Nichols v. Gagnon

• Decision Date: 29 June 1983
• Docket Number: No. 81-2914,81-2914
• Citation: 710 F.2d 1267
• Parties: James A. NICHOLS, Petitioner-Appellant, v. John R. GAGNON and Bronson La Follette, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1267

710 F.2d 1267

James A. NICHOLS, Petitioner-Appellant, v. John R. GAGNON and Bronson La Follette, Respondents-Appellees.

No. 81-2914.

United States Court of Appeals Seventh Circuit.

Argued April 26, 1983.

Decided June 29, 1983.

Richard D. Martin, State Public Defender, Madison, Wis., for petitioner-appellant.

Kirbie Knutson, Asst. Atty. Gen., Madison, Wis., for respondents-appellees.

Before PELL, POSNER and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

One evening in September 1974 James Nichols was drinking in a bar in Milwaukee with a group that included Marie Greenamyer. Although she was married, her husband was not present. The group decided to leave for another bar. Nichols and Mrs. Greenamyer drove separate cars; the rest of the group was in a third car. According to Mrs. Greenamyer's testimony, Nichols was following her and when she lost sight of the third car she became afraid, because he had made advances to her earlier in the evening. In an effort to evade him she turned by mistake into a dead-end street. She stopped her car and turned off the lights and ignition, hoping Nichols would not notice her. But he did. He stopped his car behind hers, got out, and came over to her car and began talking to her, renewing his earlier advances. She got out of the car and tried to run away. He attacked her. She fought him off, but when he began to choke her and threaten her with a knife, she stopped resisting, and Nichols attempted to have intercourse with her. He had difficulty achieving an erection but managed to penetrate her briefly. He then released her but ordered her to follow him in her car. She stopped her car at an intersection and ran into a bar, shouting, "This guy tried to kill me, tried to rape me. He tried to rape me; he raped me." She was cut and bruised.

Nichols testified as follows: He had indeed approached Mrs. Greenamyer after her car had stopped in the dead-end street, and asked her to have intercourse with him. She consented, but he was impotent and only put his finger in her vagina. She reacted with disgust and expressed fear that her husband would find out about the incident. He then left.

In 1975 a jury found Nichols guilty of rape and other offenses. He was sentenced to 20 years for rape and an additional two years for endangering safety by conduct regardless of life. After exhausting state remedies he brought this federal habeas corpus action in 1980, and he appeals from the denial of his petition. (He was paroled recently after serving 7 1/2 years in prison, but of course that does not moot this action.) The only issue we are asked to decide is whether the trial judge's refusal to instruct the jury on the lesser included offense of attempted rape was an error of constitutional magnitude.

Under the law of Wisconsin an instruction on a lesser included offense is proper only if there is a reasonable basis in the evidence for conviction of that offense. "To give an instruction on a lesser included offense when the commission of that lesser included offense is not reasonably shown by the evidence is no favor to a defendant. The inclusion of a doubtful lesser included offense is likely to result in a jury's compromise to the detriment of the defendant." Ross v. State, 61 Wis.2d 160, 170, 211 N.W.2d 827, 832 (1973). "[T]he evidence is to be viewed in the most favorable light it will 'reasonably admit of from the standpoint of the accused.' This test does not call for a weighing of the evidence by the trial judge. He is merely obliged to examine the evidence to determine whether the proposed instruction is based upon mere conjecture and whether, if a verdict were returned on the lesser included offense, he would be obliged to set it aside.... To instruct on the lesser included offense, ... the evidence of the lesser included offense must be relevant and appreciable; and as considered most favorably to the defendant, the inclusion of the instruction must not be unreasonable." 61 Wis.2d at 172-73, 211 N.W.2d at 833. The rule in federal criminal trials, and in virtually all the states, is the same or similar. See Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973); Beck v. Alabama, 447 U.S. 625, 636 n. 12, 100 S.Ct. 2382, 2389 n. 12, 65 L.Ed.2d 392 (1980). The Wisconsin Supreme Court concluded that it would have been unreasonable for the jury to have convicted Nichols of attempted rape, but the court did not explain the basis for its conclusion.

Nichols does not question the constitutional adequacy of the Wisconsin standard (nor could he after Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); see also Bell v. Watkins, 692 F.2d 999, 1004 (5th Cir.1982)), but only the application of the standard to the facts of his case. He argues that the jury might have believed on the one hand that he had tried to rape Mrs. Greenamyer and on the other hand that he had not succeeded--might in other words have believed all of Mrs. Greenamyer's testimony except on penetration. The state rejoins that since Nichols' testimony did not support a theory of attempted rape--he denied having coerced her at all--and since Mrs. Greenamyer's testimony was that she had been raped, there was no evidentiary basis for convicting Nichols of attempted rape. We disagree. Since both testified to Nichols' difficulty in achieving an erection, the evidence that Mrs. Greenamyer was forced was inherently stronger than the evidence that she was raped. And when she first told of the incident she said twice that Nichols had tried to rape her. (This is ambiguous, though; she may not have realized that even slight penetration is enough to constitute rape.)

If it were our duty to decide whether there was a reasonable evidentiary basis for an instruction on attempted rape, we would hold there was; but it is not. A federal court in a habeas corpus proceeding brought by a state prisoner does not sit to correct errors in the application of state law. Carbajol v. Fairman, 700 F.2d 397, 401 (7th Cir.1983). In United States ex rel. Peery v. Sielaff, 615 F.2d 402, 404 (7th Cir.1979), therefore, we joined several other circuits in holding that failure to instruct on a lesser included offense, even if incorrect under state law, does not warrant setting aside a state conviction unless "failure to give the instruction could be said to have amounted to a fundamental miscarriage of justice." It could not here. Although as an original matter we think Nichols was entitled under the standard enunciated in Ross v. State to an instruction on the lesser included offense of attempted rape, it is a close question and we cannot say that the Wisconsin Supreme Court was unreasonable to resolve it against him, or that the denial of the instruction in the circumstances of this case was likely to have resulted in the conviction of an innocent man.

But we must consider whether Peery can survive Beck v. Alabama, supra, 447 U.S. at 638, 100 S.Ct. at 2390, where the Supreme Court held that "if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [the state] is constitutionally prohibited from withdrawing that option from the jury in a capital case." We followed Peery in the post-Beck case of Davis v. Greer, 675 F.2d 141, 145 (7th Cir.1982), but without discussing the possible bearing of Beck. Applied here, the "risk enhancement" test of Beck might seem to require setting aside Nichols' conviction. Although one might think that omitting a lesser included instruction would increase the probability of acquittal rather than of conviction of the more serious offense, this was not the Supreme Court's view in Beck: "when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense--but leaves some doubt with respect to an element that would justify conviction of a capital offense--the failure to give the jury the 'third option' of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction." 447 U.S. at 637, 100 S.Ct. at 2389.

Beck, however, involved a statute that forbade giving an instruction on a lesser included offense (in any capital case) no matter how strong the evidence of the defendant's guilt of the lesser included offense. A jury forced to choose between conviction and acquittal in a case where it is certain that the defendant is guilty of a serious crime--Beck's own testimony showed he was guilty of felony murder, the lesser included offense in that case--may decide to convict him of the offense charged even if it has a reasonable doubt that one of the elements of that offense (the element, in this case penetration, that is not part of the lesser included offense) was actually proved. But it was not certain that Nichols was guilty of any crime. The jury could have believed his story and if it had it would have acquitted him of the very serious offense with which he was charged. The choice facing the jury was to convict Nichols of a crime not every element of which the jury might have thought proved beyond a reasonable doubt or to acquit him; and since there was substantial evidence for acquittal the choice was not loaded against the defendant, as it was in Beck where there was no reasonable probability of the defendant's innocence. To give a lesser-included-offense instruction in a case where there is substantial evidence of complete innocence could easily reduce the probability of acquittal, by offering the jury the attractive compromise of finding the defendant guilty of the lesser offense.

Purely for the sake of illustration, assume that in Beck the probability that the jury would convict the defendant of capital murder if there was no lesser-included-offense instruction was 90 percent and the probability of acquittal 10 percent, but that if the lesser-included-offense instruction (felony murder) had been given the probability of...