Free v. Peters

• Decision Date: 31 March 1994
• Docket Number: Nos. 92-3618,92-3711,s. 92-3618
• Citation: 12 F.3d 700
• Parties: James P. FREE, Jr., Petitioner-Appellee-Cross-Appellant, v. Howard A. PETERS, III, et al., Respondents-Appellants-Cross-Appellees. & 93-2517.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 700

12 F.3d 700

62 USLW 2466

James P. FREE, Jr., Petitioner-Appellee-Cross-Appellant, v. Howard A. PETERS, III, et al., Respondents-Appellants-Cross-Appellees.

Nos. 92-3618, 92-3711 & 93-2517.

United States Court of Appeals Seventh Circuit.

Argued Nov. 17, 1993.

Decided Dec. 21, 1993.

Rehearing and Rehearing En Banc

Denied March 31, 1994.

Kimball R. Anderson, Bruce R. Braun (argued), Gregg D. Reisman, Winston & Strawn, Chicago, IL, for petitioner-appellant.

Arleen C. Anderson (argued), Terence M. Madsen, Paula Giroux, Asst. Attys. Gen., Vincenzo Chimera, Richard Schwind, Steven J. Zick (argued), Office of Atty. Gen., Criminal Appeals Div., Chicago, IL, for respondents-appellants.

Cynthia Grant Bowman, Northwestern University Legal Clinic, David J. Bradford, Locke E. Bowman, III, Kathleen M. Banar, MacArthur Justice Center, Chicago, IL, for amicus curiae MacArthur Justice Center.

Before POSNER, Chief Judge, and BAUER and CUDAHY, Circuit Judges.

POSNER, Chief Judge.

In 1979, James P. Free, Jr. was convicted of a felony murder committed the previous year and was sentenced to death. After exhausting his state remedies, see People v. Free, 94 Ill.2d 378, 69 Ill.Dec. 1, 447 N.E.2d 218 (1983), 112 Ill.2d 154, 97 Ill.Dec. 396, 492 N.E.2d 1269 (1986), 122 Ill.2d 367, 119 Ill.Dec. 325, 522 N.E.2d 1184 (1988), he sought habeas corpus in federal district court. The district judge, concluding on the basis of a study by the late Hans Zeisel that the instructions to the jury at the hearing on whether to sentence Free to death had been so confusing as to be constitutionally infirm, ordered the state to resentence Free. United States ex rel. Free v. Peters, 778 F.Supp. 431 (N.D.Ill.1991), 806 F.Supp. 705 (N.D.Ill.1992). The state appeals. Free cross-appeals. The judge's order allows the state to request another death-sentence hearing, since the only infirmity in the previous one was the instructions. Free argues that reimposition of the death penalty is barred regardless of the instructions. So he is not just defending the judge's order on other grounds, and the cross-appeal is therefore proper. We begin our discussion with it.

At the time of the murder Illinois' felony-murder statute authorized capital punishment if "the murdered individual was killed in the course of ... rape." Ill.Rev.Stat. ch. 38 p 9-1(b)(6)(c) (1977). Free murdered his victim in the course of an attempted rape, and it was not until 1982, four years after the murder, that the Supreme Court of Illinois held that "in the course of" includes attempts. People v. Walker, 91 Ill.2d 502, 64 Ill.Dec. 531, 535-536, 440 N.E.2d 83, 87-88 (1982). (The statute has now been amended to make that explicit. 720 ILCS 5/9-1(b)(6)(c).) Free argues that the statute failed to give him fair warning that his conduct might expose him to a death sentence, and therefore that the sentence was a denial of due process. A failure to provide fair warning in the statute itself is not curable by a judicial decision rendered after the defendant acted. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). But the statute was sufficiently open to the interpretation that it included attempted as well as completed felonies to provide Free with all the notice to which the Constitution entitled him. As the statutory words "in the course of" imply, the felony-murder rule punishes as a murderer one who kills while committing a felony. It is an unimportant detail whether the killing occurs before or after the last act necessary to complete the felony. In the case of rape the felony is not complete until the penetration of the victim by the rapist, 720 ILCS 5/12-13, but we cannot imagine a reason for differentiating punishment according to whether the rapist killed his victim shortly before penetration or shortly after. It would carry legal fiction to offensive lengths to speculate that Free was inveigled by the Illinois legislature into killing his victim when he did because he reasonably believed that he could not be punished for capital felony murder. Although the interpretive issue was not resolved definitively until the state supreme court decided Walker, it is not as if until then the course of judicial interpretation had run the other way; there were no published decisions supporting Free's interpretation.

Evidence was presented at the sentencing hearing concerning the impact of the killing on the victim's family. Eight years later the U.S. Supreme Court held that "victim impact" evidence is inadmissible in a capital case. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). Four years after that, the Supreme Court overruled Booth. Payne v. Tennessee, --- U.S. ----, ---- - ----, 111 S.Ct. 2597, 2609-11, 115 L.Ed.2d 720 (1991). Free argues that Booth did not create a new rule, and therefore under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), was applicable to his sentencing hearing, but that Payne did, and therefore was inapplicable. The argument fails at its first step. The Supreme Court deems Teague a one-way street: designed as it is to protect the state's interest in the finality of criminal convictions, it entitles the state, but not the petitioner, to object to the application of a new rule to an old case. Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993). We add that Booth plainly stated a new rule under the expansive criteria that the Court uses for deciding this question. See, e.g., Gilmore v. Taylor, --- U.S. ----, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993).

The other issues presented by the cross-appeal do not require discussion; they were adequately dealt with by the district judge. We move on to the state's appeal. By way of background, we point out that in Illinois a death-sentence hearing has two stages. In the first, the jury is asked whether the state has proved beyond a reasonable doubt the existence of at least one of the statutory circumstances that makes the defendant eligible for the death sentence, such as killing in the course of rape. 720 ILCS 5/9-1(g). If the jury finds beyond a reasonable doubt (Sec. 9-1(f)) that at least one such circumstance was present, it proceeds to the second stage, where it is required to consider aggravating factors (including but not limited to the "eligibility" factors) and mitigating factors. "Mitigating factors may include but need not be limited to the following...." Five factors are listed; they include: defendant has no significant criminal history; defendant acted under "extreme mental or emotional disturbance"; and defendant was not present in person when the victim was killed. Sec. 9-1(c). "If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death." Sec. 9-1(g). At this second stage, where the jury is comparing aggravating and mitigating factors, there is no burden of persuasion. The prosecutor has the burden of producing evidence of aggravating factors and the defendant has the burden of producing evidence of mitigating factors, but if both parties satisfy these burdens the burden of proof drops out. People v. Simms, 143 Ill.2d 154, 157 Ill.Dec. 483, 495, 572 N.E.2d 947, 959 (1991). Later Simms says that "the State must ... persuade the jury that there are no mitigating factors," id. 157 Ill.Dec. at 496, 572 N.E.2d at 960, but it is evident from its citation to People v. Bean, 137 Ill.2d 65, 147 Ill.Dec. 891, 560 N.E.2d 258 (1990), that the court was not attempting to speak with legal precision. For in that case, decided only one year earlier, the court had been explicit that both parties bear the burden of persuasion, id. 147 Ill.Dec. at 924-25, 560 N.E.2d at 291-92, which is the equivalent of saying that neither does. At all events, Free's briefs do not challenge the proposition that there is no burden of persuasion once the state has proved beyond a reasonable doubt the defendant's "eligibility" for the death sentence.

An instruction alleged to be confusing is constitutionally defective if there is a "reasonable likelihood" that it misled the jury into sentencing the defendant to death. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The district judge invalidated two of the instructions given at Free's sentencing hearing under this standard. The first concerned the burden of persuasion (or rather lack thereof) in the jury's determination whether to impose the death penalty upon consideration of the aggravating and mitigating factors. The jury had been told: "If, from your consideration of the evidence and after your due deliberation, there is at least one of you who finds that there is at least one mitigating factor sufficient to preclude the imposition of the death sentence then you should return a verdict that the Defendant be sentenced to imprisonment. On the other hand, if from your consideration of the evidence and after your due deliberation you unanimously find that there are no mitigating factors sufficient to preclude the imposition of the death sentence then you should return a verdict that the Defendant be sentenced to death." Free argues that the words "sufficient to preclude" gave the jury insufficient guidance to how to weigh mitigating against aggravating factors.

The other instruction also concerned mitigating factors: "If you unanimously find from your consideration of all the evidence that there are no mitigating factors sufficient to preclude the imposition of a sentence of death then you should return a verdict imposing a sentence of death. If, on the other hand, you do not unanimously find that there are no mitigating factors sufficient to preclude the imposition of a sentence of death then you should return a verdict that the sentence of death should not be imposed." Free objects that the jury was not told it was free to...