Donald Everette v. Thomas P. Roth, Warden, Sheridan Correctional Center, and Roland W. Burris, Attorney General of the State of Illinois

Petitioner-Appellee, EVERETTE, Donald Warden, ROTH, Cor Sheridan P.

Thomas Burris, Center, and Roland W.

rectional Illinois,

Attorney of the State of General

Respondents-Appellants.

No. 92-4063. Appeals, Circuit.

Seventh *.

Argued Sept. Sept.

Decided Suggestion for

Rehearing and 30, 1994. Banc Denied Nov. (argued), Franco La- E. Heilizer B.

Glenn IL, Heilizer, terza, Chicago, for Laterza & petitioner-appellee. Gen., Madsen,, Atty. Asst.

Terence M. Gen., Ciecko, Atty. Deputy Ste- Thomas L. Gen., Atty. (argued), ven J. Zick Office Div., IL, Chicago, respon- Appeals Crim. dents-appellants. FAIRCHILD, COFFEY

Before RIPPLE, Judges. Circuit FAIRCHILD, Judge. Senior Circuit (“Ev- Petitioner-appellee Donald erette”) in Illinois of murder was convicted following jury trial. court improperly re- that the trial contends on self-defense fused to instruct manslaughter in violation of Roth, process rights. Thomas due Center Correctional of Sheridan the Warden incarcerated, and Roland where Everette Illinois, ap- Burris, Attorney General judgment of the district peal from a a writ of petition granting corpus.1 reverse. * repre- Attorney General argued separately to- 1. Because case was briefed This Peters, Roth, respondents- F.3d [36 No. 92-2856 gether with Green v. we will refer sents Mr. DeTella, 602]; F.3d [36 No. 92-2978 Carter v. collectively appellants as “the State." 1385]; Washington, [36 No. 92-3090 Cuevas Peters, 612]; [36 No. 92-3258 and Rosa v. 625],

I. moving.2 BACKGROUND back and not Island died from bleeding wound, gunshot massive due to a A Facts eighteen top inches from the of his head and (“Jeffries”) Edward Jeffries testified that two inches from the middle of his back. on November he left his mother’s Everette testified that he came home apartment p.m. apart- around 10:00 In the mailbox; p.m. around 10:00 and went to his building’s breezeway, he ran into a say, he heard Jeffries “[t]here he is” and friend, (“Island”), Johnny Island and another say, going Island aren’t “[w]e to start noth- (“Donnell”). man The three men decided to ing, ’cause that is over [sic].” were Tr. at buy go They some beer. returned to the 569. Everette understood him to be refer- apartment building, by and stood a row of ring June, (about to an incident of that when Ever- twenty long), mailboxes feet which are ette told Island and some others who were breezeway. outside the verbally fighting stop yelling, and Island talking As the men drinking, were and bottle, hit Everette on the head with a soda approached the mailboxes. Jeffries causing Everette to fall. As Everette went and Donnell teased prior Island about a inci- apartment, towards his the three men at- Everette, dent between telling Island and tempted go through pockets, his but did Island he had “better move.” Island went to get pockets.3 not into his When he was in mailboxes, away the other side of the from apartment, his Everette realized that two of Everette. get Everette said he could Island gotten the letters he had from his mailbox to; if he responded wanted Island that he were not his. was not scared of and called Ever- ette a name. Everette then left. According version, to Everette’s he decid- go

Jeffries testified that after about five min- ed to out for some food a short time later. utes, ramp thought Everette came down a towards Because he might the three men still around, the mailboxes. As he ramp, put came off the he be he in the waistband of started to run towards the three pants. men. Is- his He went to his mailbox to return began away land from Everette. As the letters that were not his. As he was mailboxes, mailbox, ran towards closing he say he heard Island “ ” pulled gun; out a running away Island you doing ‘[w]hat are back down here?’ with his back towards Everette. Island Id. at 586. Everette turned Island’s di- turning rection, stumbled as he was go around and could see a silhouette.4 Is- mailboxes, and a shot went off. Everette land’s arm striking position,” ‘Vas and away, seven to ten feet with both appeared hands he held what to be a can in his outstretched, pointing at Island. hand.5 Everette going believed Island was why Island; Jeffries asked Everette he shot to hit him. Id. at 587. Island was “frantic.” nothing Everette said up him, and walked back Jeffries said hit “‘[h]it him.’” Id. at ramp. sixty Jeffries found Island him, about 588. Island did not except threaten away feet building, lying from the having on his his arm in “striking position.” walking 2. Another witness testified that he was Everette testified that he told the assistant by building when he attorney heard a shot and then that he could not read the state- twenty-five saw Island fall gave feet police department from the ment he at the without building. reading glasses “legally because he is blind." eleven, weighs Everette is five foot and around building 3. A resident of the fifty pounds. testified that she By saw two hundred tion, descrip- Island, drunk, appeared going through Everette; to be Island was “much smaller” than pockets calling weighed him names. forty-one pounds Ever- Island one hundred ette, however, testified that Island autopsy performed. never touched when his evening. him that 5.Everette demonstrated what he meant “striking position" When asked whether he jury, could make out the to the which his counsel features, silhouette’s Everette said he could not described for the record as "arm held about a lighting. because of the 45-degree angle Everette knew the body, sil- from the hand at waist houette was height Island because he knew slightly Island’s body.” and drawn behind the Tr. voice. at 587. No, position scared, but it was in a [Answer:] that he was Everette testified life,” set. of fear gun out “because pointed He at 656. it. Now, cocked never said he was [Question:] direction; not intend he did gun in Island’s you, do he? going to strike him, Island so it to scare did to shoot No. [Answer:] No. As Everette him alone. leave would Island in swung his arm [Question:] He never begin back, saw Island step he one took you, did he? attempt an to strike a took second away. As Everette turn No. [Answer:] No. mailbox- back, the bumped step his shoulder discharge es, gun the made accidental- which Now, you him [Question:] after saw scream, turned a heard ly.6 Everette can in his standing with the beer there moth- around, upstairs to Jeffries’ and went revolver, hand, you your you drew stated gun. the gave her he apartment, where er’s is that correct? apartment and to his returned right. [Answer:] That’s brother, over. Everette who came called Johnny did Island [Question:] And what lawyer. His brother get a him to asked do after that? police; when Ever- the if he had called asked away. began to walk He [Answer:] no, phone the his brother went ette said to walk [Question:] began And after he just arrived at police had the police, but you away, what do? did door. Everette’s my pulled I revolver. [Answer:] taken at the court-reported statement In a say you pulled your re- [Question:] You state’s with an assistant department, police you do? Exactly what did volver. the fol- questions, attorney asking Everette I— [Answer:] place: lowing discussion [Question:] you Did fire a shot? said, what are after [Question:] And he Yes, I did. [Answer:] here, you did do what you doing back down in is no discussion 525-526. There Id. at then? bumped that Everette Everette’s statement I can and saw I at the looked [Answer:] gun discharged that the or the mailboxes position as strike in the that the can was accidentally.7 out revolv- me, I took and that’s when B, History Procedural er. jury on mur the judge instructed in The trial can was you said the [Question:] Now re involuntary manslaughter,8 but and not raised der you. was to strike It position on self-defense9 give instructions shoulders, fused it? was above his not does that his statement initially 7. Everette testified with Everette who met detective 6.One because the mailboxes that he backed into reflect that he was arrested testified after interrupted attorney him as the assistant state's happened, did not tell him describing what when give that answer. was about to he or that bumped he into mailboxes that accidentally. tell discharged Everette did gun the Illinois Code section of 8. Under relevant gun and fired the was that he afraid the detective unintentionally an indi- person kills And, [a] during a conversation in self-defense. in- justification commits lawful vidual without present and an assistant the detective was when manslaughter whether if his acts (but questioning attorney death are cause the which lawful or unlawful taken) court-reported statement before his or likely cause are death such as bumped into he not tell them that Everette did individual, per- he and bodily some discharged acci- that the the mailboxes recklessly.... them forms dentally. 9-3(a). para. ch. Ill.Ann.Stat. arresting testi- Additionally, officers one Code section of relevant 9. Under the arrested shortly after Everette fied that (a) of force justified the use person with rights, the incident given he discussed he car, that nothing to the extent against when and squad another police but said is neces- reasonably such discharging that conduct believes bumping mailboxes against such sary or another to defend himself accidentally. voluntary manslaughter based on an un prisoner seeking habeas relief is reasonable belief circumstances existed raising barred from a claim he had failed to justified killing.10 which would have The appeal, raise on a state court unless he can judge felt that because Everette testified prejudice. show cause and Murray See intentionally gun, not fire the did Carrier, 478, 489-490, instructions on self-defense peti- A manslaughter precluded. were con tioner’s claim “must been victed Ap Everette of murder. The Illinois way such a fairly as to alert the state court to pellate conviction, reversed any applicable [federal] constitutional finding gun’s claim of grounds for the claim.” United States ex rel. discharge preclude accidental did not an in Fairman, (7th 450, Sullivan v. 453 self-defense, jury struction on that the should Cir.1984).11 have been instructed self-defense and vol on untary manslaughter, and that the error was Earlier, in the of context exhaustion of Everette, People not harmless. v. Ill. 187 remedies, state Supreme Court had said 1063, App.3d 472, 135 Ill.Dec. 543 N.E.2d that “the federal fairly pre claim must be (1989). Supreme 1040 The Illinois Court re sented to the state courts.” Picard v. Con versed, finding that there was insufficient nor, 275, 404 270, 509, 512, 30 evidence People to so instruct. v. (1971). L.Ed.2d 438 imply “[W]e do not 147, 377, 141 Ill.2d 152 Ill.Dec. 565 N.E.2d respondent could have raised ... [his federal (1990). 1295 Everette filed a Petition for only by citing constitutional] claim ‘book and Rehearing, which the court denied. verse on the federal constitution.’ ... [cita Subsequently, petition filed a tions We simply omitted] hold that the sub a writ of habeas in corpus federal district stance of a corpus federal habeas claim must court. granted The district court first be to the state courts.” Id. at petition, finding there was sufficient evidence 278, 92 S.Ct. at 513. to instruct the on self-defense and vol- untary manslaughter. appeal This followed. argues State that Everette did not fairly present to Supreme the Illinois Court II. DISCUSSION his claim that the trial court’s failure to

A Fair Presentment instruct on voluntary self-defense man- In Spurlark slaughter Wolff, ex rel. violated his federal constitutional 699 F.2d 354 rights.12 this court held Sullivan, imminent use other's of unlawful force. How- 11. In this petition- concluded ever, justified he is in the use of force right which is er waived process submit due likely intended to cause death or bodi- claim in federal court present because he did not ly only reasonably harm if he believes process argument his due to the state courts in necessary prevent such force is claim, imminent the context of a federal constitutional great bodily death or harm himself or anoth- language process," never used the "due he relied er, or the felony. of a commission forcible on state only cases which refer to the "interests 38, para. Ill.Ann.Stat. ch. justice,” 7-1. The Illinois Pat- of and the opinion Jury tern Instruction on self-defense follows the process indicated that it impli- no due discerned statutory language. Jury Ill. Pattern Instruc- cations. tions, IPI, ("Use Criminal No. 24-25.06 of Force For a list of factors determining to consider in Person”) (2d 1981). in Defense of a ed. petitioner fairly presented whether a has a feder- claim, Sullivan, al see (including 731 F.2d at 454 10.Under the relevant section the Illinois Code n. person intentionally [a] knowingly kills an individual commits man- 12. Appellate brief to slaughter if at killing record, time he be- is not contained in the party and neither that, lieves the they circumstances to be such submitting discusses it. While a new claim to a existed, justify would killing or exonerate highest petition court in a for discretion- principles under the ary stated Article 7 of this review presentment, does not constitute fair Force; [Justifiable Code Use of apply Exoneration] this rule does not if a state court has omitted], [footnote his belief is actually unreason- ruled on Peoples, the matter. Castille v. 346, able. 351, 489 U.S. (cid:127) 38, 9-2(b). para. (1989). Ill.Ann.Stat. ch. Additionally,sneither party Court, B. Failure to Instruct15 Supreme to the Illinois In his brief to an right that his instruc- argued evidentiary support When there is precluded as a was not on tion self-defense self-defense, theory a fail defendant’s although evidence of there was matter of law on ure to instruct violates self-defense to citations homicide. addition accidental criminal defendant’s Fifth Sixth Amend cases, Everette cited Illinois to numerous Duckworth, rights. Whipple 64, 58, 485 U.S. Mathews v. United — (7th Cir.), 418, (1988), 99 L.Ed.2d -, S.Ct. Court noted “state which Failure instruct proposition that homicide support the eases process manslaughter violates federal due an instruction may be entitled to defendant in a if the failure results “fundamental self-defense, two incon- on both accident justice.” ex miscarriage of See United States affirmative defenses.” sistent (7th Sielaff, Peery rel. Cir.1979), dis- Supreme Court The Illinois Taylor nature cerned constitutional Cir.1992) (7th Gilmore, (one claims; cases it cite to two federal did justice] miscarriage oc (noting “[a] [of that case) for that proposition the them habeas curs in the record would ‘if credible evidence may to an instruction be entitled defendant support [the omitted] verdict on based on self-defense.13 (citations omitted)), rev’d on instruction.’” — 2112, U.S.-, 113 grounds, other remand, (1993), that he made his 4 F.3d remarks 124 306 Everette L.Ed.2d (Table); (1993) rel. explicit” in 997 United States ex claim “more federal constitutional DeRobertis, 875, 874, cert. 728 F.2d Bacon v. for to Su his Petition denied, 840, 143, 469 U.S. 105 S.Ct. 83 If to conclude that preme Court.14 we were Israel, (1984); v. Sanders present his federal claim Everette did not 422, F.2d time, his claim would be waived. until this 1302, 79 U.S. Dwight Correctional Cruz v. Warden See (7th Greer, 141, 145 F.2d Davis v. Cir.1990) (7th Center, (peti Cir.), 459 U.S. rehearing appellate to a for tion (1982).16 310, 74 L.Ed.2d 289 presentment) fair and Ver fails constitute (7th 1467, 1479n. O’Leary, 972 F.2d din jury that the The must have found Cruz). Cir.1992) (citing accidentally. Assuming that not fire did not, however, whether determine We need to do fired the with intent Everette we, kill, adequately federal like Illinois great bodily Everette harm or the Court, following did appeal, given Supreme the evidence that he on direct find no claim believed, reasonably unrea or so because discussion. court, argues for first time the implications fact the In this Everette of the that discusses the State, 15. Everette, petitioned erroneously the and not Illinois that the trial court omitted Supreme for review. Court justification” element of murder "without lawful jury. This has been issue when it instructed argues while Everette note that 13. Clark, (7th waived. Drake Supreme Court did discuss constitu- Illinois Cir. opinion, also asserts that his claim in its he "to remind tional petition rehearing Illinois was Supreme may or held that it have 'overlooked criminal cases have Decisions misapprehended' basis the constitutional for Ev- be entitled instructions that a defendant claims_" Br. at 21. erette's See United States on inconsistent defenses. (5th 1989) Browner, Cir. "[djenying petition stated that self- 14. (8th Fay, voluntary manslaughter instructions defense and 1981); v. United Cir. Mathews cf. Mr. Everette's under facts would violate these 58, 63-64, 108 S.Ct. 886-87 rights under the Sixth fundamental constitutional Everette's Pet. and Fourteenth Amendments." Reh'g at 24. sonably, filing it “necessary pre turning as to run as his first great vent bodily imminent death or step backward. who, himself” man from a even There are questions indeed some of credi- testimony, own turning away. bility deciding version correct any event, if reasonable some inference from facts. jury We do note that the must have us, escaped any evidence has error in not found Everette’s version large incredible in instructing on self-defense and part rejected because it the claim that manslaughter was harmless. gun discharged accidentally. pos- Insofar as Court has decided that “the sible the habeas court shuns Kotteakos applies harmless-error standard resolving credibility weighing the evi- determining whether habeas relief must be Nevertheless, dence. the Brecht-Kotteakos granted because of constitutional error of the test for harmless requires error the habeas — type.” Abrahamson, trial Brecht v. court to probabil- evaluate some extent the

-,-, ity of the outcome the case were tried (1993).17 353 ‘ There must be more than “a proper under instructions. ’ “reasonable possibility” trial error verdict”; contributed to the Our petition review of transcript the trial satisfies ers are entitled to habeas us given relief based on even if an instruction on self- trial error if the error resulted in defense and “actu manslaughter, — prejudice.” al at-, would not have been persuaded that (either 113 S.Ct. at question 1721-22. The wheth believed reasonably or un- “ er the error ‘had injurious reasonably) substantial and that his conduct “necessary effect or prevent influence in determining jury’s imminent death bodily ” — at-, verdict.’ U.S. 113 S.Ct. at himself.”18 Therefore we deem the (quoting error, any, Kotteakos v. United harmless. 750, 776, 1239, 1253, U.S. 66 S.Ct. 90 L.Ed. Accordingly, judgment of the district (1946)). court is Reversed. Everette’s version of the incident is that he him,” heard say Jeffries “hit Island had an RIPPLE, Judge, dissenting. Circuit object hand, in his and Island’s arm inwas “striking position.” Everette was scared and IWhile questions believe both are close believed that Island was hit him. ones, appears it that the district court cor- Everette was also afraid because three rectly concluded issue federal earlier, months Island had hit him on the presented adequately to the state courts and head with a soda bottle. that there is sufficient evidence the record testified, however, Everette also that when require that a manslaughter in- he went to time, mailbox the first struction given. be I Because believe that heard they Island say going were not to start supported the evidence an instruction on vol- anything. Island did not touch Everette that untary manslaughter, join I my cannot col- evening. Everette himself leagues described Island in reversing judgment of the 17. While the in Brecht issue was whether a habe- proving burden of constitutional error to be petitioner as was entitled to relief because the harmless under Brecht v. Abrahamson ?” 62 improperly post state used Bunnell, -Miranda silence U.S.L.W. Suniga But see impeachment purposes, (9th Cir.1993). the harmless error standard applies announced in Brecht to instruc Brecht, Prior to error harmless standard Duval, Libby tional error. See 19 F.3d was whether federal constitutional error "was - (1st Cir.1994), 739-740 cert. U.S. beyond harmless Chapman reasonable doubt.” -, (1994); S.Ct. 130 L.Ed.2d 277 California, 18, 24, 824, 828, (3d Beyer, Cir.1994), Kontakis v. (1967). 17 L.Ed.2d apply Brecht here. - -, Fretwell,-U.S.-,-, See Lockhart v. Morris, O’Neal v. 122 L.Ed.2d 180 145-47 granted — U.S.-, part, 18. The Illinois Court also found that (1994) (question presented: state "Does the instructional error was harmless. view, majority’s court. district is based harmless the error .conclusion judg- itsof substitution impermissible on an of credibility for that of matter on a quite majority As the jury. er- the harmless admits, reliance

frankly judges requires the this case doctrine

ror a task that perform court to of this because addressed never have requires that It jury instruction. refused credibility and matters resolve panel issue primary on the

weigh the evidence right has Mr. Everette or innocence.

guilt jury, not by determined that issue

to have believe I do not judges. a federal role for proper it is the pre- drastically into the so intrude respect- Accordingly, I jury. rogative

fully dissent. Garner, and Sara GARNER

Willie

Plaintiffs-Appellants, COMPA MANUFACTURING

KINNEAR Manufacturing NY, Kinnear Midwest Manufacturing Com

Company, Kinnear Corporation, of Harsco

pany, a Division Wayne Dalton Corporation, and

Harsco Manufactur

Corporation, Kinnear f/k/a Defendants-Appellees. Company, ing 92-2858, 92-3302.

Nos. Appeals, States

United Circuit.

Seventh 5, 1993.

Argued Nov. Sept.

Decided Suggestion

Rehearing and 23, 1994. Nov. Denied

En Banc

Case Details

Case Name: Donald Everette v. Thomas P. Roth, Warden, Sheridan Correctional Center, and Roland W. Burris, Attorney General of the State of Illinois

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 30, 1994

Citation: 37 F.3d 257

Docket Number: 92-4063

Court Abbreviation: 7th Cir.