Verdin v. O'Leary
| Decision Date | 28 August 1992 |
| Docket Number | No. 90-3327,90-3327 |
| Citation | 972 F.2d 1467 |
| Parties | Juan VERDIN, Petitioner-Appellee, v. Michael O'LEARY and Neil F. Hartigan, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Carl P. Clavelli (argued), Chicago, Ill., for petitioner-appellee.
Arleen C. Anderson, Asst. Atty. Gen., Office of the Atty. Gen., Chicago, Ill., for respondents-appellants.
Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.
In 1984, Juan Verdin was tried in Illinois for the killing of two men. The trial court gave the then-standard Illinois jury instructions on murder and voluntary manslaughter. During its deliberation, the jury sent a question to the trial judge. Without notifying counsel for either party, the judge returned to the jury a brief response to the question. The jury ultimately found Mr. Verdin guilty on both murder charges. After an unsuccessful appeal to the Illinois Appellate Court and the Illinois Supreme Court, Mr. Verdin petitioned the district court for a writ of habeas corpus. The district court ruled that both the jury instructions and the ex parte judge-jury communication were constitutionally improper and granted Mr. Verdin's petition for writ of habeas corpus. The State filed a timely notice of appeal from this decision. For the reasons set forth in this opinion, we reverse the judgment of the district court and remand for further proceedings.
In 1984, Juan Verdin was tried in the Circuit Court of Cook County, Illinois, for The State's witnesses testified that Mr. Verdin approached the bar from the pool table area and asked Carlos Estrello, "[W]hy are you looking at me?" Carlos answered, "[T]here's nothing wrong with that," Tr. at 244-45, "[s]ight is very natural." Tr. at 275, 291. Mr. Verdin then said, "[R]emember the other time?" Tr. at 245, 276, 291. Carlos answered, "[F]orget about it," Tr. at 245 "[it's] a dead issue." Tr. at 291.
killing Carlos Estrello and Alphonso Castro in a barroom shooting. At trial Mr. Verdin presented evidence and argument that he shot both men in self-defense. The record reflects the following facts. On June 2, 1984, at approximately 9:00 p.m., Mr. Verdin was present at Matchua Las Social Club, a club of about fifty Chicago residents whose families were originally from the Mexican town of Matchua Las. Also present were the victims, Carlos Estrello and Alphonso Castro, and four eyewitnesses who later testified for the State, Luis Guerrero, Miguel Martinez, Juan Perez-Moreno, and Niceforo Estrello. The club has two rooms separated by a bar and a thin wall. Mr. Verdin, Guerrero, Carlos Estrello, Martinez, and Perez-Moreno were all in the larger, front room of the club where the bar and two pool tables are located. Mr. Verdin and Mr. Guerrero were near the pool table and Carlos Estrello, Martinez and Perez-Moreno were sitting at the bar. Alphonso Castro and Niceforo Estrello were sitting in the back room, along with approximately fourteen other people, all members of a soccer team
Testimony of the State's witnesses as to what happened next is conflicting. Guerrero testified that the next thing he knew, he heard a shot. He turned around and saw Mr. Verdin with a gun in his hand. Carlos tried to grab the gun, then fell to the floor. Tr. at 245-46. Martinez testified that Mr. Verdin stuck his hand underneath his shirt and fired a gun at Carlos. Carlos raised his hands to defend himself but was, at the same time, falling to the ground. Mr. Verdin then fired two more shots at Carlos. Tr. at 276-77. Mr. Perez-Moreno testified that Mr. Verdin dropped his hand to his waist, and Carlos stood up and tried to grab Mr. Verdin's hand. Mr. Verdin then fired a shot at Carlos, and Carlos fell down. Mr. Verdin then raised the gun and waved it about "for no one to intervene," then fired it once towards the rear door and then twice more at Carlos. Tr. at 291-96. Holding the gun in his right hand, Mr. Verdin then headed toward the front exit. Tr. at 260, 296.
Niceforo Estrello, Carlos' brother testified that he was sitting in the back room when he heard the first shot. After he heard several more shots, he stood up and quickly headed for the front room. On the way, he saw Alphonso Castro lying on the floor in the back room. 1 As he turned into the front room, Niceforo saw his brother Carlos lying on the ground near the bar. He also saw a gun on the floor near his brother. 2 Niceforo picked up the gun and started shooting at Mr. Verdin, who was heading for the front exit. Niceforo saw Mr. Verdin shooting back in his direction, towards the back of the bar. Tr. at 218-21. Mr. Verdin then left through the front exit. Police soon found Mr. Verdin hiding behind a chimney on the roof of a nearby building. Police also found Mr. Verdin's gun behind a steel post in the alley. The gun used by Niceforo was also found under a car behind the club. Police also discovered bullet holes in the thin wall separating the club's two rooms.
While in custody and after being given his Miranda warning, Mr. Verdin spoke with a Chicago Police detective. The detective testified at trial that Mr. Verdin said he was making his way to the bathroom when he and Carlos began arguing, shoving, and pushing each other. Mr. Verdin told the detective that he heard a gunshot, pulled out his gun, and then heard three Dr. Edmund Donoghue performed autopsies on both Carlos Estrello and Alphonso Castro. He testified that the autopsy of Carlos Estrello revealed that he was shot twice at close range. The fatal bullet entered Carlos' left shoulder, passed through his chest and exited the back of his body on the right side. There was also gun powder "strippling," or burns, on the back of Carlos' left forearm and also around the point where the bullet entered his shoulder, indicating a close gunshot wound. The autopsy of Alphonso Castro revealed an atypical gunshot wound in the chest. The wound was atypical in the sense that the bullet did not strike in the typical nose-on position, indicating that it struck something before it entered Castro's body.
more shots. Tr. at 376. Mr. Verdin told the detectives that he pulled a gun "because he didn't want to get beat up like he did the year before." Tr. at 380. When the detective asked about the earlier incident, Mr. Verdin said that a year prior to the shooting there had been a fight between his co-workers and some of the members of the Matchua Las club. According to Mr. Verdin, Carlos Estrello entered the fray with a knife, so Mr. Verdin grabbed a chain and began beating Carlos back. Several club members then jumped Mr. Verdin and beat him severely; Mr. Verdin had to be hospitalized. Tr. at 385-87
A police serologist testified that she examined the lined shirt-coat that Mr. Verdin was wearing at the time of the shooting. She testified that she found bullet holes in the left front panel of the shirt and lead residue on the outside of the shirt around the hole. Her conclusion was that a gun had been fired at the shirt, from the outside, at close range. Tr. at 595-97. On cross-examination, she admitted that she could not date the lead residue; she could not say how long the bullet hole had been in the shirt. Tr. at 597-98.
A police chemist testified that she performed residue tests on swabs of palms of several of the people involved in the shooting to determine whether there were high levels of metal residue. She found high levels in the swabs taken from the palms of Mr. Verdin and Carlos Estrello. In her opinion both of these men had their right hand "on a weapon when that weapon was fired." Tr. at 652-55.
Police photographs of Carlos Estrello's body taken immediately after the shooting reveal that his feet were next to the outside wall of the club and his head was toward the bar. Tr. at 338-39. A private investigator, hired by Mr. Verdin, testified that he took measurements at the club following the shooting. The measurements reveal that the distance between the point on the floor where Carlos Estrello's feet ended up and the bar was roughly nine and one-half feet. Tr. at 575-78.
Before the case was submitted to the jury, the judge gave standard jury instructions on both murder and voluntary manslaughter from Illinois Pattern Jury Instructions (IPI) Criminal (1981). These instructions have since been determined to be erroneous in two respects: (1) they placed upon Mr. Verdin the burden of proving whether he had the mitigating mental state of unreasonable belief that his actions were justified, and (2) they left the jury with the impression that it could convict Mr. Verdin of murder even if he had such a mitigating mental state. The first defect violates Illinois law, see People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988), 3 while the second defect violates the Due Process Clause, see Taylor v. Gilmore, 954 F.2d 441 (7th Cir.1992), petition Mr. Verdin's jury returned with verdicts of guilty on both charges, murder and voluntary manslaughter, with respect to both victims, Carlos Estrello and Alphonso Castro; there were four verdicts in all. Tr. at 747. Without consulting with counsel, the court then instructed the jury:
for cert. filed, 60 U.S.L.W. 3783 (U.S. April 27, 1992) (No. 91-1738); Falconer v. Lane, 905 F.2d 1129 (7th Cir.1990).
Ladies and gentlemen, you understand that there cannot be a guilty [verdict] of both murder and manslaughter. Therefore I am going to ask you, ladies and gentlemen, to return to the jury room to decide as to which of your two verdicts is applicable.
Tr. at 747-48. After the jury left the room, defense counsel moved for a mistrial. 4 While the jury was re-deliberating and the parties had left the courtroom, the jury passed a note to the trial judge, who answered it without consulting counsel and without entering the note or his response on the record. After counsel returned, the following...
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