Appendix — Carter v. DeTella

App. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 92-2978

ADOLF CARTER,

Petitioner-Appellee,

v.

GEORGE E. DETELLA,* Warden,

Danville Correctional Center,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 91 C 2397—James B. Moran, Chief Judge.

ARGUED SEPTEMBER 30, 1993**—DecipED SEPTEMBER 23, 1994

Before FAIRCHILD, COFFEY and RIPPLE, Circuit Judges.

FAIRCHILD, Circuit Judge. Petitioner-appellee Adolf Car-

ter (“Carter”) was convicted of murder and armed vio-

lence in Illinois state court following a jury trial. Carter

challenges the murder conviction, contending that instruc-

* George E. DeTella is substituted for his predecessor, Michael

V. Neal, as Warden of the Danville Correctional Center. Fed. R.

App. P. 43(cX1).

** This case was briefed separately but argued together with

Green v. Peters, No. 92-2856; Cuevas v. Washington, No. 92-3090;

Rosa v. Peters, No. 92-3258; and Everette v. Roth, No. 92-4063.

App. 2

tions given his jury violated his federal due process rights.

George E. DeTella, the Warden of Danville Correctional

Center where Carter is incarcerated, appeals from a judg-

ment of the district court granting Carter’s petition for

a writ of habeas corpus.! We reverse.

I. BACKGROUND

A. Facts

John Young (“Young”) testified that he was with some

friends on October 5, 1985, around 8:00 or 8:30 p.m. when

he spoke with James Bates (‘Bates’) and his girlfriend

Giselle Byrd (‘‘Byrd’”’) on a Chicago street. Bates asked

Young to take them to the south side of the city in his

car. William Johnson and Debra Young were in the back

seat of Young’s car; Young told Byrd to sit in the front

seat with Bates. As Young was about to enter the driver’s

seat, Bates was also getting ready to enter the car’s front

seat on the passenger side. Young heard a noise and saw

Bates fall. Young stepped out of the car to go help Bates,

and Carter was standing with a baseball bat near the back

of the car. Bates was lying on the ground next to the

car, and Carter was standing over him. Bates slowly used

his hands to try to get up. Carter told Byrd to get out

of the car, and she slammed the car door closed. As Bates

was trying to get up, Carter hit him in the head with

the bat. Carter then left, and Young drove Bates to the

hospital.

When Bates went home from the hospital later that eve-

ning, he was complaining that his head hurt; his mother

watched over him. She went to work early the next morn-

ing, and then Byrd watched him. At one point she dozed

off, and when she awoke, Bates was dead.

Byrd testified that she had just gotten into Young’s car,

and Bates was ready to get in when he fell. She looked

1 Because the Attorney General of Illinois represents Mr. DeTella,

we will refer to respondent-appellant as “the State.”

App. 3

outside the car and saw Carter standing with a baseball

bat. Carter said, “(bjitch, you get out, I’m going to get

you, too.” Tr. at 257. Byrd did not close the door because

Bates’ foot was in it; she never closed the door during

the incident. Carter then swung the bat and hit Bates

while he was on the ground, and then ran.

Byrd testified that two days before, she was with her

brother, William Byrd (‘William’), Bates, Carter, and

Wayne Bay (“Bay”), one of Carter’s friends. The four men

got into a fight because Carter accused Byrd of arguing

in front of his mother’s house, when Byrd was not there.

At one point, Carter tried to hit Bates with a bottle. Bay

pulled a knife, and William kicked it away. When asked

if Carter got stabbed, Byrd answered, “I don’t know. I

doubt it.” Jd. at 290.

William Johnson (“Johnson”) testified that he was sit-

ting in the back seat of the passenger side of Young’s car,

talking with Young, Byrd, and Debra Young for about

five minutes before Bates started to get into the car.?

As Bates was getting into the car, he was hit on the top

of his head with a bat and fell. Johnson looked out the

side window and saw Carter standing with a bat; Carter

was telling Byrd to get out of the car. As Bates tried

to get up from the ground, Carter hit him on the head

with the bat. Byrd then started crying and screaming and

locking the doors. Carter ran off.

Carter testified that on the night of the incident, as he

was walking from his house to the store, he passed Byrd

and Young on the street. Byrd approached him in the

store, and told Carter she wanted to talk to him. Carter

said they didn’t have anything to talk about, and left the

store. Byrd followed him, and told him she had been drunk

and was sorry that the fight two days earlier had hap-

pened. Carter testified that he was stabbed in the leg and

knocked down during the fight.

2 Johnson also testified that Young got into the car about five

to ten seconds before Byrd.

App. 4

Carter was talking to Byrd on the sidewalk and Young

was standing by the back of his car. As Byrd was talk-

ing to Carter, she “threw her hand[s] over her face.” Jd.

at 452. Carter was scared, because he had fought with

the same people two nights before, and he dropped to

the ground. He was about six or seven feet from the car.

Carter heard a noise close by and from behind. When he

turned around, he saw Bates holding a bat about five feet

away. Carter was scared, and thought that Bates had

tried to hit him with the bat. Carter got up and ran into

Bates, they started to wrestle, fell, and Carter got hold

of the bat and hit Bates on the head with it. Carter tes-

tified that he struck Bates because he believed that Bates

was trying to kill him. Byrd and Young were still present.

Byrd ran to the car, and Carter told her to get out, be-

lieving she had set him up. He then talked to Young, and

left.

The medical examiner who performed the autopsy on

Bates testified that there was extensive hemorrhaging un-

der the scalp, an extensive skull fracture, and injury to

the brain. Bates’ death “was caused by multiple blunt

trauma injuries to the head.” Jd. at 373. The injuries were

consistent with a person being struck on the head more

than once with a bat, but not with someone hitting his

head on the sidewalk.

B. Jury Instructions

Carter’s jury was given the then current Illinois Pattern

Jury Instructions on murder and voluntary manslaughter

based on an unreasonable belief of justification.? Ill. Pat-

tern Jury Instructions, Criminal IPI, No. 7.02 (“Issues in

Murder”’) and No. 7.06 (“Issues in Voluntary Manslaugh-

ter—Intentional—Belief of Justification”) (2d ed. 1981). The

° The Illinois statutes regarding murder and voluntary manslaugh-

ter were rewritten, effective July 1, 1987, to create the offenses

of first degree murder and second degree murder.

App. 5

jury was also instructed on self-defense* and armed vio-

lence.

The murder instruction listed the elements of murder

and told the jury that the State must prove them beyond

a reasonable doubt. The voluntary manslaughter instruc-

tion listed the elements of voluntary manslaughter and

told the jury that the State must prove them beyond a

reasonable doubt. The elements of voluntary manslaugh-

ter include all the elements of murder (except for murder

while committing an offense), and also include the element

(in Carter’s case) that defendant acted under an unreason-

able belief that circumstances existed which would have

justified the killing (sometimes referred to as “mitigating”

because, in a sense, it is a defense to murder).5 The jury

was not told that it could not convict of murder unless

the State disproved the mitigating element beyond a rea-

sonable doubt.

* Under the relevant section of the Illinois Code

[a] person is justified in the use of force against another

when and to the extent that he reasonably believes that such

conduct is necessary to defend himself or another against such

other’s imminent use of unlawful force. However, he is justi-

fied in the use of force which is intended or likely to cause

death or great bodily harm only if he reasonably believes that

such force is necessary to prevent imminent death or great

bodily harm to himself or another, or the commission of a fore-

ible felony.

Ill. Ann. Stat. ch. 38, para. 7-1. The Illinois Pattern Jury Instruc-

tion on self-defense follows the statutory | . Ill. Pattern

wd Instructions, Criminal IPI, No. 24-25.06 (“Use of Force in

Defense of a Person”) (2d ed. 1981).

5 Under the relevant section of the Illinois Code

[a] person who intentionally or knowingly kills an individual

commits voluntary manslaughter if at the time of the killin

he believes the circumstances to be such that, if they existed,

would justify or exonerate the killing under the rinciples stated

in Article 7 of this Code [Justifiable Use of orce; Exonera-

tion] [footnote omitted], but his belief is unreasonable.

fll. Ann. Stat. ch. 38, para. 9-2(b).

App. 6

These instructions are the same as those considered in

People v. Reddick, 526 N.E.2d 141 (Ill. 1988), and Falconer

v. Lane, 905 F.2d 1129, 1136 (7th Cir. 1990), except that

in those cases the jury was also instructed on voluntary

manslaughter based on serious provocation; that instruc-

tion placed the burden on the State to prove that the

defendant acted under a sudden and intense passion re-

sulting from serious provocation by another.

In Reddick, the Illinois Supreme Court held that when

these murder and voluntary manslaughter instructions are

given without warning the jury that it could not convict

of murder unless the State disproved the mitigating ele-

ments, they “erroneously state the burdens of proof on

the issues of whether the defendants acted under either

intense passions or unreasonable beliefs that their actions

were justified.” 526 N.E.2d at 145. “These instructions

essentially assure that, if the jury follows them, the jury

cannot possibly convict a defendant of voluntary man-

slaughter. The reason is that even if a mitigating mental

state is proved, it will have been proved by the defen-

dant, not the People.” Jd. The court concluded that “grave

error” had occurred. Jd. at 147.6

Subsequently, this court held that when the same in-

structions are given, they violate federal due process be-

cause a jury may have been left with the false impres-

sion that it could convict of murder even if there was a

mitigating mental state. Falconer, 905 F.2d at 1136; see

also Verdin v. O’Leary, 972 F.2d 1467, 1470 (7th Cir. 1992);

Flowers v. Ill. Dep’t of Corrections, 962 F.2d 703, 705 (7th

Cir. 1992), vacated on other grounds, 113 S. Ct. 2954 (1993),

on remand, 5 F.3d 1021 (1993); Taylor v. Gilmore, 954

F.2d 441, 450 (7th Cir. 1992), rev’d on other grounds, 113

S. Ct. 2112 (1993), on remand, 4 F.3d 997 (1993) (Table);

United States ex rel. Fleming v. Huch, 924 F.2d 679, 682

(7th Cir. 1991); Rose v. Lane, 910 F.2d 400, 402 (7th Cir.),

cert. denied, 498 U.S. 983 (1990).

6 The Illinois Pattern Jury Instructions were rewritten to con-

form to Reddick.

App. 7

C. Procedural History

In an unpublished opinion (following a petition for re-

hearing by Carter), the Illinois Appellate Court found that

while the instructions were error under Reddick, the er-

ror was harmless because “the evidence of defendant’s

guilt in this case is so clear and convincing that a jury

could not reasonably have found defendant not guilty of

murder and guilty only of voluntary manslaughter based

on an unreasonable belief of justification.” Nov. 27, 1989

Order at 7. The Illinois Supreme Court denied Carter’s

petition for leave to appeal.

Subsequently, Carter filed a petition for a writ of habeas

corpus in federal district court. The district court granted

Carter’s petition, finding that the instructions violated

both Illinois and federal constitutional law, and that the

error “ ‘so infected the trial as to violate due process’ ”

because, in part, “{t]he jury could well have reached that

result [conviction of voluntary manslaughter] if it believed

in large measure the defendant’s testimony and disbelieved

the state’s witnesses.” July 10, 1992 Mem. and Order at

10, 11. The State filed a motion to amend the judgment,

which the district court denied (except as to a ministerial

change not at issue). The State now appeals.

II. DISCUSSION

A. Fair Presentment

In United States ex rel. Spurlark v. Wolff, 699 F.2d 354

(7th Cir. 1983), this court held that a state prisoner seek-

ing habeas relief is barred from raising a claim he had

failed to raise on a state court appeal, unless he can show

cause and prejudice. See Murray v. Carrier, 477 US. 478,

489-490 (1986). A petitioner’s claim “must have been pre-

sented in such a way as to fairly alert the state court

to any applicable [federal] constitutional grounds for the

App. 8

claim.” United States ex rel. Sullivan v. Fairman, 731

F.2d 450, 453 (7th Cir. 1984).7

Earlier, in the context of exhaustion of state remedies,

the Supreme Court had said that “the federal claim must

be fairly presented to the state courts.” Picard v. Con-

nor, 404 U.S. 270, 275 (1971). “fWle do not imply that

respondent could have raised . . . [his federal constitu-

tional] claim only vy citing ‘book and verse on the federal

constitution.’ . . . [citations omitted]. We simply hold that

the substance of a federal habeas corpus claim must first

be presented to the state courts.” Jd. at 278.

In Taylor v. Gilmore, decided after Falconer, this court

ruled that Reddick was grounded only in state law, with

no ties to federal due process; “{a]ny indications to the

contrary in our prior decisions are disavowed.’’® 954 F.2d

at 449.

7 In Sullivan, this court concluded that petitioner waived his right

to submit his due process claim in federal court because he did

not present his due process argument to the state courts in the

context of a federal constitutional claim, he never used the lan-

guage “due process,” he relied on state cases which refer only

to the “interests of justice,” and the state appellate court opinion

indicated that it discerned no due process implications.

For a list of factors to consider in determining whether a peti-

tioner has fairly presented a federal claim, see Sullivan, 731 F 2d

at 454 (including n.9).

8 In Falconer v. Lane, this court had implied that a petitioner’s

citation to Reddick may constitute a federal constitutional challenge

to the Illinois jury instructions, noting that in Reddick, “the Court

obviously considered the errors resulting from the invalid instruc-

tions to be of constitutional magnitude.” Falconer, 905 F.2d at

1134. The petitioner in Falconer did e to the Illinois Supreme

Court that the instructions deprived her of “due process.’ The

panel in Falconer noted that even if the petitioner’s claim was

interpreted as brought under the Illinois Constitution’s Due Pro-

cess Clause, such a claim would be “functionally identical to a fed-

eral claim,”’ and therefore her federa! claim was fairly presented.

Id.

Additionally, in Rose v. Lane, a panel of this court stated that

“Reddick creates a federal claim through In re Winship [397 U.S.

358 (1970)] .. . .” Rose, 910 F.2d at 401 n.1.

App. 9

In Verdin v. O’Leary, a habeas petitioner claimed that

the Illinois Pattern Jury Instructions violated the Due

Process Clause because they had led “the jury to ignore

constitutionally relevant, exculpatory evidence.” 972 F.2d

1467, 1477 (7th Cir. 1992). In state court he had not ex-

pressly claimed a violation of due process, but had argued

that a refused instruction was necessary for the jury to

understand the difference between murder and voluntary

manslaughter. He only cited to state cases, none of which

refer to the Due Process Clause or cite cases referring

to the Due Process Clause. The State likewise did not

refer to the Due Process Clause, and the appellate court

did not reference constitutional grounds. This court con-

cluded that there had been no fair presentment of his

federal claim, and remanded to the district court to deter-

mine whether the petitioner’s waiver of his federal claim

could be excused under the “cause and prejudice” test or

whether failure to consider his federal claim would result

in a fundamental miscarriage of justice. Jd. at 1483.

On direct appeal, in a supplemental brief to the Illinois

Appellate Court,® Carter argued that the instructions were

error under Reddick.'° In its supplemental response brief,

in the context of retroactivity, the State argued that Red-

dick is not of constitutional magnitude, and therefore should

not be applied retroactively. In his supplemental reply

brief, with respect to the State’s retroactivity argument,

Carter stated that “the present rule is Constitutional,”

the “instructions on murder violate the ‘long-established

constitutional’ principle recognized in Reddick,” and the

“instructions on murder and voluntary manslaughter vio-

late the constitutional right to present a defense and to

® Reddick was decided after Carter’s opening brief to the Illinois

Appellate Court.

‘© Carter did cite a United States Supreme Court case in support

of his argument that Reddick should be applied retroactively to

his case. This, however, is immaterial to whether Carter presented

his claim that the instructions violated his federal due process rights.

App. 10

have a fair trial.” Carter’s Appellate Supplemental Reply

Br. at 5-6.

The appellate court’s initial decision did not address the

Reddick issue. Carter filed a petition for rehearing, ask-

ing the court to find a Reddick error. While the court

agreed that there had been a Reddick error, it found the

error harmless.

In Carter’s petition for leave to appeal to the Illinois

Supreme Court, he argued that the appellate court incor-

rectly concluded that the Reddick error was harmless,

citing only Illinois law.!! The Illinois Supreme Court de-

nied the petition.

Carter subsequently filed a petition for a writ of habeas

corpus in federal district court. The State filed its answer

to Carter’s petition and memorandum in opposition to the

petition on July 12, 1991. The district court granted Car- |

ter’s petition on July 10, 1992. The State filed a motion |

to alter or amend the judgment on July 27, 1992, which

the district court denied.

The State admits that ordinarily, it would have been |

held to have waived the argument that Carter did not

fairly present his federal claim because it did not raise

the argument below. The State asserts that its failure can |

be excused because at the time of its briefing in the dis-

trict court, there was no reason to argue that Reddick

was not based on federal constitutional grounds. The State

rests this assertion on the ground that because of lan-

guage in Falconer (see n.12), it felt that it could not have

raised its fair presentment argument until after Verdin

v. O’Leary, 972 F.2d 1467 (7th Cir. Aug. 28, 1992). We

note that the state did make a presentment argument in

Verdin. Additionally, in Taylor v. Gilmore, this court ruled

1) A petitioner’s failure to present his federal claim in a petition

for leave to appeal to a state’s highest court on direct review may |

constitute waiver of that issue. See United States ex rel. Bonner

v. DeRobertis, 798 F.2d 1062, 1065-1066 (7th Cir. 1986). |

?

|

App. 11

that Reddick was grounded only in state law, with no ties

to federal due process. Taylor, 954 F.2d at 449 (7th Cir.

Jan. 21, 1992). Taylor was decided almost six months be-

fore the district court ruled on Carter’s petition.

We need not, however, determine whether Carter ade-

quately presented his federal claim on direct appeal or

whether the State waived its presentment argument, given

the following discussion.

B. Harmless Error

Carter would like us to read Falconer broadly, as hold-

ing that when these murder and voluntary manslaughter

instructions are given without alerting the jury to the

need to determine whether the mitigating circumstance

of an unreasonable belief of justification was present, and

if present not to convict of murder, and the jury convicts

of murder, there is always a denial of federal due pro-

cess, and never harmless error, no matter how slight the

evidence of an unreasonable belief of justification.!2

Several considerations militate against so broad a read-

ing. First, the court in Falconer spoke in terme of a pos-

sibility that a jury would improperly convict of murder,

and suggested that there was substantial evidence that

the defendant, who attempted to prove that she killed in

self-defense, did have a mitigating mental state:

The central point is that the jury might have decided

to convict the petitioner of murder because the State

proved that she intentionally killed another without

12 In Falconer, a panel of this court concluded that “{a]s the Eighth

Circuit stated in finding constitutionally faulty jury instructions:

‘Such error [a jury verdict based on an instruction that allows it

to convict without properly finding the facts supporting each ele-

ment of the crime] is not corrected merely because an appellate

court, upon review, is satisfied that the jury would have found

the essential facts had it been pro rly instructed. The error can-

not be treated as harmless.’ ’ 905 Pod at 1137 (citing United

States v. Voss, 787 F.2d 398, 398, cert. denied, 479 U.S. 888 (1986)).

App. 12

a reasonable belief that she acted in self-defense—

despite clear proof that the petitioner was provoked

to murderous passion by the victim or that the peti-

tioner held an unreasonable belief that she was justi-

fied in killing the victim.

Falconer, 905 F.2d at 1136 (emphasis added).

Additionally, even though in several cases we have noted

the “inherently prejudicial” nature of the instructions,?° all

subsequent decisions of this court which have found Fal-

coner-type denials of due process have considered whether

the error was harmless and have evaluated the evidence

in order to determine that it was not. See Flowers v. IIl.

Dep’t of Corrections, 962 F.2d at 705 (“Our review of the

record confirms the state trial judge’s apparent belief,

given that he tendered a voluntary manslaughter instruc-

tion to the jury, that the evidence presented at trial could

support either a voluntary manslaughter verdict or a mur-

der verdict. Consequently, we conclude that the error at

Flowers’ trial was not harmless beyond a reasonable doubt

...,” td. at 706); Taylor v. Gilmore, 954 F.2d at 450

(considering “whether the erroneous jury instructions . . .

were harmless beyond a reasonable doubt,” id. at 454)

(“Our review of the record confirms the trial judge’s belief

(“that there was enough evidence in the record to sup-

port mitigation to manslaughter”] . . .,” id.) (noting that

“{hjad there been insufficient evidence in that regard, the

judge would not have been obligated to [give the man-

slaughter instruction] . . .,” id.); United States ex rel.

Fleming v. Huch, 924 F.2d 679 (“A closer question than

whether the jury instructions violated due process is whether

that constitutional violation was harmless beyond a reason-

13 Rose v. Lane, 910 F.2d at 402-403 (noting that Falconer found

the instructions to be “gravely erroneous” and “inherently prej-

udicial’’); United States ex rel. Fleming v. Huch, 924 F.2d at 683

(recognizing that Falconer and Rose found that the error was “in-

herently prejudicial”); Taylor v. Gilmore, 954 F.2d at 454 (recogniz-

ing that Falconer, Rose and Fleming found the instructions were

“inherently prejudicial”).

App. 13

able doubt,” id. at 683) (concluding that because there was

“substantial and uncontroverted” evidence of battered wife

syndrome, which was basis for self-defense theory, the in-

structional error was not harmless, id.); Rose v. Lane, 910

F.2d at 402 (‘‘we must decide . . . whether the trial court’s

constitutional error was harmless,” id. at 408) (concluding

that because there was evidence that the defendant believed

he was acting in self-defense, a jury might not have con-

victed him of murder if properly instructed, id.). Thus,

we have interpreted Falconer as permitting consideration

of whether Falconer-type errors were harmless in light

of the evidence before the jury.

Finally, the Supreme Court has decided that “the Kottea-

kos harmless-error standard applies in determining whether

habeas relief must be granted because of constitutional

error of the trial type.” Brecht v. Abrahamson, 113 S. Ct.

1710, 1722 (1998).14 There must be more than “a ‘ “rea-

sonable possibility” ’ that trial error contributed to the

verdict”; habeas petitioners are entitled to habeas relief

based on trial error only if the error resulted in “actual

prejudice.” Jd. at 1721-1722. The question is whether the

error “ ‘had substantial and injurious effect or influence

14 While the issue in Brecht was whether a habeas petitioner was

entitled to relief because the state improperly used his post-Miranda

silence for impeachment purposes, the ess error standard an-

nounced in Brecht applies to instructional error. See Libby v. Duval,

19 F.3d 733, 739-740 (1st Cir. 1994), petition for cert. filed,

U.S.L.W. ___ (U.S. June 22, 1994) (No. 93-9781); Kontakis v. Beyer,

19 F.3d 110, 116 (3d Cir. 1994), petition for cert. filed, __ U.S.L.W.

___(U.S. July 5, 1994) (No. 34-5046). O’Neal v. Morris, 3 F.3d 143,

145-147 (6th Cir. 1993), cert. granted in part, 114 S. Ct. 1396 (Apr.

4, 1994) (question presented: ‘Does state have burden of provin

constitutional error to be harmless under Brecht v. Abrahamson?”

62 U.S.L.W. 3680). But see Suniga v. Bunnell, 998 F.2d 664, 667

(9th Cir. 1993).

Prior to Brecht, the harmless error standard was whether federal

constitutional error ‘“‘was harmless beyond a reasonable doubt.”

Chapman v. California, 386 U.S. 18, 24 (1967). We apply Brecht

here. See Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993).

App. 14

in determining the jury’s verdict.’ ”’ Id. at 1722 (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

In contradiction to Carter’s testimony that Bates swung

the bat at him (from which follows Carter’s contention

that he believed Bates was trying to kill him), three state

witnesses testified that Bates was knocked to the ground

as he was entering Young’s car, and that Carter hit Bates

while Bates was on the ground.15 None of the witnesses

saw a conversation between Carter and Byrd, or a strug-

gle over the bat between Bates and Carter. Carter’s tes-

timony that he hit Bates only one time is also contradicted

— by the autopsy results, which show that Bates was struck

more than once.

There are indeed some questions of credibility in decid-

ing the correct version of the facts. We do note that the

jury must have found Carter’s version incredible in large

part because it rejected the claim that he acted in self-

defense. Insofar as possible the habeas or appellate court

shuns resolving credibility and weighing the evidence.

Nevertheless, the Brecht-Kotteakos test for harmless er-

ror requires the habeas court to evaluate to some extent

the probability of the outcome if the case were tried under

proper instructions.

The constitutional error perceived in Falconer was that

“the jury may have been left with the false impression

that it could convict the petitioner of murder even if she

possessed one of the mitigating states of mind described in

the voluntary manslaughter instruction” and that “(jjurors

are therefore encouraged by the structure of the instruc-

8 At sentencing, the trial judge noted that “in wo! what the

evidence disclosed was that by his [Carter’s] own lips he had the

victim, Mr. Bates, to his knees and under control, took the bat

away from him, what he said, and there is really no need for self-

defense or striking of Mr. Bates at that time even under the theory |

advanced by Mr. Carter and his counsel. The j rejected that

theory of self-defense. They didn’t believe it, and I must say that

I didn’t believe it either.” Tr. at 652.

Se NALS NI aA ne

EEE LO EE Ne

App. 15

tions to answer . . . [the requirements of the murder in-

struction] first and then move on only if those require-

ments cannot be met.” Falconer, 905 F.2d at 1136.

The Falconer error is present here. We conclude, how-

ever, that the error did not have a “substantial and in-

jurious effect or influence in determining the jury’s ver-

dict” and therefore was harmless.1¢

If in fact the jury did not credit Carter’s testimony and

decided that he did not have an unreasonable belief that

the killing was justified in self-defense, the error had no

effect on the verdict. Assuming, however, that the instruc-

tion caused the jury to believe that it could convict of

murder even if Carter had such belief, or without consid-

ering whether he did, our review of the trial transcript

satisfies us that the jury did not and would not have found

that Carter had such belief.

Accordingly, the judgment of the district court is

REVERSED.

RIPPLE, Circuit Judge, dissenting. Without resolving

definitively whether the federal issue was presented ade-

quately, the majority determines that the district court

erred in granting habeas relief to the petitioner because

the constitutional error committed in the rendition of the

instructions was harmless. I agree with my colleagues that

the state has waived the argument that the federal issue

was not fairly presented to the state courts. Therefore,

the district court appropriately addressed the merits of

the petitioner’s constitutional claim. However, because |

do not believe that the instructional error can be deemed

harmless, I cannot join my colleagues in reversing the

6 The Illinois Appellate Court also found that the instructional

error was harmless.

App. 16

judgment of the district court. In my view, the conclu-

sion that the error is harmless is based on an impermissi-

ble substitution of their judgment on a factual matter for

that of the state court jury. I do not believe that it is

the proper role for a federal habeas court to intrude so

drastically into the prerogative of the jury.

At the outset, it must be stressed that the analysis that

follows presupposes the continued vitality of Falconer v.

Lane, 905 F.2d 1129 (7th Cir. 1990), in this circuit despite |

the Supreme Court’s critique of that decision in Gilmore v.

Taylor, 113 S. Ct. 2112 (1993). Until that matter is raised

and briefed in plenary fashion, Falconer remains the law

of the circuit and we must proceed accordingly.

In Falconer, a panel of this court held that the Illinois

pattern murder instructions, earli2r invalidated on state

law grounds by the Illinois Supreme Court in People v.

Reddick, 526 N.E.2d 141 (Ill. 1988), also violated the Due

Process Clause of the Fourteenth Amendment. The federal

infirmity identified by this court in Falconer therefore was

different from the state ground relied upon by the state

court in Reddick. In Reddick, the Supreme Court of IIli-

nois had taken the view that, as a matter of state law, the

instructions should have placed on the government the

burden of disproving beyond a reasonable doubt a miti-

gating mental state. By contrast, this court acknowledged

that, as a matter of federal constitutional law, the burden

of proof with respect to an affirmative defense may be

placed on either party.1 It held, however, that the pattern

instructions were infirm because, although the murder in-

structions preceded the voluntary manslaughter instruc-

tions, they did not explicitly tell the jury that it could

not return a murder verdict if it found that the defendant

possessed a mitigating mental state. It was possible, con- ;

cluded the court, for a jury to find that a defendant was

guilty of murder without ever considering whether he was ;

entitled to the voluntary manslaughter conviction. Explicit

ie WPL alate rR:

1 See Patterson v. New York, 482 U.S. 197 (1977).

Te EE NT mee

App. 17

misdirection on this scale, concluded the court, violates

the Due Process Clause. In reaching this conclusion, the

court relied principally on the Supreme Court’s holding

in Cupp v. Naughten, 414 U.S. 141 (1973). In that case,

the Court had held that federal courts may not overturn

a state conviction on the ground that the jury instructions

were erroneous unless those instructions can be said to

have infected the entire trial. Jd. at 147.

The issue before us today is whether the error identified

in Falconer can be considered harmless. If it can be so

considered, we must determine the applicable standard

in making such a determination. In Brecht v. Abrahamson,

113 S. Ct. 1710, 1717 (1993), the Supreme Court, through

the pen of the Chief Justice, held that “trial error” ought

to be evaluated on habeas review under the standard enun-

ciated earlier in Kotteakos v. United States, 328 U.S. 750

(1946). “Trial error,” the Chief Justice wrote, “ ‘occur{s]

during the presentation of the case to the jury.’” Id. at

1717 (quoting Arizona v. Fulminante, 499 U.S. 297, 307

(1991)). It is susceptible to harmless error analysis because

it may be quantitatively assessed in the context of the

other evidence that is presented at trial. Jd. As the Su-

preme Court set forth in Brecht, under this standard, a

reviewing court must determine whether the error “ ‘had

substantial and injurious effect or influence in determin-

ing the jury’s verdict.’”” Brecht, 113 S. Ct. at 1722 (quot-

ing Kotteakos, 328 U.S. at 776). “At the other end of the

spectrum,” continued the Chief Justice, are structural de-

fects in the trial mechanism that “infect the entire trial

process,” id. at 1717, and therefore require automatic re-

versal. “Trial error” usually involves the admissibility of

evidence or the propriety of the argument of counsel. Here,

however, we deal with another form of error that arises

in the course of trial—instructional error. It is well estab-

lished at this point that instructional error must be as-

sessed quite differently from other errors that arise in

the course of trial. Some are “structural” in nature and

not at all subject to harmless error analysis. See Sullivan

v. Louisiana, 113 S. Ct. 2078, 2082 (1993) (holding that a

App. 18

constitutionally deficient reasonable-doubt instruction can-

not be harmless error). On the other hand, other instruc-

tions that misstate the task of the jury in assessing the

evidence before it are subject to harmless error analysis.

See Carella v. California, 491 U.S. 263, 266-67 (1989) (hold-

ing that an instruction that a rental car kept 5 days past

the rental agreement “shall be presumed to have been

embezzled” impermissibly shifts the burden of proof, but

is subject to harmless error analysis); Rose v. Clark, 478

U.S. 570, 582 (1986) (holding that an instruction that imper-

missibly shifts the burden of proof on the issue of malice

in a murder prosecution is subject to harmless error anal-

ysis); Sandstrom v. Montana, 442 U.S. 510, 526-27 (1979)

(holding that constitutionally erroneous instruction estab-

lishing conclusive presumption that perpetrator intends

the ordinary consequences of voluntary acts is subject to

harmless error analysis). These cases make clear that, as

the majority holds, Falconer error is subject to harmless

error analysis. However, as I shall detail in the paragraphs

that follow, application of the harmless error rule in these

cases poses problems, both conceptual and practical, not

faced when we deal with other types of error that arise

in the course of trial.

As in the case of instructions that establish mandatory

presumptions or instructions that shift the burden of proof,

it is indeed difficult to assess the effect of an instruction

such as that at issue in Falconer and the present case

that explicitly skews the jury’s decision-making process

so that it might not even consider the mitigating circum-

stances that would result in acquittal of the principal charge

and conviction only on the lesser included offense. When

the traditional formulation of the harmless error test of

Kotteakos is applied uncritically to instructional error of

the type presented by Falconer, the contours of harmless

error analysis are radically expanded. Federal habeas courts

consequently are placed in the position of supplying miss-

ing factual findings of the jury and, indeed, of relying on

evidence to uphold the conviction that the jury may not

have considered. See Libbey v. Duval, 19 F.3d 733, 741

|

App. 19

(1st Cir.), petition for cert. filed (U.S. June 22, 1994) (No.

93-9781) (Stahl, J., dissenting).

In the case of the usual forms of trial-type error such

as erroneously admitted evidence or improper argument

to the jury, the sort of quantitative assessment contem-

plated by Brecht is easily accomplished by the reviewing

court. The court has before it the entire record and can

easily determine whether the fact established by the er-

roneously admitted evidence was nevertheless established

to an overwhelming degree by other lawfully admitted evi-

dence; a judgment therefore can be made as to whether

the erroneously admitted evidence had a substantial and

erroneous influence on the jury’s verdict. Such an approach

is far more difficult when the appellate court is called upon

not to assess the effect of information that the jury had

before it but to assess the effect of the jury’s not having

considered relevant information or not having made a find-

ing which the law requires it to make.

As I have already noted, it is clear from the established

precedent that the difficulty in applying the standard Kot-

teakos approach does not mean that these instructional er-

rors ought not be evaluated under a harmless error anal-

ysis. Nor does it mean that the holding of Brecht ought

to be inapplicable in such instances. It simply means that

an analytical approach, tailored more precisely to the na-

ture of the particular error on the fairness of the proceed-

ings, must be found. As Judge Stahl of the First Circuit

has pointed out in his dissenting opinion in Libbey, Justice

Scalia’s concurring opinion in Carella v. California, 491

U.S. 263, 267-73 (1989), offers a formulation that is of

considerable help in this situation.2 Because the inquiry

is not whether guilt can be established from the record,

but whether guilt was ever found properly by the jury,

2 Justice Scalia was addressing in Carella an erroneous instruc-

tion that created a conclusive presumption. He noted, however,

that his analysis is applicable to other situations where the jury

has been deprived of its fact-finding role. Carella, 491 U.S. at 270.

App. 20

a reviewing court must determine that the instruction that

could have misdirected the jury’s efforts in such a drastic

way did not play a role in its verdict. Carella, 491 U.S.

at 270 (Scalia, J., concurring). Under this approach, in-

structional error that so grossly misdirects the jury’s in-

quiry is harmless when it can be established that the facts

that the jury necessarily found pursuant to other correct

instructions are so closely sidna to the fact to be proved

by the erroneous instruction that a rational jury could not

have found the former facts without also finding the fact

addressed by the erroneous instruction. In the case of an

impermissible presumption, for example, the predicate acts

established by correct instructions may so conclusively es-

tablish the requisite intent that no rational jury could con-

clude that the defendant committed the criminal act in

question, but did not have the intent that was also the

subject of the impermissible presumption. See Carella, 491

U.S. at 272 (discussing Rose, 478 U.S. at 579). In cases

such as the one before us, in which the jury’s inquiry was

affirmatively skewed so that the jury might find the de-

fendant guilty of murder without even considering the

lesser included offense of manslaughter, the error might

also be harmless when the evidence before the court sim-

ply did not permit a finding of manslaughter.

While the course of this circuit’s approach to harmless

error in the Falconer situation has perhaps not been a

seamless garment, our cases, read as a whole, do recog-

nize these principles. As the majority suggests, our cases

do contain language that, taken alone, suggests that Fal-

comer error can never be harmless. Notably, however, each

of these cases did explore the possibility that the evidence

of record might not reasonably raise the lesser included

offense of manslaughter. See Taylor v. Gilmore, 954 F.2d

441, 454 (7th Cir. 1992), rev'd on other grounds, 113 8S.

Ct. 2112 (1993) (noting that the error was “inherently prej-

udicial,”’ but also examining the record to determine that

the lesser included offense was raised by the evidence);

Fleming v. Huch, 924 F.2d 679, 683 (7th Cir. 1991) (same);

Rose v. Lane, 910 F.2d 400, 403 (7th Cir.), cert. denied,

ee ee ee ee eee

App. 21

498 U.S. 983 (1990) (same). A later case makes no such

reference to the impossibility of harmless error but, not-

ably, approaches the harmless error analysis by asking

whether the lesser included offense was reasonably raised

by the evidence. See Flowers v. Illinois Dep’t of Correc-

tions, 962 F.2d 703, 706 (7th Cir. 1992), vacated on other

grounds, 113 S. Ct. 2954 (1993). Our present Chief Judge

followed a similar analysis when, writing for the court in

United States v. Kerley, 838 F.2d 932 (7th Cir. 1988), he

held that the district court’s error in not instructing the

jury with respect to one element of the offense was harm-

less because the element was “‘not contestable.” Jd. at 939.

The foregoing approach may well result in a determi-

nation of harmless error in substantially fewer instances

than in the usual “trial error” situation. However, this

difference in result is due to the difference in the prob-

lem presented. The Supreme Court has acknowledged that

all errors cannot be neatly classified as either “structural”

or “trial” errors. In Brecht, the Chief Justice, referring to

Justice White’s earlier observation in Fulminante,? noted

that “structural” and “trial” errors were at opposite ends

of the “spectrum” of constitutional errors. Brecht, 113 S.

Ct. at 1717 (emphasis added). Explicit misdirection to the

jury on its responsibility to consider the evidence tending

to support acquittal on the principal charge and convic-

tion on the lesser included offense is an error very differ-

ent from the admission of tainted evidence. That it must

be treated differently by a reviewing court ought not be

surprising.

Justice Scalia’s approach to error of this sort was for-

mulated prior to Brecht. It is clear, however, that his anal-

ysis is not dependent upon a particular formulation of the

standard of review. The Justice’s opinion is an explana-

tion of the particular dangers presented by instructions

that deprive the jury of its fact-finding role—an explana-

3 Arizona v. Fulminante, 499 U.S. 279, 290-91 (1991) (White, J.,

dissenting in part).

App. 22

tion that makes clear that such an alteration in the jury’s

function cannot easily be neutralized because it is far closer

to a “structural” error than the typical trial-type error.

Certainly, allowing the approach urged by Justice Scalia

in Carella to survive Brecht is compatible with the prin-

ciples of judicial restraint and federalism re-emphasized

in that opinion. As Judge Stahl points out, fact-finding

by federal judges on habeas review is hardly evidence of

judicial restraint. Nor is it required by a healthy concept

of federalism. Federal courts are to respect the factual

findings of the state courts,* not supplement them.

As the majority quite frankly admits, reliance on the

harmless error doctrine in this case requires the judges

of this court to perform a task that the jury may never

have addressed because of the erroneous jury instructions.

It requires that the panel resolve matters of credibility

and weigh the evidence on the primary issue of guilt or

innocence. Mr. Carter has a right to have his guilt or in-

nocence determined by a jury, not by federal appellate

judges. Accordingly, I respectfully dissent.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

4 See Sumner v. Mata, 455 U.S. 591, 598 (1982) (per curiam) (hold-

ing that federal courts owe deference to the findings of fact of

state courts on habeas review).

re

App. 23

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT—WITH ORAL ARGUMENT

Date: September 23, 1994

BEFORE:

Honorable THOMAS E. FAIRCHILD, Circuit Judge

Honorable JOHN L. COFFEY, Circuit Judge

Honorable KENNETH F. RIPPLE, Circuit Judge

No. 92-2978

ADOLPH CARTER,

Petitioner-Appellee

V.

MICHAEL V. NEAL,

Respondent-Appellant

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 91 C 2397, James B. Moran, Chief Judge

The judgment of the District Court is REVERSED, in

accordance with the decision of this court entered on this

date.

(1061-110393)

App. 24

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

November 30, 1994.

Before

Hon. THOMAS E. FAIRCHILD, Circuit Judge

Hon. JOHN L. CorFEY, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

MAURICE GREEN,

Petitioner-Appellant,

No. 92-2856 v.

HowarpD PETERS, III, Director,

Illinois Department of Corrections,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 91 C 8191—Suzanne B. Conlon, Judge.

ADOLF CARTER,

Petitioner-Appellee,

No. 92-2978 v.

GEORGE E. De TELLA, Warden,

Danville Correctional Center,

Respondent-Appellant.

ee ea en TT eS ee ee m

App. 25

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 91 C 2397—James B. Moran, Chief Judge.

MARILYN A. CUEVAS,

Petitioner-Appellee,

No. 92-3090 v.

ODIE WASHINGTON, Warden,

Dixon Correctional Center,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 91 C 7339—Marvin E. Aspen, Judge.

ORLANDO Rosa,

Petitioner-Appellee,

No. 92-3258 v.

HowarpD A. Peters, III, Director,

Illinois Department of Corrections,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 92 C 1301—James B. Moran, Chief Judge.

App. 26

DONALD EVERETTE,

Petitioner-Appellee,

No. 92-4063 Vv.

Tuomas P. Rory, Warden, Sheridan Correctional Center,

and ROLAND W. Burris, Attorney General of the State

of Illinois,

Respondents-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 92 C 3098—James B. Moran, Chief Judge.

ORDER

On consideration of the joint petition for rehearing and

suggestion for rehearing in banc filed in the above-entitled

cause on October 28, 1994 by counsel for the Petitioner-

Appellant and Petitioners-Appellees, no judge in regular

active service has requested a vote thereon, and all of

the judges on the original panel have voted to DENY a

rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing and suggestion for rehearing in banc be, and the same

is hereby DENIED.

ecard ed CA Le ter

App. 27

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number: 91 C 2397 Date: July 10, 1992

Name of Assigned Judge: JAMES B. MORAN

Case Title: U.S.A. EX REL: ADOLPH CARTER VS

KENNETH MCGINNIS ETC.

MOTION:

Memorandum and Order

* * * * *

DOCKET ENTRY:

* * * *

(10) [Other docket entry] Enter Memorandum and

Order. We grant Carter’s writ of habeas corpus. The writ

shall issue unless the state retries him within 120 days.

(11) & [For further detail see order attached to the

original minute order form.]

* * * * *

App. 28

[Dated July 10, 1992]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

ex rel. ADOLPH CARTER,

Petitioner,

vs.

KENNETH MC GINNIS, Director,

Department of Corrections of the

)

)

)

) No. 91 C 2397

)

)

State of Illinois, )

)

)

Respondent.

MEMORANDUM AND ORDER

Adolph Carter brings this habeas corpus petition after

being convicted of murder and armed violence in the Cir-

cuit Court of Cook County. Carter argued to the state

appellate court that the trial judge improperly refused to

instruct the jury on voluntary manslaughter based on seri-

ous provocation and that the instructions given denied him

a fair trial. The appellate court affirmed the conviction and

the Illinois Supreme Court denied Carter’s petition for

leave to appeal. He is currently serving a 25-year prison

sentence in the Illinois Department of Corrections (Respon-

dent). For the reasons set forth below, we grant Carter’s

petition.

BACKGROUND

Carter was convicted of murder and armed violence in

the beating death of James Bates. At trial, John Young,

App. 29

William Johnson, and Bates’ girlfriend, Giselle Byrd, took

the stand for the state. They testified that on October 5,

1985, Byrd and Bates were walking near Orleans and Locust

streets in Chicago, when a car driven by John Young pulled

alongside them. After Bates and Young briefly conversed,

Young agreed to give Byrd and Bates a ride to Chicago’s

south side. Byrd entered the passenger side and sat in

the front middle seat. She began talking with an acquain-

tance who was sitting in the back seat next to Johnson.

As Bates was about to occupy the passenger seat next

to Byrd, Young and Byrd heard a noise. They saw Bates

fall to the ground. Johnson testified that he saw Carter

strike Bates in the head with a baseball bat. All three

witnesses testified to having seen Carter standing a few

feet from the fallen Bates, holding a baseball bat. Carter

ordered Byrd out of the car. Byrd testified that she did

not comply. Bates tried to gather himself and stand up

but, before he could, Carter struck him again in the head

with the bat. Bates again dropped to the ground as Carter

fled the scene.

Young and Byrd helped Bates into the car and immedi-

ately drove him to a local hospital. He died in his sleep at

home the next morning from what the medical examiner

described as multiple blunt trauma injuries to the head

consistent with someone who had been hit in the head

more than once with a baseball bat.

Carter testified that just before the incident he was in

a nearby store when he was approached by Byrd, who

told him she wanted to talk. Carter responded that there

was nothing to talk about. Byrd followed Carter out of

the store, while apologizing about a fight that had recently

App. 30

taken place.! As Carter listened, Byrd suddenly threw her

hands over her face. Carter became frightened and threw

himself to the ground. He heard a noise from behind and,

upon turning to look, saw Bates standing about five feet

behind him next to a pole, with a baseball bat in his hand.

Carter testified that he believed Bates had tried to hit

him with the bat but missed and hit the pole instead. Carter,

fearing for his life or, at the very least, afraid of getting

seriously hurt, got up, charged Bates, and wrestled the

bat away from him. He struck Bates once on the head

with the bat and, after a few words with Young, walked

away.

The trial judge instructed the jury on murder,? armed

violence, and voluntary manslaughter based on the unrea-

1 The fight, to which Byrd and Carter testified, took place two

nights before Bates was toa It involved Carter, Bates, Byrd’s

brother Wiley, and according to Byrd, a friend of Carter’s. Carter

testified that he was stabbed in the leg and knocked down during

the altercation. Byrd testified that she did not think Carter had

been stabbed.

2 Pursuant to Illinois Pattern Jury Instructions (IPI) Criminal No.

7.02 (2d ed. 1981), the court instructed the jury as follows:

“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 James Bates; and

Second: That when the Defendant did so, he intended to

kill or do great bodily harm to James Bates; or he knew that

his acts created a strong probability of death or great bodily

harm to James Bates; and

Third: That the Defendant was not justified in using the

force which he used.

If you find from your consideration of all the evidence that

each one of these ap eer gs has been proved beyond a rea-

sonable doubt, you should find the Defendant guilty.

(Footnote continued on following page)

OO errr rr eee

App. 31

sonable belief of the need for self-defense.* The court, how-

ever, refused Carter’s request for an instruction on vol-

untary manslaughter based on serious provocation. The

judge gave the jury a guilty and not guilty verdict form

for each of the three charges and told them that they

could only return a guilty verdict for murder or volun-

tary manslaughter, but not both. The jury found Carter

guilty of murder and armed violence, but not guilty of

voluntary manslaughter. The defense attorney objected to

the murder conviction on the grounds that a not guilty

2 continued

If you find from your consideration of all the evidence that

any one of these propositions has not been proved beyond a

reasonable doubt, you should find the Defendant not guilty.”

(emphasis added).

3 Pursuant to IPI Criminal No. 7.06 (2d ed. 1981), the court in-

structed the jury as follows:

“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 James Bates; and

Second: That when the Defendant did so, he intended to

kill or do great bodily harm to James Bates; or

He knew that his acts created a strong probability of death

or great bodily harm to James Bates; and

Third: That when the Defendant did so, he believed that

circumstances existed which would have justified killing James

Bates; and

Fourth: That the Defendant’s belief that such circumstances

existed was unreasonable.

If you find from your consideration of all the evidence that

each one of these propositions has been proved beyond a rea-

sonable doubt, you should find the Defendant guilty.

If, however, you find from your consideration of all the evi-

dence that any one of these propositions has not been proved

beyond a reasonable doubt, you should find the Defendant not

guilty.” (emphasis added).

App. 32

verdict on voluntary manslaughter is tantamount to find-

ing Carter lawfully justified in the killing of Bates. After

a somewhat confusing discussion by the judge and attor-

neys outside the jury’s presence, the court reinstructed

the jury that “if you return a verdict as to the murder,

you need not return a verdict on the voluntary manslaugh-

ter. Conversely if you return verdict on the voluntary

manslaughter, you need not return a verdict on the mur-

der.” (This was technically not correct because if the jury

returned a not guilty verdict on murder they would have

to return a verdict on voluntary manslaughter.) During

deliberations the jury asked the court if it was necessary

to return a verdict on all three charges or just two of

them. After speculation by the judge and attorneys as to

exactly what the jury meant by its question, the judge

answered that it was not necessary to return a verdict

on all three charges. The jury returned with guilty ver-

dicts on murder and armed violence. Carter was sentenced

to 25 years imprisonment.

On appeal, Carter made the same two arguments he

makes here. First, that the trial court erred in not instruct-

ing the jury on voluntary manslaughter (provocation) and

second, that the murder and voluntary manslaughter (un-

reasonable belief) instructions erroneously stated the bur-

dens of proof, pursuant to People v. Reddick, 526 N.E.2d

141 (Ill. 1988). In Reddick, the state supreme court held

that the Illinois Pattern Jury Instructions for murder and

voluntary manslaughter, when read together, erroneously

state the burden of proof on the issues of whether defen-

dant acted under either intense passion or an unreasonable

belief of the need for self-defense. This is because the state

was required to prove the mitigating mental condition as-

sociated with a voluntary manslaughter conviction. In Red-

dick, as in the instant case, the state contended that these

App. 33

mental conditions did not exist. “These instructions assure

the jury cannot possibly convict a defendant of voluntary

manslaughter because even if the mental state is proved

it will have to be proved by the defendant not the State.”

Id. at 145. Moreover, the murder instruction made no

mention of these conditions.

The court then classified the required mental state for

voluntary manslaughter as an affirmative defense under the

Illinois Criminal Code. Ill. Rev. Stat. ch. 38, 4 3-2. There-

fore, a defendant who seeks to avoid a murder conviction

by pleading one of the mitigating mental states must pre-

sent sufficient evidence to raise the issue, after which the

state “must prove beyond a reasonable doubt that those

defenses are meritless.” Jd. at 146.4 Because the jury was

not apprised of the People’s burden of proof “grave error

occurred.” Id. at 147.

The appellate court, reviewing Carter’s conviction, de-

termined that the trial judge’s instructions were erroneous

per Reddick but, nevertheless, concluded that the errors

were harmless beyond a reasonable doubt because the

“jury could not reasonably have found defendant not guil-

ty of murder and guilty of voluntary manslaughter” (App.

Court Order at 7). As to the trial court’s refusal to in-

struct on voluntary manslaughter (provocation) the appel-

late court found that even if Carter’s version of the facts

was believed there was still no evidence that he was acting

under a sudden and intense passion caused by a serious

provocation. Jd. at 6. The court noted that Carter testified

that he became frightened when he saw Bates wielding

a baseball bat and that he thought Bates was trying to

This requirement has since been codified. See Ill. Rev. Stat. ch.

4

38, 47-1.

App. 34

hurt or kill him. This, the court held, was sufficient to

warrant the instruction based on unreasonable belief but

not serious provocation. The state supreme court denied

leave to appeal.

DISCUSSION

Applicable Standard

Whether we grant Carter’s petition for a writ of habeas

corpus on either of two grounds depends on “whether the

petitioner alleges a ‘fundamental defect which inherently

results in a miscarriage of justice [or] an omission incon-

sistent with the rudimentary demands of fair procedure.’ ”

United States ex rel. Peery v. Sielaff, 615 F.2d 402, 404

(7th Cir. 1979), cert. denied, 446 U.S. 940 (1980) (quoting

Hill v. United States, 368 U.S. 424, 428 (1962)). Alleged

errors in jury instructions do not meet this standard unless

the “ ‘ailing instruction by itself so infected the entire trial

that the resulting conviction violates due process.’” Peery,

615 F.2d at 404 (quoting Cupp v. Naughten, 414 U.S. 141,

147 (1973)). Also, if the petitioner alleges a miscarriage

of justice based on the trial court’s failure to give a spe-

cific instruction, then his burden is tougher because “ ‘ajn

omission, or an incomplete instruction, is less likely to be

prejudicial than a misstatement of the law.’ ” Peery, 615

F.2d at 404 (quoting Henderson v. Kibbe, 431 U.S. 145,

155 (1977)).

Failure to Instruct on Serious Provocation

We agree with the state trial and appellate courts that

the evidence adduced at trial did not warrant a volun-

tary manslaughter instruction based on serious provoca-

tion. When questioned on direct examination about his

feelings once he saw Bates with a baseball bat, Carter

ee

SN _—

pa “yp: Baer oa Pr ae ee

App. 35

responded, “I was scared.” He testified that within sec-

onds of seeing Bates and feeling scared, he charged Bates

because he believed Bates was trying to hurt or kill him.

Not once did Carter describe his actions as being the result

of sudden or intense provocation. Without any evidence

on the issue of provocation it would have been irrational

for a jury to convict on this theory had the instruction

been given. Voluntary manslaughter, based on the unrea-

sonable belief of the need for self-defense, was the only

legally plausible branch of manslaughter that could be sup-

ported by the evidence. Therefore, on the failure-to-instruct

issue, we deny Carter’s petition.5

Reddick Error

It is now well settled that the murder and manslaughter

instructions at issue in this case, when read together, are

in violation of Illinois, as well as constitutional law. People

v. Shields, 575 N.E.2d 538 (Ill. 1991); People v. Carter, 532

N.E.2d 531 (Ill. App. 1st Dist. 1988); Falconer v. Lane,

905 F.2d 1129 (7th Cir. 1990); Rose v. Lane, 910 F.2d 400

(7th Cir. 1990), cert. denied, McGinnis v. Rose, 111 S. Ct.

515 (1990); United States ex rel. Fleming v. Huch, 924

F.2d 679 (7th Cir. 1991); Flowers v. Illinois Department

of Corrections, Nos. 91-2330, 91-2415 (7th Cir. 1992). The

only remaining question is whether the error was harm-

less beyond a reasonable doubt. We hold that it was not.

In Falconer the court considered the Reddick issue. In

reversing the murder conviction, the court stated that

5 Even assuming the trial court was in error in not “gg

on both theories of voluntary manslaughter, it could not be sai

that such error “inherently result{ed] in a complete miscarriage

of justice .. .” Peery supra. Therefore, we would reach the same

result.

App. 36

the jury may have been left with the false impres-

sion that it could convict the petitioner of murder

even if she possessed one of the mitigating states of

mind described in the voluntary manslaughter instruc-

tion... . The murder instruction, in other words, read

as though voluntary manslaughter did not exist as

a crime. No matter 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 in-

struction as given.

Id. 905 F.2d at 1136.

The court also disagreed with the state appellate court

on the issue of harmless error. The Falconer court stressed

that the real question was not whether the jury could have

convicted of murder, but whether it could have properly

convicted of voluntary manslaughter. Jd. at 1136. “ “The

error cannot be treated as harmless.’ ” Jd. at 1137 (quoting

United States v. Voss, 787 F.2d 393, 398 (8th Cir. 1986),

cert. denied, 479 U.S. 888).

Two months later the Seventh Circuit considered another

Reddick issue. Rose v. Lane, 910 F.2d 400 (1991). Pursu-

ant to Falconer, the court concluded, in rather summary

fashion, that the petitioner’s due process rights were vio-

lated. Id. at 402. On the issue of harmless error the court

described the jury instructions as “inherently prejudicial”

because “ ‘[e]xplicit misdirection on this seale violates the

constitutional guarantee of due process and demands a

new trial or resentencing.’ ” Jd. at 403 (quoting Falconer,

905 F.2d 1129, 1137). “The reasoning of Falconer on the

harmless error issue cannot be confined to the facts of

that case.” Id.§

6 As in the instant case, the jury in Rose was confused as to what

the jury instructions required of them. During deliberations the

(Footnote continued on following page)

App. 37

If there was any doubt after Falconer and Rose that the

Seventh Circuit would be hard pressed to find harmless

error in these cases, it was removed in Fleming, supra

(“instructions . . . worked an affirmative injustice; they

allowed-even invited-the jury to return a verdict of guil-

ty on the murder charge even if it made findings that

should have resulted in a verdict of voluntary manslaugh-

ter.”) and Flowers, supra (“Our review of the record con-

firms the state trial judge’s apparent belief, given that

he tendered a voluntary manslaughter instruction to the

jury, that the evidence presented at trial presented at

trial could support either a voluntary manslaughter ver-

dict or a murder verdict’’).

In view of the firm position taken by our circuit, we

believe we should grant Carter’s petition. The trial court

found sufficient evidence to instruct on voluntary man-

slaughter; therefore, it must have believed it rational for

a jury to convict on that offense. We agree. The jury

could well have reached that result if it believed in large

measure the defendant’s testimony and disbelieved the

state’s witnesses. And credibility determinations are the

province of the jury. The error in the instruction was not

cured by the trial judge’s oral instructions after the initial

8 continued

jury asked the court the following in writing: “If a decision of

Armed Violence is rendered and signed, does the — of Murder

also need to be signed? And must we find him not guilty of Volun-

tary Manslaughter.” The trial court directed the jury to return

a verdict for each of the three offenses. See Rose, 910 F.2d 403.

This response created the same problem uncovered by Carter’s

attorney below. A guilty verdict on murder, as defined by Illinois

legislature at the time of trial, was legally inconsistent with any

verdict on voluntary manslaughter, whether guilty or not guilty.

As in Rose, this ambiguity contributes to our finding that the error

was not harmless.

App. 38

verdict. The jury remained confused and unsure about its

duty as evidenced by the questions it asked of the court.

We find that the instructions “‘so infected the trial as to

violate due process.”’

CONCLUSION

For the foregoing reasons, we grant Carter’s writ of

habeas corpus. The writ shall issue unless the state retries

him within 120 days.

/s/ James B. Moran

JAMES B. MORAN

Chief Judge,

United States District Court

July 10, 1992.

App. 39

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CASE NUMBER: 91 C 2397

U.S.A. EX REL: ADOLPH CARTER

v.

KENNETH MCGINNIS ETC.

JUDGMENT IN A CIVIL CASE

__ Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and

the jury has rendered its verdict.

_X_ Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried

or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that we grant Car-

ter’s writ of habeas corpus. The writ shall issue unless

the state retries him within 120 days.

July 10, 1992 H. STUART CUNNINGHAM

Date Clerk

Willie A. Haynes

(By) Deputy Clerk