Cuevas v. Washington
Decision Date | 23 September 1994 |
Docket Number | No. 92-3090.,92-3090. |
Citation | 36 F.3d 612 |
Parties | Marilyn A. CUEVAS, Petitioner-Appellee, v. Odie WASHINGTON, Warden, Dixon Correctional Center, Respondent-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Paul W. Schroeder, Charles E. Watson, II, Jones, Day, Reavis & Pogue, Martin S. Carlson, Office of the State Appellate Defender, Lawrence C. Marshall (argued), Northwestern University Legal Clinic, Michael Rachlis, Hedlund & Hanley, Chicago, IL, for petitioner-appellee.
Roland W. Burris, Steven J. Zick (argued), Office of the Atty. Gen., Criminal 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.
Petitioner-appellee Marilyn Cuevas ("Cuevas") was convicted of murder and attempted murder in Illinois state court following a jury trial. Cuevas challenges the murder conviction, contending that instructions given her jury violated her federal due process rights. She also argues that she should be resentenced with respect to attempted murder. Odie Washington, the Warden of the Dixon Correctional Center where Cuevas is incarcerated, appeals from a judgment of the district court granting Cuevas' petition for a writ of habeas corpus. 811 F.Supp. 1294.1 We reverse.
Sally Evans ("Evans") met Hector Rivera ("Rivera") in 1980, began living with him in 1981, had a son by him, and married him in March 1984. Rivera moved out within the first month of marriage, but would come see Evans and her children about twice a week, and would telephone regularly. He also moved back in and then out again in April. When he was not living with Evans, he was living with Cuevas. At times, Evans would call Rivera at Cuevas' house.
Evans last saw Rivera on June 1, 1984, while at her mother's house. While there, Evans answered a phone call from Cuevas. Cuevas told her, Tr. at 89. Cuevas testified that Evans also told her that Id.
Victoria Rosario, Evans' cousin, was at Evans' mother's house when Cuevas called. Later that day, she received a phone call at her home from Cuevas. Cuevas asked for Evans, but Rosario said she was not there. Rosario testified that Id. at 122.
Juana Torres ("Torres") testified that on June 7, 1984, she went to a bar named La Zona Roja with Rivera around 11:00 p.m. There, they met Rivera's brother Miguel and talked with him. Cuevas, who was a waitress at the bar, was there, and asked Torres to follow her to the bathroom. In the bathroom, Cuevas asked Torres if she "had something going" with Rivera. Torres said they were just friends. Torres returned to the table where Rivera and Miguel were seated. About ten minutes later, Cuevas came to the table and called Torres a whore. Cuevas then pushed Torres to the floor, Torres got up and pushed back, and then Rivera made a fist aimed at Cuevas' face, but Torres did not see him actually hit Cuevas. They were then thrown out of the bar.
Torres testified further that she left the bar first. She started to walk home, and got about two or three blocks from La Zona Roja when she stopped at a bar to call her brother and the police. Cuevas and Rivera followed her in, and Cuevas would not let her call, so Torres left to go to the police station. Rivera and Cuevas followed behind her, talking. When Torres was near the police station, Cuevas again called her a whore. Rivera, in turn, said Cuevas was the whore. As Rivera started to walk, Torres heard a shot. Torres saw Cuevas with a gun; Rivera was walking towards Cuevas. Rivera grabbed his leg, and continued to walk towards Cuevas. Rivera then grabbed Cuevas' hands with the gun in them and pulled them upwards. Torres heard a shot. Rivera let Cuevas have the gun, and he walked towards Torres. The next thing Torres saw, Rivera was on the ground, and Cuevas had the gun in her hands and was pointing to Rivera, and Cuevas shot the gun. Cuevas started shooting at Torres, so Torres began walking in zig-zags until she reached the police station. Rivera died as a result of multiple gunshot wounds.
Shirley Jobe ("Jobe"), a Chicago police officer, testified that as she was leaving the police station just before midnight on June 7, she heard several shots. Cuevas approached her, with a gun dangling from her index finger. She handed Jobe the gun, saying in "almost a bragging manner," Id. at 244, 246. She did not appear to be upset.
Assistant State's Attorney Lori Levin ("Levin"), after advising Cuevas of her Miranda rights, interviewed Cuevas at 4:25 a.m. with two detectives present. She initially discussed the matter with Cuevas, and then a court-reported statement was taken, with Levin asking Cuevas questions. That statement contains the following:
Cuevas testified that she met Rivera in late 1983 when he was a customer at La Zona Roja. In mid-January 1984, he moved in with her. Beginning in mid-March, their relationship began to change. Rivera started to get upset by Cuevas' children (Cuevas had seven), and the two began fighting. Cuevas testified about three occasions when Rivera physically assaulted her; on one occasion, Rivera broke her nose. Rivera threatened at various times to beat Cuevas up and destroy her face. Cuevas told him a number of times to leave, but he didn't until June 1.
On the morning of June 1, Rivera came to Cuevas' apartment. Cuevas told him to take his things, but he refused to at that time. As he was leaving she threw a box of his things out the window. After he left, she threw all his things (except for books and weights) out the window.2 That night, around midnight, he came to her house with the police, asking for his property. The next morning, he was outside her house in a car with some men; they did not speak.
The next day, Rivera kept calling, telling Cuevas he was going to get her for humiliating him. He also drove by her house with some men, and gestured by putting his fist into his open hand. He threatened to take her into an alley and have his friends rape her, then beat her up and destroy her face. Cuevas knew Rivera carried a switchblade.
On June 7, when Cuevas left work at 4:00 a.m., Rivera was outside with three or four friends. When Cuevas saw them, she quickly crossed the street, and a man she knew ("David") and her friend Carmen pulled up in a car and said they would take her home. When they reached Cuevas' apartment, Cuevas gave the apartment keys to Carmen so she could check if Rivera was in her apartment (Carmen was living with Cuevas at the time). Carmen did not look out the window to signal Cuevas in as planned. Cuevas, who had a knife, decided to go up to her apartment because her kids were there. David called her back to the car and gave her a gun, saying "don't shoot him, but protect yourself."3 Id. at 515. Rivera was inside the apartment building's entrance, and he grabbed Cuevas as she came in the door. He dragged her up the stairs and began hitting her. When Rivera let go of one hand to hit her, Cuevas pulled the gun out, and Rivera went down the stairs. He started to come back up the stairs, saying, "you better use it, bitch"; she took a shot, and he ran out of the building. Id. at 517. Cuevas went into the apartment, and Carmen was sleeping.
Cuevas filed a complaint against Rivera, and he was arrested.4 Later that night (June 7), she went to work. Around 10:00 p.m., Rivera's cousin Ruth came in; Cuevas...
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