Kirk told him that Kirk and the deceased began to argue and fight, but at some point, Kirk's mother stopped the fight. Dorich testified that Kirk first told him that Kirk then went to his car and got his gun, and resumed the fight with the deceased. During the fight, Kirk shot the deceased twice, then went to his mother's house and waited for the police. Kirk later told Dorich that after Kirk got the gun from his trunk, he ran down the street toward the deceased and shot him at least twice. Kirk never told Dorich that the deceased had a knife.
Before it began deliberating, the jury was instructed as to the mitigating factor of an unreasonable belief in the need for self-defense. The jury rejected the mitigating factor, and instead found Kirk guilty of first degree murder. The trial judge sentenced Kirk to 35 years in prison. Kirk appealed his conviction and sentence, both of which the appellate court affirmed. Kirk then filed a petition for leave to appeal to the Illinois Supreme Court raising insufficiency of the jury instructions, ineffective assistance of his trial counsel, and prosecutorial misconduct as grounds for leave to appeal. The Illinois Supreme Court denied his petition for leave to appeal. People v. Kirk, 161 Ill. 2d 534, 649 N.E.2d 421, 208 Ill. Dec. 365 (1995).
Kirk now brings his petition for writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254, making the same arguments in support of his habeas petition that he made in his petition for leave to appeal.
As a preliminary matter, the court notes that Kirk has presented to the Illinois appellate and supreme courts all of the grounds on which he seeks habeas relief. Accordingly, Kirk has not procedurally defaulted any of his claims raised in his habeas petition, and the court will address each of his claims on its merits. See Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640 (1991).
A. Improper jury instructions
Kirk contends that the trial court deprived him of a fair trial by failing to instruct the jury as to the mitigating factor of sudden and intense passion caused by another's provocation. This mitigating factor, if found by the jury to exist, would have served to reduce Kirk's conviction from one of first degree murder to one of second degree murder. Instead, the trial court instructed the jury only as to the mitigating factor of unreasonable belief in the need for self-defense, which the jury rejected. The state responds that no credible evidence supported giving the sudden and intense passion instruction.
Generally, a criminal defendant is entitled to have a jury instruction on any defense that provides a legal defense to the charge against him and has at least some foundation in the evidence. United States ex rel. Peery v. Sielaff, 615 F.2d 402, 403 (7th Cir. 1979), cert. denied, 446 U.S. 940, 100 S. Ct. 2163, 64 L. Ed. 2d 794 (1980) (citations omitted). However, also generally, the state trial court's failure "'to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.'" Id. at 404 (quoting James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976)).
Thus, to bring a habeas claim based on the trial court's failure to instruct on a lesser offense, the petitioner must allege a "'fundamental defect which inherently results in a complete miscarriage of justice (or) an omission inconsistent with the rudimentary demands of fair procedure.'" Peery, 615 F.2d at 404 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)). Put another way, the question is "whether the 'ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Peery, 615 F.2d at 404 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973)). Furthermore, where the issue before the habeas court is the omission of an instruction, "the petitioner's burden is 'especially heavy' because '(a)n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.'" Peery, 615 F.2d at 404 (quoting Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 1737, 52 L. Ed. 2d 203 (1977)).
In the case before this court, then, the question is whether the evidence supporting the giving of the sudden and intense passion due to provocation instruction was so strong that failure to give the instruction constituted a fundamental miscarriage of justice. See Peery, 615 F.2d at 404; United States ex rel. Bacon v. DeRobertis, 551 F. Supp. 269, 274 (N.D. Ill. 1982), aff'd, 728 F.2d 874, 875 (7th Cir.) (adopting district court's opinion), cert. denied, 469 U.S. 840, 105 S. Ct. 143, 83 L. Ed. 2d 82 (1984) (in both cases, the evidence of serious provocation was not so unequivocally strong that failure to give the instruction amounted to a fundamental miscarriage of justice).
On direct review of Kirk's conviction, the appellate court found that the evidence presented at trial did not support giving the sudden and intense passion instruction. That court stated:
.... Even accepting defendant's testimony as true, the [sudden and intense passion] instruction was not warranted in this case. According to defendant, the deceased was the initial aggressor, having beaten and kicked him numerous times as he exited his car. Defendant testified that when the deceased pulled out a knife, he ran toward his mother's house. However, rather than retreat to the house to escape the altercation, defendant ran back to his car, opened the trunk, and removed his gun. The deceased was not near defendant at this time.