Phillips v. Lane

• Citation: 787 F.2d 208
• Decision Date: 20 March 1986
• Docket Number: 85-1890,Nos. 85-1699,s. 85-1699
• Parties: George PHILLIPS, Petitioner-Appellee, Cross-Appellant, v. Michael LANE, Director, Illinois Department of Corrections, and Steven Hardy, Warden, Menard Psychiatric Center, Respondents-Appellants, Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 208

787 F.2d 208

George PHILLIPS, Petitioner-Appellee, Cross-Appellant, v. Michael LANE, Director, Illinois Department of Corrections, and Steven Hardy, Warden, Menard Psychiatric

Center, Respondents-Appellants, Cross-Appellees.

Nos. 85-1699, 85-1890.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 10, 1986.

Decided March 20, 1986.

Sally L. Dilgart, Office of Ill. Atty. Gen., Chicago, Ill., for respondents-appellants, cross-appellees.

David S. Morris, Morris & James, Chicago, Ill., for petitioner-appellee, cross-appellant.

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

POSNER, Circuit Judge.

The district court granted habeas corpus to George Phillips, a state prisoner, and ordered the state to release him unless it retries him; if it does retry him it will first have to conduct a hearing to determine whether he is mentally competent to stand trial. See 580 F.Supp. 839 (N.D.Ill.1984). The basis of this ruling is that the state judge who presided at Phillips' fitness hearing (actually a "fitness restoration" hearing) failed to instruct the jury that the state had the burden of proving sanity; he told the jury that it must find fitness or unfitness by a preponderance of the evidence but did not tell them what to do if the evidence was in equipoise. This court has held that the due process clause of the Fourteenth Amendment requires that the state prove mental competence to stand trial, see United States ex rel. Bilyew v. Franzen, 686 F.2d 1238 (7th Cir.1982); United States ex rel. SEC v. Billingsley, 766 F.2d 1015, 1022-23 (7th Cir.1985)--that the state cannot require the defendant to prove incompetence--and although the state asks us to reconsider these holdings, that will not be necessary here, as we shall see.

The state has appealed from the grant of habeas corpus, while Phillips has cross-appealed from the district court's refusal to order, as a further preliminary to Phillips' retrial, a new hearing on Phillips' motion to suppress certain evidence. The ground of the cross-appeal is that at the suppression hearing that preceded the trial the judge should have inquired, on his own initiative, into Phillips' mental competence to participate in the hearing.

Phillips was tried and convicted in 1978 for a murder committed six years earlier, and was sentenced to a term of 100 to 200 years in prison. The issues in this habeas corpus proceeding arise out of events preceding the trial. Shortly after his indictment in 1974, Phillips asked for a psychiatric examination. Two psychiatrists who examined him found him to be sane; a third, Dr. Tuteur, found him insane but apparently his reports (he examined Phillips twice) were not before the judge when, in August 1975, a hearing was held on Phillips' motion to suppress statements that he had made to the police about the murder. The motion was denied. Later, additional psychiatric examinations were conducted, with Dr. Tuteur again finding Phillips insane but other psychiatrists disagreeing. In November 1976 a fitness hearing was conducted. Phillips was found to be unfit to stand trial but remained in custody where later he was examined four or five more times by psychiatrists all or most of whom (the record is unclear) found him fit for trial. The state requested a fitness restoration hearing. It was held in February 1978. Two psychiatrists testified for the prosecution and Dr. Tuteur testified for Phillips. This was the hearing at which the jury was not instructed on burden of proof. The jury found Phillips fit to stand trial and the trial followed.

Regarding the failure to instruct the jury at the fitness-restoration hearing on who had the burden of proof, we must first consider whether Phillips waived this issue by failing to raise it at the hearing. When Phillips tried to raise it on direct appeal from his conviction the Illinois Appellate Court stated that he had waived it by not making a timely objection in the trial court. People v. Phillips, 110 Ill.App.3d 1092, 1099, 66 Ill.Dec. 729, 734, 443 N.E.2d 655, 660 (1982). Ordinarily that would be the end of the matter. A procedural default that under state law bars consideration of the merits of a criminal defendant's challenge to his conviction also bars consideration by the federal court in a habeas corpus proceeding unless the defendant can show good cause for having committed the default, and that he probably would have been acquitted if he hadn't committed it. This is the "cause and prejudice" rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1976), designed to make sure that the defendant in a state criminal trial gives the state courts a fair chance to correct any federal constitutional errors before he asks the federal courts to nullify his conviction, perhaps many years later (the murder of which Phillips was convicted was committed 14 years ago) and in circumstances that preclude a retrial.

Phillips did not argue in the district court that he had had good cause for not making a timely objection to the failure to instruct the jury at the fitness-restoration hearing on burden of proof. 580 F.Supp. at 849 n. 10. His argument was that all he waived, under Illinois law, was the right to argue ordinary rather than plain error, and that if there was error here, it was plain. The relevant part of the state appellate court's opinion begins, "by failing either to tender an alternate instruction or to object to the instruction as given, defendant has waived the right to raise the issue on appeal unless the omission amounts to plain error." 110 Ill.App.3d at 1099, 66 Ill.Dec. at 734, 443 N.E.2d at 660. The court proceeded to consider whether there was plain error in regard to the burden of proof at the fitness-restoration hearing and found that there was not, because "Our review of the record demonstrates that not only was the jury properly instructed that the State bore the burden of proving defendant fit for trial by a preponderance of the evidence, but also that the State met its burden." Id. The first clause in this passage is wrong; the judge had not told the jury which party had the burden of proof.

If a state court holds that the defendant has waived any objection he might have had to some procedural ruling (here nonruling), because he violated the state's procedural rules, its refusal to set aside the defendant's conviction is supported by an adequate and independent state ground which bars him from obtaining relief in a federal habeas corpus proceeding, even if the state court goes on and says: and anyway the objection lacked merit. United States ex rel. Merneigh v. Greer, 772 F.2d 322, 327 (7th Cir.1985). A conviction is not invalid because in reviewing it the state court said something wrong that was not essential to its refusing to set the conviction aside; the error has no causal significance in the decision to affirm. We would not reverse a district court because one of two independent grounds of decision was incorrect; even less should we nullify the decision of another sovereign on such a basis. Of course if the alternative grounds are not independent--if the second somehow contaminates the first--then if the second is erroneous the first may be too. The alternative ground for example might show that the state didn't take its procedural rules seriously.

The decision of the Illinois Appellate Court does not read as if it rested on two distinct and independent grounds, one of which, being a matter of state procedural law, is beyond the power of a federal court to reexamine in a habeas corpus proceeding. Read literally, the decision regards Phillips as having a right to a determination of whether there was plain error, and then it proceeds to consider whether there was, and to find there was not. But a literal reading would be wrong. The Illinois plain error rule (like the federal, see Fed.R.Crim.P. 52(b)) is in terms permissive rather than mandatory: "Plain errors or defects affecting substantial rights may be noticed [on appeal] although they were not brought to the attention of the trial court." Ill.Rev.Stat. ch. 110A, p 615(a). Consistently with its wording, it has been interpreted to make reversal for plain error a matter of grace, rather than a duty. See, e.g., People v. Sanders, 99 Ill.2d 262, 274, 75 Ill.Dec. 682, 688, 457 N.E.2d 1241, 1247 (1983); People v. Burson, 11 Ill.2d 360, 370, 143 N.E.2d 239, 245 (1957) (interpreting the common law predecessor to paragraph 615(a)). The parallel federal rule has also been deemed discretionary rather than mandatory, although the cases are few, see On Lee v. United States, 343 U.S. 747, 750 n. 3, 72 S.Ct. 967, 970 n. 3, 96 L.Ed. 1270 (1952); United States v. Jarrad, 754 F.2d 1451, 1456-57 (9th Cir.1985); Stone v. United States, 435 F.2d 1402, 1403 n. 1 (2d Cir.1970); United States v. Indiviglio, 352 F.2d 276, 280 (2d Cir.1965) (en banc), and none contains a full discussion of the question. The grounds for regarding the Illinois rule as discretionary are stronger. The Illinois Supreme Court has said that the rule "is permissive. It lies within the discretion of the reviewing court to consider an alleged error not raised or brought to the attention of the trial court even if it affects substantial rights." People v. McAdrian, 52 Ill.2d 250, 255, 287 N.E.2d 688, 691 (1972). This could hardly be clearer--leading us to note recently, "It is clear that an appellate court's authority under Illinois law to consider plain error notwithstanding a party's procedural default is purely discretionary, and that a court may therefore find an error to be waived even when the error is constitutional in nature." United States ex rel. Merneigh v. Greer, supra, 772 F.2d at 326.

Illinois has another plain error doctrine, limited to instructions in criminal cases, which states that "substantial defects are not waived by failure to make timely objections thereto if the interests of justice require."...