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UNITED STATES EX REL. FLOWERS v. ILLINOIS DEPT. OF

May 16, 1991

UNITED STATES ex rel. MARVIN FLOWERS, Petitioner,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS, Respondent



The opinion of the court was delivered by: HART

 WILLIAM T. HART, UNITED STATES DISTRICT JUDGE

 In October 1980, petitioner Marvin Flowers was found guilty of murder in the Circuit Court of Cook County, Illinois. Presently pending before this court is Flowers' petition for writ of habeas corpus. Flowers argues that the state trial court improperly refused the jury's verdict of voluntary manslaughter and that the state trial court gave confusing instructions on murder and voluntary manslaughter.

 I. BACKGROUND

 In 1979, Flowers, then only 22 years of age, was employed by Robert Murray. There is evidence in the record that Murray was an alcoholic and that he had alcohol in his blood at the time Flowers killed him. In one of two contradictory statements to the police, Flowers claimed that he and Murray argued over wages that Flowers thought were owed to him. According to Flowers' statement, he and Murray got into a scuffle and then Murray reached for a revolver. Flowers, however, grabbed a baseball bat and struck Murray's head with the bat. When Murray continued to move, Flowers struck him with additional blows and Murray died. According to Flowers, and also consistent with the prosecution's theory as presented to the jury, Flowers then decided to take the bat, the revolver, a coin bank, two power saws, and the automobile that had belonged to Murray, and he drove Murray's car to a location near Flowers' residence. Flowers contended that, prior to killing Murray, he had not intended to steal these items. Flowers did not dispute at trial and does not dispute here that he killed Murray. In closing statements, Flowers' counsel argued that Flowers acted in self-defense or was, at most, guilty of voluntary manslaughter. Here, Flowers argues he should have been found guilty only of voluntary manslaughter, not murder. He does not contend that he should be completely exonerated. He was also found guilty of armed robbery and armed violence. His sentence was 40 years for murder and a 15-year concurrent term for armed robbery.

 Central to the dispute in this case are the murder and voluntary manslaughter instructions given to the jury. Before retiring to deliberate, the jury was instructed as follows. *fn1"

 
A person commits the crime of murder who kills an individual if, in performing the acts which caused the death, he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual; or he is attempting to commit or is committing the crime of armed robbery.
 
To sustain the charge of murder, the State must prove the following propositions:
 
Second: That when the defendant did so, he intended to kill or do great bodily harm to Robert Murray; or he knew that his act would cause death or great bodily harm to Robert Murray; or he knew that his acts created a strong probability of death or great bodily harm to Robert Murray; or he was attempting to commit or was committing the crime of armed robbery.
 
Third: That the defendant was not justified in using the force which he used.
 
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
 
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.
 
A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
 
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.
 
A person commits the crime of voluntary manslaughter who intentionally or knowingly kills another if, at the time of the killing, he believes that such circumstances exist which would justify the killing, but his belief that such circumstances exist is unreasonable.
 
To sustain the charge of voluntary manslaughter, the State must prove the following propositions:
 
First: That the defendant intentionally or knowingly performed the acts which caused the death of Robert Murray; and
 
Second: That when the defendant did so, he believed that circumstances existed which would have justified killing Robert Murray; and
 
Third: That the defendant's belief that such circumstances existed was unreasonable.
 
Fourth: That the defendant was not justified in using the force which he used.
 
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
 
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

 R. 1059-63. The written instructions do not include any use of the term "lesser included offense," do not in any manner instruct the jury on the concept of a lesser included offense, and do not in any way explain to the jury the relationship between the different charges.

 The jury was sequestered during deliberations. Because the judge who had presided over the trial had a schedule conflict, another judge presided during the second day of deliberations, a Saturday. During the second day of deliberations, the court asked the foreperson if the jury was close to a verdict. Because the response was yes, the court did not give any additional instruction. After guilty verdicts were returned on both murder and voluntary manslaughter, the following oral instructions were given to the jury by the court.

 
Now, ladies and gentlemen, we have a slight problem. You are going to have to go back. We have two signed verdicts. One is, we, the jury, find the defendant, Marvin Flowers, guilty of murder. You also said, we, the jury, find the defendant Marvin Flowers, guilty of voluntary manslaughter.
 
Voluntary manslaughter, if you read the instructions, is a lesser included offense of voluntary manslaughter [sic]. It's either voluntary manslaughter or murder, it's not both.
 
I would re-do these two instructions again and send you back and you determine which one you meant.
 
If you can just get them so I can read them to you, I will send you back with all the instructions and you can decide which one, and whichever one you do not mean you may cross -- Was there one count of voluntary manslaughter?
 
MR. ROGDON [defense counsel]: Yes, sir.
 
THE COURT: Okay. The murder instruction reads this way: To sustain the charge of murder the State must prove the following propositions: First, that the defendant performed the acts which caused the death of Robert Murray; and second, when the defendant did so, he intended to kill or do great bodily harm to Robert Murray; or he knew his acts would cause death or great bodily harm to Robert Murray; or he knew his acts created a strong probability of death or great bodily harm to Robert Murray; or he was attempting to ...

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