Tenner v. Gilmore

• Citation: 184 F.3d 608
• Decision Date: 09 June 1999
• Docket Number: No. 98-3814,98-3814
• Parties: (7th Cir. 1999) James Tenner, Petitioner-Appellant, v. Jerry Gilmore, Warden, Pontiac Correctional Center, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 608

184 F.3d 608 (7th Cir. 1999)

James Tenner, Petitioner-Appellant, v. Jerry Gilmore, Warden, Pontiac Correctional Center, Respondent-Appellee.

No. 98-3814

United States Court of Appeals, Seventh Circuit

Argued April 7, 1999

Decided June 9, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 2305--Charles P. Kocoras, Judge.

Before Easterbrook, Ripple, and Rovner, Circuit Judges.

Easterbrook, Circuit Judge.

Convicted of two capital murders and sentenced to death, James Tenner seeks a writ of habeas corpus. Believing that his former business partner Albert Sauls had alienated the affections of his former girlfriend Shirley Garza, Tenner planned and carried out an execution. Sauls and Tenner operated trucking businesses from the same building in South Chicago Heights. In his space Tenner set up three ropes and nooses, each just the right height for the neck of the intended victim. Then with shotgun in hand he invaded the adjoining premises, finding (as he expected) Sauls and his employee Alvin Smith. He held the two at bay until Garza and Donna Sauls, Albert's wife, arrived. Tenner directed Garza and Donna Sauls to bind the men hand and foot; when that had been accomplished, Tenner compelled Garza to bind Donna Sauls the same way. All four moved to Tenner's garage, where the three bound victims were restrained in the nooses designed for them. Tenner then tied up Garza and constructed a fourth noose for her. After covering his victims' mouths with duct tape, Tenner delivered a harangue (lasting more than two hours) about the victims' supposed misconduct regarding both his business and his personal life, and the Saulses' treatment of Garza. Tenner then moved Garza to his office and returned to shoot the three remaining victims in their faces at point-blank range. Smith and Donna Sauls died instantly. Albert Sauls had been able to free his hands and used his arms to shield his face; he was left for dead but survived and testified against Tenner at trial. So did Garza, who was rescued by police after Tenner kidnapped her and drove off. Testifying on his own behalf, Tenner conceded that he prepared the ropes and shot the victims; his defense was that he sought to protect Garza from the Saulses and therefore committed second rather than first degree murder.

Tenner's convictions and sentence were affirmed on direct appeal. People v. Tenner, 157 Ill. 2d 341, 626 N.E.2d 138 (1993). A collateral attack in state court was unsuccessful. People v. Tenner, 175 Ill. 2d 372, 677 N.E.2d 859 (1997). The district judge rebuffed Tenner's federal collateral attack. Tenner v. Gilmore, 1998 U.S. Dist. Lexis 16188 (N.D. Ill. 1998). In this court Tenner presents many contentions, with multiple subparts. Most can be resolved with no analysis beyond citations to Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997), and Gosier v. Welborn, No. 98-2806 (7th Cir. Apr. 15, 1999). Four require discussion, but to obtain relief Tenner must demonstrate that the Supreme Court of Illinois made "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States". 28 U.S.C. sec.2254(d)(1). This is the standard of the Antiterrorism and Effective Death Penalty Act, which applies because Tenner filed his federal petition after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320 (1997).

1. The Supreme Court of Illinois reversed Tenner's conviction for the attempted murder of Albert Sauls, because the judge gave a confusing response to a question the jury posed during its deliberations. 626 N.E.2d at 155. This set up an argument that the convictions for first degree murder of Donna Sauls and Alvin Smith also should be reversed. According to the instructions, the jury could convict of first degree murder if it found that Tenner fired the fatal shots and that any one of four other conditions obtained: that Tenner intended the victims' deaths; that his acts created a strong probability of death; that the deaths occurred in the course of aggravated unlawful restraint (activating the felony-murder doctrine); or that Tenner attempted to murder Albert Sauls (another felony-murder possibility). The jury returned general verdicts and therefore did not reveal which one or more of these four circumstances it had found. Tenner argued that the jury might have relied exclusively on the attempt to murder Albert Sauls. With that conviction gone, the argument ran, the others fell automatically. The state judiciary did not agree:

With respect to Alvin Smith and Donna Sauls, the jury returned general verdicts finding the defendant guilty of their murders. A "general finding of guilty is presumed to be based on any good count in the indictment to which the proof is applicable. [Citations.]" (People v. Lymore (1962), 25 Ill. 2d 305, 307-08, 185 N.E.2d 158.) Thus, even if the defendant's conviction for attempted murder is reversed, which means that he could not have been found guilty of felony murder based on that offense, his convictions for murder may still stand. There were other good charges of murder to which the proof was applicable: first degree intentional murder, first degree murder based on acts creating a strong probability of death, and felony murder based on aggravated unlawful restraint. As no challenge has been made to these three theories of the offense, there is no need to reverse the defendant's convictions for first degree murder.

626 N.E.2d at 155 (citations omitted; brackets in original). Tenner now contends that Lymore, which allows a verdict to stand if the proof supports any theory of guilt, is inconsistent with federal law exemplified by Griffin v. United States, 502 U.S. 46 (1991), and Yates v. United States, 354 U.S. 298 (1957) (overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978)).

Griffin and Yates deal with cases in which one theory of culpability is flawed while another is sound, and the jury does not reveal which theory it adopted. In one set of cases the flaw is legal. A jury may be told, for example, that the law forbids the doing of either A or B, and the verdict shows that the jury found that the defendant did one of these things, but not which. If one of the two is not a crime, Yates concludes, a new trial must be held. For all the court can tell, the jury found that the defendant committed the act that the law does not condemn. In the other set of cases the flaw is in the proof. The jury is told correctly that the law forbids the doing of either A or B, and the record permits a rational trier of fact to find that the defendant did A, but it does not permit a conclusion that he did B. In these cases, Griffin holds, the verdict is sound. A reviewing court should assume that the jury found that the defendant committed the act that the facts support; anything else would attribute irrationality to the jury. Juries apply to the facts of the case the law articulated by the judge. Courts assume that juries can distinguish good proof from bad, but juries do not separate good law from bad. That's the line between Yates and Griffin. When the facts could justify a conclusion that the defendant did both A and B, but only A is illegal, a court has no reason to believe that the jury found A, and a new trial ensues. Tenner contends that his case fits the Yates pattern rather than the Griffin pattern and that the Supreme Court of Illinois failed to appreciate the difference between these situations. As he sees it, the attempted murder charge was factually supported but legally erroneous, so that a well-functioning jury might well have convicted him of murder because it believed that he shot Donna Sauls and Alvin Smith (not intending to kill either one) in the course of attempting to kill Albert Sauls.

Tenner's description is not quite right. The attempted murder charge was not legally defective; the law of Illinois proscribes attempted murder. Only a garble in the judge's response to a question from the jury during deliberations spoiled the conviction. This fluff did not affect the instructions on the murder charges. Let us assume, nonetheless, that the situation is close enough to Yates as to fall within its gravitational influence. That raises the question whether the distinction between factual and legal shortcomings is one of constitutional law, binding on state as well as federal courts. Both Griffin and Yates were direct appeals in the federal system. Yet we need not decide whether these cases clearly establish a rule of constitutional law, as opposed to sound practice, because Tenner can not prevail either way.

Recall the point of Griffin: a jury may be relied on to get the facts right and avoid logical errors. If that is so, then the murder verdicts are unassailable. Trussing up four people, putting their heads in nooses, binding their mouths with duct tape, and forcing them to listen to a tirade laced with promises of their imminent deaths-- conduct that Tenner admitted on the witness stand-- meets anyone's definition of aggravated unlawful restraint. The jury convicted Tenner of four counts of this crime, which makes the killings first-degree murder under the felony-murder doctrine even if the jury believed (what is exceptionally unlikely) that Tenner did not intend the death of Donna Sauls or Alvin Smith. The four convictions for unlawful aggravated restraint are the equivalent of a special verdict by the jury, identifying a circumstance that supports a first-degree murder conviction. Special verdicts avoid the Yates problem, because the court then can be confident that the facts as the jury believed them to be are a legally proper basis of conviction.

Asked at oral argument why the convictions for unlawful restraint do not show that the murder verdicts are reliable, Tenner's counsel replied that the jury may have rendered a compromise verdict or...