Rosa v. Peters

Decision Date30 September 1993
Docket NumberNo. 92-3258,92-3258
Citation36 F.3d 625
PartiesOrlando ROSA, Petitioner-Appellee, v. Howard A. PETERS, III, Director, Illinois Department of Corrections, Respondent-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Lawrence C. Marshall (argued), Northwestern University Legal Clinic, Tina Liebling, Office of the Cook County Public Defender, Chicago, IL, for petitioner-appellee.

Arleen C. Anderson, Terence M. Madsen, Asst. Attys. Gen., Martha E. Gillis (argued), Office of the Atty. Gen., Crim. Appeals Div., Chicago, IL, for respondent-appellant.

Before FAIRCHILD, COFFEY and RIPPLE, Circuit Judges.

FAIRCHILD, Circuit Judge.

Petitioner-appellee Orlando Rosa ("Rosa") was convicted of murder and attempted murder in Illinois state court following a jury trial. Rosa challenges the murder conviction, contending that the instructions given his jury violated his federal due process rights. Rosa also asserts that the prosecutor improperly excluded Blacks from his jury as forbidden by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and extended by Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Howard Peters, the Director of the Illinois Department of Corrections, appeals from a judgment of the district court granting Rosa's petition for a writ of habeas corpus. 1 We vacate the judgment, and remand for further proceedings on the Batson grounds only.

I. BACKGROUND
A. Facts

Rene Aguinaga ("Rene") testified that on the evening of August 9, 1985, he was in his backyard with his brother Jamie 2 and Isidoro Perez ("Perez") drinking beer. Around 12:45 a.m., there was shouting from the alley behind their backyard. From one side, Rene heard "Spanish Gangster Disciple Nation" and from the other, "Latin King, Latin King love," both phrases referring to street gangs. The Spanish Gangster Disciples and Latin Kings are rival gangs. The Aguinaga brothers and Perez were Latin Kings.

Rene saw people yelling "Latin Kings" run down the alley, but did not recognize any of them. Rene, followed by Jamie and Perez, walked into the alley to see what was happening; they went to the alley's south end and beyond. They then turned around to return to the Aguinaga house because it appeared that everything was over. When they reached the mouth of the alley, Rene stopped to use a washroom, and Jamie and Perez continued to walk. After Rene finished and returned to the alley, he saw that as Jamie and Perez were about two lots in from the mouth of the alley, three men came out of a yard yelling "Gangster Disciples." They were facing Jamie and Perez, about fifteen feet away. Rene then heard yelling ("G.D." for "Gangster Disciples") and heard two shots. Jamie ran to Rene and said he was "hit." The two ran to a friend's house, and called an ambulance for Jamie. Rene did not have a weapon, and saw none on Jamie or Perez.

Jamie Aguinaga testified that he did not recognize the people who ran by in the alley, and did not know if they were gang members. When he and Perez were returning to the backyard, three men came out from a yard about fifteen feet in front of them. Jamie had seen them before, and knew one as "Puerto Rican Roger" (Roger Gonzalez). 3 The three were yelling. When Jamie saw a gun in Gonzalez's hand, he turned away, and Gonzalez shot; Jamie felt pain in his left thigh. He then started running; he turned back to look, and saw Rosa had a gun. 4 As he continued to run, he heard gunshots.

Arthur Rodriguez ("Arthur"), a member of the Spanish Gangster Disciples, testified that on the evening of August 9, 1985, he went with seven or eight friends, including Rosa, to Hammond, Indiana to buy beer. After buying beer and returning to the car, two cars filled with Latin Kings drove up. Because they were outnumbered, the Spanish Gangster Disciples ran. After returning to Chicago, fifteen to twenty gang members took a van to the neighborhood where the Aguinaga brothers lived, which was known to be a Latin Kings area.

The men got out of the van, and as they were going down the alley behind the Aguinaga home, a big group came out of one of the yards. Arthur and his friends began to back up. The group was yelling "D/K" for "Disciple Killers." Arthur knew they were Latin Kings. Arthur turned around and ran; a brick was thrown, almost hitting him. Arthur ran to the van, which drove off. Arthur did not notice if Rosa, Gonzalez or Pedro Rodriguez got back into the van.

Another Spanish Gangster Disciple testified that Rosa, Gonzalez and Pedro Rodriguez were in the van that went to the Latin Kings area. Rosa said he had a gun. As the van emptied, Rosa, Gonzalez and Rodriguez split from the group. The rest of the group was walking into the alley when the Latin Kings came out, and the Spanish Gangster Disciples ran.

Juan Garcia, a Chicago Police Officer, arrived on the scene at about 1:00 a.m., and found Perez face down in a backyard off the alley. Perez had been shot in the lower left back. Garcia asked Perez who had shot him, and he replied, "Puerto Rican Roger." Perez died later as a result of the gunshot wound. When Garcia asked Jamie at the hospital who had shot him, Jamie said "Puerto Rican Roger."

Rosa was arrested the next night. After informing Rosa of his Miranda rights, Assistant State's Attorney James Andreou ("Andreou") interviewed Rosa at about 1:30 a.m. on August 12. Detective George Basile of the Chicago Police Department was present. Andreou took down a written summary of his discussion with Rosa, which statement Rosa reviewed and signed. The statement reads:

At about 1:00 a.m. on 10 August 1985 he was with Pedro Rodriguez and Roger Gonzalez in the alley behind Muskegon Avenue south of 89th Street. They were walking south. As they approached 90th Street they saw a group of guys coming north into the alley. Orlando Rosa heard someone shout "Get them" and heard gunshots. Then Orlando started shooting and Roger was shooting also. The guys who had been coming north turned around and began to run out of the alley. One of them fell to the ground. Orlando Rosa and his two friends Rodriguez and Gonzalez chased after the others but they got away. Later that morning Orlando Rosa talked with his girlfriend Patricia Marcardo and told her he thought he got one of them because he heard him scream and run off. He also said the same thing to Theodore Gonzalez and said that he had the back-up gun. Rosa, Pedro Rodriguez and Roger Gonzalez went to a bar named "Ritchie[']s" at 88th and Houston. There was a large group of people there and Orlando Rosa and Roger Rodriguez each said that they thought they had gotten one of them. While Orland[o] Rosa was at "Ritchie's" he got into a fight with a guy named Robert who hit him in the head with a brick. At the time of the fight Orlando Rosa had his gun on him but after he was hit on the head he was knocked unconscious and when he woke up at the hospital his gun was gone.

Tr. at 454-455. Andreou and Detective Basile testified that during the conversation with Rosa preceding the statement, he told them that he and his friends were out to get revenge for the Hammond incident when they went to the Latin Kings area. After signing the written statement, Rosa remarked that "he knew we [the police] had his girlfriend and she wasn't going to lie for him and he wanted to tell the truth and get this over with." Id. at 440.

B. Jury Instructions

Rosa's jury was given the then current Illinois Pattern Jury Instructions on murder and voluntary manslaughter based on an unreasonable belief of justification. 5 Ill. Pattern Jury Instructions, Criminal IPI, No. 7.02 ("Issues in Murder") and No. 7.06 ("Issues in Voluntary Manslaughter--Intentional--Belief of Justification") (2d ed. 1981). Rosa's jury was also instructed on attempted murder and self-defense. 6

The murder instruction listed the elements of murder and told the jury that the State must prove them beyond a reasonable doubt. The voluntary manslaughter instruction listed the elements of voluntary manslaughter and told the jury that the State must prove them beyond a reasonable doubt. The elements of voluntary manslaughter include all the elements of murder (except for murder while committing an offense), and also include the element (in Rosa's case) that defendant acted under an unreasonable belief that circumstances existed which would have justified the killing (sometimes referred to as "mitigating" because, in a sense, it is a defense to murder). 7 The jury was not told that it could not convict of murder unless the State disproved the mitigating element beyond a reasonable doubt.

These instructions are the same as those considered in People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988), and Falconer v. Lane, 905 F.2d 1129, 1136 (7th Cir.1990), except that in those cases the jury was also instructed on voluntary manslaughter based on serious provocation; that instruction placed the burden on the State to prove that the defendant acted under a sudden and intense passion resulting from serious provocation by another.

In Reddick, the Illinois Supreme Court held that when these murder and voluntary manslaughter instructions are given without warning the jury that it could not convict of murder unless the State disproved the mitigating elements, they "erroneously state the burdens of proof on the issues of whether the defendants acted under either intense passions or unreasonable beliefs that their actions were justified." 122 Ill.Dec. at 5, 526 N.E.2d at 145. "These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter. The reason is that even if a mitigating mental state is proved, it will have been proved by the defendant, not the People." Id. The court concluded that "grave error" had occurred. Id. at 7, ...

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