Carter v. DeTella

• Decision Date: 23 September 1994
• Docket Number: No. 92-2978.,92-2978.
• Citation: 36 F.3d 1385
• Parties: Adolf CARTER, Petitioner-Appellee, v. George E. DeTELLA, Warden, Danville Correctional Center, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

36 F.3d 1385

Adolf CARTER, Petitioner-Appellee, v. George E. DeTELLA,^* Warden, Danville Correctional Center, Respondent-Appellant.

No. 92-2978.

United States Court of Appeals, Seventh Circuit.

Argued September 30, 1993.^**

Decided September 23, 1994.

Rehearing Denied October 13, 1994.

Rehearing and Suggestion for Rehearing Denied November 30, 1994.

Scott R. Lassar, Richard J. Jacobson, Mary B. Snyder, Keck, Mahin & Cate, and Lawrence C. Marshall (argued), Northwestern University Legal Clinic, Chicago, IL, for petitioner-appellee.

Terence M. Madsen, Asst. Atty. Gen., Thomas L. Ciecko, Deputy Atty. Gen., and Steven Zick (argued), Office of the Atty. Gen., Crim. Appeals Div., Chicago, IL, for respondent-appellant.

Before FAIRCHILD, COFFEY and RIPPLE, Circuit Judges.

Rehearing and Suggestion for Rehearing In Banc Denied November 30, 1994.

FAIRCHILD, Circuit Judge.

Petitioner-appellee Adolf Carter ("Carter") was convicted of murder and armed violence in Illinois state court following a jury trial. Carter challenges the murder conviction, contending that instructions 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 judgment of the district court granting Carter's petition for a writ of habeas corpus.¹ 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 evening, he was complaining that his head hurt; his mother watched over him. She went to work early the next morning, 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 outside the car and saw Carter standing with a baseball bat. Carter said, "bitch, 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." Id. at 290.

William Johnson ("Johnson") testified that he was sitting 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.² 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 happened. Carter testified that he was stabbed in the leg and knocked down during the fight.

Carter was talking to Byrd on the sidewalk and Young was standing by the back of his car. As Byrd was talking to Carter, she "threw her hands over her face." Id. 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 testified 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, believing 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 under the scalp, an extensive skull fracture, and injury to the brain. Bates' death "was caused by multiple blunt trauma injuries to the head." Id. 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.³ Ill.Pattern Jury Instructions, Criminal IPI, No. 7.02 ("Issues in Murder") and No. 7.06 ("Issues in Voluntary Manslaughter — Intentional — Belief of Justification") (2d ed. 1981). The jury was also instructed on self-defense⁴ and armed violence.

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 instruction listed the elements of voluntary manslaughter and told the jury that the State must prove them beyond a reasonable doubt. The elements of voluntary manslaughter 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 unreasonable 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 reasonable doubt.

These instructions are the same as those considered in People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (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 instruction placed the burden on the State to prove that the defendant acted under a sudden and intense passion resulting 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 elements, 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." 122 Ill.Dec. at 5, 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 manslaughter. The reason is that even if a mitigating mental state is proved, it will have been proved by the defendant, not the People." Id. The court concluded that "grave error" had occurred. Id., 122 Ill.Dec. at 7, 526 N.E.2d at 147.⁶

Subsequently, this court held that when the same instructions are given, they violate federal due process because a jury may have been left with the false impression 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, ___ U.S. ___, 113 S.Ct. 2954, 125 L.Ed.2d 656 (1993), on remand, 5 F.3d 1021 (1993); Taylor v. Gilmore, 954 F.2d 441, 450 (7th Cir.1992), rev'd on other grounds, ___ U.S. ___, 113 S.Ct. 2112, 124 L.Ed.2d 306 (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, 111 S.Ct. 515, 112 L.Ed.2d 526 (1990).

C. Procedural History

In an unpublished opinion (following a petition for rehearing by Carter), the Illinois Appellate Court found that while the instructions were error under Reddick, the error 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....