U.S. ex rel. Fleming v. Huch

• Decision Date: 05 February 1991
• Docket Number: No. 90-1981,90-1981
• Citation: 924 F.2d 679
• Parties: UNITED STATES of America, ex rel. Bessie I. FLEMING, Petitioner-Appellant, v. Jane HUCH, Warden, Dwight Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 679

924 F.2d 679

UNITED STATES of America, ex rel. Bessie I. FLEMING Petitioner-Appellant, v. Jane HUCH, Warden, Dwight Correctional Center, Respondent-Appellee.

No. 90-1981.

United States Court of Appeals Seventh Circuit.

Argued Jan. 8, 1991.

Decided Feb. 5, 1991.

Gary R. Peterson, Office of the State Appellate Defender, Springfield, Ill., for petitioner-appellant.

Douglas K. Smith, Asst. Atty. Gen., Springfield, Ill., Scott Walden, Adams County State's Atty., Quincy, Ill., for respondent-appellee.

Before BAUER, Chief Judge, WOOD, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

BAUER, Chief Judge.

Bessie Fleming appeals the district court's denial of her petition for habeas corpus relief. She claims, as did the petitioners in United States ex rel. Falconer v. Lane, 905 F.2d 1129 (7th Cir.1990), and United States ex rel. Rose v. Lane, 910 F.2d 400 (7th Cir.1990), that the murder and voluntary manslaughter instructions used at her trial denied her due process of law. As in Falconer and Rose, the writ of habeas corpus must be granted in this case, and, therefore, we reverse the district court.

I

On March 6, 1986, Bessie Fleming shot and killed her husband. The State charged her with murder under Ill.Rev.Stat.1985, ch. 38, para. 9-1(a). At trial, Fleming presented evidence that she was a victim of the battered wife syndrome. Her husband, an alcoholic with three previous failed marriages, abused her verbally, psychologically and physically many times during their five-year relationship. Most of the incidents of abuse occurred after Fleming's husband had been drinking, and they were almost always followed by periods of apologetic remorse. The abuse temporarily subsided after a failed suicide attempt by Ms. Fleming and Mr. Fleming's agreement to undergo clinical treatment for alcohol addiction. The abuse resumed, however when Mr. Fleming began drinking again. At trial, the doctor who testified in Ms. Fleming's defense case found this to be a classic case of battered wife syndrome, and the State, though it presented its own expert witness as to the nature of this malady, did not challenge that diagnosis.

The facts surrounding the shooting are basically as follows. No longer able to take the abuse, and assured by Mr. Fleming's sister in Florida that she could move down and live with her, Ms. Fleming told her husband that she was going to leave him. He responded, "The only way you will leave me is feet first." The following morning, when Ms. Fleming again told her husband that she was going to leave, he assured her that he meant his threat. The two then went to the trucking company they operated. Mr. Fleming went out to move a trailer, and then, from the loading dock, began shouting at Ms. Fleming. Ms. Fleming got Mr. Fleming's loaded gun out of his desk drawer, put on a rubber glove so she wouldn't get any gunpowder on herself, grabbed a rug, and went out to the dock. As her husband was climbing down off the rig and coming toward her, Ms. Fleming lifted the rug in front of the gun to muffle the sound, and fired at Mr. Fleming. The first shot missed, but the second shot hit Mr. Fleming in the head and killed him.

It was Fleming's theory at trial that the killing was justified as self-defense. It was the State's theory that Fleming killed her husband in a deliberate and premeditated manner for financial reasons. (The State introduced evidence concerning irregularities in the books kept by the Flemings' trucking company, as well as several delinquent debts owed by the Flemings that ended up being paid out of Mr. Fleming's life insurance proceeds.) Under the Illinois criminal statutes applicable at the time, murder was defined as the killing of an individual with either intent to kill or do great bodily harm, or knowledge that the acts would cause, or create a strong probability of, death or great bodily harm. Ill.Rev.Stat.1985, ch. 38, para. 9-1(a). Voluntary manslaughter was defined as the killing of an individual while acting under either sudden, intense passion due to serious provocation, or an unreasonable belief that force was justified to prevent imminent death or great bodily harm to oneself. Ill.Rev.Stat.1985, ch. 38, para. 9-2. Thus, under these statutes, if Fleming shot her husband because she was provoked to murderous passion by him, or because of an honest but unreasonable belief that firing the shots was necessary to prevent imminent death or great bodily harm to herself, she would be guilty not of murder but of voluntary manslaughter. ¹ (Note that if Fleming honestly and reasonably believed that she had to shoot her husband to protect herself from imminent danger of death or great bodily harm, then she would be guilty of no crime at all. See Ill.Rev.Stat.1985, ch. 38, para. 7-1; People v. Aguero, 87 Ill.App.3d 358, 42 Ill.Dec. 383, 408 N.E.2d 1092 (1st Dist.1980).)

Because of the evidence as to the abuse suffered by Fleming, the trial court decided to instruct the jury as to both murder and voluntary manslaughter. The court used the then-applicable Illinois pattern jury instructions on murder, I.P.I. Criminal No. 7.02 (2d ed. 1981), voluntary manslaughter--provocation, I.P.I. Criminal No. 7.04 (2d ed. 1981), and voluntary manslaughter--unreasonable belief of justification, I.P.I. Criminal No. 7.06 (2d ed. 1981). The murder instruction gave the jury the elements the State had to prove beyond a reasonable doubt to sustain that charge, but made no mention of the "manslaughter defenses" of provocation and unreasonable belief of justification. The voluntary manslaughter instructions told the jury that, to sustain such a charge, the State had to prove beyond a reasonable doubt either that Fleming "acted under a sudden and intense passion resulting from serious provocation" or that she held an unreasonable belief that "circumstances existed which would have justified killing the decedent."

The jury rejected Fleming's self-defense argument and the "manslaughter defenses" and found her guilty of murder. She was sentenced to 20 years imprisonment. Fleming appealed, raising, among other challenges, the argument that the jury should have been instructed that the burden of proof was on the State to negate the partial affirmative defense of voluntary manslaughter. The appellate court rejected this argument and affirmed, People v. Fleming, 155 Ill.App.3d 29, 107 Ill.Dec. 801, 507 N.E.2d 954 (4th Dist.1987), and the Illinois Supreme Court denied leave to appeal. People v. Fleming, 116 Ill.2d 566, 113 Ill.Dec. 307, 515 N.E.2d 116 (1987).

The Illinois Supreme Court then decided the case of People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988). In Reddick, the Illinois Court reversed the appellants' convictions on the ground that the Illinois pattern jury instructions on murder and manslaughter used there--Nos. 7.02, 7.04 & 7.06, the same instructions used here--"essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter." 122 Ill.Dec. 1, 526 N.E.2d at 145. Interpreting Ill.Rev.Stat.1985, ch. 38, para. 3-2, which provided that the State retains the burden of proof beyond a reasonable doubt as to affirmative defense issues raised by a defendant (except insanity), the Court held that, if a defendant charged with murder presents sufficient evidence to raise issues that would reduce the charge to voluntary manslaughter, the State has the burden to prove beyond a reasonable doubt that these "manslaughter defenses" are meritless. Id. 122 Ill.Dec. at 5-6, 526 N.E.2d at 145-46. The Court then held that the use of instructions that misallocated these burdens of proof was a sufficiently "grave error" that waiver would not be found, despite the fact that the defendants there failed to object to the manslaughter instructions, offered no instructions of their own, and did not raise this issue in their post-trial motions. Id. 122 Ill.Dec. at 7-8, 526 N.E.2d at 147-49.

Citing Reddick, Fleming filed a post-conviction petition in Illinois state court seeking collateral relief from her conviction. See Ill.Rev.Stat.1985, ch. 38, paras. 122-1 et seq. She alleged that the jury instructions violated her rights under the due process clause. The state circuit court denied the petition and, by unpublished order, the appellate court affirmed. See People v. Fleming, 183 Ill.App.3d 1115, 145 Ill.Dec. 409, 556 N.E.2d 1311 (4th Dist.1989) (Table). The appellate court, relying on People v. Bolden, 181 Ill.App.3d 481, 130 Ill.Dec. 97, 536 N.E.2d 1308 (4th Dist.1989), held that the "grave errors" in the Illinois manslaughter instructions discussed in Reddick and undoubtedly present in this case were not "of constitutional magnitude." The Illinois Supreme Court again denied leave to appeal. People v. Fleming, 127 Ill.2d 625, 136 Ill.Dec. 595, 545 N.E.2d 119 (1989).

Her state remedies exhausted, Fleming brought this habeas corpus proceeding in the district court pursuant to 28 U.S.C. Sec. 2254. Agreeing with the Illinois appellate court that the error in the manslaughter instructions, "while violative of state law, did not violate Petitioner's due process rights," the district court denied the writ. United States ex rel. Fleming v. Gramley, 735 F.Supp. 302, 306 (C.D.Ill.1990). The district court explicitly rejected the analysis and result in United States ex rel. Falconer v. Lane, 720 F.Supp. 631 (N.D.Ill.1989). See Fleming, 735 F.Supp. at 306-307. The district court also distinguished United States ex rel. Reed v. Lane, 759 F.2d 618 (7th Cir.1985), a case upon which the district court in Falconer substantially relied, on the following grounds: "At her moment of decision, Petitioner must have realized that her husband was only a future danger and thus she was not permitted to use deadly force. Petitioner's actions were not self-defense, nor were they voluntary manslaughter, they were murder. Therefore, the analysis and decision of Reed are...