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UNITED STATES EX REL. CAMPOS v. PETERS

June 30, 1993

UNITED STATES OF AMERICA ex rel. MONICO CAMPOS, Petitioner,
v.
HOWARD PETERS, Respondent.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Presently before this court is Monico Campos' petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Campos contends that the use of jury instructions which prevented jurors from considering a finding of involuntary manslaughter, prosecutorial misconduct during closing argument, and the court's failure to determine whether a certain juror was pregnant violated his due process rights. For the following reasons, we deny the petitioner's request for habeas relief.

 I. Factual Background

 Following a jury trial, Campos was convicted of the first degree murder of his wife and the intentional homicide of his unborn child, Ill. Rev. Stat. ch. 38, PP 9-1(a)(1) & 9-1.2. The ensuing facts supporting this conviction are taken from the opinion of the appellate court on direct review and are presumed accurate. 28 U.S.C. § 2254(d) (1988).

 
The deceased met defendant, a restaurant busboy, in April 1987, and they began living together shortly thereafter. She became pregnant during the summer, and they married in October 1987.
 
The deceased had previously been married to Demetrius Dimoulas, with whom she had a daughter, age 5 at the time of trial. After divorcing Dimoulas, the deceased met David Briones, and lived with him from 1985 through November 1986. Shortly before the deceased gave birth to his child, another daughter, Briones left the deceased. . . .
 
Briones and the deceased remained on friendly terms after the end of their relationship, and he occasionally visited his daughter in Chicago. On December 17, 1987, Briones arrived in Chicago. He stayed at the apartment of the deceased's mother. During this time, the mother arranged for Briones to see his daughter at her apartment several times.
 
On December 31, 1987, the family and Briones were at the mother's apartment. The mother noticed that defendant was very moody and pouting, apparently because of Briones's [sic] presence. The mother saw defendant enter the kitchen with both hands in his jacket pocket. After the deceased came into the kitchen, the mother left the room to get dressed for a party. Moments later, defendant shot and killed the deceased.
 
Later, the deceased entered the kitchen briefly and asked defendant if he would take her father to a tavern. When the deceased entered the room again, defendant asked to speak to her. The deceased told defendant that she had nothing to say to him. Defendant asked the deceased whether she planned to go away with Briones. The deceased replied that she was going away with Briones because she loved him, and that she never loved defendant. Defendant became very upset, took the gun from his rear pocket, and shot it to scare her. He was approximately three meters from the deceased when he fired the gun. Defendant stated that he did not intend to shoot the deceased, but he was nervous and jealous. He aimed the gun towards the wall.
 
. . . The deceased was taken to Mount Sinai Hospital where she remained alive for eight days. . . . The deceased's condition was consistent with the clinical diagnosis of brain death, and she was in a significant coma. . . . The deceased's condition remained stable until January 8, at which time her blood pressure became unstable. . . . Later that morning, the deceased went into shock. Attempts were made to resuscitate the deceased and normalize her blood pressure. However, at approximately 1:30 p.m., the deceased gave birth to a stillborn child that was found between her legs following what doctors characterized as a "spontaneous delivery." Later that evening, the deceased's heart and lungs stopped functioning, and she was pronounced dead. . . .

 The court instructed the jury on first degree murder, voluntary manslaughter (also known as second degree murder), *fn1" and involuntary manslaughter of the deceased, and intentional homicide, *fn2" voluntary manslaughter and involuntary manslaughter of an unborn child. After deliberation, the jury found the petitioner guilty of first degree murder and intentional homicide.

 On appeal, Campos argued, inter alia, (1) that the jury instructions erroneously permitted the jury to return verdicts of first or second degree murder without deliberating on the lesser offense of involuntary manslaughter, (2) that the prosecutor's arrogation of the power to "speak" for the victim, his dramatic rendition of what she might have said to Campos before he shot her, and his derision of Campos' right to testify warranted reversal, and (3) that during voir dire, the trial court improperly refused to ask a juror, who appeared pregnant, whether she was in fact carrying a child. Rejecting Campos' claims, the appellate court affirmed his conviction. People v. Campos, 227 Ill. App. 3d 434, 592 N.E.2d 85, 169 Ill. Dec. 598 ...


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