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11/21/88 the People of the State of v. Marvin A. Flowers

November 21, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MARVIN A. FLOWERS, DEFENDANT-APPELLANT



Before evaluating the trial evidence as it relates to this element, it is necessary that we consider the State's argument that this court, in the Rule 23 order on defendant's direct appeal, already found no merit to defendant's contention that he was not properly found guilty of felony murder. On defendant's direct appeal, we determined only that the evidence presented at trial was sufficient to sustain the jury's murder conviction under both the intent-murder and felony-murder theories. We were not faced with the situation where one of the theories could not sustain the verdict. Where a verdict is supportable on one ground but not another, and it is impossible to tell which grounds the jury selected, the conviction is unconstitutional. Yates v. United States (1957), 354 U.S. 298, 312, 1 L. Ed. 2d 1356, 1371, 77 S. Ct. 1064, 1073; Stromberg v. California (1931), 283 U.S. 359, 368, 75 L. Ed. 1117, 1122, 51 S. Ct. 532, 535; Cramer v. Fahner (7th Cir. 1982), 683 F.2d 1376, 1379-80.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

548 N.E.2d 766, 192 Ill. App. 3d 292, 139 Ill. Dec. 381 1988.IL.1676

Appeal from the Circuit Court of Cook County; the Hon. Francis J. Mahon, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL* and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

After a jury trial, defendant, Marvin Flowers, was convicted of murder, armed robbery and armed violence and sentenced to concurrent prison terms of 40 years for murder and 15 years for armed robbery. In a previous order issued pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23), we affirmed defendant's conviction. Defendant now appeals from the dismissal of his petition which sought relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.).

The evidence adduced at trial was reported at length in our prior order affirming defendant's conviction and will not be repeated here. Suffice it to say that testimonial and physical evidence linked defendant to the scene where the victim was robbed and beaten.

According to police, defendant gave two accounts, first he told them that as he entered the victim's store, he saw two men beating the victim. He further stated that the pair threatened to kill him and his girl friend if he did not put his fingerprints on the bat and gun used to assault the victim. He also claimed to have driven the victim's car away from the scene under duress. However, after he failed to explain how this could be possible when he alone was observed driving from the scene in the victim's car and it was he who was found in possession of the gun, defendant changed his story. He then claimed that the victim had attacked him, initiating a fight between them. When the victim reached for a weapon, defendant grabbed a nearby baseball bat and struck the victim several times. Realizing that the victim would not pay the money which he owed him, defendant took cash and property from the store, loaded the items into the victim's car and drove away.

The jury was given pattern jury instructions on the offenses of murder and voluntary manslaughter (belief of justification). (Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 7.06 (2d ed. 1981) (hereinafter IPI Criminal 2d Nos. 7.02, 7.06).) At trial, defendant neither objected

After deliberation, the jury signed verdict forms finding defendant guilty of both murder and voluntary manslaughter. The trial court instructed the jury that voluntary manslaughter was a lesser included offense of murder, that guilty verdicts for both offenses would not be accepted, and that they were to identify which of the two verdict forms actually reflected their determination of guilt. Thereafter, the jury returned a guilty verdict for murder.

Among the issues raised and disposed of adversely to defendant on his direct appeal were the contentions that the trial court erred in refusing to enter judgment on the voluntary manslaughter verdict where the jury returned guilty verdicts of both murder and voluntary manslaughter and that the trial court erred in its oral instruction to the jury.

Defendant subsequently filed the instant post-conviction petition seeking relief by contending that fundamental fairness mandated the relaxation of res judicata principles because certain appellate court decisions indicated that the affirmance of his conviction or sentence was improper, and that the appeal of a factually similar case, i.e., People v. Almo (1984), 123 Ill. App. 3d 406, 462 N.E.2d 835, was then pending appeal in the supreme court. *fn1 In response, the trial court removed the post-conviction petition from its call pending the resolution of Almo. However, in People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203, the supreme court ruled adversely to defendant, holding that the trial court was not required to enter judgment on voluntary manslaughter where the jury presents verdicts of both murder and voluntary manslaughter and that it is proper procedure for the trial court to orally instruct the jury concerning lesser included offenses in the manner done in the instant case. Acknowledging that Almo was resolved against him, defendant filed a supplemental petition alleging that his petition for post-conviction relief was nonetheless meritorious. The trial court dismissed the petition.

In appealing this dismissal, defendant contends that the trial court violated double jeopardy and collateral estoppel protections when it rejected the jury's verdict of voluntary manslaughter and ordered further deliberations and that the trial court's inherently ...


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