Cuevas v. Washington

Decision Date23 September 1994
Docket NumberNo. 92-3090.,92-3090.
Citation36 F.3d 612
PartiesMarilyn A. CUEVAS, Petitioner-Appellee, v. Odie WASHINGTON, Warden, Dixon Correctional Center, Respondent-Appellant.
CourtU.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.

FAIRCHILD, Circuit Judge.

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.

I. BACKGROUND
A. Facts

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, "I know he's referring to Rivera there and let me talk to him. You are going to get it...." Tr. at 89. Cuevas testified that Evans also told her that "she was going to stab me. She was going to kill him. She had her gun ready." 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 "she said that she knows that Hector Rivera is with Sally Evans ... and that she's throwing all of Hector's stuff out the windows right now, his clothes, and that she said she was going to stab my cousin when she catches my cousin, and that Hector, she was going to kill him, too. That if she can't have him, nobody was going to have him." 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," "here is the gun. I just shot him." 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:

Question: Did they Rivera and Torres leave the bar? Answer: Yeah.
Question: Did you leave the bar? Answer: Right behind them.
Question: Did you follow them? Answer: I followed them. I followed them to let her go, to let her fight with me, and there was a little alley like that crossing and I told her — I told Hector to let her go, let her fight with me. Look what you did to me. She's not a woman like me. She's a woman like me. Let her fight me.
Question: You said she's a woman like me. All I want to do is fight with her? Answer: Let me get at her, you know, and he was mad. He told me she's not going to fight with you and get out of here before I beat you up.
Question: What happened then? Answer: I told him — I told him if he hits me, I was going to get him for it.
Question: Were you still jealous? Answer: I was real angry.
Question: Then what happened? Answer: Then he kept on going with her. That's when I pulled out the gun, and I told him, I said, Hector. Then, he turned his face and looked.
Question: When you pulled out the gun, was Hector facing away from you? Answer: Yeah.
Question: Then what happened? Answer: He turned.
Question: Did he turn his whole body or just his face? Answer: No, he just turned his face.
Question: And then what did you do then? Answer: Then, I took a shot at his leg.
Question: Did you hit the back of his leg? ... Answer: Yes.
Question: And then what did you do then? Answer: Then, I took a shot at her, and then he just, like, grabbed me, you know, to try and get the gun off of me, and I gave two steps back. He was real close to me already.
Question: Then what did you do? Answer: I just shot and shot and shot.
Question: Did you then — then you just shot shot shot? Answer: Yeah.
Question: How many shots did you fire? Answer: Three more.
Question: Then what happened? Answer: Then, he went down, and I run after her.

Id. at 331-333.

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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