The jury instructions at Johnson and his accomplices' trial were the Illinois Pattern Jury Instructions ("IPJI") for murder and conspiracy to commit murder. Courts have approved the IPJI and directed that they be given preference over a non-IPJI. See People v. Santiago, 161 Ill. App. 3d 634, 515 N.E.2d 228, 232, 113 Ill. Dec. 419 (Ill. App. Ct. 1987). The IPJI provided that the jury could convict for conspiracy to commit murder without finding a specific intent to kill.
Johnson only challenges the portion of the conspiracy instruction that refers to the intent that the offense of murder be committed. In his challenge, Johnson asserts that conspiracy to commit murder, like the offense of attempted murder, should require a finding of specific intent to kill, rather than merely intent to commit great bodily harm. A review of the respective statutes defining each offense reveals that Johnson's assertion is without merit. See 720 ILCS 5/8-4(a) (West 1994) (defining the offense of attempt);
720 ILCS 5/8-2(a) (West 1994) (defining the offense of conspiracy).
The IPJI reflect the different mental states required in each statute by requiring a specific intent to kill in the instruction for attempted murder. As stated above, however, the IPJI do not require a finding of specific intent in the instruction for conspiracy. Consequently, a jury need not find specific intent to kill in returning a verdict of guilty for conspiracy to commit murder.
In United States v. Feola, the Supreme Court addressed the issue of the necessary mental state for a conspiracy conviction. Feola, 420 U.S. 671, 692, 43 L. Ed. 2d 541, 95 S. Ct. 1255 (1975). In that case, Feola was charged with assault of federal officers and conspiracy to commit that offense. See id. at 671. Feola argued that specific intent to assault a federal officer was required for a conviction on the charge of conspiracy to commit the assault of a federal officer. See 420 U.S. at 686-87. The Supreme Court rejected this argument, holding that where "the substantive statute does not require [specific intent]," a greater degree of intent for those agreeing to commit the substantive offense was not required. Id. at 687.
Though Feola addressed a violation of a federal conspiracy statute (18 U.S.C. § 371), the same reasoning can be applied here in rejecting Johnson's assertion. The jury at Johnson's trial was instructed that one of three alternative mental states could suffice for the substantive offense of murder: 1) intent to kill; or 2) intent to do great bodily harm; or 3) knowledge that certain acts create a strong probability of death or great bodily harm to another. As such, specific intent to kill was not the only alternative permitted to find Johnson guilty of conspiracy to commit murder. In returning its guilty verdict, the jury could, and apparently did, find that Johnson possessed one of the three alternative mental states required for murder. Therefore, the jury found "at least the degree of criminal intent necessary for the substantive offense itself." Feola, 420 U.S. at 686 (citations omitted). Accordingly, the court cannot say that the trial court's failure to instruct the jury to find specific intent to kill to convict Johnson for conspiracy "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
Johnson's second ground for habeas relief is that he was denied due process when his trial was not severed from the trial of his codefendants. The trial judge has discretion as to whether a multidefendant trial should be severed. See Madyun v. Young, 852 F.2d 1029, 1034 (7th Cir. 1988). A court will grant habeas corpus relief only if there is an abuse of that discretion and the refusal to sever resulted in a trial that was fundamentally unfair. Id. Joint trials may be found fundamentally unfair if codefendants present "mutually antagonistic defenses" or if the "actual conduct" of the defense of one defendant prejudices that of another. Id.
In the case at bar, Johnson fails to establish any abuse of discretion or that his trial was fundamentally unfair. Although his codefendants' respective defenses may have been antagonistic to Johnson's, it did not preclude Johnson from asserting his defense. There is a "strong public interest in having persons jointly indicted tried together, especially where the evidence against the defendants arose out of the same acts or series of acts." United States v. Oxford, 735 F.2d 276, 280 (7th Cir. 1984). A presumption exists that co-conspirators who are indicted together are properly tried together. See United States v. Rivera, 6 F.3d 431, 437 (7th Cir. 1993). "Finger-pointing is an acceptable cost of the joint trial and at times is even beneficial because it helps complete the picture before the trier of fact." United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir. 1987), cert. denied, 484 U.S. 815, 98 L. Ed. 2d 31, 108 S. Ct. 67 (1987). Therefore, the court finds no abuse of discretion.
Johnson's final ground in support of his writ of habeas corpus is his counsel's failure to object to the jury instructions given at his trial. In reviewing an ineffective assistance of counsel claim, the court is highly deferential to trial counsel's performance. See Olmstead v. United States, 55 F.3d 316, 320 (7th Cir. 1995). Thus, the petitioner must "overcome the presumption that the challenged action or inaction could not fall within the broad range of sound trial strategy." United States v. McKinley, 23 F.3d 181, 185 (7th Cir. 1994). The court notes that the jury instructions given in Johnson's trial were the IPJI for (1) conspiracy to commit murder and (2) murder. These instructions are preferred over ones that are not IPJI. Santiago, 515 N.E.2d at 232. Therefore, Johnson fails to overcome the presumption that they were within sound trial strategy.
In addition, Hartwig argues that Johnson has failed to make a case of ineffective assistance of counsel based upon the standards that the Supreme Court promulgated in Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To establish a claim for ineffective assistance of counsel, a petitioner must show: (1) that his attorney's performance fell below an objective standard of reasonableness; and (2) that, but for the deficient performance, the result of the proceeding would have been different. See id. Johnson has not offered any evidence that his attorney was outside any objective standard of reasonableness for failing to object to the IPJI given. Furthermore, Johnson has not presented any evidence that the trial judge would have allowed different jury instructions or that the outcome would have been different if the IPJI had not been used. Therefore, Johnson's contention that his counsel was ineffective for failing to object to the jury instructions given at his trial is insufficient for granting habeas relief. Accordingly, Johnson fails to support his claim of ineffective assistance of counsel.
For the foregoing reasons, the court denies Johnson's petition for a writ of habeas corpus.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court