that they were headed for a liquor store. Later they appeared at the Carlsten residence, where Burns used his acquaintance with Arthur and Barbara to gain entry into their home. Burns did all of the talking for the defendants, explaining that their car had broken down and that they needed to use the telephone. Once inside Burns continued to do the talking for himself and Jones.
Minutes later, as Arthur Carlsten struggled with Jones in the kitchen, Arthur called to Burns for help. Burns stood by less than four feet away, and did and said nothing. Burns then went and got Barbara, and motioned her into the kitchen. As Barbara reached her husband and struggled valiantly with Jones, Burns did nothing except watch and smile. Once Barbara telephoned the operator, Burns and Jones retreated to the Carlstens' living room, had a quick conversation, then fled. Police picked up Burns a short time later, and they asked Burns to show them where his car was. It was not where he had told the Carlstens -- abandoned in a roadway, the victim of car trouble -- but rather in the parking lot of a housing development located less than two blocks away.
This evidence -- Burns's accompanying Jones to the Carlsten residence, his talking for the two of them at the residence, his misdescription of the location of his car, his standing by in silence during the attacks on Arthur and Barbara, his role in guiding Barbara to the kitchen, and his failure to report the events at the Carlstens to the police following Jones's attack -- overwhelmingly suggests a community of interest between Jones and Burns, such as would support a finding beyond a reasonable doubt of Burns's accountability for Jones's criminal acts under Illinois law. This evidence came from the Carlstens, Schaumburg Police, and Eva Burns. The prosecution's comments about Burns's silence did not enhance this evidence to any significant degree. The evidence was substantial before the prosecution noted Burns's silence, and it would have resulted in Burns's conviction regardless of the prosecution's comments.
The only reservation the court has in this regard is not to the quantity of evidence indicating Burns's accountability for Jones's acts, but to what sort of person for whom the State could have held Burns accountable. This is the thrust of Burns's third objection to his conviction. At trial, both Jones and Burns relied to a degree on defenses of intoxication. They introduced evidence of their substantial drug and alcohol use from September 29, 1982 through the night of the attacks on the Carlstens. There was evidence that during this time Jones ingested alcohol, phencycladine (also known as "PCP"), and quaaludes. He also introduced evidence of his addiction to PCP, and demonstrated a history of abuse of alcohol and other substances dating back to five years before the Carlsten incident.
During a conference over the jury instructions, lawyers for Jones and Burns proposed various instructions relating to the effect of intoxication on a person's criminal responsibility under Illinois law. The trial court denied these instructions, and on review the Illinois Appellate Court affirmed this decision. The Court held that "given the degree of calculation required to commit the offenses, we find the evidence of the defendants' guilt so substantial that any assumed error in the trial court's refusal to give the requested instructions . . . was harmless." Jones and Burns, Mem. Op. at 9.
Burns reiterates here his contention that the trial court committed "reversible error" in not instructing the jury as to the voluntary intoxication defense. He has cited numerous Illinois and federal authorities which state this principle, but those cases are inapposite here. This court does not sit "to correct errors made by state courts in the interpretation and application of state law." Williams, 826 F.2d at 659. Rather, this court can review only those claims that the State violated federal law. Whether an instruction was proper under Illinois or federal practice is not of moment. Rather, a person who collaterally attacks a state court's failure to give a requested instruction must demonstrate that this failure "'so infected the entire trial that the resulting conviction violates due process . . . .'" United States ex rel. Swimley v. Nesbitt, 608 F.2d 1130, 1132 (7th Cir. 1979), quoting Cupp v. Naughten, 414 U.S. 141, 147, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973).
At one time the Seventh Circuit suggested that when the issue is the state court's failure to give an instruction, rather than an alleged error in an instruction which the court actually delivered, the courts should confine their inquiry to two things: whether the trial court properly instructed the jury on the government's burden of proving every element of the crime charged beyond a reasonable doubt, or whether the instruction reflects a "'principal of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental . . . .'" Swimley, 608 F.2d at 1133, quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 78 L. Ed. 674, 54 S. Ct. 330 (1934). The petitioner in Swimley confronted the court with the question of whether the Constitution required a court to give a cautionary instruction regarding the testimony of accomplices or immunized witnesses. This instruction pertained to the weight of the testimony of particular witnesses, however, and not the issues which the jury should consider in its deliberations.
The Seventh Circuit addressed the latter problem in United States ex rel. Peery v. Sielaff, 615 F.2d 402 (7th Cir. 1979). There petitioner Peery contended that the state court violated his constitutional rights in a murder case by not instructing the jury as to its ability to find him guilty of the lesser offense of voluntary manslaughter. Peery contended that the jury could find him guilty on this theory if it found he had acted on a sudden and intense passion arising from a serious provocation. The Peery court recognized the "well established" principle 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 evidence, "even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility."'" Id. at 403, quoting United States v. Creamer, 555 F.2d 612, 616 (7th Cir. 1977). Nevertheless, the Peery court reasoned that it could overturn a conviction in a habeas corpus proceeding only if the evidence supporting the defense was so "unequivocally strong that failure to give the instruction could be said to have amounted to a fundamental miscarriage of justice." Peery, 615 F.2d at 404 (footnote omitted).
Under the Illinois law in effect at the time of Burns's trial, "[a] person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition either: (a) negatives the existence of a mental state which is an element of the offense; or (b) is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." Ill.Rev.Stat. ch. 38, § 6-3.
Burns does not argue that his intoxication negated his own intent to promote or facilitate the commission of Jones's acts. Rather, Burns contends that Jones was so intoxicated that Jones lacked intent. If Jones lacked the requisite intent, then he did not commit his offenses, and if Jones did not commit an offense, the logic goes, Burns could not be accountable for Jones's criminal actions, unless the State demonstrates that Burns caused them.
The court in People v. Crosser, 117 Ill. App. 3d 24, 27-28, 452 N.E.2d 857, 861, 72 Ill. Dec. 604 (1983) (citations omitted), described the voluntary intoxication defense under Illinois law:
Voluntary intoxication is a defense to a specific intent offense . . . if the condition of intoxication negates or makes impossible the existence of the mental state which is an element of the crime. In other words, the degree of intoxication which will absolve the defendant of responsibility for his criminal conduct must be so extreme that it suspended entirely the power of reason, or rendered the defendant wholly incapable of forming the requisite intent to commit the crime in question.
In most of the reported Illinois cases, persons who raised the defense of voluntary intoxication were unsuccessful, yielding the curious result that it is easier to see when a defendant cannot establish the defense than when he or she can. The State usually succeeds in overcoming the defense in the reported cases in one of two ways: by demonstrating through the accused's own testimony that he or she recalls details before, during, and after the offense, see, for example, id. at 28; People v. Feagans, 119 Ill. App. 3d 941, 948, 457 N.E.2d 459, 463-64, 75 Ill. Dec. 465 (1984) (accused's detailed statements to police and his trial testimony indicated that his reason was not suspended at the time of offense); People v. Thompson, 125 Ill. App. 3d 665, 676-77, 466 N.E.2d 380, 389, 80 Ill. Dec. 928 (1984) (defendant's ability to testify "with clarity and in detail" about events before, during, and after armed robbery prevented him from establishing voluntary intoxication defense); or by offering ample evidence of the accused's purposeful actions, see, for example, People v. Arnold, 104 Ill. 2d 209, 215-17, 470 N.E.2d 981, 984-85, 83 Ill. Dec. 561 (1984) (totality of circumstances, including evidence of defendant's purposeful actions and keen abilities under difficult conditions, indicated knowing or intentional conduct); People v. Bradney, 170 Ill. App. 3d 839, 856, 525 N.E.2d 112, 123, 121 Ill. Dec. 306 (1988) (same); People v. Hayes, 173 Ill. App. 3d 1043, 1048, 527 N.E.2d 1342, 1346-47, 123 Ill. Dec. 567 (1988) (same).
The State successfully employed both methods here. Jones's trial testimony was wholly consistent with his defense of intoxication, as he could recall very little about the events of October 1-2. Nevertheless, the State presented Diane Ghaster, an Assistant State's Attorney, who testified that on the afternoon of October 2 Jones gave a statement to her in which he recalled the events of October 1-2 in more detail than he presented at trial. Jones claimed that he and Burns had experienced car problems after leaving Burns's residence, and that Burns suggested going to the Carlstens' to visit their son. Jones told Ghaster that when they arrived at the Carlstens', Arthur opened the door and spoke with them; Jones did not see Barbara. Burns then told Jones to call Eva Burns, which Jones claimed he did. Eva did not answer. Jones told Ghaster that Arthur had offered them a ride, which they refused. Arthur then reportedly let Jones and Burns out the kitchen door, and the men departed for a convenience store. Jones denied stabbing either of the Carlstens, being on drugs during October 1-2, or lacking recall. Ghaster testified further that during her interrogation of Jones, Jones appeared lucid and alert.
The State introduced more than Jones's statement to Ghaster to refute Jones's defense of intoxication. Jones admitted at trial that he had driven to Lake Geneva, Wisconsin, and back in the days prior to October 1, despite being intoxicated. Police stopped him and Burns several times on their return trip, but each time Jones cooperated with police and indicated he understood what what was happening to him -- despite his allegedly profound intoxication. After returning to Schaumburg and joining the Burnses at their home on the evening of October 1, Jones once again ingested alcohol, PCP, and quaaludes. As a result, he appeared intoxicated, but he was not so intoxicated that he could not drive. Because her husband's license had been revoked, Eva Burns gave Jones the keys to their automobile, so that Jefferey Burns and Jones could go to a liquor store. Jones told Ghaster that he did the driving that night, and maneuvered the car to the other side of Schaumburg to get to the Carlstens' residence. When Jones and Burns appeared at the door, according to the Carlstens, neither man looked or acted intoxicated. Jones followed Burns's directions, going to the kitchen to attempt a call.
This court has reviewed the trial record in this case, and recognizes that Jones introduced evidence that suggested he was intoxicated. Had this court conducted the trial, it may have exercised its discretion and given an instruction of the defense of voluntary intoxication. Nevertheless, this court can reverse Burns's conviction under 28 U.S.C. § 2254 only if the evidence supporting his defense of voluntary intoxication was so "unequivocally strong" that the failure to give an instruction relating to the defense amounts to a "fundamental miscarriage of justice." Peery, 615 F.2d at 404. The evidence supporting Jones's defense is not unequivocally strong; in fact, it comes close to demonstrating amply that despite Jones's intoxication, his powers of reason were not suspended. The court notes further that regardless of the trial court's failure to instruct the jury on this defense, the jury had to find that Jones acted knowingly or intentionally on each of the charges against him. The court properly charged the jury with the elements of the offenses and the State's burden of proof with respect to each element. The jury had the evidence of Jones's impairment as well as the elements the State had to prove; the jury would not have convicted Jones had it believed his story about his not knowing what he was doing on the night of October 1-2.
The court thus denies Robert Jefferey Burns's petition for a writ of habeas corpus.
DATE: July 11, 1989