Falconer v. Lane

• Decision Date: 29 June 1990
• Docket Number: No. 89-2895,89-2895
• Citation: 905 F.2d 1129
• Parties: Phyllis FALCONER, Petitioner-Appellee, v. Michael P. LANE and Neil F. Hartigan, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1129

905 F.2d 1129

Phyllis FALCONER, Petitioner-Appellee, v. Michael P. LANE and Neil F. Hartigan, Respondents-Appellants.

No. 89-2895.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 1990.

Decided June 29, 1990.

Louis B. Garippo, Lydon & Griffin, Chicago, Ill., for petitioner-appellee.

Kenneth A. Fedinets, Richard S. London, Asst. Attys. Gen., Chicago, Ill., for defendant-appellant.

Kenneth A. Fedinets, Richard S. London, Asst. Attys. Gen., Chicago, Ill., for respondent-appellant.

Before BAUER, Chief Judge, CUMMINGS and KANNE, Circuit Judges.

CUMMINGS, Circuit Judge.

At her state court trial for murder, Phyllis Falconer attempted to prove that she killed her husband only in self-defense. The jury was instructed to consider the lesser offense of voluntary manslaughter. The jury nonetheless convicted Mrs. Falconer of murder and she was sentenced to 24 years in prison. Following a series of appeals described below, her second collateral attack on her conviction prevailed in district court. United States ex rel. Falconer v. Lane, 720 F.Supp. 631 (N.D.Ill.1989). Paralleling a holding of the Illinois Supreme Court in a separate case, the district court held that the petitioner was denied due process because the instructions given to the jury at trial allowed the jury to return a verdict of murder even if the jury made findings that should have resulted in a verdict of voluntary manslaughter. We agree that the instructions were constitutionally inadequate under the Fourteenth Amendment's Due Process Clause and therefore affirm.

I.

The facts of the petitioner's criminal case presented in the Circuit Court of Kane County, Illinois, are set out in the state appellate court opinion and two district court opinions discussed below and do not bear extensive repetition. The petitioner stabbed her husband with a knife two times, once fatally, in their home on the morning of May 26, 1986. The State sought to prove at trial that during an altercation between the two the petitioner delivered the fatal blow to the victim's back while the victim fled from her. The petitioner sought to prove that the decedent had physically abused the petitioner for many years (they were married two times for a total of 26 years of marriage), that at the time of the stabbing she was seriously ill, and that she stabbed him only in self-defense and in a confused state of mind immediately after he angrily confronted her and slapped her hard in the face.

On November 20, 1986, the petitioner was convicted of murder ¹ and shortly thereafter received her sentence. She appealed her conviction to the Appellate Court of Illinois, Second District, on various grounds, none of which directly raised the constitutional validity of the jury instructions. ² That direct appeal was denied in a published opinion in April 1988. People v. Falconer, 168 Ill.App.3d 618, 119 Ill.Dec. 241, 522 N.E.2d 903. The petitioner promptly filed a petition for leave to appeal from that decision to the Illinois Supreme Court.

About two months thereafter, before it had acted on Mrs. Falconer's petition, the Illinois Supreme Court held in a separate, consolidated case that it was "grave error" to give instructions identical to those given at petitioner's trial. People v. Reddick, 123 Ill.2d 184, 198, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988). The Reddick Court first held that where a defendant on trial for murder asserts that, even if not fully justified as one would be in killing another in self-defense, the defendant acted either under sudden and intense passion resulting from serious provocation or else in the unreasonable belief that circumstances existed that would have justified the killing (self-defense), the State bears no burden of proof regarding those claims in order to secure a voluntary manslaughter conviction. Id. at 195, 122 Ill.Dec. 1, 526 N.E.2d 141. Instructions to the contrary were seriously defective, the Court held, because they directed the jury that it could find a defendant charged with murder guilty of voluntary manslaughter only if the State proved one of those two mitigating mental states on the part of the defendant.

A second holding of the Court is even more important to this appeal. The Court held that if a defendant in a murder trial presents sufficient evidence to raise these mitigating "manslaughter defenses" of serious provocation or unreasonable belief of justification, the jury must be instructed that in order to return a verdict of murder the State must have proved beyond a reasonable doubt that those defenses are without merit. Reddick, 123 Ill.2d at 197, 122 Ill.Dec. 1, 526 N.E.2d 141.

Two months thereafter, the Illinois Supreme Court granted petitioner's motion for leave to supplement her petition for leave to appeal. Her supplement raised Reddick as the basis for relief on due process grounds. Nevertheless, the petition was denied without any comment by the Illinois Supreme Court in September 1988. People v. Falconer, 122 Ill.2d 583, 125 Ill.Dec. 226, 530 N.E.2d 254.

In December 1988, Mrs. Falconer filed a petition for habeas corpus redress in the United States District Court for the Northern District of Illinois. The petition was denied as premature under 28 U.S.C. Sec. 2254(c) after the State asserted that the petitioner had yet to attempt to exhaust potential remedies under the Illinois post-conviction statute, Ill.Rev.Stat. ch. 38, p 122-1. United States ex rel. Falconer v. Lane, 708 F.Supp. 202,205 (N.D.Ill.1989). The district court was motivated to find that the petitioner's claims had not been exhausted in part because the State assured the court that res judicata would not bar her claims in state court. United States ex rel. Falconer v. Lane, 720 F.Supp. 631, 639 (N.D.Ill.1989).

Consequently, as the State virtually invited her to do, the petitioner promptly filed a petition for post-conviction relief in Kane County Circuit Court, continuing to raise the Reddick ground that the combination of murder and manslaughter jury instructions given at her trial violated her constitutional rights to due process and a fair trial. In response, the State moved to dismiss the post-conviction petition. This time the State asserted that the Illinois Supreme Court's denial of her petition for leave to appeal barred relief on res judicata grounds! The state trial court agreed that the state Supreme Court's denial of leave to appeal constituted a decision on the merits barring further judicial review by the state courts and dismissed her post-conviction petition.

Because the State was successful in its res judicata argument before the state trial court, Mrs. Falconer, instead of continuing to press her action for post-conviction relief in the Illinois courts, filed a second petition for writ of habeas corpus in federal district court. That is the action under consideration in this appeal. Again she maintained that the jury instructions given at her trial violated her right to due process. This time the district court reached the merits of her claim and found in her favor. The district court ordered the State to alter her conviction from murder to voluntary manslaughter and resentence her on that conviction, or to retry her for murder within 120 days. Falconer, 720 F.Supp. at 645.

The district court found that the first concern of the Reddick Court was avoided in the petitioner's trial. That was the concern that in a murder case in which voluntary manslaughter is offered to the jury as a lesser-included offense the jury would be effectively prevented from returning a voluntary manslaughter verdict if it followed the instruction that the State has the surprising and discordant duty of also proving the mitigating "manslaughter defenses" at the same time it also attempts to win a murder conviction. The district court found that this problem was eliminated from the petitioner's trial because the trial record as a whole reflects that the state trial court adequately informed the jury that it should convict the petitioner of voluntary manslaughter if it determined, from evidence produced by either side, that she was entitled to those mitigating defenses. Falconer, 720 F.Supp. at 643 n. 6. While the potential for confusion was considerable, we agree with the district court that this improper voluntary manslaughter instruction was probably "cured" by other statements of the trial court and therefore does not rise to the level of a constitutional violation.

On the other hand, the district court found that the Reddick Court's second concern had not been dispelled at the petitioner's trial. This second concern was that if a defendant in a murder trial presents sufficient evidence to raise the mitigating "manslaughter defenses," the jury must be instructed that in order to return a verdict of murder the State must have proven beyond a reasonable doubt that those defenses are without merit. Reddick, 123 Ill.2d at 197, 122 Ill.Dec. 1, 526 N.E.2d 141. The district court in this case was troubled by the fact that the jury was never informed that in the event it did find one of the mitigating states of mind it could not convict the petitioner of murder. Falconer, 720 F.Supp. at 643-44. Once the state trial court determined that the jury could find the petitioner guilty of voluntary manslaughter and decided to read an instruction on that lesser-included offense, it was required under the due process guarantee to inform the jury of the fact that proof of one of the mitigating states of mind would nullify the State's murder case. Id.

We have jurisdiction under 28 U.S.C. Sec. 1291 to hear the State's appeal. We affirm. ³

II.

Relevant jury instructions used at the petitioner's trial came from various homicide instructions found in the Illinois Pattern Jury Instructions, Criminal Nos. 7.02 (murder), 7.04 (voluntary manslaughter--provocation), 7.06 (voluntary manslaughter--belief of justification), and 24-25.06 (use of force in defense...