Thomas v. Peters

Decision Date23 February 1995
Docket NumberNo. 93-2725,93-2725
Citation48 F.3d 1000
PartiesVincent THOMAS, Petitioner-Appellee, v. Howard A. PETERS, III, Director, Department of Corrections, State of Illinois, Respondent-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Stephanie L. Ellbogen (argued), Office of the Cook County Public Defender, Chicago, IL, for petitioner-appellee.

Bradley P. Halloran (argued), Rita M. Novak, Office of the Atty. Gen., Chicago, IL, for respondent-appellant.

Before COFFIN, * CUMMINGS, and EASTERBROOK, Circuit Judges.

COFFIN, Circuit Judge.

This case and its companion 1 require us to consider whether Gilmore v. Taylor, --- U.S. ----, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993), impliedly overrules our earlier decision that the old Illinois Pattern Jury Instructions for murder and manslaughter, when given together, deprive a criminal defendant of due process of law. See Falconer v. Lane, 905 F.2d 1129 (7th Cir.1990). We are not persuaded that it does. Nevertheless, because we conclude that the error was harmless in Thomas's case, we reverse the judgment below granting him habeas corpus relief.

I. Background
A. Facts

On April 11, 1986, Vincent Thomas shot and killed James Jones. At Thomas's murder trial, the prosecution portrayed the shooting as deliberate retaliation by Thomas for having been beaten up by Jones the night before. Thomas claimed the shooting was self-defense.

The prosecution called two eyewitnesses. Felbert Morris testified that, on the morning of April 11, he agreed to get a beer with Thomas. The two men drove off in Morris's car, Thomas directing Morris to travel in a different route than he originally intended. The car soon approached James Jones and Eric Archie, neither of whom Morris knew. Thomas told Morris to stop the car and he got out. He approached the two men, and, referring to a fight among them the previous night, said something to the effect of "what are you going to do now?" Further words were exchanged, but Morris could not hear them. Morris then saw Thomas throw a punch at Archie and heard a gunshot. He looked at Thomas and saw a gun in his hand. After the first shot, Jones and Archie ran off in different directions. Morris testified that, as they were fleeing, he saw Thomas fire two shots at one of the men, turn, and fire one shot at the other man. One of these bullets struck Jones in the middle of his back, punctured his heart, and killed him. After getting back into Morris's car, Thomas explained that he shot at the men because they had "tied him up and put him in [a] trunk" the night before. Morris testified that he never saw Jones or Archie hold or fire a weapon of any kind.

The prosecution's second eyewitness was Eric Archie. Archie testified that, on the evening before the shooting, Thomas and Jones had engaged in an extended fist fight, during which Jones apparently beat Thomas quite badly, and that Archie repeatedly intervened to break up the fighting. The next morning, while he and Jones stood in front of Jones's car, he saw Thomas drive up in Morris's car, exit the passenger side door, and approach them. Archie testified that Jones asked Thomas, "You come back to finish the fight?" and that Thomas replied, "No, I['ve] come back to kill you." After this exchange, Thomas pulled out a gun and held it at his side. Thomas swung at Archie with it, who ducked and avoided the blow. Archie then heard a shot from the gun, which Thomas was pointing downward. He saw Jones begin to run and he fled in the opposite direction, realizing that he had been shot in the foot. He testified that, while fleeing, he heard two more shots being fired. He also testified that neither he nor Jones held any weapons or threatened Thomas's life on that morning or during the fight the night before.

The prosecution also called Officer Wronka, who arrived on the scene shortly after Jones was shot, and Detective Flood, who arrived sometime thereafter. They both testified that they searched the area and found no guns or weapons.

Thomas took the stand in his own defense and described a vastly different version of events. Like Archie, he testified that he and Jones had fought at a liquor store the night before the shooting. But, according to him he arrived at the store and left with Morris, directly contradicting testimony by Morris and Archie that Morris had not been present. Thomas testified that during the initial fight Jones punched him and Archie struck him on his head with a gun. Thomas further testified that, on the morning of the shooting, while he and Morris were driving to the store to get beer, they again happened upon Archie and Jones by chance. Thomas told Morris to pull over because he wanted to ask the two men why they had beaten him. According to Thomas, Morris then handed him a gun and told him, "if I was you, I would take this gun." Thomas took the gun, got out of the car, and approached the two men. Archie said to him "Oh, you back?" and then pulled something out of his pocket and swung at Thomas. When Archie swung at him, Thomas fell against a car. His gun, which he said he removed from his pocket as he fell, discharged and accidentally hit Archie in the foot. He testified both that the firing was accidental and that, at the time, he believed Archie was trying to hurt him. After the gun he held went off, he said he heard "five, maybe six shots" coming from Jones's direction. Fearing that Jones was attempting to kill him, he turned and fired three shots toward Jones. He then got back in Morris's car and the two left the scene.

The defense also called Helen Walker, who lived near the alley where the shootings took place. She testified that she heard "just about five" gunshots that morning. On cross examination, she admitted that she previously had told the prosecutor that she heard more than three shots, but that she could not be certain whether there were four or five shots.

Thus, except for Thomas, everyone who saw or heard the incident--prosecution witnesses Morris and Archie and defense witness Walker--all testified that they heard at least three and at most five gunshots. Thomas testified that, including the shots that Jones fired allegedly causing him to fear for his life, nine or ten shots were fired.

B. Jury Instructions

The jury was charged on the counts of murder and voluntary manslaughter according to the Illinois Pattern Jury Instructions then in force. 2 The jury was instructed that, to convict for murder, it had to find three elements proved beyond a reasonable doubt: first, that Thomas performed the acts that caused Jones's death; second, that when he performed those acts, he intended to kill or do great bodily harm to Jones; 3 and third, that he was not justified in using the force that he used. The jury was instructed that a person is justified in using force that is intended or likely to cause death or great bodily harm only if he reasonably believes it necessary to prevent imminent death or great bodily harm to himself or another.

The jury also was charged on both the "unreasonable belief" and "serious provocation" forms of manslaughter. To convict on unreasonable belief manslaughter, the jury had to find four elements proved beyond a reasonable doubt: first, that Thomas performed the acts that caused Jones's death; second, that when he performed those acts, he intended to kill or do great bodily harm to Jones; third, that when he performed those acts, he believed that circumstances existed that would have justified killing Jones; and fourth, that his belief that such circumstances existed was unreasonable. To convict on serious provocation manslaughter, the jury had to find three elements proved beyond a reasonable doubt: first, that Thomas performed the acts that caused Jones's death; second, that when he performed those acts, he intended to kill or do great bodily harm to Jones; and third, that when he did so he acted under a sudden and intense passion resulting from serious provocation by Jones.

Finally, the jury was told: "The defendant is charged with the offenses of murder and manslaughter for which you will receive three verdict forms. You are to sign only one of these forms." In other words, the jury could not convict for both murder and manslaughter; it could choose only one.

C. Procedural History

The jury found Thomas guilty of murder and he appealed. One year after his conviction, the Illinois Supreme Court held that the same instructions given in his case were erroneous as a matter of state law. People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988). The Illinois Supreme Court took petitioner's case as part of a consolidated appeal to determine the retroactive applicability of its Reddick decision. In People v. Shields, 143 Ill.2d 435, 443-44, 453-54, 159 Ill.Dec. 40, 44, 48-49, 575 N.E.2d 538, 542, 546-47 (1991), it decided that Reddick should apply retroactively because the instructions may violate a defendant's due process right to a fair trial, but that the error was harmless in Thomas's case. Thomas then petitioned the United States District Court for a writ of habeas corpus. Following this court's decision in Falconer v. Lane, which also found that the instructions effect a denial of due process, and finding that the error could not be considered harmless, the district court granted habeas corpus relief. United States ex rel. Vincent Thomas v. Peters, No. 92 C-6958, slip op. at 5-7, 1993 WL 141709 (N.D.Ill. April 30, 1993). The State of Illinois now challenges this judgment.

II. Discussion

On appeal, the State argues that the Supreme Court's decision in Gilmore v. Taylor "effectively eviscerates" this court's ruling in Falconer. Alternatively, it urges that the error was harmless in Thomas's case. Before addressing these claims, we review why this court previously has found these instructions defective.

The linchpin of the problems that flow from these instructions is the failure to...

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