People v. Flowers

• Decision Date: 26 September 1990
• Docket Number: No. 69777,69777
• Parties: , 149 Ill.Dec. 304 The PEOPLE of the State of Illinois, Appellant, v. Marvin FLOWERS, Appellee.
• Court: Illinois Supreme Court

Page 674

561 N.E.2d 674

138 Ill.2d 218, 149 Ill.Dec. 304

The PEOPLE of the State of Illinois, Appellant, v. Marvin FLOWERS, Appellee.

No. 69777.

Supreme Court of Illinois.

Sept. 26, 1990.

Neil F. Hartigan, Atty. Gen., Springfield, and Cecil A. Partee, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb, Kevin Sweeney and David R. Butzen, Asst. State's Attys., of counsel), for people.

James B. Haddad, Chicago, for appellee.

Timothy J. Leeming, James N. Perlman and Stephen L. Richards, Asst. Public Defenders, Chicago, for amicus curiae Randolph N. Stone, Public Defender of Cook County.

Justice RYAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Marvin Flowers, was convicted of murder, armed robbery and armed violence, and sentenced to concurrent prison terms of 40 years for murder and 15 years for armed robbery. The appellate court affirmed the convictions in an unpublished Rule 23 order (107 Ill.2d R. 23). (109 Ill.App.3d 1211.) Defendant then filed a petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1987, ch. 38, par. 122-1 et seq.) and, without an evidentiary hearing, the circuit court granted the State's motion to dismiss the petition.. The appellate court, however, applied People v. Reddick (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141, retroactively and held that the instructions given to the jury on the offenses of murder and voluntary manslaughter were erroneous. (192 Ill.App.3d 292, 139 Ill.Dec. 381, 548 N.E.2d 766.) Therefore, the court reversed the murder conviction and remanded for a new trial. We granted the State's petition for leave to appeal (107 Ill.2d R. 315(a)) to address, inter alia, the retroactivity of People v. Reddick to a case on collateral review. We reverse the appellate court.

The facts in this case are essentially undisputed. Robert Murray was found in his store dead as a result of several blows to his head from a baseball bat. At the time of the murder, defendant was working for Murray and evidence at the store made him a suspect. Near defendant's apartment police officers found Murray's car and in it were a baseball bat, a revolver, a coin bank and two power saws, all of which had been taken from the store. Defendant already was in custody in connection with another incident that had occurred earlier that day. When questioned about the murder, defendant first told police that he was in the store when two men killed Murray and that the two men forced him to put the items in the car and to put his fingerprints on the gun and bat. The men also told defendant that they would kill him and his girlfriend if he did not help them. Defendant claims to have taken the car under duress. After an officer told him of the unlikelihood of his alibi, defendant changed his story. Defendant stated instead that he and Murray had an argument about money that was allegedly owed to defendant. He claimed that Murray attacked him, initiating a fight. Murray then reached for a gun and defendant grabbed a nearby baseball bat and struck him several times in the head. Realizing that he would not get the money owed him, defendant took cash and property from the store, placed the items into Murray's car and drove back to his apartment, leaving his own car parked in front of the store.

At trial, defendant presented no evidence although counsel argued that defendant had acted under the unreasonable belief that facts existed which justified his conduct and was thus only guilty of voluntary manslaughter. The jury was given pattern jury instructions on the offenses of murder and voluntary manslaughter. (Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 7.06 (2d ed.1981).) The murder instruction stated that the State must prove that:

(1) defendant performed the acts which caused the death of Robert Murray;

(2) when defendant did so, he intended to kill or do great bodily harm to Robert Murray; or he knew that his act would cause death or great bodily harm to Robert Murray; or he knew that his acts created a strong probability of death or great bodily harm to Robert Murray; and

(3) defendant was not justified in using the force which he used.

This instruction did not include the so-called "fourth proposition," that the State must prove that the defendant did not believe circumstances existed which justified the use of the force that he used. The voluntary manslaughter instruction required the State to prove that:

(1) defendant intentionally or knowingly performed the acts which caused the death of Robert Murray;

(2) when defendant did so he believed that circumstances existed which would have justified killing Robert Murray;

(3) defendant's belief that such circumstances existed was unreasonable; and

(4) defendant was not justified in using the force which he used.

After deliberations, the jury signed verdict forms finding defendant guilty of both murder and voluntary manslaughter. The trial judge informed the jurors that they could not return both verdicts; it had to be one or the other. The jury resumed deliberations but later sought further instructions. The judge then explained that voluntary manslaughter was a lesser included offense of murder, and that he would not accept a verdict on both charges. He informed the jurors that they should identify which of the verdict forms actually reflected their determination of guilt and then cross out the other guilty verdict form. After further deliberations, the jury returned with the murder verdict intact and the voluntary manslaughter verdict crossed out. Defendant was sentenced to concurrent terms of 40 years for murder and 15 years for armed robbery. No sentence was imposed on the armed violence count.

On appeal from his conviction, in a Rule 23 order, the appellate court held that the trial court did not err when it required the jury to continue deliberations and determine whether defendant was guilty of murder or voluntary manslaughter. Also, the court held adversely to the defendant on his contention that the trial judge's oral instructions to the jurors constituted reversible error. Defendant did not prevail on his contention that he was not properly proven guilty of armed robbery, felony murder and murder. Last, defendant's challenge to his arrest was unsuccessful.

Defendant subsequently filed a petition pursuant to the Post-Conviction Hearing Act (Ill.Rev.Stat. 1987, ch. 38, par. 122-1 et seq.), which the trial court dismissed without an evidentiary hearing. As noted, the appellate court reversed. The court applied People v. Reddick retroactively and held that the instructions in defendant's case erroneously stated the law and required that defendant be given a new trial. In a petition for rehearing the State argued that any error as to the murder and voluntary manslaughter instructions was rendered harmless because of the felony-murder count of the indictment. The court rejected this contention because the State had not submitted a felony-murder verdict form and the evidence was not so overwhelming that the jury could not have found anything but that the victim's death was caused during the course of the armed robbery. We granted the State's petition for leave to appeal (107 Ill.2d R. 315). Defendant in his response brief also argued for cross-relief, and the State has filed a reply to the arguments raised (107 Ill.2d R. 315(g)). We granted leave to file an amicus curiae brief to the public defender of Cook County (107 Ill.2d R. 345(a)).

The first argument we address is defendant's contention that the trial court violated double jeopardy protections when it ordered further deliberations instead of accepting the jury's verdict of voluntary manslaughter. Defendant contends that the initial verdicts finding him guilty of voluntary manslaughter and murder were consistent with the jury instructions. Therefore, the jury found the presence of the statutory mitigating circumstances which distinguish voluntary manslaughter from murder and it impliedly acquitted defendant of murder. He argues that unless the verdicts are hopelessly inconsistent with the instructions the double jeopardy clauses of the State and Federal Constitutions prohibit a court from rejecting those verdicts and in this case the court should have entered the verdict of voluntary manslaughter. The State contends that the appellate court on direct review rejected defendant's argument that the trial judge should have entered the voluntary manslaughter verdict and not the murder verdict. Therefore, he is barred by the principle of res judicata from raising again this issue as a double jeopardy claim. Regardless, the State contends that in People v. Almo (1985), 108 Ill.2d 54, 90 Ill.Dec. 885, 483 N.E.2d 203, this court approved of the trial court's decision to require the jury to deliberate further.

Ordinarily res judicata and waiver bar consideration of an issue which was raised or could have been raised on direct review (People v. Gaines (1984), 105 Ill.2d 79, 87-88, 85 Ill.Dec. 269, 473 N.E.2d 868), but under certain circumstances, fundamental fairness dictates that we consider the issue (People v. Hamby (1968), 39 Ill.2d 290, 291, 235 N.E.2d 572). Defendant argues that Almo, which was issued after his direct review, was improperly decided and that in that case no issue of double jeopardy was raised. He contends that if the constitutional doctrine applies in this situation a reversal of his conviction is mandated. Although we ultimately do not accept defendant's argument, we believe that this issue should be addressed.

People v. Almo is nearly indistinguishable. In Almo the jury was given the same instruction for murder as in this case. This instruction also did not include the fourth proposition, that the State must prove the defendant did not believe circumstances existed which justified the use of the force that he used. The Almo jury...