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U.S. v. LIEBACH

April 9, 2003

UNITED STATES OF AMERICA, EX REL., DAVID GETHERS, PLAINTIFF,
v.
BLAIR J. LEIBACH, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, Chief United States District Judge

MEMORANDUM OPINION

This matter comes before the court on Petitioner David Gethers' request for habeas relief under 28 U.S.C. § 2254. For the reasons set forth below, we deny the petition.

BACKGROUND

Gethers is serving a thirty-year prison sentence in the custody of the State of Illinois. He was convicted by a jury for the murder of Calvin Sutton, the estranged husband of his girlfriend, Valerie Jones. Gethers admitted fatally shooting Sutton but maintained that it was in self-defense. The jury convicted him of first degree murder anyhow.

LEGAL STANDARD

Gethers must demonstrate that the adverse state court proceeding "resulted in a decision that 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); Williams v. Taylor, 529 U.S. 362, 379 (2000).

DISCUSSION

Gethers alleges that his conviction is unconstitutional because he was denied due process in the following ways:

1. The trial court gave inconsistent instructions to the jury;
2. The trial court excluded his testimony that he knew the deceased carried a weapon; and
3. Prosecutorial improprieties during cross-examination and closing arguments.
I. Inconsistent Instructions

Gethers complains that the jury was given two different jury instructions: one for first degree murder and one for second degree murder. The instruction for first degree murder directed the jury to find Gethers guilty if the State had proven the elements beyond a reasonable doubt. ILLINOIS PATTERN JURY INSTRUCTION — CRIMINAL 7.02 3d ("IPI 7.02"). The instruction for second degree murder begins with the entirety of IPI 7.02 followed by the following language:

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, then you should go on with your deliberations to decide whether a mitigating factor has been proved so that the defendant is guilty of the lesser offense of second degree murder instead of first degree murder.
You may not consider whether the defendant is guilty of the lesser offense of second degree murder until and unless you have first determined that the State has proved beyond a reasonable doubt each of the previously stated propositions.
The defendant has the burden of proving by a preponderance of the evidence that a mitigating factor is present so that he is guilty of the lesser offense of second degree murder instead of first degree murder. By this I mean that you must be persuaded, considering all the evidence in this case, that it is probably more true than not true that either of the following mitigating factors is present: that the defendant, at the time he performed the acts which caused the death of [Calvin Sutton], believed the circumstances to be such that they justified the deadly force he used, but his belief that such circumstances existed was unreasonable, or acted under a sudden and intense passion resulting from serious provocation by the deceased
If you find from your consideration of all the evidence that the defendant has proved by a preponderance of the evidence that either mitigating factor is present so that he is guilty of the lesser offense of second degree murder instead of first degree murder, you should find the defendant guilty of second degree murder.
If you find from your consideration of all the evidence that the defendant has not proved by a preponderance of the evidence that either mitigating factor is present so that he is guilty of the lesser offense of second degree murder instead of first degree murder, you should find the defendant guilty of first degree murder.
ILLINOIS PATTERN JURY INSTRUCTION — CRIMINAL 7.06B 3d ("IPI 7.06B"). Gethers argues that it is possible that the jury convicted him after only deliberating on IPI 7.02 and therefore never considered whether a mitigating factor existed. Alternatively, Gethers argues that it is possible that the jury convicted him after considering both jury instructions and, despite finding a mitigating factor, convicted him of first degree murder anyhow under IPI 7.02 because that instruction makes no exception for mitigating factors.

The trial court clearly erred in providing the jury with both instructions. IPI 7.06B, entitled "Issues Where Jury Instructed On Both First Degree Murder And Second Degree Murder — Both Provocation And Belief In Justification", is the only instruction that should have been before the jury. IPI 7.02, entitled "Issues In First Degree Murder (When Second Degree Murder Is Not Also An Issue)", should not have been provided to the jury. Gethers argues that this error was a violation of his due process rights and cites a similar case for support: Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990). In Falconer, a convicted murderer successfully petitioned this court for habeas relief because the jury was given inconsistent instructions as to both murder and voluntary manslaughter.*fn1 Id at 1135. In affirming this court's conditional grant of habeas, the Seventh Circuit noted that "the jury may have been left with the false impression that it could convict petitioner of murder even if she possessed one of the mitigating states of mind described in the voluntary manslaughter instruction." Id at 1136. The court further explained:

No matter which side carried the burden of proof on any particular element or defense, there can be no question that a murder verdict would have been improper if the jury had found one of the mitigating mental states. The murder instruction, in other words, read as though voluntary manslaughter did not exist as a crime. No matter how clearly either the State or the defense proved the existence of the mitigating "manslaughter defenses," the jury could nevertheless return a murder verdict in line with the murder instruction as given.
Id.

At first glance, Falconer appears remarkably similar to the instant case. At the end of Gethers's trial, however, the jury was given adequate instructions to avoid any such misunderstanding between first and second degree murder. Before receiving the jury instructions, the jury was told the relationship between the two degrees of murder and was directed to follow all of the instructions and to not disregard any of them. Additionally, the prosecutor told the jury during closing arguments that a mitigating factor could reduce the offense of first degree murder to second degree murder. There is no question that the jury actually deliberated on the issue of mitigating factors. During deliberations, the jury asked the court, "In the instance of second degree murder, can ...


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