# Appendix — Carter v. DeTella

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1358%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1083

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1358%3A2. Public record. Not legal advice.