Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-800 -- John F. Grady, Judge.
Before Cummings, Tone and Bauer, Circuit Judges.
On the evening of March 31, 1971, Major Peery killed his wife in the kitchen of his daughter's home. He was tried and convicted of murder in July of that year, but the judgment was reversed on appeal due to the trial court's erroneous rejection of Peery's proposed instructions on voluntary manslaughter. 11 Ill.App.3d 730, 297 N.E.2d 643 (1st Dist. 1973). At his retrial, Peery again proffered instructions on voluntary manslaughter. The trial court tendered the instruction on voluntary manslaughter based on unreasonable belief in justification (self-defense) but refused the instruction on voluntary manslaughter based on sudden and intense passion resulting from serious provocation.*fn1 Peery was again convicted of murder and this time the judgment was affirmed on appeal. 41 Ill.App.3d 533, 354 N.E.2d 536 (1st Dist. 1976). He appeals from dismissal of his petition for Habeas Corpus, 28 U.S.C. § 2254. The sole issue on appeal is whether the trial court's refusal to instruct on voluntary manslaughter based on sudden and intense passion resulting from serious provocation violated petitioner's Sixth Amendment right to trial by a jury, or his Fifth and Fourteenth Amendment right to due process.
The general principle is well established that a criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has "some foundation in the evidence, "even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.' " See United States v. Creamer, 555 F.2d 612, 616 (7th Cir. 1977) (rehearing denied), quoting United States v. Hillsman, 522 F.2d 454, 459 (7th Cir. 1975) and United States v. Lehman, 468 F.2d 93, 108 (7th Cir. 1975). Cf. United States v. Garner, 529 F.2d 962 (6th Cir. 1976) (rehearing denied). The district court rejected petitioner's Sixth Amendment argument, in part because "we have found no cases which even intimate such an expansion of Sixth Amendment protection, and we are unwilling to break new constitutional ground in the absence of even analogous authority." The Fifth Circuit has said, however, that:
If the trial judge evaluates or screens the evidence supporting a proposed defense, and upon such evaluation declines to charge on that defense, he dilutes the defendant's jury trial by removing the issue from the jury's consideration. In effect, the trial judge directs a verdict on that issue against the defendant.
Strauss v. United States, 376 F.2d 416 (5th Cir. 1967). Since the result is trial by the judge, rather than trial by a jury, both Sixth Amendment and Due Process rights may be at issue. Zemina v. Solem, 573 F.2d 1027 (8th Cir. 1978), affirming and adopting Zemina v. Solem, 438 F. Supp. 455 (S.D.1977) (Nichol, C. J.).
In general, however, the "(failure) of the state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding." James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976). Cf. DeBerry v. Wolff, 513 F.2d 1336, 1339 (8th Cir. 1975); Bonner v. Henderson, 517 F.2d 135 (5th Cir. 1975); Grech v. Wainwright, 492 F.2d 747 (5th Cir. 1974). See also United States ex rel. Waters v. Bensinger, 507 F.2d 103, 105 (7th Cir. 1974) ("instructions to the jury in state trials are matters of state law and procedure not involving federal constitutional issues.").
In a habeas action the question is whether the petitioner alleges a "fundamental defect which inherently results in a complete miscarriage of justice (or) an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962). The question before us is whether the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). Where it is the omission of an instruction that is at issue, the petitioner's burden is "especially heavy" because "(a)n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 1737, 52 L. Ed. 2d 203 (1977).
In this case, the evidence of serious provocation was not so unequivocally strong that failure to give the instruction could be said to have amounted to a fundamental miscarriage of justice.*fn2
The defendant testified at his second trial that he had been separated from his wife for about six weeks when he went to see her at his daughter's house to talk with her about having another daughter, Margaret, live with him. He told his wife he had called the Jehovah's Witnesses to report that she and the children should not be living with her son, Henry, because Henry was housekeeping with a woman to whom he wasn't married. He then said he would divorce her, since she had left him. Then,
She walked up and I said, "Well, go on." She kind of went in a rage. I said, "Well, I'm going. I don't feel too good anyway."
Q. Then what happened after that?
A. Well, she walked up and she said, "Anyway, I made up my ...