U.S. ex rel. Peery v. Sielaff

Citation615 F.2d 402
Decision Date25 October 1979
Docket NumberNo. 78-1167,78-1167
PartiesUNITED STATES of America ex rel. Major PEERY, Petitioner-Appellant, v. Allyn R. SIELAFF, Director, Department of Corrections, State of Illinois, and David Brierton, Warden, Stateville Correctional Center, Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Michael Mulder, Asst. State Appellate Defender, Mary Robinson, Deputy State Appellate Defender, Elgin, Ill., for petitioner-appellant.

Michael B. Weinstein, Chicago, Ill., for respondents-appellees.

Before CUMMINGS, TONE and BAUER, Circuit Judges.

PER CURIAM.

On the evening of March 31, 1971, Major Peery killed his wife in the kitchen of his daughter's home. He was tried and convicted of murder in July of that year, but the judgment was reversed on appeal due to the trial court's erroneous rejection of Peery's proposed instructions on voluntary manslaughter. 11 Ill.App.3d 730, 297 N.E.2d 643 (1st Dist. 1973). At his retrial, Peery again proffered instructions on voluntary manslaughter. The trial court tendered the instruction on voluntary manslaughter based on unreasonable belief in justification (self-defense) but refused the instruction on voluntary manslaughter based on sudden and intense passion resulting from serious provocation. 1 Peery was again convicted of murder and this time the judgment was affirmed on appeal. 41 Ill.App.3d 533, 354 N.E.2d 536 (1st Dist. 1976). He appeals from dismissal of his petition for Habeas Corpus, 28 U.S.C. § 2254. The sole issue on appeal is whether the trial court's refusal to instruct on voluntary manslaughter based on sudden and intense passion resulting from serious provocation violated petitioner's Sixth Amendment right to trial by a jury, or his Fifth and Fourteenth Amendment right to due process.

The general principle is well established that a criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has "some foundation in the evidence, 'even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.' " See United States v. Creamer, 555 F.2d 612, 616 (7th Cir. 1977) (rehearing denied), quoting United States v. Hillsman, 522 F.2d 454, 459 (7th Cir. 1975) and United States v. Lehman, 468 F.2d 93, 108 (7th Cir. 1975). Cf. United States v. Garner, 529 F.2d 962 (6th Cir. 1976) (rehearing denied). The district court rejected petitioner's Sixth Amendment argument, in part because "we have found no cases which even intimate such an expansion of Sixth Amendment protection, and we are unwilling to break new constitutional ground in the absence of even analogous authority." The Fifth Circuit has said, however, that:

If the trial judge evaluates or screens the evidence supporting a proposed defense and upon such evaluation declines to charge on that defense, he dilutes the defendant's jury trial by removing the issue from the jury's consideration. In effect, the trial judge directs a verdict on that issue against the defendant.

Strauss v. United States, 376 F.2d 416 (5th Cir. 1967). Since the result is trial by the judge, rather than trial by a jury, both Sixth Amendment and Due Process rights may be at issue. Zemina v. Solem, 573 F.2d 1027 (8th Cir. 1978), affirming and adopting Zemina v. Solem, 438 F.Supp. 455 (S.D.1977) (Nichol, C. J.).

In general, however, the "(f)ailure of the state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding." James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976). Cf. DeBerry v. Wolff, 513 F.2d 1336, 1339 (8th Cir. 1975); Bonner v. Henderson, 517 F.2d 135 (5th Cir. 1975); Grech v. Wainwright, 492 F.2d 747 (5th Cir. 1974). See also United States ex rel. Waters v. Bensinger, 507 F.2d 103, 105 (7th Cir. 1974) ("instructions to the jury in state trials are matters of state law and procedure not involving federal constitutional issues.").

In a habeas action the question is whether the petitioner alleges a "fundamental defect which inherently results in a complete miscarriage of justice (or) an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). The question before us is whether the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Where it is the omission of an instruction that is at issue, the petitioner's burden is "especially heavy" because "(a)n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977).

In this case, the evidence of serious provocation was not so unequivocally strong that failure to give the instruction could be said to have amounted to a fundamental miscarriage of justice. 2

The defendant testified at his second trial that he had been separated from his wife for about six weeks when he went to see her at his daughter's house to talk with her about having another daughter, Margaret, live with him. He told his wife he had called the Jehovah's Witnesses to report that she and the children should not be living with her son, Henry, because Henry was housekeeping with a woman to whom he wasn't married. He then said he would divorce her, since she had left him. Then,

She walked up and I said, "Well, go on." She kind of went in a rage. I said, "Well, I'm going. I don't feel too good anyway."

Q. Then what happened after that?

A. Well, she walked up and she said, "Anyway, I made up my mind to kill you."

Q. Then what happened?

A. She reached over in the sink.

Q. Then what happened after that? Did you say anything to that?

A. I asked her what she was going in the sink for.

Q. Then what happened?

A. I grabbed after her hand, and when I grabbed after her hand, my hand hit the sink and slid, and when I straightened up, I got hit in the head. (R. 479-480).

He testified that when she went to the sink he thought she intended to harm him, because she had threatened him, and he was afraid she might kill him. (R. 482). He did not, however, know what was in the sink. (R. 511). He testified that it was his wife who struck him, although other witnesses testified that they struck him with a chair and a spoon after he initiated his attack. He also testified that she had previously threatened to kill him, and twice before, in the 1950's, had struck him with a knife. Other witnesses testified that he accused her of seeing other men.

Under Illinois law,

The only types of provocation recognized as serious enough to reduce the crime of murder to voluntary manslaughter are: ". . . 'substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender's spouse, but not mere words, or gestures, or trespass to property' ". (People v. Crews, (1967) 38 Ill.2d 331, 335, 231 N.E.2d 451, 453.)

People v. Free, 37 Ill.App.3d 1050, 1052, 347 N.E.2d 505 (1976). See, S.H.A. Chap. 38, par. 9-2, Committee Comments.

If instruction on provocation was warranted here, it would have to have been based on mutual quarrel or combat. Generally, however, mere quarrel without combat is insufficient. Thus, in Crews, supra, which involved a child abuse murder, the court said, "(i)t is ludicrous, however, to suggest that a reasonable person could have been provoked by the actions of a 2 year old child." In People v. Matthews, 21 Ill.App.3d 249, 314 N.E.2d 15 (1974), the defendant testified that he got in an argument with a tow truck operator who "hollered and waved his hand in (defendant's) face. Matthews feared that (the tow truck driver) would attack him and he lost control and shot and killed (him)." The court said that this falls far short of meeting the objective test of reasonable provocation:

It is the general rule that language, however aggravated, abusive, opprobrious, or indecent, is not sufficient provocation to reduce a killing committed with a deadly weapon from murder to manslaughter.

The term mutual combat has been defined as one into which both parties enter willingly, or in which two persons, upon a sudden quarrel, and in hot blood, mutually fight upon equal terms. 15 C.J.S. Combat p. 358. A slight provocation will not be adequate since the provocation must be proportionate to the manner in which the accused retaliated and therefore if accused on a slight provocation attacked deceased with violence out of all proportion to the provocation and killed him the crime is murder. This is especially true if the homicide was committed with a deadly weapon.

People v. Matthews, 21 Ill.App.3d at 253, 314 N.E.2d at 18-19.

The requirement that the response be proportional is clear in People v. Simpson, 74 Ill.2d 497, 23 Ill.Dec. 579, 384 N.E.2d 373 (1978), where denial of a voluntary manslaughter instruction was upheld because, "(i)t is an extravagant suggestion that scratches by the wife could serve as provocation for a malice-free but ferocious attack by the defendant with a deadly instrument." There was no evidence of an exchange of blows, of beating, or a threatened attack. (R. 503). On the other hand, where the defendant testified that his wife attacked him with a knife while they were fighting, that was held sufficient to require instruction on voluntary manslaughter based on sudden and intense passion resulting from an intense passion even though she was stabbed 53 times. People v Boothe, 7 Ill.App.3d 401, 403, 287 N.E.2d 289 (1972). In People v. Canada, 26 Ill.2d 491, 187 N.E.2d 243 (1962), the murder conviction of a man who had been feuding with another man in his rooming house was reversed because voluntary manslaughter instructions had been refused despite evidence that the...

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