issue in response to Ms. Falconer's post-conviction petition.
The State, however, should not have relied on the Illinois Supreme Court's ruling as barring Ms. Falconer from obtaining a resolution of her instructions challenge. Having done so, the State has admitted that the Illinois Supreme Court's rejection of Ms. Falconer's petition for leave to appeal constituted a rejection of her claims on the merits, and thereby has waived its position that Ms. Falconer did not exhaust State court remedies in her direct appeal. This ruling, in turn, means that Ms. Falconer had no obligation to seek state post-conviction relief, and accordingly that her failure to appeal the post-conviction court's dismissal does not give rise to a procedural default here.
Perhaps anticipating that the court would rule this way, the State raises an additional argument for denying Ms. Falconer's petition on procedural default grounds. As noted earlier, a state court's silence regarding the basis for its ruling gives rise to an inference that it reached and rejected a particular claim only so long as the petitioner fairly presented that claim to the state court. According to the State, because Ms. Falconer's Supplemental Petition for Leave to Appeal made only a passing reference to a federal constitutional right -- i.e., her argument heading stating that the "instructions deprive[ed] the defendant of due process," SPLA at 1 -- the Illinois Supreme Court's rejection of her petition, even if viewed as a ruling on the merits, does not permit an inference that it reached her federal claim. Since (as Ms. Falconer insists) that ruling precludes Ms. Falconer from obtaining further state relief, the State reasons that Ms. Falconer procedurally defaulted on her federal claim.
This court disagrees for two reasons.
First, courts generally have held that when a State waives the exhaustion requirement, it also waives any procedural defaults resulting from that waiver. See Branch v. Cupp, 736 F.2d 533, 535 (9th Cir. 1984). This rule makes obvious sense: A State may not waive the requirement that a petitioner pursue available state remedies, and then assert that the petitioner's failure to do so bars him from obtaining federal relief. See 1 Liebman, Federal Habeas Corpus Practice and Procedure § 16.2 at 233 n. 24 (1988). In her state post-conviction petition, Ms. Falconer requested "post-conviction relief, pursuant to the Supreme Court's decision in Reddick, based upon the deprivation of her constitutional rights to due process and a fair trial as a result of the manslaughter and murder instructions which the jury received at her trial." Post-Conviction Pet. at para. 13 (emphasis added). The State's position that the Illinois Supreme Court's ruling resolved this claim on the merits stands as an admission that the Illinois Supreme Court reached and rejected Ms. Falconer's constitutional claim, and thus removes any procedural bar to Ms. Falconer presenting it here.
Moreover, even assuming that the State's waiver did not go this far, its fair presentation argument contains a fatal flaw. As the State correctly notes, United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453-54 (7th Cir. 1984), held that a petitioner had not fairly presented his federal due process claim to the state courts "where [his] argument to the state court [did] not: '(a) rel[y] on pertinent federal cases employing constitutional analysis, (b) rel[y] on state cases employing constitutional analysis in like fact situations, (c) assert the claim in terms so particular as to call to mind a specific right protected by the Constitution, . . . [or] (d) alleg[e] a pattern of facts that is well within the mainstream of constitutional litigation.'" Id. at 454 (quoting Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc)). The State noticeably omits mentioning, however, that Fairman specifically stated that these factors were relevant only because the petitioner had "fail[ed] to use the magic words 'due process'" in his state court appeal. 731 F.2d at 454. The Court strongly implied that when a habeas petitioner makes reference to a particular constitutional right, he provides the state courts with a fair opportunity to address the constitutional error. Id. at 454.
Yet, even if something more than the mere invocation of a federal constitutional right is required, see Franklin v. Rose, 811 F.2d 322 (6th Cir. 1987), that something more is present here. Reddick, though not grounded on federal constitutional law, specifically referred to Francis v. Franklin, 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985), in which the Supreme Court held that the state must prove every element of a crime. Reddick proceeded to hold the murder instruction invalid because it did not require the state to disprove the existence of serious provocation or belief of justification. Ms. Falconer's reliance on Reddick, combined with her contention that Reddick violated her right to due process, unmistakeably alerted the Illinois Supreme Court to her federal constitutional claim. See People v. Brooks, 175 Ill.App.3d 136, 124 Ill. Dec. 751, 529 N.E. 2d 732 (1st Dist. 1988) (Reddick ruling "is uncontestably of constitutional dimension").
The Illinois Supreme Court's rejection of Ms. Falconer's petition thus provides an implied rejection of this claim,
and permits Ms. Falconer to pursue her claim here.
The defects in the jury instructions given at Ms. Falconer's trial derive, in part, from the statutes in effect at the time Ms. Falconer killed her husband. The murder statute, Ill.Rev.Stat. 1985, ch. 38 para. 9-1, defined murder as the intentional killing of another without lawful justification. The manslaughter statute, Ill.Rev.Stat. 1985, ch. 38 para. 9-2, defined manslaughter as the intentional killing of another resulting from either serious provocation or an unreasonable belief that the killing is justified. On their faces, the two statutes were identical: since killing under serious provocation and killing under the unreasonable belief that it is justified amount to killing without lawful justification, a person guilty of manslaughter was, by the literal terms of the statute, guilty of murder.
That obviously was not what the Illinois legislature had in mind. As Reddick pointed out, the serious provocation and unreasonable belief in justification prongs of voluntary manslaughter represented affirmative defenses -- so-called "manslaughter defenses" -- to a murder charge. 123 Ill.2d at 195-97. Under the Illinois affirmative defense statute, once the defendant presented evidence of these mitigating mental states, the State, in order to convict on a murder charge, had the burden of disproving their existence beyond a reasonable doubt. Id. at 195.
In Engle v. Isaac, 456 U.S. 107, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982), the Supreme Court held that jury instructions which misstate, as a matter of state law, the burden of proof with respect to affirmative defenses do not necessarily violate the Due Process Clause. Id. at 119-21. So long as the state retains the burden of proving all elements of the crime, it may shift to the defendant the burden of proof with regard to bona fide affirmative defenses. See Martin v. Ohio, 480 U.S. 228, 94 L. Ed. 2d 267, 107 S. Ct. 1098 (1987) (self-defense); Patterson v. New York, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977) (extreme emotional disturbance). Compare Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975) (state could not shift burden on issue of malice merely by labeling it an affirmative defense). That is not the problem here.
The trial court properly instructed the jury on the elements of murder. The court also properly instructed the jury on the elements of voluntary manslaughter.
The court did not, however, instruct the jury that if it found serious provocation or unreasonable belief in justification it could not convict Ms. Falconer of murder. On the contrary, it stated that a person is justified in using deadly force "only if she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to herself." (Emphasis added.) Thus, the instructions did not merely shift the burden of proof on the affirmative defenses; rather, they deprived Ms. Falconer of her affirmative defenses entirely: If the jury found that Ms. Falconer intentionally killed her husband without a reasonable belief that her use of force was necessary, then it had to convict her of murder regardless of whether she acted under serious provocation or under an unreasonable belief that she was justified in using the force she did.
It is possible, perhaps even likely, that the jury saw through these instructions, grasped the distinction between murder and manslaughter, and convicted Ms. Falconer of murder because it found that she did not act with serious provocation or unreasonable belief of justification. This possibility does not suffice, however, to pass constitutional muster. Cf. Bollenbach v. United States, 326 U.S. 607, 613-14, 90 L. Ed. 350, 66 S. Ct. 402 (1946) ("We can[not] say that the lay jury will know enough to disregard the judge's bad law if in fact he misguides it."). If (as this court must assume) the jury adhered to the trial court's instructions, see Parker v. Randolph, 442 U.S. 62, 73, 60 L. Ed. 2d 713, 99 S. Ct. 2132 (plurality opinion), it may have convicted Ms. Falconer of murder without even considering whether she acted with either of the mitigating mental states. Cf. Sandstrom v. Montana, 442 U.S. 510, 517-18, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). State law required the State to disprove serious provocation and belief of justification. Due process may not have required this much, see Martin v. Ohio, supra, but it did require the trial court to inform the jury that, if it found serious provocation or unreasonable belief of justification, it had to acquit Ms. Falconer of murder.
See United States ex rel. Reed v. Lane, 759 F.2d 618, 623 (7th Cir. 1985). Since the trial court did not do so, it violated Ms. Falconer's due process rights.
Errors in jury instructions do not undermine a verdict when the errors are harmless beyond a reasonable doubt. Rose v. Clark, 478 U.S. 570, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986). The errors in Ms. Falconer's instructions were harmless if this court can say beyond a reasonable doubt that they "did not play any role in the jury's verdict." Connecticut v. Johnson, 460 U.S. 73, 87, 74 L. Ed. 2d 823, 103 S. Ct. 969 (1983) (plurality opinion); Carella v. California, 491 U.S. 263, 57 U.S.L.W. 4731, 105 L. Ed. 2d 218, 109 S. Ct. 2419 (1989) (Scalia, J., concurring). The court cannot do so.
To prove murder (under proper instructions), the State's case rested on two essential points. First, the State had to prove that Ms. Falconer inflicted the stab to her husband's back when she followed him down the hallway after he fled the kitchen.
Second, the State had to prove that Ms. Falconer's attack was a result neither of her belief that she was in danger, nor of her husband's serious provocations.
In determining where the fatal stab occurred, the jury had a simple choice: it could believe what Ms. Falconer told the officers when they arrived at her house -- i.e., that, after stabbing her husband in the arm, she pursued him and stabbed him in the back -- or it could believe what she testified at trial -- i.e., that she swung at him twice in the kitchen and then put down the knife before following him down the hallway into the bathroom. Certainly, the jury had strong reasons for believing the first version. Ms. Falconer did not deny making the inculpatory statements to the officers, and her testimony on the stand was quite disjointed. Yet, she did testify unequivocally that she did not have a knife in her hand once she left the kitchen, and no extrinsic evidence contradicted this testimony.
The jury's verdict does not indicate which version it believed. Although it could properly have convicted Ms. Falconer of murder only if it found that she stabbed him during her pursuit down the hall (see supra, at 34 n. 8), the improper instructions permitted it to convict Ms. Falconer of murder even if it believed that both stabs occurred in the kitchen, so long as it found the stabbings to be unjustified. Given the less-than-overwhelming evidence regarding where Ms. Falconer inflicted the fatal wound, this court cannot say beyond a reasonable doubt that the jury would have convicted Ms. Falconer of murder had the trial court given a proper murder instruction.
Moreover, even if the evidence unequivocally supported the State's position that the stabbing occurred in the hallway, a murder conviction under proper instructions would not have been inevitable. The State made no effort to contradict the defense's evidence that Mr. Falconer had physically and emotionally mistreated Ms. Falconer for years, and that he was in the process of abusing her again when she grabbed the knife and began her attack. Although the jury (understandably) did not believe that Ms. Falconer's response was reasonable, it could have found that, in pursuing her husband down the hall, she was responding to her husband's years of, and moments earlier, physical provocation. Under the instructions given, it had to convict her of murder even if it so found, but under proper instructions this finding would have permitted an acquittal on the murder charge. Thus, again, this court cannot say beyond a reasonable doubt that proper instructions would not have altered the outcome of Ms. Falconer's trial. Her murder conviction therefore cannot stand.
This ruling does not necessarily mean that Ms. Falconer may go free. The jury's verdict, though deficient in establishing Ms. Falconer's guilt of murder, does suffice to uphold Ms. Falconer's guilt of voluntary manslaughter. Indeed, the murder instruction, by instructing the jury to convict Ms. Falconer of murder if it found that she intentionally killed Mr. Falconer without lawful justification, amounted to an instruction on the crime of voluntary manslaughter. Thus, if the State wishes, it may reduce Ms. Falconer's conviction to one of voluntary manslaughter, and resentence her accordingly. Alternatively, the State may retry Ms. Falconer on the charge of murder, this time employing proper jury instructions.
Ms. Falconer's petition for a writ of habeas corpus is granted. The State shall either reduce her conviction to one for voluntary manslaughter and sentence her accordingly, or vacate her conviction and retry her for murder within 120 days.
DATE: August 14, 1989