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UNITED STATES EX REL. FALCONER v. LANE

August 14, 1989

UNITED STATES OF AMERICA, ex rel. PHYLLIS FALCONER, Petitioner,
v.
MICHAEL P. LANE, Director, Department of Corrections of the State of Illinois, and NEIL F. HARTIGAN, Attorney General of the State of Illinois, Respondents


Brian Barnett Duff, United States District Judge.


The opinion of the court was delivered by: DUFF

BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Less than a year ago, Phyllis Falconer asked this court to grant her a writ of habeas corpus following her conviction for murder in the Illinois courts. The State *fn1" immediately moved for dismissal, insisting that she had not yet exhausted her available state remedies. After this court agreed and sent Ms. Falconer packing, United States ex rel. Falconer v. Lane, 708 F. Supp. 202 (N.D. Ill. 1989), she petitioned an Illinois circuit court for post-conviction relief. The State then argued to the state court that Ms. Falconer was barred from seeking further relief there. When the state court agreed and dismissed her petition, she returned here. The State now contends that Ms. Falconer's failure to challenge the state court's ruling in the state appellate court bars her from obtaining federal relief. This court disagrees, and further finds that Ms. Falconer is entitled to the relief she seeks. Thus, for the reasons set forth below, this court will grant Ms. Falconer's petition.

 Roger Falconer and Ms. Falconer did not have a perfect marriage. On May 26, 1986, Ms. Falconer stabbed her husband to death with a butcher knife during an altercation in their kitchen. The State indicted her for murder.

 At trial, the State's case was straightforward. The testimony of police officers, paramedics and the coroner clearly established that, on the morning of May 26, Ms. Falconer stabbed her husband twice, once in the arm and once in the middle of his back, and then rejoiced in his death. Statements Ms. Falconer had made shortly after the death also indicated that, though she inflicted the arm wound in an immediate response to her husband slapping her, she then chased after him as he headed for the bathroom, and on the way dealt him the deadly blow to his back.

 The defense's case was more complicated. Based on the testimony of family and friends, the defense painted a picture of a woman suffering from cancer and various other ailments, as well as from years of physical abuse by her husband. Ms. Falconer then took the stand. She testified that on the morning of the killing, she had been doing the dishes when her husband approached and screamed at her that he could not find any wax stripper. According to Ms. Falconer, her husband then pushed her aside to get underneath the sink. Eventually, he stood up and began looking for a razor blade. She told him that they were on the windowsill, but that he could not have them.

 At this point, Ms. Falconer testified, her husband slapped her hard in the face. Terrified, she swung at him. Though Ms. Falconer stated on the stand that she could not remember having had anything in her hand when she swung, she admitted that she must have been holding a butcher knife. On cross examination, Ms. Falconer further testified that she could not specifically recall when she stabbed her husband in the back, but that she did know she did not stab him after they left the kitchen. She also stated that she could not recall having told one of the police officers that she stabbed her husband in the back on the way to the bathroom.

 After both sides rested, the court held a lengthy instructions conference. At first, the court questioned whether the defense had presented sufficient evidence to warrant instructions on self-defense and on the lesser-included offense of voluntary manslaughter, but after reviewing the transcript, the court decided to give such instructions. The court then accepted the defense's instructions on these issues, which came from the Illinois Pattern Instructions ("IPI"), Nos. 7.01-7.06.

 The court instructed the jury, in pertinent part, as follows:

 
To sustain a charge of murder, the State must prove the following propositions:
 
First: That the Defendant performed the acts which caused the death of Roger Falconer; and
 
Second: That when the Defendant did so,
 
[1] she intended to kill or do great bodily harm to Roger Falconer; or
 
[2] she knew that her act would cause death or great bodily harm to Roger Falconer; or
 
[3] she knew that her acts created a strong probability of death or great bodily harm to Roger Falconer; and
 
Third: That Defendant was not justified in using the force she used.
 
* * * *
 
A person commits the offense of voluntary manslaughter when she kills an individual without lawful justification if, in performing the acts which cause the death, she intends to kill or do great bodily harm to that individual; or she knows that such acts create a strong probability of death or great bodily harm to that individual; and at the time if she acts under a sudden and instense passion resulting from serious provocation by the deceased. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
 
To sustain a charge of voluntary manslaughter, the State must prove the following propositions:
 
First: That the Defendant performed the acts which caused the death of Roger Falconer; and
 
Second: That when the Defendant did so, she intended to kill or do great bodily harm to Roger Falconer; or she knew that such acts would cause death or great bodily harm to Roger Falconer; or she knew that such acts created a strong probability of death or great bodily harm to Roger Falconer; and
 
Third: That when the Defendant did so, she acted under a sudden and intense passion resulting from serious provocation by another.
 
* * * *
 
A person commits the offense of voluntary manslaughter when she kills an individual if, in performing the acts which cause the death,
 
[1] she intends to kill or do great bodily harm to that individual; or
 
[2] she knows that such acts will cause death to that individual; or
 
[3] she knows that such acts create a strong probability of death or great bodily harm to that individual;
 
and at the time of the killing she believes that circumstances exist which would justify the deadly force she used, but her belief that such ...

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