in-
structions did not convey the correct substance. They
were confusing not by an internal benchmark, but by ref-
erence to the authentic state law established in Reddick.
Repackaging the substantive argument in this way adds
nothing, however. Every substantive defect may be thus
recast, with the result that every error of state law in
a jury instruction violates the Constitution as weil—an out-
come that §2254 does not tolerate.
Falconer and Taylor jointly show the ease with which
an error of state law becomes a violation of the Constitu-
tion. They show as well the allure of the process. Con-
victing a man of murder, when his real crime is man-
slaughter, does not sit easily. Judges strain to provide
redress. Holding the line between state and federal prob-
lems is difficult given the reluctance of every judge to
see a person convicted of the wrong crime. Cases pro-
vide many models for transmuting errors of state law in-
to violations of the Constitution. Falconer and Taylor il-
App. 14
lustrate two of the methods. There are many others. The
Constitution requires the prosecution to prove its case
beyond a reasonable doubt. In re Winship, 397 U.S. 358
(1970). If the state court does not frame the instructions
accurately under state law, how can the jury have found
every element beyond a reasonable doubt? See Cole v.
Young, 817 F.2d 412 (7th Cir. 1987); but see id. at 435-40
(dissenting opinion). Winship implies that the state must
bring forth evidence from which a sane factfinder could
conclude, beyond a reasonable doubt, that the accused
committed the offense. Jackson v. Virg’ ria, 443 U.S. 307
(1979). Does it not then follow that any important error
violates the Constitution? If the trial judge misunder-
stands state law, how can the jury have made the neces-
sary findings? See Fagan v. Washington, 942 F.2d 1155
(7th Cir. 1991); but see Bates v. McCaughtry, 934 F.2d
99 (7th Cir. 1991). All of these methods come to the same
thing: disparity between the “real’’ state law and the
rules applied in a particular case violates the Constitu-
tion. Yet if these and cognate methods are indeed appro-
priate, then the many cases telling federal courts to dis-
tinguish between violations of state and federal law are
nothing but hot air. The distinction is vital but trivial,
governing only when, as in Estelle v. McGuire, the judge
is so careless as to say that the writ must issue to redress
an error of state law.
Section 2254 calls on courts to distinguish state from
federal law, and it must suppose that distinction is possi-
ble. Federal courts promote justice by ensuring that states
respect constitutional rules to which they may be hostile;
there is no comparable role in helping states to enforce
those rules they have adopted on their own. Courts have
come to recognize that an extended review, through a
cascade of courts, carries high costs, and that it is bet-
ter to tolerate the occasional error than to pursue the im-
possible dream of correcting them all. E.g., Coleman v.
Thompson, 111 S. Ct. 2546, 2565 (1991); McCleskey v.
Zant, 111 S. Ct. 1454 (1991). Pursuing that mirage en-
tails great costs. See generally Paul M. Bator, Finality
App. 15
in Criminal Law and Federal Habeas Corpus for State
Prisoners, 76 Harv. L. Rev. 441 (1963). Our case illus-
trates these costs, some obvious and some subtle. The ob-
vious costs stem from delay and multiple litigation. We
order new trials for a large class of litigants who did not
object to the instructions at trial or on direct appeal.
Many of these trials will be less accurate, given the pas-
sage of time, than were the original ones with defective
instructions. Sometimes retrial will be impossible.
The subtle costs are also more insidious. The Supreme
Court of Illinois decided to improve the mesh between
murder and manslaughter, thinking that prospective ap-
plication meant bearable costs. We reply, in effect, that
whenever a state court holds that a jury instruction mis-
states the elements of an offense or the burden of per-
suasion, it must afford new trials to everyone affected by
the old instruction. Judges of a state’s highest court must
now think thrice before they find a flaw in a pattern jury
instruction! From now on, prudence lies in perpetuating
dubious instructions rather than improving them. I doubt
that defendants gain when federal judges impel their state
cousins to pusillanimous passivity.
Available tools are too numerous, and the urge to use
them too strong, for judges at our level to bring order.
Still, I offer a suggestion: why not distin;uish state from
federal law by ignoring state law? Assume, for example,
that the instructions given the jury are accurate and ask:
Does the Constitution prevent a state from convicting a
person on such instructions? Cases such as Sandstrom v.
Montana, 442 U.S. 510 (1979), and Mullaney v. Wilbur,
421 U.S. 684 (1975), illustrate situations in which the an-
swer is yes. But if a state could choose to do something—
choose, for example, to make self-defense an affirmative
defense to murder, see Patterson v. New York, 432 U.S.
197 (1977); Martin v. Ohio, 480 U.S. 228 (1987)—then the
federal inquiry is over; whether the state has indeed so
chosen is a question of its domestic law. To put this differ-
ently, we should assume that the judgment under exam-
ination was rendered by the state’s highest court, which
App. 16
declared: ‘Yes, these events are exactly what our law
requires.’ Here we should assume that Reddick came out
the other way, that the Supreme Court of Illinois ordered
trial judges to keep using the pattern jury instructions.
Would there then be a constitutional flaw?
Start with murder, for that is the crime of which Flowers
was convicted. The instructions told the jury to convict
Flowers of murder if it found that the prosecution had
established beyond a reasonable doubt (1) that Flowers
killed Murray with the baseball bat, (2) that Flowers in-
tended to slay Murray or do him serious harm, and (3)
that Flowers lacked justification for this use of deadly
force. This is a standard definition, in use before the
United States became a nation. It required the prosecu-
tion to show more than the constitutional minimum. (Ele-
ment 3 could be an affirmative defense.) Now add the
voluntary manslaughter instruction. This does not alter
any of these elements or relieve the state of its burden.
Quite the contrary, the voluntary manslaughter instruc-
tion tracked the elements of murder and added a fourth.
Overlapping elements are common. Even identical crimes
carrying different penalties do not create constitutional
problems. United States v. Batchelder, 442 U.S. 114 (1979).
Does the Constitution forbid charging the jury on overlap-
ping or even identical offenses? Surely not. But that is
all that happened to Flowers, if we delete all state-law
issues by assuming that Reddick came out the other way.
Natural law does not compel states to make “‘manslaugh-
ter’ a lesser included offense of ‘“‘murder,” rather than
the other way around. Lexicographers’ preference for the
ranking of “murder” and “manslaughter” is not binding
on the states in the name of the Constitution, which al-
lows words no talismanic quality. Flowers received a trial
at which the jury found him guilty of elements consti-
tuting murder and received a sentence (40 years’ imprison-
ment) that may be meted out to one who commits such
acts. Perhaps in light of Reddick the Governor of Illinois
should commute this conviction to manslaughter; such
questions are for the officials charged with deciding issues
App. 17
of state law, as we are not. /f Illinois wishes to use these
instructions, it may; whether it wishes to do so is none
of our business.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
App. 18
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
JUDGMENT — WITH ORAL ARGUMENT
Date: May 7, 1992
BEFORE:
Honorable Richard A. Posner, Circuit Judge
Honorable Frank H. Easterbrook, Circuit Judge
Honorable Jesse E. Eschbach, Senior Circuit Judge
Nos. 91-2330 and 91-2415
MARVIN FLOWERS,
Petitioner-Appellant, Cross-Appellee,
V.
ILLINOIS DEPARTMENT OF CORRECTIONS,
Respondent-Appellee, Cross-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
No. 90 C 6505, Judge William T. Hart
This cause was heard on the record from the above
mentioned District Court, and was argued by counsel.
On consideration whereof, IT IS ORDERED AND AD.-
JUDGED by this court that the judgment of the District
Court granting Flowers’ petition for a writ of habeas
corpus is AFFIRMED, the writ shall issue, thereby releas-
ing Flowers from custody, unless the State of Illinois
elects to retry him within ninety (90) days from the issu-
ance of this court’s final mandate, in accordance with the
decision of this court entered this date.
App. 19
APPENDIX B
138 Ill. 2d 218
561 N.E.2d 674
The PEOPLE of the State of
Illinois, Appellant,
Vv.
Marvin FLOWERS, Appellee.
No. 69777.
Supreme Court of Illinois.
Sept. 26, 1990.
* * * * X
Justice RYAN delivered the opinion of the court:
Following a jury trial in the circuit court of Cook Coun-
ty, defendant, Marvin Flowers, was convicted of murder,
armed robbery and armed violence, and sentenced to con-
current prison terms of 40 years for murder and 15 years
for armed robbery. The appellate court affirmed the con-
victions in an unpublished Rule 23 order (107 Ill.2d R.
23). (109 Ill.App.3d 1211.) Defendant then filed a petition
under the Post-Conviction Hearing Act (Ill.Rev.Stat. 1987,
ch. 38, par. 122-1 et seq.) and, without an evidentiary hear-
ing, the circuit court granted the State’s motion to dismiss
the petition. The appellate court, however, applied Peo-
ple v. Reddick (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526
N.E.2d 141, retroactively and held that the instructions
given to the jury on the offenses of murder and volun-
tary manslaughter were erroneous. (192 Ill.App.3d 292,
139 Ill.Dec. 381, 548 N.E.2d 766.) Therefore, the court
reversed the murder conviction and remanded for a new
trial. We granted the State’s petition for leave to appea:
(107 Ill.2d R. 31&(a)) to address, inter alia, the retroactiv-
ity of People v. Reddick to a case on collateral review.
We reverse the appellate court.
App. 20
The facts in this case are essentially undisputed. Robert
Murray was found in his store dead as a resuit of several
blows to his head from a baseball bat. At the time of the
murder, defendant was working for Murray and evidence
at the store made him a suspect. Near defendant’s apart-
ment police officers found Murray’s car and in it were
a baseball bat, a revolver, a coin bank and two power
saws, all of which had been taken from the store. Defen-
dant already was in custody in connection with another
incident that had occurred earlier that day. When ques-
tioned about the murder, defendant first told police that
he was in the store when two men killed Murray and that
the two men forced him to put the items in the car and
to put his fingerprints on the gun and bat. The men also
told defendant that they would kill him and his girlfriend
if he did not help them. Defendant claims to have taken
the car under duress. After an officer told him of the un-
likelihood of his alibi, defendant changed his story. Defen-
dant stated instead that he and Murray had an argument
about money that was allegedly owed to defendant. He
claimed that Murray attacked him, initiating a fight. Mur-
ray then reached for a gun and defendant grabbed a near-
by baseball bat and struck him several times in the head.
Realizing that he would not get the money owed him,
defendant took cash and property from the store, placed
the items into Murray’s car and drove back to his apart-
ment, leaving his own car parked in front of the store.
At trial, defendant presented no evidence although coun-
sel argued that defendant had acted under the unreason-
able belief that facts existed which justified his conduct
and was thus only guilty of voluntary manslaughter. The
jury was given pattern jury instructions on the offenses
of murder and voluntary manslaughter. (Illinois Pattern
Jury Instructions, Criminal, Nos. 7.02, 7.06 (2d ed. 1981).)
App. 21
The murder instruction stated that the State must prove
that:
(1) defendant performed the acts which caused the
death of Robert Murray;
(2) when defendant did so, he intended to kill or
do great bodily harm to Robert Murray; or he knew
that his act would cause death or great bodily harm
to Robert Murray; or he knew that his acts created
a strong probability of death or great bodily harm
to Robert Murray; and
(3) defendant was not justified in using the force
which he used.
This instruction did not include the so-called ‘fourth prop-
osition,”’ that the State must prove that the defendant
did not believe circumstances existed which justified the
use of the force that he used. The voluntary manslaughter
instruction required the State to prove that:
(1) defendant intentionally or knowingly performed
the acts which caused the death of Robert Murray:
(2) when defendant did so he believed that circum-
stances existed which would have justified killing
Robert Murray;
(3) defendant’s belief that such circumstances ex-
isted was unreasonable; and
(4) defendant was not justified using the force
which he used.
After deliberations, the jury signed verdict forms find-
ing defendant guilty of both murder and voluntary man-
slaughter. The trial judge informed the jurors that they
could not return both verdicts; it had to be one or the
other. The jury resumed deliberations but later sought
further instructions. The judge then explained that volun-
tary manslaughter was a lesser included offense of
murder, and that he would not accept a verdict on both
App. 22
charges. He informed the jurors that they should iden-
tify which of the verdict forms actually reflected their
determination of guilt and then cross out the other guilty
verdict form. After further deliberations, the jury re-
turned with the murder verdict intact and the voluntary
manslaughter verdict crossed out. Defendant was sen-
tenced to concurrent terms of 40 years for murder and
15 years for armed robbery. No sentence was imposed
on the armed violence count.
On appeal from his conviction, in a Rule 23 order, the
appellate court held that the trial court did not err when
it required the jury to continue deliberations and deter-
mine whether defendant was guilty of murder or volun-
tary manslaughter. Also, the court held adversely to the
defendant on his contention that the trial judge’s oral in-
structions to the jurors constituted reversible error. De-
fendant did not prevail on his contention that he was not
properly proven guilty of armed robbery, felony murder
and murder. Last, defendant’s challenge to his arrest was
unsuccessful.
Defendant subsequently filed a petition pursuant to the
Post-Conviction Hearing Act (Ill.Rev.Stat. 1987, ch. 38,
par. 122-1 et seq.), which the trial court dismissed without
an evidentiary hearing. As noted, the appellate court re-
versed. The court applied People v. Reddick retroactive-
ly and held that the instructions in defendant’s case er-
roneously stated the law and required that defendant be
given a new trial. In a petition for rehearing the State
argued that any error as to the murder and voluntary
manslaughter instructions was rendered harmless because
of the felony-murder count of the indictment. The court
rejected this contention because the State had not sub-
mitted a felony-murder verdict form and the evidence was
not so overwhelming that the jury could not have found
App. 23
anything but that the victim’s death was caused during
the course of the armed robbery. We granted the State’s
petition for leave to appeal (107 Ill.2d R. 315). Defendant
in his response brief also argued for cross-relief, and the
State has filed a reply to the arguments raised (107 IIl.2d
R. 315(g)). We granted leave to file an amicus curiae brief
to the public defender of Cook County (107 IIll.2d R.
345(a)).
The first argument we address is defendant’s conten-
tion that the trial court violated double jeopardy protec-
tions when it ordered further deliberations instead of ac-
cepting the jury’s verdict of voluntary manslaughter. De-
fendant contends that the initial verdicts finding him
guilty of voluntary manslaughter and murder were con-
sistent with the jury instructions. Therefore, the jury
found the presence of the statutory mitigating circum-
stances which distinguish voluntary manslaughter from
murder and it impliedly acquitted defendant of murder.
He argues that unless the verdicts are hopelessly incon-
sistent with the instructions the double jeopardy clauses
of the State and Federal Constitutions prohibit a court
from rejecting those verdicts and in this case the court
should have entered the verdict of voluntary manslaughter.
The State contends that the appellate court on direct re-
view rejected defendant’s argument that the trial judge
should have entered the voluntary manslaughter verdict
and not the murder verdict. Therefore, he is barred by
the principle of res judicata from raising again this issue
as a double jeopardy claim. Regardless, the State contends
that in People v. Almo (1985), 108 Ill.2d 54, 90 Ill.Dec.
885, 483 N.E.2d 203, this court approved of the trial court’s
decision to require the jury to deliberate further.
Ordinarily res judicata and waiver bar consideration of
an issue which was raised or could have been raised on
App. 24
direct review (People v. Gaines (1984), 105 Ill.2d 79, 87-88,
85 Ill.Dee. 269, 473 N.E.2d 868), but under certain circum-
stances, fundamental fairness dictates that we consider
the issue (People v. Hamby (1968), 39 Ill.2d 290, 291, 235
N.E.2d 572). Defendant argues that Almo, which was
issued after his direct review, was improperly decided and
that in that case no issue of double jeopardy was raised.
He contends that if the constitutional doctrine applies in
this situation a reversal of his conviction is mandated. Al-
though we ultimately do not accept defendant’s argument,
we believe that this issue should be addressed.
People v. Almo is nearly indistinguishable. In Almo the
jury was given the same instruction for murder as in this
case. This instruction also did not include the fourth prop-
osition, that the State must prove the defendant did not
believe circumstances existed which justified the use of
the force that he used. The Almo jury initially asked if
it must find the defendant guilty of all three charges or
whether two guilty verdicts were sufficient. The judge
sent it a note explaining the possible verdicts which it
could return. The jury’s initial verdict forms, however,
found defendant guilty of murder, voluntary manslaughter
and armed violence. The judge reinstructed the jury that
it must find the defendant guilty either of murder or vol-
untary manslaughter but not both. It then returned a
murder verdict. On review, we noted that when the trial
judge received the initial verdict forms he could not enter
judgment on one and vacate the other. The judge “‘had
no way of knowing which of the two verdicts was intended
by the jury and which was a result of some misconcep-
tion.”’ (Almo, 108 IIl.2d at 63-64, 235 N.E.2d 572.) We
stated further:
“In this case, it was clear that the jury had mis-
understood the trial judge’s written answer to the
App. 25
jury’s question. By its two verdicts the jury indicated
its belief that it was legally possible to convict the
defendant simultaneously of murder and voluntary
manslaughter based upon the same acts. The obvious
way to correct this misapprehension was for the trial
judge to do precisely what he did, i.e., change the
instruction to read that an individual convicted of one
crime ‘must’ not also be convicted of the other. We
find the court’s action in this case to be both sensi-
ble and practical and clearly not an error.” 108 IIl.2d
at 64, 235 N.E.2d 572.
Likewise, in this case, the jury exhibited confusion re-
garding what verdicts it must return. The trial judge
could not enter the two verdicts, and he explained to the
jury that it could not return guilty verdicts on both
counts. (See People v. Hoffer (1985), 106 Ill.2d 186, 88 III.
Dec. 20, 478 N.E.2d 335 (case reversed after judge en-
tered the jury verdicts of guilty of murder, voluntary
manslaughter and involuntary manslaughter).) The judge
told the jury to continue deliberations and return the ver-
dict which it believed most appropriately encompassed
defendant’s acts. The jury then returned the murder con-
viction.
Defendant argues that the jury was not confused, rather
it intended to convict defendant of volumtary manslaughter
only and that, because the initial verdict forms returned
were consistent with the instructions, double jeopardy pro-
tection was violated. First, we do not agree that the jury
exhibited any such intent. (See Hoffer, 106 IIl.2d at 198,
88 Ill.Dec. 20, 478 N.E.2d 335 (rejecting argument that
the jury impliedly acquitted defendant of murder after it
returned multiple verdicts).) The jurors were confused, but
the judge rectified the problem with his statements re-
garding their duty, the meaning of the verdict instruc-
tions, and the possible verdicts, and with his admonition
App. 26
to cross out the form they did not want and to enter the
one best fitting the circumstances. As the court stated
in Almo, “{aJlthough the jury may have initially been con-
fused, the trial judge’s additional instruction alleviated the
problem before any verdicts were entered.” (Almo, 108
Ill.2d at 65, 235 N.E.2d 572.) Second, the verdicts were
legally inconsistent and, therefore, the judge could not
enter them both. (See Hoffer, 106 Il].2d at 194-96, 88 III.
Dec. 20, 478 N.E.2d 335 (the mental states involved in
the two offenses were mutually inconsistent and a jury
could not find that both existed in the same case).) De-
fendant points out that the instructions in this case failed
to include the fourth proposition, unlike the instructions
in Hoffer, and therefore the two instructions were not in-
consistent. However, the trial judge understood that the
two convictions could not be entered and explained to the
jury that they were incompatible. This admonition com-
pensated for any error in failing to instruct on the fourth
proposition. Additionally, as pointed out in Almo it is
speculative that the fourth proposition would have pre-
vented the jury from reaching its initial verdict. Almo,
108 Il.2d at 65, 235 N.E.2d 572 (noting that the jury in
Hoffer received the fourth-proposition instruction and still
returned a guilty verdict on both murder and voluntary
manslaughter).
We find that double jeopardy rights were not violated.
“The constitutional prohibition of double jeopardy protects
a defendant from prosecution of an offense after acquit-
tal or conviction of the same offense and prohibits multi-
ple punishments for the same offense.” (Hoffer, 106 IIl.2d
at 197, 88 Ill.Dec. 20, 478 N.E.2d 335.) We have held that
the judge acted properly in returning the initial verdict
forms to the jury. As a result, there was only one ver-
dict entered in this case and therefore the constitutional
principle urged is not implicated. (See Almo, 108 IIl.2d
App. 27
at 63, 235 N.E.2d 572 (“ ‘The finding of a jury does not
become a verdict until it has been received, accepted by
the court and entered of record’ ’’), quoting People v.
Wilson (1972), 51 Ill.2d 302, 309, 281 N.E.2d 626.) Defen-
dant, however, cites four appellate court opinions which
allegedly support his contention that the trial judge should
have entered the voluntary manslaughter verdict. (See
People v. Washington (1984), 127 Ill.App.3d 365, 82 IIl.
Dec. 505, 468 N.E.2d 1285; People v. Kendricks (1984),
121 I[ll.App.3d 442, 77 Ill.Dec. 41, 459 N.E.2d 1137; Peo-
ple v. Fox (1982), 111 Ill.App.3d 248, 67 Ill.Dec. 55, 443
N.E.2d 1179; People v. Stuller (1979), 71 Ill.App.3d 118,
27 Ill.Dec. 529, 389 N.E.2d 593.) We distinguished Stuller
in Almo on the grounds that in Stuller the trial judge
entered one of the two verdicts returned and vacated the
other verdict. The same factual distinction exists in the
other cases. In this case and in Almo, however, the jury
was allowed to resume deliberations after further instruc-
tions were given and thus it was allowed to clarify its
intent rather than having a judge invade its province.
Therefore, we do not find those cases persuasive.
Defendant next argues that his right to due process and
right to a trial by jury were violated by the “inherently
contradictory” instructions given at his trial. He claims
that the written murder and voluntary manslaughter in-
structions required the jury to return verdicts for both
murder and voluntary manslaughter if it found him guilty
of voluntary manslaughter. Nevertheless, the judge told
the jury that it could not return guilty verdicts for both
offenses, and he provided no explanation for reconciling
the contradiction. Defendant argues that together these
instructions created an irreconcilable conflict on the volun-
tary manslaughter issue. The State argues that the rul-
ing on this issue on direct appeal is res judicata and that
App. 28
the trial judge’s statements properly instructed the jury
and that these statements were similar to those sanc-
tioned in Almo.
Preliminarily, we note that defendant did not object to
this instruction at trial and therefore this argument nor-
mally would be waived. Pursuant to Supreme Court Rule
451(c) (107 Ill.2d R. 451(c)), if an instruction is substan-
tially defective and the interests of justice require, the
objection is not considered waived. In cases subsequent
to defendant’s trial we recognized flaws in the murder
and voluntary manslaughter instructions, and we do not
believe that in this instance the failure to object should
preclude our addressing the issue. Also, the appellate
court did not address the due process issue and we do
not believe that the principle of res judicata should pre-
clude our consideration of this constitutional issue.
Defendant finds the conflict in his case to exist between
the required result of the two written instructions, i.e.,
guilty verdicts on both counts, and the oral instructions,
i.e., not guilty on at least one count. However, the cases
he cites involved two written instructions on a single ele-
ment or offense which were inconsistent and contradic-
tory. (See People v. Jenkins (1977), 69 Ill.2d 61, 12 III.
Dec. 728, 370 N.E.2d 532 (two instructions on an essen-
tial element of the crime charged were in direct conflict
and one was erroneous); Thomas v. Leeke (4th Cir. 1984),
725 F.2d 246 (unequivocally contradictory instructions on
the burden of proof for self-defense); Harless v. Anderson
(6th Cir. 1981), 664 F.2d 610 (garbled and confusing in-
structions on an element of the offense), rev’d on other
grounds (1982), 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3;
see also People v. Miller (1949), 403 Ill. 561, 87 N.E.2d
649 (erroneous and contradictory instructions on self-de-
fense).) Therefore, in these cases the jury was unable to
App. 29
perform its constitutional function. However, the two writ-
ten instructions for murder and voluntary manslaughter
in this case are not in direct conflict and each involves
a different mental state. The failure to include the fourth
proposition in the murder instruction may have misled the
jurors to believe that they had to return guilty verdicts
on each charge. We have held, though, that if the lan-
guage of an instruction is inaccurate, and, standing alone,
may mislead the jury, other instructions may explain the
inaccuracy, remove the error or render it harmless. (Miller,
403 Ill. at 565, 87 N.E.2d 649, quoting Enright v. People
(1895), 155 Ill. 32, 36, 39 N.E. 561; see also Almo, 108
Ill.2d at 65, 235 N.E.2d 572.) The trial judge in defen-
dant’s case attempted to explain the jury’s necessary out-
come in light of the written instructions. He explained
that the jurors’ role required a verdict and that verdict
could not be guilty as to both counts. Although the jurors
may have been confused by the written instructions, they
were properly told that they could only enter one ver-
dict and they should choose the one best fitting the facts.
The judge also explained, albeit not in the clearest man-
ner that voluntary manslaughter was a lesser included of-
fense of murder. In Almo, the court held that the verbal
instructions sufficiently alleviated the confusion, and in
this instance we believe whatever confusion may have oc-
curred from these written instructions did not rise to a
due process violation, in view of the way in which the
situation was handled by the trial judge.
The next issue concerns the retroactivity of People v.
Reddick (1988), 123 Ili.2d 184, 122 Ill.Dec. 1, 526 N.E.2d
141, in a post-conviction appeal. First, however, the State
claims that we should not address this issue. The State
contends that defendant requested the voluntary man-
slaughter instruction at trial; he did not complain about
App. 30
the wording of the jury instructions in his motion for a
new trial; on direct review defendant made no claim that
the jury instruction failed to allocate the burden of proof
properly; and the post-conviction petition did not raise the
issue decided in Reddick. Therefore, the issue has been
waived and the principle of res judicata should prevent
consideration of it. Defendant responds that the State
waived any objection to the retroactive application of Red-
dick because it failed to present any such argument to
the appellate court after defendant filed a supplemental
brief in that court which cited the Reddick opinion.
Defendant’s position is untenable. The State did not
have a duty to object to his motion for leave to file a
memorandum of law which was based on the newly de-
cided Reddick opinion and was filed after the briefs had
been submitted to the appellate court. After the appellate
court reversed defendant’s conviction based on our hold-
ing in Reddick, the State was entitled to contest on ap-
peal the rationale on which the appellate court relied. We
also believe that in this instance the principles of waiver
and res judicata should not prevent analysis of whether
Reddick applies. Part of the effect of the error here and
in Reddick is that the instructions confused the jury.
Defendant has at each level of this case complained about
the instructions and the confusion they caused, although
he did not argue that there was an impermissible burden-
shifting. Likewise, one of the defendants in Reddick also
did not raise the issue at trial, in a post-trial motion or
in the direct appeal; nevertheless, this court held that the
error was grave and waiver should not preclude the rule
from applying to him. There is an important principle in-
volved and the failure of defendant to raise the issue prior
to the court’s resolution of it in Reddick should not bar
consideration of it now.
App. 31
The State next argues that the holding in Reddick that
the State should have the burden of proof to disprove a
voluntary manslaughter “defense” in order to obtain a
murder conviction was based on statutory interpretation.
The State contends that constitutionally the burden of
proof as to voluntary manslaughter in a case involving
murder and voluntary manslaughter instructions may be
placed on either party. (See Patterson v. New York (1977),
432 U.S. 197, 97 S.Ct. 2319, 58 L.Ed.2d 281 (requiring the
defendant to bear the burden of proof for manslaughter
does not violate due process); Engle v. Isaac (1982), 456
U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783.) The Post-Con-
viction Hearing Act, however, may only be used to re-
dress the denial of a constitutional right. (Ill.Rev.Stat.
1987, ch. 38, par. 122-1; People v. Shaw (1971), 49 IIl.2d
309, 311, 273 N.E.2d 816.) According to the State, there-
fore, the violation at defendant’s trial of the principle an-
nounced in Reddick may not be raised in a post-conviction
action.
We believe that the jury instructions used in this case
sufficiently raised a constitutional issue for us to address
the retroactivity of Reddick in a post-conviction case. In
Reddick this court held that the State does not have the
burden to raise the two mitigating mental states required
in a voluntary manslaughter conviction but that it had the
burden to disprove those mental states beyond a reason-
able doubt if they are properly raised by the defense and
the State seeks to convict defendant of murder. This
determination of who has the burden was reached after
a statutory construction analysis. The Reddick court,
though, also addressed the jury instructions. These were
found erroneous in that they failed to appropriately state
the burdens of proof and that they were misleading and
confusing. The court noted that the voluntary manslaughter
App. 32
instruction appeared to place the initial burden to raise
the mitigating mental states on the State and that the
murder instruction failed to apprise the jury on the miti-
gating conditions. Therefore, in Reddick this court stated
that the two instructions, viewed alone, essentially assured
that, if the jury followed them, it could not convict a
defendant of voluntary manslaughter. (Reddick, 123 Ill.2d
at 194-95, 122 Ill.Dec. 1, 526 N.E.2d 141.) The court later
characterized the error in the instructions as “grave.”
First, we note that these instructions did not assure
only a verdict of murder would be returned. The State
points out that other verdicts have been reached in simi-
lar cases. Second, much emphasis appears to be placed
on the court’s characterization of the error as “grave.”
A grave error, though, is not necessarily a constitutional
error; it may just signify that the error should not be
considered waived if the defendant failed to object to it.
The instructions in this case, however, standing alone, do
potentially violate the constitutional right to have the jury
adequately apprised of the appropriate law. (People v.
Jenkins (1977), 69 Ill.2d 61, 66-67, 12 Ill.Dec. 728, 370
N.E.2d 532 (erroneous instructions may prohibit the jury
from performing its constitutional function); see also Fal-
coner v. Lane (7th Cir. 1990), 905 F.2d 1129, 1134 (a Fed-
eral habeas corpus action in which the court held that
Reddick “‘obviously considered the errors resulting from the
invalid instructions to be of constitutional magnitude’’).)
The court stated in Reddick “that certain instructions,
such as the burden of proof and elements of the offense,
are essential to a fair trial and that the failure to give
such instructions constitutes grave error when, viewing
the record as a whole, it appears that the jury was not
apprised of the People’s burden of proof.” (Reddick, 123
Tll.2d at 198, 122 Ill.Dec. 1, 526 N.E.2d 141; see also Mar-
App. 33
tin v. Ohio (1987), 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.
2d 267 (instructions misstated the burden of proving self-
defense; however, other instructions sufficiently stated the
burdens of proof so as not to confuse the jury).) As noted,
in our case part of the error was mitigated by the in-
structions the trial judge gave; nevertheless, the error is
of a constitutional dimension and the issue may be ad-
dressed in a post-conviction proceeding.
The main issue before us, therefore, is whether the Red-
dick decision will retroactively apply to a post-conviction
proceeding. The United States Supreme Court in Teague
v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334, held that decisions establishing new constitutional
rules of criminal procedure are not to be applied retro-
actively to cases pending on collateral review unless the
new rule either (1) piaces certain kinds of primary, pri-
vate individual conduct beyond the power of the criminal
law making authority to proscribe, or (2) requires the ob-
servance of those procedures that are implicit in the con-
cept of ordered liberty. (Teague, 489 U.S. at 307, 109 S.Ct.
at 1073, 103 L.Ed.2d at 353.) Defendant and amicus point
out that the rule adopted in Teague was applied to bar
application of a new constitutional rule in habeas corpus
actions pending in the Federal courts and that the col-
lateral review we are addressing involves an action in
State court brought pursuant to our Post-Conviction Hear-
ing Act. They argue that these two collateral reviews are
distinguishable and that we should not adopt Teague’s
standard and holding.
We, believe, however, that the Teague rule should be
applied in this case. The Teague test is helpful and con-
cise and in it we have the pronouncement of the Supreme
Court on an issue nearly identical to the one before us.
(See also Brewer v. State (Iowa 1989), 444 N.W.2d 77
App. 34
(adopting the Teague test); State v. Lark (1989), 117 N.J.
331, 567 A.2d 197 (discussing Teague and noting that, al-
though the analogy between Federal habeas proceedings
and State post-conviction relief proceedings was imperfect,
they were sufficiently similar to support the court’s con-
clusion of nonretroactive application of a new constitu-
tional rule).) Even prior to Teague, when determining
whether a case dealing with a constitutional right should
receive retroactive application under our Post-Conviction
Hearing Act, we have ruled in accord with the Supreme
Court’s determination of whether to give the case retro-
active application in a Federal habeas proceeding. In Peo-
ple v. James (1986), 111 IIl.2d 283, 95 Ill.Dec. 486, 489
N.E.2d 1350, we held that Edwards v. Arizona (1981), 451
U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, which dealt with
the right to counsel during questioning in criminal cases,
should not receive retroactive application in a post-convic-
tion proceeding. This decision was reached after observing
that the Supreme Court had denied application of Edwards
in a collateral attack pursuant to the Federal habeas
corpus act. See Solem v. Stumes (1984), 465 U.S. 688, 104
S.Ct. 1338, 79 L.Ed.2d 579.
Moreover, although the analogy is not perfect, the col-
lateral proceeding involved in this case is similar to that
involved in Teague. A habeas corpus proceeding and an
action to our Post-Conviction Hearing Act are both col-
lateral attacks that are not meant to be a substitute for
direct review. Their primary goal is to ensure that defen-
dants are not denied constitutional protections. (Ill.Rev.
Stat. 1987, ch. 38, par. 122-1 (corrects the substantial denial
of constitutional rights); Teague, 489 U.S. at 307, 109 S.Ct.
at 1073, 103 L.Ed.2d at 353 (writs are not intended to
ensure a trial free of constitutional error, but they serve
as an incentive to courts throughout the country to con-
App. 35
duct their proceedings consistent with constitutional prin-
ciples prevailing at the time the proceedings take place).)
The scope of a habeas proceeding is also defined by in-
terests of comity and finality. The Teagwe Court stated:
‘“(Ujnderlying considerations of finality find signifi-
cant and compelling parallels in the criminal context.
Application of constitutional rules not in existence at
the time a conviction became final seriously under-
mines the principle of finality which is essential to
the operation of our criminal justice system. Without
finality, the criminal law is deprived of much of its
deterrent effect.” (489 U.S. at 309, 109 S.Ct. at 1074,
103 L.Ed.2d at 355.)
Certainly, Illinois has an interest in finality of its criminal
trials, so long as the defendant was accorded a trial con-
sistent with constitutional principles. In fact, our post-con-
viction statute provides a 10-year window during which
the action may be brought. Although our statute is un-
clear, we do not believe that a constitutional principle es-
- tablished after the trial necessarily must be retroactively
applied.
Application of the Teague rule indicates that Reddick
should not be applied retroactively. In general, according
to Teague, a new rule should not apply retroactively to
cases On collateral review. The defendant, however, con-
tends that no new rule was established in Reddick. He
argues that the holding in Reddick was reached after re-
viewing the affirmative defense provision of the Criminal
Code of 1961 and its predecessor in the Criminal Code
of 1874. From this review, the court determined that the
defendant had the burden to initially raise the mitigating
mental states and then the State had the burden to dis-
prove their existence by proof beyond a reasonable doubt.
Therefore, he concludes that Reddick did not establish a
new rule but merely interpreted existing laws.
a
App. 36
In discussing the meaning of a new rule, the Court in
Teayue stated that “‘a case announces a new rule when
it breaks new ground or imposes a new obligation on the
States or the Federal Government. [Citations.] To put it
differently, a case announces a new rule if the result was
not dictated by precedent existing at the time the defen-
dant’s conviction became final.’”’ (Emphasis in original.)
(Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d
at 349.) In Butler v. McKellar (1990), 494 U.S. ___., 110
S.Ct. 1212, 108 L.Ed.2d 347, the Court said that if prior
to the rule’s being established there was a significant dif-
ference of opinion on the issue in the lower courts, this
would indicate that a decision is a new rule and not mere-
ly an application of an earlier decision to a different set
of facts. Butler, 494 U.S. at ___, 110 S.Ct. at 1217-18,
108 L.Ed.2d at 356-57.
We conclude that Reddick did constitute a new rule.
Though Reddick was doctrinally consistent with existing
laws regarding affirmative defenses and burdens of proof,
it was the first time this court applied these legal prin-
ciples to the specific situation of the murder and volun-
tary manslaughter instructions. In applying these prin-
ciples, not only did the court determine that the instruc-
tions were erroneous, it also ruled that, as written, they
implicated constitutional rights. This conclusion did not
necessarily flow from the statutory analysis. (See Patter-
son v. New York (1977), 482 U.S. 197, 97 S.Ct. 2319, 53
L.Ed.2d 281.) Also, this “result was not dictated by prece-
dent existing at the time.” (Emphasis in original.) (Teague,
489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349.)
Instead, the long-standing practice in the trial courts was
to instruct the jury on murder and voluntary manslaughter
consistent with the Illinois Pattern Jury Instructions. This
court also did not invalidate these instructions in other
App. 37
cases it reviewed prior to Reddick. (See People v. Almo
(1985), 108 Ill.2d 54, 90 Ill.Dec. 885, 483 N.E.2d 203; Peo-
ple v. Hoffer (1985), 106 Ill.2d 186, 88 Ill.Dec. 20, 478
N.E.2d 335 (although court noted that instructions should
be amended).) Moreover, prior to this court’s ruling that
the State has the burden to negate the voluntary man-
slaughter mitigating mental states, at least one panel of
the appellate court had ruled that the State did not bear
this burden. (People v. March (1981), 95 Ill.App.3d 46, 50
Ill.Dec. 763, 419 N.E.2d 1212; see Butler, 494 U.S. at ___,
110 S.Ct. at 1217-18, 108 L.Ed.2d at 356-57 (difference of
opinion in lower courts indicates that rule is new).) There-
fore, under the Teague analysis, unless this new rule falls
within one of the two exceptions, it will not be applied
retroactively.
The first exception states that the new rule should be
given retroactive application if it places certain kinds of
primary, private individual conduct beyond the power of
the criminal law making authority to proscribe. (Teague,
489 U.S. at 307, 109 S.Ct. at 1073, 103 L.Ed.2d at 353.)
This exception does not apply. The conduct proscribed in
this case is murder, the prosecution of which is not pro-
hibited by Reddick. Nor does the Reddick rule involve
a categorical guarantee accorded by the Constitution such
as a prohibition on the imposition of death on a certain
class of offenders. See Penry v. Lynaugh (1989), 492 U.S.
___., 109 S.Ct. 2934, 106 L.Ed.2d 256.
Under the second exception, a new rule may be applied
on collateral review if it requires the observance of those
procedures that are implicit in the concept of ordered
liberty. (Teague, 489 U.S. at 307, 109 S.Ct. at 1073, 103
L.Ed.2d at 353.) In Teague, the Court stated:
“(Wie believe that Justice Harlan’s concerns about
the difficulty in identifying both the existence and
App. 38
the value of accuracy-enhancing procedural rules can
be addressed by limiting the scope of the second ex-
ception to those new procedures without which the
likelihood of an accurate conviction is seriously dimin-
ished.
Because we operate from the premise that such
procedures would be so central to an accurate deter-
mination of innocence or guilt, we believe it unlike-
ly that many such components of basic due process
have yet to emerge.” (489 U.S. at 313, 109 S.Ct. at
1076-77, 103 L.Ed.2d at 358.)
This exception must be narrowly construed and we do not
believe that the Reddick rule established such a compo-
nent of basic due process so as to fall within it.
For the above-stated reasons, we conclude that the Red-
dick rule should not be applied retroactively. This hold-
ing makes it unnecessary to address the State’s argument
that the error was harmless because defendant’s conviction
should be affirmed based on the felony-murder doctrine.
Therefore, we reverse the appellate court and affirm the
trial court’s dismissal of defendant’s post-conviction peti-
tion.
Appellate court reversed; circuit court affirmed.
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