Marvin Flowers, Cross-Appellee v. Illinois Department of Corrections, Cross-Appellant

962 F.2d 703, 1992 U.S. App. LEXIS 9934

Opinions

ESCHBACH, Senior Circuit Judge.

An Illinois jury convicted Marvin Flowers of murder under a version of murder and voluntary manslaughter instructions found constitutionally deficient by this court in Falconer v. Lane, 905 F.2d 1129 (7th Cir.1990), and earlier found statutorily deficient by the Illinois Supreme Court in People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988). After exhausting his state remedies, Flowers petitioned for federal habeas corpus relief, claiming that his Fourteenth Amendment due process rights were violated by the written and oral instructions tendered to the jury and that his rights against double jeopardy, as guaranteed to him by the Fifth and Fourteenth Amendments, were violated in the state proceedings. The district court granted Flowers relief on the due process grounds, vacating his murder conviction, but denied relief on the double jeopardy ground, thereby allowing Illinois to retry Flowers within ninety days. Both Flowers and Illinois appealed, and their appeals were consolidated for our review. For the reasons that follow, we affirm.

I.

The facts of this case have been detailed extensively in several reported opinions including Judge Hart’s comprehensive order below, see United States ex rel. Marvin Flowers v. Illinois Department of Corrections, 767 F.Supp. 880 (N.D.Ill.1991); consequently, we will not repeat them here except as necessary for our discussion. See also People v. Flowers, 192 Ill.App.3d , 139 Ill.Dec. 381, 548 N.E.2d 766 (1989) (ordering new murder trial) [.Flowers I]; People v. Flowers, 138 Ill.2d 218, 149 Ill.Dec. 304, 561 N.E.2d 674 (1990) (reinstating murder conviction) [Flowers II]. In short, Marvin Flowers admitted that he killed his employer, Robert Murray, with a baseball bat, but maintained that the killing was either in self defense or constituted voluntary manslaughter rather than murder. The trial court determined that the evidence required jury instructions on both murder and voluntary manslaughter. R. 22-23; S.R. 1181-84. The instructions given to Flowers’ jury, however, allowed the jury to convict Flowers of murder without regard to the presence or absence of those mitigating circumstances that distinguish voluntary manslaughter from murder, which has been held to violate the federal due process clause, see Falconer v. Lane, 905 F.2d 1129 (7th Cir.1990), and Illinois law, see People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988).

Flowers’ case demonstrates the jury confusion to which Falconer and its progeny is addressed: initially Flowers’ jury returned verdicts finding him guilty of both murder and voluntary manslaughter. S.R. 24. A judge, who had stepped in to receive the verdicts in the absence of the trial judge, ordered the jury to deliberate further, instructing them to return either the murder or the voluntary manslaughter verdict form, but not both. R. 24-27. The judge twice attempted to clarify the written instructions with little success (as we discuss post). Eventually, the jury returned a murder verdict and Flowers was sentenced to forty years for the offense of murder. R. 31-32. After exhausting his state remedies, Flowers petitioned for federal habeas relief. See Flowers, 767 F.Supp. at 884-85 (detailing Flowers’ state court history).

II.

Flowers asserts that he is entitled to federal habeas relief because the written and supplemental oral jury instructions violated his due process rights under the Fourteenth Amendment. First, Flowers correctly asserts that his written jury instructions violate federal due process. Taylor v. Gilmore, 954 F.2d 441 (7th Cir.1992); United States ex rel. Fleming v. Huch, 924 F.2d 679 (7th Cir.1991); Rose v. Lane, 910 F.2d 400 (7th Cir.1990); Falconer v. Lane, 905 F.2d 1129 (7th Cir.1990). Illinois concedes this point, see Brief of Respondent-Appellee, Cross Appellant at 5-6, but argues that the judge’s supplemental oral instructions cured any deficiency. After a thorough discussion of the judge’s supplemental oral instructions, the district court concluded that the oral instructions “were not sufficient to cure the inherent confusion” in the written instructions. Flowers, 767 F.Supp. at 892. Our own view of the record reinforces the district court’s conclusion: the judge’s oral instructions further muddled an already confused jury through a series of misstatements and the use of undefined legal terminology such as “lesser included offense.” R. 1078-81. Neither did the oral instructions correct the erroneous written instructions because the jury was not told that it could not convict Flowers of murder if it found that Flowers believed that he was justified in killing Murray, even if this belief was unreasonable.

Illinois next argues that even if the jury instructions violate federal due process, Flowers is nevertheless not entitled to collateral relief. Illinois contends that granting Flowers relief on his due process claim would constitute retroactive application of a new rule of criminal procedure in violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The district court held that Falconer did not announce a “new rule” under Teague and that Flowers was accordingly entitled to its application. Our recent decision in Taylor makes clear that the district court was correct. Taylor, 954 F.2d at 453 (holding that “Falconer is not a new rule”). Flowers is entitled to the benefit of Falconer.

Finally, we consider Illinois’ argument that the errors in Flowers’ jury instructions were harmless beyond a reasonable doubt. See Rose v. Clark, 478 U.S. , 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Considering that the Flowers’ jury initially returned verdicts for both murder and voluntary manslaughter, Illinois’ argument here seems particularly barren — although we note that Illinois itself does not spend much time pursuing this point.¹ Moreover, we have rejected similar contentions in the past in this context, see Fleming, 924 F.2d at 683; Rose, 910 F.2d at 403; Falconer, 905 F.2d at 1137, particularly where a defendant stakes his entire defense on a mitigating mental state rather than innocence. Taylor, 954 F.2d at 454. Our review of the record confirms the state trial judge’s apparent belief, given that he tendered a voluntary manslaughter instruction to the jury, that the evidence presented at trial could support either a voluntary manslaughter verdict or a murder verdict. Consequently, we conclude that the error at Flowers’ trial was not harmless beyond a reasonable doubt; he is entitled to federal habeas relief on his due process claim.

III.

Flowers also seeks habeas corpus relief on the basis of an alleged violation of the Double Jeopardy Clause during his state proceedings. Flowers asserts that the jury’s initial return of a voluntary manslaughter verdict constituted a murder acquittal because it reflected a finding, beyond a reasonable doubt, of the presence of those mitigating circumstances that reduce murder to voluntary manslaughter. The jury’s simultaneous return of a murder verdict did not negate or contradict that finding, argues Flowers, because the faulty murder instruction did not require the jury to make a determination as to the presence or absence of the mitigating circumstances. Thus, Flowers insists, the Double Jeopardy Clause prohibits rejection of the jury’s finding and resubmission of the murder issue to the jury.²

But Flowers was not expressly acquitted of murder; he cannot prevail unless the jury’s alleged finding as to his mental state impliedly acquitted him of murder. See Ohio v. Johnson, 467 U.S. 493, 497-99, 104 S.Ct. 2536, 2539-41, 81 L.Ed.2d 425 (1984) (citations omitted). Flowers cannot meet his burden of demonstrating an implied acquittal because the confusing and ambiguous jury instructions in this case make it impossible to know what the jury intended when it returned both verdicts. See ante at 705-06; Falconer, 905 F.2d at 1136. Although Flowers was being tried for both murder and voluntary manslaughter, the judge never explained to the jury that voluntary manslaughter is not a lesser included offense of murder and that Flowers could not be guilty of both crimes simultaneously.³ The jury may have believed that a murder conviction required or included a voluntary manslaughter conviction as well. Had the judge made clear to the jury the relationship between murder and voluntary manslaughter, then the potential for jury confusion that drives Falconer and its progeny may not have been present in this case. See Falconer, 905 F.2d at 1136 (instructions are faulty precisely because the murder instruction “read[s] as though voluntary manslaughter did not exist as a crime” although both murder and manslaughter are at issue); Taylor, 954 F.2d at 450 (noting while discussing Falconer that the instructions “[w]hen read together [are] susceptible to more than one reasonable interpretation”).

Accordingly, while it is theoretically possible that the jury wanted to acquit Flowers of murder but felt compelled, not to by the faulty instructions, it is also possible that the jury found Flowers guilty of murder and believed that that finding compelled them to find him guilty of voluntary manslaughter as well. Flowers’ petition gives us no reason to favor his speculation. Consequently, we hold that Flowers has not met his burden on federal habeas review of demonstrating that he has been denied his rights guaranteed by the Double Jeopardy Clause.

We Affirm the district court’s grant of Flowers’ petition for a writ of habeas corpus. The writ shall issue, thereby releasing Flowers from custody, unless the State of Illinois elects to retry him within ninety (90) days from the issuance of this Court’s final mandate.

Affirmed.

1 . Flowers’ motion to strike portions of Illinois’ reply brief was carried with this case. We grant that motion only as to the portion seeking to strike Argument I from Illinois’ reply brief as improper surrebuttal. We deny the remaining two counts of that motion (pertaining to arguments III and IV of Illinois’ reply brief). We deem it unnecessary for Illinois to file a new brief with Argument I stricken.

2 . The district court declined to accept Flowers’ double jeopardy argument, reasoning that it should defer to the Illinois Supreme Court’s resolution of this issue in Flowers II, 149 Ill.Dec. at 308, 561 N.E.2d at 678. See Flowers, 767 F.Supp. at 892. The Illinois Supreme Court determined that what Flowers’ jury intended was speculative and that its initial verdicts were legally inconsistent so as to permit further deliberations, see Flowers II, 149 Ill.Dec. at 308, 561 N.E.2d at 678, a determination that the district court characterized as one of "fact and procedure.” Flowers, 767 F.Supp. at 892. We need not decide whether the district court properly characterized the Illinois Supreme Court’s determination as a factual one entitled to deference, see 28 U.S.C. § 2254, because we agree with its conclusion even if it is one of law or a mixed question of fact and law.

3 .Indeed, Flowers does not dispute that a court may reject legally inconsistent verdicts without running afoul of the Double Jeopardy Clause, see Hoffer v. Morrow, 797 F.2d 348, 352 (7th Cir.1986); Flowers, 767 F.Supp. at 24 (and cases cited therein), or that these verdicts were inconsistent with the substantive law of Illinois. See People v. Almo, 108 Ill.2d 54, 90 Ill.Dec. 885, 889, 483 N.E.2d 203, 207 (1985).