that it found the two valid aggravating circumstances. Id. at 2737. Thus, unlike the situation presented in Stromberg, where the Court did not know whether the jury's verdict was constitutionally supportable, the Zant Court knew that the jury had found circumstances validly supporting its verdict.
Again, in the instant case, Holloway's felony murder instruction included several alternative elements. The trial court required the jury to find (1) that Holloway (or one for whose conduct he is responsible) performed the acts causing the victim's death AND (2) that Holloway (or one for whose conduct he is responsible) did so EITHER (a) with intent to kill/do great bodily harm to the victim OR (b) knowing that his act would cause death/great bodily harm to the victim OR (c) he knew that his acts created a strong probability of death/great bodily harm to the victim OR (d) he was attempting to commit or was committing the crimes of aggravated arson, OR burglary OR armed robbery.
Thus, the instruction provided that the jury could return a verdict of guilty for intentional or knowing murder but also for any one of three conjunctive bases of felony murder (namely, aggravated arson, burglary, and armed robbery). Holloway only challenges the felony murder portion of the instruction, specifically, that part referring to aggravated arson. Because the court cannot know whether the instant jury found Holloway guilty for intentional/knowing murder or for felony murder, the court will assume arguendo, for the rest of this opinion, that the jury found him guilty for felony murder, the challenged instruction.
The jury returned a general verdict on of guilty on the felony murder charge. However, the jury also found Holloway guilty of each of the predicate felonies: aggravated arson (subsequently found unconstitutional), armed robbery, and burglary. Thus, Holloway's case is different than that of Stromberg, and more analogous to Zant.
In Stromberg, the general verdict at issue involved only a one-count indictment. See Stromberg, 51 S. Ct. 532 at 533. The Stromberg Court was unable to tell whether the jury based its verdict upon the unconstitutional or constitutional alternative, or both. In the instant case, like the Zant Court, the court knows that the jury convicted on both alternatives, as the jury rendered a general guilty verdict on the murder count and on the separate counts of aggravated arson, armed robbery, and burglary.
Thus, the court knows that the instant jury found Holloway guilty of all elements of felony murder, regardless of the unconstitutional aggravated arson alternative. Again, the instruction required a finding of both of the following elements: (1) that Holloway (or one for whose acts he is responsible) committed the acts causing the victims death AND (2) a predicate felony. The court knows that the jury found that Holloway (or one for whose conduct he is responsible) performed the acts causing the victims' death, as that element was necessary for any felony murder conviction, regardless of the predicate felony. Because the instant jury's verdict applied to several counts, the court also knows that the instant jury found that Holloway was attempting to commit the crimes of burglary and armed robbery (as well as aggravated arson under the unconstitutional statute).
Therefore, unlike the Stromberg jury, the instant jury found Holloway guilty of both (constitutional) elements of felony murder: committing the acts, as well as two (constitutional) predicate felonies. Like the Zant jury, the jury expressly found predicate felonies "that were valid and legally sufficient" to support the felony murder conviction. See Zant, 103 S. Ct. 2743 at 2745.
"The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 2319-20, 132 L. Ed. 2d 444 (1995). With regard to the murder charge, Holloway received this right; there is no doubt that the jury found him guilty of committing the acts which caused the victims death and of two (constitutional) predicate felonies. Those elements make up the crime of felony murder. There is no doubt that the jury would have found Holloway guilty in the absence of the aggravated arson instruction. As such, the unconstitutional arson conviction does not require vacation of the felony murder conviction.
Thus, pursuant to Zant and the other cases discussed above, Holloway's murder conviction is not void. Consequently, the court cannot say that the opinion of the Illinois appellate court on the instant issue "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d)(1). Although the Illinois appellate court may not have engaged in specific analysis of Supreme Court cases, the court finds that the appellate court's holding does not oppose those applicable Supreme Court cases. Accordingly, Holloway's petition for a writ of habeas corpus is denied.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the petition for writ of habeas corpus is denied.
May 27, 1997