jurors that it should consider murder first and, if that was proven, the jury need not consider voluntary manslaughter. That instruction would be correct if the fourth element was included in the voluntary manslaughter charge, but was not correct without the fourth element. Without the fourth element in the murder instruction, the jury might never consider voluntary manslaughter. It was not sufficiently explained under what circumstances voluntary manslaughter should be considered. The judge did say, "If you find out it's not murder but something less, then you come back, of course, with voluntary manslaughter." R. 1084. But, under the instructions given, if the jury first found an element of murder missing, it would also have to find that an element of voluntary manslaughter was missing. Despite the additional instructions, the jury was at best still left with confusing instructions or, at worst, directed not to consider voluntary manslaughter. As in Falconer, "the jury may have been left with the false impression that it could convict the petitioner of murder even if [he] possessed . . . the mitigating state of mind described in the voluntary manslaughter instruction." 905 F.2d at 1136. The instructions remained inherently confusing even after the supplemental oral instructions. The inherently confusing nature of the instructions constitutes a due process violation. Falconer, supra; Rose, supra; Fleming, supra; Verdin, supra.
Respondent argues that the error was harmless. Given the inherently prejudicial nature of the error, that there is evidence supporting Flowers' contention that he believed his actions were justified, and that the jury initially returned a voluntary manslaughter verdict, the error cannot be considered harmless beyond a reasonable doubt. See Rose, 910 F.2d at 403; Fleming, 924 F.2d at 683. Respondent argues that the present case is different because here the jury found defendant guilty of armed robbery and therefore could have found him guilty of felony murder, which can preclude being guilty of voluntary manslaughter because felony murder does not contain the intent element of ordinary murder. See People v. Moore, 95 Ill. 2d 404, 447 N.E.2d 1327, 69 Ill. Dec. 640 (1983). Since the Illinois Supreme Court did not find any error, it did not have to consider this harmless error argument. The Illinois Appellate Court, however, considered it and rejected it. See Flowers I, 548 N.E.2d at 771. Although that case was reversed on other grounds by Flowers II, the reasoning as to harmless error is persuasive. Flowers contended that he did not intend to steal Murray's property until after he had killed him. Under those circumstances, he would not be guilty of felony murder.
It cannot be concluded beyond a reasonable doubt that a jury would not make such a finding. Therefore, the error was not harmless.
The one remaining issue is the question of whether granting relief on the due process claim would be retroactive application of a new rule that is prohibited by Flowers II or Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989). In Teague, the Supreme Court held that new constitutional rules of criminal procedure would not be applied retroactively to cases on collateral review. See id. at 300-01. As the Court noted, it is "often difficult to determine when a case announces a new rule. . . . In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 301. The Court identified two exceptions, one of which is that "a new rule should be applied retroactively if it requires the observance of 'those procedures that are "implicit in the concept of ordered liberty."'" Id. at 307 (quoting Mackey v. United States, 401 U.S. 667, 693, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971) (Harlan, J., concurring in part and dissenting in part) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 82 L. Ed. 288, 58 S. Ct. 149 (1937) (Cardozo, J.))). The Court further narrows this exception by explaining that it is limited to procedures that both "implicate the fundamental fairness of the trial" and "without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 312-13. Sawyer v. Smith, 497 U.S. 227, 111 L. Ed. 2d 193, 110 S. Ct. 2822, 2831 (1990), reemphasizes that both criteria must be satisfied, the rule must be both fundamental in nature and improve fact-finding procedures. Sawyer also clarifies that the determination of whether a particular rule is new is based solely on constitutional precedents; that state law may have previously established the same result is not sufficient. Id. at 2830.
The first component of the Teague analysis is to determine if a new rule was applied. Although respondent focuses exclusively on the question of whether Reddick announced a new rule, that is not the proper focus. Reddick principally relied on state law principles, whereas Flowers' claim in this court is a federal due process claim. The proper focus is on whether Falconer should be considered a new rule. Falconer, 905 F.2d at 1135, relied on Cupp v. Naughten, 414 U.S. 141, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973), and Clark v. Jago, 676 F.2d 1099 (6th Cir. 1982), cert. denied, 466 U.S. 977, 80 L. Ed. 2d 832, 104 S. Ct. 2360 (1984), both of which were decided prior to Flowers completing his direct appeal in 1983. While neither Cupp nor Clark concern Illinois's murder and voluntary manslaughter statutes, they do make clear that instructions on state law that misdirect, mislead, or confuse the jury can constitute violations of federal due process. See also Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 97 S. Ct. 1730 (1977); Tyler v. Phelps, 643 F.2d 1095, 1100 (5th Cir. 1981).
These cases placed the state court on sufficient notice that the federal Constitution mandates jury instructions that do not so misdirect, mislead, or confuse the jury as to infect the entire trial. Finding the instructions given in this case to be consistent with Cupp and its progeny would not be a "reasonable, good-faith interpretation of existing precedents made by a state court." Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257, 1260, 108 L. Ed. 2d 415 (1990) (quoting Butler v. McKellar, 494 U.S. 407, 110 S. Ct. 1212, 1217, 108 L. Ed. 2d 347 (1990)). Stated inversely, finding the instructions in this case to be misleading and confusing is "compelled" by the precedents existing during the time Flowers' case was on direct appeal. Saffle, 110 S. Ct. at 1260. That this is true is supported by the fact that Falconer required relatively little discussion of whether the instructions in that case violated due process and no cases needed to be distinguished in reaching the conclusion that was reached. 905 F.2d at 1136. The more difficult question in Falconer was not the due process claim itself, but the question of whether there was a procedural default. Granting Flowers relief on his due process claim would not require application of a new rule of law.
For the foregoing reasons, Flowers is entitled to relief on his due process claim.
IT IS THEREFORE ORDERED that the Clerk of the Court is directed to enter judgment in favor of petitioner and against respondent granting the petition for writ of habeas corpus and thereby releasing petitioner from custody unless within 90 days the state shall initiate proceedings to retry petitioner or otherwise proceeds to judgment in a manner consistent with this opinion.