Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES EX REL. EVERETTE v. ROTH

November 16, 1992

UNITED STATES OF AMERICA, ex rel. DONALD EVERETTE, Petitioner,
v.
THOMAS ROTH, Warden, Sheridan Correctional Center, Illinois Department of Corrections, and ROLAND W. BURRIS, Attorney General of the State of Illinois Respondents.


MORAN


The opinion of the court was delivered by: JAMES B. MORAN

MEMORANDUM AND ORDER

On May 29, 1987, a Cook County jury found petitioner Donald Everette guilty of murder for the shooting death of Johnny Island. At trial, Everette admitted shooting Island, but maintained that he had drawn his gun in self-defense and, further, that the gun had discharged accidentally. The trial court instructed the jury that the accidental firing of a gun could not constitute murder, but the court refused to instruct the jury on self-defense or voluntary manslaughter.

 Before us now is Everette's petition for writ of habeas corpus. He contends that the trial court's refusal to instruct the jury on self-defense and voluntary manslaughter amounted to a directed verdict against him on those defenses and violated his federal constitutional rights to trial by jury and due process of law. Respondents Thomas Roth and Roland Burris contend that the question of whether a particular jury instruction concerning a defense was appropriately given or denied is a question of state law and that federal courts may not review a state court's resolution of that question. We agree with petitioner and reject respondents' blanket rule. For the following reasons, we grant petitioner's writ of habeas corpus.

 A. The Illinois Criminal Code1

 Under the Illinois Criminal Code a person is guilty of murder if that person kills another "without lawful justification," and intends to cause death or great bodily harm. Ill.Ann.Stat. ch. 38, § 9-1(a)(1). Even a person who kills without intending to cause death or great bodily harm can be guilty of murder if the person knows that the acts will result in one of those outcomes, id., or if the person knows that there is a "strong probability" that the acts will result in one of those outcomes. Id. at § 9-1(a)(2). The Code also provides, however, that a person is guilty of no crime at all if the person kills intentionally but does so in self-defense. Id. at § 7-1. The Code states that a person is justified in using lethal force if, but only if, that person reasonably believes that lethal force "is necessary to prevent imminent death or great bodily harm" to himself or herself or another person, or to prevent "the commission of a forcible felony." Id. (Among the crimes designated as felonies are robbery, id. at § 18-1; arson, id. at § 20-1; kidnapping, id. at § 10-1; and rape, id. at § 11-1.) The Code further provides that a person who uses lethal force in the unreasonable but honest belief that such force is necessary to prevent death, great bodily harm, or the commission of a forcible felony commits the crime of "voluntary manslaughter," not murder. Id. at § 9-2.

 B. Facts and Procedural History

 At petitioner's trial the prosecution called Edward Jeffries, a friend of Johnny Island's who had been drinking with Island and a man named Donnell on the night of the shooting. Jeffries testified that on November 1, 1985, he, Donnell and Island were sharing a six-pack of beer in the breezeway of an apartment building in the Stateway Gardens public housing project at 3835 South Federal Street, Chicago, Illinois, when petitioner walked past them toward the mailbox area. As Everette checked his mail, Island teased him about "a prior incident that happened to him." According to Jeffries, Everette retorted that, if he wanted to, he could "get" Island. Jeffries recalled that Island then walked up to Everette and called him a name, but that Everette ignored Island and headed up a ramp leading to the apartments.

 Jeffries testified that Everette came back down the ramp about five minutes later, running toward the three men. Island started to bolt away but, just as Everette reached the mailbox area and drew his revolver, Island slipped. Everette shot Island in the back. Jeffries told the jury that Everette and Island had been standing between seven and ten feet apart when the gun went off. According to Jeffries, Everette had both arms extended in front of him when he fired the gun. Jeffries testified that when he asked Everette why he had shot Island, Everette gave no answer and walked back up the ramp.

 Testifying on his own behalf, Donald Everette offered a different version of the events leading up to the shooting. He said that when he went to his mailbox on the night of the shooting, he heard Jeffries say, "There he is." Island then said, "We aren't going to start nothing, cause [sic] that is over with." Everette testified that he understood Island to be referring to a dispute that had been smoldering since June, when Island hit Everette over the head with a bottle and knocked him down. Everette recalled that Island implicitly had threatened to hit him again later that summer. In August, Everette testified, he had been waiting at a bus stop when Island approached; Island circled Everette and, holding a one-gallon wine jug in his hand, sarcastically apologized for the fight in June. The bus arrived and Everette boarded it before anything else could happen.

 Everette testified that all three men were in the mailbox area when he returned downstairs. According to Everette, Jeffries said, "There he is again," and Island loudly asked, "What are you doing back down here?" Everette testified that he turned to Island and saw him poised in what Everette took to be a striking position. According to Everette, Island seemed "frantic." Everette testified that Island was holding a beer can or some other object in his hand and that Jeffries was standing behind him yelling, "Hit him, hit him." At that point, Everette recalled, he felt "frightened and scared." Fearing for his life and hoping to "scare" Island away, he pulled out his gun. He told the jury that he took two steps back and that Island started to run away, but that on the second backward step his right shoulder bumped into the mailboxes, causing the gun to fire. He insisted that he had not intended to fire the gun. Everette also stated that he is legally blind -- he had difficulty making out objects and faces.

 Everette's account was bolstered by the testimony of a neighbor who said she had seen the victim acting drunk and searching Everette's pockets on the evening of the shooting. Everette's testimony also was corroborated in part by statements he himself had made to the detective who had arrested him and to an assistant state's attorney who had interrogated him shortly after he was taken into custody. The prosecution used Everette's prior statements both in its case-in-chief and to impeach him. The basic sequence of events described in his various accounts was the same, as was his emphasis on his fear for his safety, but the earlier versions did not elaborate on his decision to carry a gun downstairs for protection, and, more significantly, they contained no assertion that the gun had discharged accidentally.

 At the close of evidence the trial court ruled, over defense objection, that the jury could not be instructed on self-defense or voluntary manslaughter because Everette had testified that he had not intended to fire the gun. The court instructed the jury on the elements of murder, omitting reference to the "without lawful justification" element, and explained that an accidental shooting cannot ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.