United States District Court, Northern District of Illinois, E.D
October 29, 1982
UNITED STATES OF AMERICA EX REL. THEODORE BACON, PETITIONER,
RICHARD DEROBERTIS, RESPONDENT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Theodore Bacon ("Bacon"), a prisoner at Stateville Correctional
Center in Joliet, Illinois, brings this habeas corpus proceeding
against Stateville Warden Richard DeRobertis ("DeRobertis"). With
no disagreement on the underlying facts, both sides have moved
for summary judgment on Count II, the remaining claim in Bacon's
petition.*fn1 For the reasons contained in this memorandum opinion
and order, DeRobertis' motion is granted and Bacon's is denied.
Bacon challenges his conviction of having murdered his
girlfriend, Josie Brown ("Brown"), in April 1976. At the trial
Bacon's court-reporter-transcribed (though unsigned) statement to
an Assistant State's Attorney and a police investigating officer
(given about 1 1/2 years after the event and about 2 years before
the trial) was introduced into evidence. It contained the
following version of events:
1. Bacon and Brown had become embroiled in a long
heated argument in the apartment they shared. It
escalated into a physical altercation.
2. Bacon slapped Brown several times with an open
hand, while Brown flung various objects at Bacon and
scratched him several times.
3. During the physical struggle, Brown asked Bacon
to stop hitting her and at one point tried
unsuccessfully to escape from the apartment.
4. Their fight ended tragically when Brown fell and
hit her head on the television set.
5. Thinking she was only unconscious, Bacon placed
her on the couch and tried to revive her.
6. After realizing Brown had died, he wrapped the
body in a rug and put it behind a couch in the
7. Three days later he carried the body out to his
car, put it in the trunk, drove around for two or
three hours and eventually placed the body under a
Bacon testified to a different story at the trial. He did
acknowledge the physical struggle that ended with Brown hitting
her head on either the television set or the table. But in total
contrast to his pre-trial statement, Bacon testified Brown was
not only alive but also conscious and active afterwards. Indeed,
Bacon said when he then went to take a bath he heard Brown
throwing things and knocking things over, then heard a door slam
— and when he came out of the bathroom, she was gone.
Two of Brown's neighbors testified they heard:*fn2
1) a man and a woman in Bacon's apartment begin
swearing at one another and then start fighting;
2) loud noises during the fight, sounding as though
objects were being tossed around the room and "licks
[were] being passed";
3) the female at one point asking the male to stop
hitting her; and
4) the male at the end of the 1 1/2 hour fight
saying "get up, get up."
One of Bacon's friends testified to a conversation with Bacon a
few days after the fight, in which Bacon was crying and said he
had killed Brown but did not mean to.
One of the police officers who brought Bacon back to Chicago,*fn3
Harold Kunz, testified as to a conversation with Bacon during the
trip. According to Kunz, Bacon admitted he had punched Brown six
or seven times when their fight escalated, and that she was
killed when she fell striking her head on the television set.
Finally Assistant Medical Examiner Yuksel Konakci, who conducted
the Brown autopsy, testified she had sustained multiple
lacerations, abrasions and bruises on various parts of her body,
and her death had resulted from a head injury.
At the close of trial, the judge refused Bacon's request to
give an instruction on voluntary manslaughter. Bacon was
convicted of murder and sentenced to a term of not less than 40
or more than 80 years.
Having exhausted his state remedies,*fn4 Bacon brought this habeas
action. Count II of Bacon's petition contends his conviction
violated his due process rights because:
1. Evidence adduced at trial was insufficient to
establish the requisite mens rea for murder.
2. Bacon's requested instruction on the "lesser
included offense"*fn5 of voluntary manslaughter should
have been given.
Neither argument is of constitutional dimensions under the
Sufficiency of Evidence
To establish the mens rea required for murder under Illinois
law, the State must prove*fn6 (1) Bacon intended to kill or do great
bodily harm to Brown or (2) he knew his acts created a strong
probability of death or great bodily harm. Ill.Rev.Stat. ch. 38,
§ 9-1. If the evidence discloses only that Bacon was "acting
under a sudden and intense passion resulting from serious
provocation," he can be convicted of voluntary manslaughter but
not of murder. Ill.Rev.Stat. ch. 38, § 9-2.
Under Illinois case law differentiating the two crimes, it is
well settled that "serious provocation" may arise from a "mutual
combat." See Bacon, 91 Ill.App.3d at 628, 47 Ill.Dec. at 677, 415
N.E.2d at 682.*fn7 Our Court of Appeals has quoted the definition of
"mutual combat" from People v. Matthews, 21 Ill. App.3d 249, 253,
314 N.E.2d 15, 18-19 (3d Dist. 1974) as "one into which both
parties enter willingly, or in which two persons, upon a sudden
quarrel, and in hot blood, mutually fight upon equal terms."
United States ex rel. Peery v. Sielaff, 615 F.2d 402, 405 (7th
Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64
L.Ed.2d 794 (1980). Two other conditions must be satisfied as
well (id. at 405-06):
1. the accused cannot have instigated the fight;
2. retaliation by the accused must not be
disproportionate to the provocation.
But all those tests are for the state court trier of fact.
This Court sits neither as a parallel criminal court of first
resort nor even in the more ratified atmosphere of the state's
reviewing courts. Its function in scrutinizing evidentiary
sufficiency in due process terms is very limited indeed. Jackson
v. Virginia, 443 U.S. 307
, 318-19, 99 S.Ct. 2781, 2788-89, 61
L.Ed.2d 560 (1979) (emphasis added) teaches such habeas
challenges may not be sustained if, "after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt."
In those terms the analysis is over as soon as it begins.
Certainly a rational jury could have found beyond reasonable
doubt that Bacon killed Brown with the requisite murderous
intent, and not actuated by any intense passion triggered by
serious provocation. It had only to believe such portions of the
evidence as the following:
1. Brown was severely beaten, far out of proportion
to the minor scratches sustained by Bacon.
2. She repeatedly pleaded with Bacon to stop
3. When Brown attempted to flee the apartment,
Bacon yanked her back in and continued hitting her.
Indeed the rational jury could have concluded, from the sharp
disparity between the last chapter of the episode as told in
Brown's pre-trial story and as he told it from the stand, that
Brown's entire provocation defense was a fabrication — with all
the negative inferences that would convey.
Evidentiary insufficiency is a heavy burden in federal habeas
cases at best. And Brown does not approach the "best." Relief
must be denied on this score.
Failure To Give Voluntary Manslaughter Instruction
Bacon's second argument turns the analysis around entirely, at
least in the first
instance. It becomes necessary to consider not whether a rational
jury could have returned a guilty verdict on a murder charge, but
whether the same jury could rationally have found voluntary
Under Illinois law a trial judge commits reversible error by
refusing to give a requested manslaughter instruction "where
there is any evidence in the record which, if believed by a jury,
would reduce the crime from murder to manslaughter." Bacon, 91
Ill.App.3d at 678, 47 Ill.Dec. at 677, 415 N.E.2d at 682
(emphasis added). Moreover, once that low evidence threshold is
met, the manslaughter instruction must be provided even if
inconsistent with the defendant's theory of defense. See People
v. Lockett, 75 Ill. App.3d 183, 31 Ill.Dec. 122, 394 N.E.2d 38
(5th Dist. 1979), aff'd, 82 Ill.2d 546, 45 Ill.Dec. 900,
413 N.E.2d 378 (1980).
From this wholly different perspective it could perhaps have
been possible for the rational jury to convict of manslaughter
rather than murder. Again a brief selection of evidence is
1. Bacon's unsigned pre-trial statement says Brown
threw objects at him and also scratched and slapped
2. According to the same statement Bacon responded
to Brown's attacks by slapping her*fn8 — a retaliation
arguably proportionate to the "provocation" of slaps
and scratches inflicted by Brown.
3. At trial Bacon testified Brown initiated the
physical fight by slapping him.
Finally the jury might possibly infer, if it believed only
selective evidence about the fight, Bacon had been consumed by a
"sudden and intense passion."
Thus a conviction of voluntary manslaughter might conceivably
have been returned. If so, Bacon would arguably have been
entitled to an instruction on voluntary manslaughter under
Once again such a state law determination does not necessarily
control the constitutional result. On the latter score the
applicable case law is somewhat elusive.
Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392
(1979) recently provided a negative answer to a related question:
whether a death sentence may be imposed when the jury was not
permitted to consider a verdict on a lesser included non-capital
offense for which there was sufficient evidentiary support. As
the Supreme Court reasoned (id. at 637, 100 S.Ct. at 2389):
While we have never held that a defendant is entitled
to a lesser included offense instruction as a matter
of due process, the nearly universal acceptance of
the rule in both state and federal courts establishes
the value to the defendant of this procedural
safeguard. That safeguard would seem to be especially
important in a case such as this. For when the
evidence unquestionably establishes that the
defendant is guilty of a serious, violent offense —
but leaves some doubt with respect to an element that
would justify conviction of a capital offense — the
failure to give the jury the "third option" of
convicting on a lesser included offense would seem
inevitably to enhance the risk of an unwarranted
Such a risk cannot be tolerated in a case in which
the defendant's life is at stake. As we have often
stated, there is a significant constitutional
difference between the death penalty and lesser
punishments. . . .
It reserved judgment on the question posed here: whether due
process considerations require lesser included offense
instructions in a non-capital case.*fn10
Id. 447 U.S. at 638 n. 14,
100 S.Ct. at 2390 n. 14.
Despite that reservation, Beck might be viewed as calling for
the same result here. Its analysis identified two significant
1. the substantial risk of an unwarranted
conviction emanating from the unavailability of the
"third option"; and
2. the intolerable costs associated with such an
erroneous conviction (given the immeasurable
difference between death and the finite prison term
that would otherwise have been imposed).
How do those factors apply to this case?
In a sense the risk of an unjustifiable conviction may be equal
to or greater than those in Beck. Any jury deprived of the "third
option" (assuming ample evidentiary support) might be more
hesitant to convict if death rather than incarceration followed
from a finding of guilt. True enough the cost of an incorrect
conviction cannot approach the ultimate cost — death — involved
in Beck. But it is nevertheless very high. On a voluntary
manslaughter conviction Bacon's sentence (now between 40 and 80
years) could not have exceeded 15 years. Ill.Rev.Stat. ch. 38, §
This Court, though, must view Beck in Seventh Circuit terms. In
our Court of Appeals' pre-Beck decision in Peery, 615 F.2d at
404, it had said a habeas petitioner, who had challenged the
trial court's refusal to give a voluntary manslaughter
instruction, carried an "especially heavy" burden "because `[a]n
omission, or an incomplete instruction is less likely to be
prejudicial than a misstatement of the law'" (quoting Henderson
v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203
(1977)). Specifically, Peery held (id.) the failure to provide a
manslaughter instruction does not implicate due process values so
long as the "evidence of serious provocation is not so
unequivocally strong that failure to give the instruction could
be said to have amounted to a fundamental miscarriage of
Just this year — post-Beck of course — Davis v. Greer,
675 F.2d 141, 145 (7th Cir. 1982) reaffirmed the same stringent due
process standard, albeit without any discussion of Beck. Under
the circumstances this Court is constrained to follow the
In those terms "the evidence of serious provocation is not so
unequivocally strong that failure to give the
instruction . . . amounted to a fundamental miscarriage of
justice." As already indicated in the earlier analysis, the
evidence of any real provocation, let alone "serious
provocation," is hardly compelling. Certainly the Bacon-Brown
fight was heavily one-sided, and the harmful blows dealt by Bacon
could surely be deemed not "proportionate" to any provocatory
actions taken by Brown.*fn12
This legal question is closer than that discussed in the first
section of this opinion. Upon full consideration, though, any
trial court error arguably committed in refusing to give the
tendered voluntary manslaughter instruction does not infringe the
Due Process Clause.
There is no genuine issue as to any material fact and
DeRobertis is entitled to a judgment as a matter of law on Count
II. Bacon's petition for a writ of habeas corpus as to Count II
is denied. Because Count I has previously been resolved adversely
to Bacon, this action is dismissed with prejudice in its