Orlando Rosa v. Howard A. Peters, Iii, Director, Illinois Department of Corrections

the instruction of giving the whether and “trial”1 minante,3 that “structural” noted is harmless by Falconer “spec condemned the form of ends opposite errors admits, Brecht, quite frankly majority theAs errors. error. of constitutional trum” (emphasis error doctrine in the harmless on reliance jury on to the added). judges of this court the requires misdirection Explicit case this the evidence to consider the never responsibility task that its perform principal acquittal on jury in- support tending of the erroneous because addressed included on the lesser charge panel and conviction resolve requires It structions. very different is an error weigh offense evidence credibility of matters That of tainted evidence. admission guilt or innocence. of primary issue on reviewing court by a differently treated guilt or to have her right has a Cuevas Ms. surprising. ought not be jury, by fed- by determined innocence Accordingly, I re- of judges. approach appellate Scalia’s Justice eral It is Brecht. prior spectfully was formulated dissent. sort depen- analysis is not however, that his clear, of formulation particular upon a dent is opinion The Justice’s of review. standard pre- dangers particular explanation deprive the by instructions sented explanation fact-finding role —an of its ROSA, Petitioner-Appellee, Orlando an alteration that such clear makes v. easily be neutralized cannot function Director, PETERS, III, A. Howard to a “structural” closer it is far Corrections, Certainly, Department of trial-type error. typical than Respondent-Appellant. by Sea- urged Justice approach allowing the compatible is Brecht to survive ha in Carella 92-3258. No. judicial restraint principles with Appeals, opinion. in that States United re-emphasized federalism out, fact-finding Circuit. Seventh points Judge As Stahl hardly is habeas review judges federal *. Sept. Argued it re- Nor is judicial restraint. evidence Sept. Decided federalism. concept of healthy by a quired respect the factual are to courts Federal Rehearing Suggestion Rehearing and courts,4 supplement state findings of the 30, 1994. Nov. In Banc Denied them. toas whether question a close It indeed justifies an instruction record evidence be- unreasonable factor mitigating killing. justified circumstances lief my col- court and view, the district my conclud- are correct panel on this leagues been ought to have the instruction ing that shared that was

given view—a and evalu- witnesses judge saw the who

trial correctness Assuming the ated evidence. assessment, determine we must * argued to- separately but 290-91, was briefed case Fulminante, This 499 U.S. v. 3. Arizona Peters, F.3d [36 92-2856 1254-55, v. No. gether Green DeTella, [36 F.3d J., 602]; dissenting part). 92-2978 (White, v. No. Carter [36 1385]; Washington, No. 92-3090 Cuevas Mata, 4. See Sumner Roth, [37 612]; No. 92-4063 and Everette F.3d (1982) (per L.Ed.2d S.Ct. curiam) 257]. owe defer- courts (holding federal findings of state courts of fact to the ence review). . and Isido- brother Jamie2

backyard with his (“Perez”) drinking beer. Around ro Perez alley shouting from a.m., there 12:45 side, one Rene backyard. From their behind Gangster Disciple Nation” “Spanish heard King other, King, “Latin Latin the and from referring gangs. street love,” to phrases both North- (argued), Marshall C. Lawrence Latin Disciples and Gangster Spanish The Clinic, Tina Lie- University Legal western Aguinaga broth gangs. rival Kings are County De- Public of the Cook bling, Office Kings. Latin Perez were ers and IL, petitioner-appellee. fender, Chicago, for Kings” run yelling “Latin people Rene saw Madsen, Anderson, M. Terence C. Arleen any recognize alley, did not but down (argued), Gen., E. Gillis Martha Attys. Asst. Perez, Rene, by and followed Jamie them. Div., Gen., Appeals Atty. Crim. Office hap- alley to see what was into the walked IL, respondent-appellant. for Chicago, alley’s south end they to the went pening; to They turned around beyond. then and FAIRCHILD, and COFFEY Before ap- it house because Aguinaga return to RIPPLE, Judges. Circuit When everything was over. peared alley, Rene they the mouth reached FAIRCHILD, Judge. Circuit washroom, and and Jamie use a stopped to fin- After Rene to walk. Perez continued (“Rosa”) Rosa Petitioner-appellee Orlando alley, he saw and returned to ished attempted mur- murder and was convicted lots were about two and Perez as Jamie following a state court in Illinois der men came alley, three mouth of the from the murder convic- challenges the trial. Rosa Disciples.” “Gangster yard yelling out of given tion, contending that instructions Perez, and about facing They were Jamie process due his federal his violated yelling away. then heard Rene fifteen feet prosecutor asserts rights. also (“G.D.” and heard “Gangster Disciples”) jury as for his Blacks from excluded improperly he and said Kentucky, to Rene Jamie ran two shots. Batson forbidden house, and a friend’s ran to The two was “hit.” Ohio, 499 Rene for Jamie. by Powers an ambulance extended and called on L.Ed.2d none weapon, and saw have a did not Peters, of the Illinois the Director Howard Perez. Jamie or Corrections, appeals from Department did he Aguinaga testified Jamie granting court district judgment of the alley, who ran people recognize corpus.1 a writ of petition for mem- they gang were know if and did for judgment, and remand vacate We returning to Perez were he and bers. When grounds on the Batson proceedings further from a came out backyard, men three only. them. feet front yard fifteen about before, knew one and them had seen Jamie

I. BACKGROUND Gonzalez).3 (Roger Roger” Rican as “Puerto saw yelling. When Jamie The three A. Facts away, hand, and turned gun in Gonzalez’s his left shot; pain felt Jamie (“Rene”) Gonzalez testified that Aguinaga Rene turned running; he then thigh. He started 9, 1986, he was in August evening mie,” when he spelled for the record as he repre- Attorney General Because the 1. Peters, respondent- we refer testified. Mr. will sents appellant State." “the identified hospital, morning, at Jamie 3.That Appellate that the Illinois 2. We note police. photographs Roger Gonzalez from “Ja- We use refer to “Jaime.” court the district look, dreou”) back to and saw Rosa had a gun.4 As interviewed Rosa at about 1:30 a.m. run, gunshots. he continued to he heard August George Detective Basile of Chicago Department Police present. (“Arthur”), Arthur Rodriguez a member of Andreou took down a summary written of his Spanish Gangster Disciples, testified that Rosa, with discussion which statement Rosa evening August he went signed. reviewed The statement reads: friends, eight including Rosa, seven or Hammond, At about 1:00 a.m. buy August on 10 Indiana beer. After 1985 he buying car, Rodriguez was with Pedro returning Roger beer and two Gon- zalez alley cars Kings up. Muskegon filled with Latin behind drove Be- Avenue south they outnumbered, They cause of 89th Street. walking were were Spanish Gangster they south. approached ran. As Disciples returning After 90th to Street they Chicago, twenty group a gang coming to saw of guys fifteen north members alley. into neighborhood took a van to the Orlando Rosa where the heard some- lived, one Aguinaga gunshots. shout “Get them” and brothers which was heard known to be a Latin Then Orlando Kings shooting area. started Roger and shooting was guys also. The who had got van, The men out of the they and as coming been north turned around and be- going were alley down the Agui- behind the gan to run out alley. One of them home, naga big group a came out one of ground. fell to the Rosa Orlando and his yards. and began Arthur his friends Rodriguez two friends and Gonzalez back up. The group yelling was “D/K” after they got chased the others but away. “Disciple they Killers.” Arthur knew Later that morning Orlando Rosa talked Kings. Latin ran; Arthur turned around and girlfriend with his Patricia Marcardo and thrown, a brick hitting was almost Ar- him. thought told her got he one of them van, thur ran to the which drove off. Arthur because he heard him scream and run off. Rosa, did not notice if Gonzalez Pedro He thing also said the same to Theodore Rodriguez got into the back van. Gonzalez and said that he back-up had the Spanish Gangster Another Disciple testi- Rosa, gun. Pedro Rodriguez Roger and Rosa, fied that Gonzalez and Pedro Rodri- Gonzalez went to a bar named “Ritchie[’]s” guez were in van that went to the Latin at 88th and Houston. large There was a Kings gun. area. said Rosa he had a As the group people there Orlando and Rosa Rosa, van emptied, Rodriguez Gonzalez and Roger and Rodriguez they each said that split group. from the group rest of the thought they gotten had one of them. walking was alley into the when the Latin While Orland[o] Rosa was at “Ritchie’s” he Kings out, came Spanish and the Gangster got fight into guy named Robert Disciples ran. who him in hit the head awith brick. At Garcia, Juan Chicago Officer, Police ar- fight time of the Orlando Rosa had his rived on a.m., at about gun scene 1:00 and himon but after he hit was found backyard Perez down in a face off the head he was knocked unconscious and alley. Perez been shot in the had lower left when up hospital he woke gun his back. him, Garcia asked Perez who gone. had shot replied, and he Roger.” “Puerto Rican Per- Tr. at 454-455. Andreou and Detective Ba- ez died later a result gunshot sile during testified that the conversation wound. When Garcia asked at the Jamie statement, with Rosa preceding the he told hospital him, who shot had Jamie said “Puer- them that he and his friends were out get Roger.” to Rican revenge for the Hammond incident when

Rosa was night. arrested the next they After went the Latin Kings area. After informing Rosa of Miranda rights, Assis- signing statement, the written Rosa re- (“An- tant Attorney State’s James Andreou marked police] that “he [the knew we had his shot, days 4. Two picked after he was Jamie Roger two who had men been with Gonzalez. and Rodriguez police Pedro lineup out of a as the Lane, 1129, 1136 and Falconer him to lie for going wasn’t and she girlfriend (7th Cir.1990), cases the except that those get this the truth and to tell he wanted voluntary man- on instructed jury was also Id. at 440. with.” over provocation; slaughter on serious based Jury Instructions on the State placed burden instruction current then given Rosa’s under sud- acted defendant prove murder Jury Instructions Pattern resulting seri- passion den and intense un- on an voluntary manslaughter based provocation another. ous Ill. Pat- justification.5 belief reasonable Reddick, Supreme Court the Illinois IPI, Instructions, No. Criminal Jury tern voluntary these murder held that when (“Is- Murder”) (“Issues and No. 7.06 7.02 given without are manslaughter instructions Manslaughter Voluntary sues —Intention- jury that it could not convict warning the 1981). Justification”) (2d ed. al—Belief disproved miti- the State murder unless attempted also instructed jury was elements, “erroneously state the they gating murder and self-defense.6 of whether proof on the issues burdens elements listed the instruction The murder pas- under intense either defendants acted State jury that and told of murder ac- that their beliefs sions or unreasonable doubt. beyond a reasonable prove them 5, 526 justified.” 122 Ill.Dec. tions were list- instruction voluntary manslaughter The “These essential- at 145. instructions N.E.2d manslaughter voluntary elements ed the them, that, jury if follows ly assure prove jury the State must told and possibly defendant jury cannot convict The ele- doubt. beyond a reasonable them manslaughter. The reason is voluntary include all manslaughter voluntary ments of proved, it state is mitigating if a mental even (except murder of murder the elements defendant, not by the proved have will been offense), in- also and committing an while concluded People.” Id. The court case) (in that defen- Rosa’s element clude the 7, 526 Id. had occurred. “grave error” belief an unreasonable under dant acted N.E.2d at 147.8 jus- have would which existed circumstances (sometimes to as killing referred tified the that when court held Subsequently, sense, because, a de- it is in a “mitigating” they given, violate are the same instructions murder).7 told jury The was not fense to jury process federal due unless the murder not convict that it could impression that the false left with been be- mitigating element disproved the State if there was murder even could convict yond a reasonable doubt. Falconer, F.2d 905 state. mitigating mental O’Leary, F.2d 1136; 972 see also Verdin those are the same as instructions These Cir.1992); Ill. (7th Flowers 1467, 1470 Reddick, 123 Ill.2d People v. considered (7th 703, Corrections, 705 F.2d 962 (1988), Dep’t 1, 141 N.E.2d 184, Ill.Dec. Jury language. Pattern Instruc- Ill. statutory the tions, regarding and vol- murder The Illinois statutes 5. ("Use IPI, Force rewritten, 24—25.06 No. effective Criminal manslaughter untary were 1981). Person”) (2d 1987, degree ed. of first Defense of the offenses July to create degree murder. second murder Code of the Illinois relevant section Under the 7. Code of the Illinois relevant section 6. Under knowingly intentionally or person who [a] of force justified person use [a] voluntary man- commits kills an individual he and to the extent against another when killing he be- slaughter time of if at the is neces- reasonably that such conduct believes that, they if to be such the circumstances lieves against such or another sary defend to himself killing existed, justify or exonerate would How- unlawful force. imminent use other’s ever, 7 of this in Article principles stated under the which is use of justified in the force he is Force; Exoneration] Use of [Justifiable Code great bodi- likely cause death or or intended ly omitted], belief is unreason- but his [footnote reasonably only if believes harm able. necessary prevent imminent force is such 9-2(b). 38, para. ch. Ill.Ann.Stat.1985 anoth- bodily or great to himself harm death er, felony. of a forcible or the commission re- Jury Instructions Pattern The para. The Illinois 7-1. ch. Ill.Ann.Stat.1991 to Reddick. written conform follows on Jury self-defense Instruction Pattern — Cir.1992), grounds, on granted vacated other petition also respect (1993), L.Ed.2d 656 the Batson issue. appeals. The State now (7th remand, Cir.1992); Tay 5 F.3d 1021 Gilmore, (7th lor v. F.2d Cir. II. DISCUSSION 1992), U.S. —, grounds, rev’d on other A Harmless Error Rosa would like us to read Falconer remand, (7th Cir.1993) (Table); 4 F.3d 997 broadly, holding that when these murder Huch, Fleming United States ex rel. voluntary manslaughter instructions are (7th Cir.1991); Lane, Rose v. given alerting jury without to the need to (7th Cir.), determine whether mitigating circum stance of justifica an unreasonable belief of present, tion present and if not to con murder, vict of jury and the convicts of mur History C. Procedural der, always there is a denial of federal due process,9 error, and never harmless no mat convicted Rosa of the murder of slight ter how the evidence of an unreason Isidoro attempted Perez and murder of Ja justification.10 able belief of Aguinaga. mie Appellate The Illinois found that while instructions were error Several against considerations militate so Reddick, under the error was harmless be First, reading. broad a court Falcon- cause evidence does “[t]he not indicate that spoke er possibility terms of a that a danger defendant’s life inwas or that he improperly murder, would convict of Rosa, People acted in self-defense.” v. 206 suggested that there was substantial evi- Ill.App.3d 950, 956, 151 Ill.Dec. defendant, dence that the attempted who to ruled, N.E.2d It also prove self-defense, that she killed in did have respect issue, to the Batson that Rosa had a mitigating mental state: burden, law, imposed by met his point The jury central is that might making adequate record of the racial com have decided to petitioner convict the position jurors. of the venire and seated murder proved because the State that she Supreme petition Court denied Rosa’s intentionally killed another without a rea- appeal, for leave to and the United States sonable belief that she acted in self-de- Supreme petition Court denied his for certio- despite proof peti- clear that fense — rari. provoked tioner was passion to murderous by the petitioner victim or that the held an Subsequently, petition Rosa filed a for a justified unreasonable belief that she was writ corpus habeas federal district killing the victim. granted court. The pe- district court Falconer, added). (emphasis 905 F.2d at 1136 error, tition on concluding the instructional “ that the instructions ‘so infected the trial Additionally, as though even in several cases process.’” Aug. violate due 1992 we have “inherently prejudicial” noted the Mem. and Order at 12. The instructions,11 district court nature of the all subsequent ” question 9. There is a serious as to whether (citing Rosa less.' 905 F.2d at 1137 United States v. presented process his federal due Voss, claim to the 393, 398, State, however, state courts. The does not raise (1986)). 107 S.Ct. this issue. Lane, (noting 11.Rose v. 910 F.2d at 402-403 Falconer, panel 10. In of this court concluded Falconer found the “gravely instructions to be Eighth finding “[a]s Circuit stated in "inherently prejudicial”); erroneous” and United constitutionally faulty jury instructions: 'Such Huch, Fleming States ex rel. 924 F.2d at 683 jury [a error verdict based on an instruction that (recognizing that Falconer and Rose found that properly finding allows it to convict without "inherently prejudicial”); supporting Taylor error was facts each element of crime] is not Gilmore, court, merely appellate (recognizing corrected 954 F.2d at 454 because an that Fal- review, coner, upon jury is satisfied that the Fleming would have Rose and found the instructions found the properly essential facts had it been "inherently prejudicial”). were instructed. The error cannot be treated as harm- interpreted permitting have Falconer as have found Fal we court which of this decisions Falconer-type con process due consideration of whether er- coner-type denials of light error was harmless harmless in whether the rors were evidence sidered de jury. in order to the evidence have evaluated before the Flowers v. Ill. not. See termine that was (“Our Corrections, 962 F.2d at 705 Dep’t Finally, has de trial the state confirms review of record cided that “the Kotteakos harmless-error belief, ten- given that he judge’s apparent determining applies standard whether ha- manslaughter voluntary instruction dered granted beas relief must con presented jury, that the evidence to the type.” error the trial Brecht v. stitutional voluntary man- support trial either could Abrahamson, U.S. -, -, a murder verdict. Con- slaughter verdict or (1993).12 1710, 1722, 123 L.Ed.2d 353 There ‘ sequently, we conclude possibili than “a “reasonable be more ’ beyond a trial not harmless Flowers’ ty” to the ver trial contributed 706); ...,” Taylor id. reasonable doubt dict”; petitioners are entitled ha- (considering Gilmore, 954 F.2d at 450 only if beas relief based on trial error ... jury instructions the erroneous “whether prejudice.” Id. at error resulted “actual doubt,” beyond a harmless reasonable -, question 1721-1722. The “ (“Our 454) con- of the record id. at review inju whether the error ‘had substantial judge’s trial belief there [“that firms the determining rious effect or influence ” support in the record enough evidence at -, (quoting verdict.’ Id. id.) (not- ...,” manslaughter”] mitigation to States, Kotteakos v. United insufficient evi- ing there been “[h]ad (1946)). 1239, 1253, 90 L.Ed. 1557 judge would not regard, in that dence [give manslaugh- obligated have been statement, in which have Rosa’s We ...,” id.); ex States instruction] ter United upon explains he came Jamie and (“A Huch, closer Fleming v. 924 F.2d 679 rel. Perez, “get gunshots. them” and he heard question than instructions whether argues could infer that he process is that constitu- violated due whether Perez, part thought and Rene were Jamie beyond a rea- harmless tional violation was “Disciple threatening group and that the 683) doubt,” (concluding that id. at sonable An infer shooting Killers” them. were and uncontro- there was “substantial because presented that Rosa believed Perez ence syndrome, of battered wife verted” evidence implausi danger his life least seems theory, the which was basis for self-defense ble. harmless, id.); instructional error (“we testimony Spanish Lane, There also was F.2d at 402 Rose v. 910 revenge Gangster Disciples looking for were ... whether the trial court’s constitu- decide (con- 403) harmless,” There was testi- for the Hammond incident. id. tional error was merely mony Perez that Jamie and were was evidence cluding that because there no walking alley, evidence that acting he in self- with defendant believed advancing in a defense, they threaten- jury might not convicted him were armed id.). Thus, manner, instructed, Spanish Gang- ing when the three properly if of murder (1994) (question presented: "Does state have a habe- 70 the issue in Brecht was whether While proving be petitioner relief because the error to was entitled to burden of constitutional Abrahamson?"). post-Miranda improperly silence used v. But harmless under Brecht 664, Bunnell, (9th impeachment purposes, the harmless error 667 Suniga v. 998 see applies to instruc announced in Brecht Cir.1993). standard 733, Duval, Libby v. 19 F.3d tional error. See Brecht, standard harmless error Prior to - denied, Cir.1994), (1st U.S. cert. 739-740 "was - - was whether federal constitutional 314, (1994); -, L.Ed.2d 115 S.Ct. Chapman beyond a doubt.” harmless reasonable Cir.1994), 110, (3d Beyer, v. 19 F.3d 116 Kontakis 824, 828, - California, - 87 S.Ct. 215, v. 386 U.S. -, S.Ct. U.S. cert. (1967). - apply Morris, We Brecht here. L.Ed.2d 705 (1994); O'Neal L.Ed.2d Frelwell, - U.S. -, -, 143, (6th Cir.1993), granted See Lockhart 145-147 844, (1993). 1396, 838, S.Ct. 122 L.Ed.2d part, 114 S.Ct. Disciples ster yelling. came out After shoot- B. Batson ing, the three chased Rene and Jamie. selection, During jury twenty-three poten- jurors tial questioned. prosecution The questions There are indeed some of credi- peremptory exercised four challenges, three bility deciding the correct of the version of which against were used Blacks. The facts. do We note must have objected defense mistrial, and moved for a large found Rosa’s version part incredible pursuant to Kentucky, Batson v. 476 U.S. rejected the claim that he acted in (1986). 106 S.Ct. L.Ed.2d The possible self-defense.13 Insofar as the habe- trial motion, apparently court denied the as or appellate resolving court shuns credibil- ground that Rosa ais Latino and not ity weighing black, and the evidence. Neverthe- complain therefore could not less, the exclusion jurors. of black Brecht-Kotteakos test for The harmless record does not show the composition racial error requires the habeas court to evaluate rest of twenty-three venire members or probability to some extent the of the outcome jurors. the twelve seated if the case were proper tried under instruc- Batson, Supreme tions. Court held that a defendant a criminal could case show that The perceived constitutional error in Fal- peremptory challenges prospective jurors jury may coner was that “the have been left of his own race were unconstitutional dis- impression the false that it could convict Ohio, crimination. In Powers v. 499 U.S. petitioner of murder if pos- even she the Supreme sessed mitigating one of the Court states of ruled that a mind defendant may raise Batson challenge even if voluntary described in the manslaughter in- jurors defendant and the excluded are not of struction” “[j]urors and that are therefore the same race. Because Rosa’s conviction encouraged by the structure of the instruc- yet was not final when tions to answer ... requirements [the Powers, decided benefit from that murder first instruction] and then move on ruling on collateral review. v. Ken- Griffith only if requirements those cannot met.” tucky, Falconer, 905 F.2d at (1987). L.Ed.2d present Falconer error is here. We argues The State that federal courts conclude, however, that the error did not jurisdiction do not have to hear Rosa’s Bat- injurious have a “substantial and effect or son claim because Appellate the Illinois in determining influence verdict” Court decided the independent issue on an adequate therefore was harmless.14 state law ground, citing Cole man Thompson, If jury rejected in fact any claim that The State Rosa had even an unreasonable belief that that required contends Rosa was under Illi the killing necessary self-defense, was nois law to make a record of the racial make error had no effect the verdict. Assum- up of prospective and impaneled jurors in ing, however, that the instruction caused the preserve order to a claim of discrimination jury to believe could convict of murder for appellate review. belief, even if Rosa such or had without Although under the law that time the did, considering whether he our review the trial court was correct in deciding that Rosa trial transcript jury satisfies us that the was could not make prima out a ease be- facie not and would persuaded not have been cause he jurors and the excluded were not of Rosa had such belief. race,15 the same Appellate Illinois Court 13.Notwithstanding the evidence that Perez and 14. Appellate The Illinois Court also found that shooter, Jamie identified Gonzalez as the no ar- instructional error was harmless. gument is made evidence is insufficient Batson, 96, 476 U.S. at 106 S.Ct. at 1722-23 any for rational to find that Rosa fired the (“the defendant first show ... fatal shot. prosecutor peremptory has exercised challenges

633 defendant) (1992) (black (remanding Bat- for had claim because to consider declined racial com although no record of hearing son the race of record of to make failed venire); People v. Nichol of entire position than venire other members jurors and 742, 273, 577 son, 160 Ill.Dec. Ill.App.3d 218 had been struck who members the venire defendant) (re (black (1991) 1313 did not discuss N.E.2d court jury. The from hearing although race of manding for Batson making a precluded Rosa was fact Lockhart, known); People v. jurors not three not black. he is claim Batson 1011, 700, 558 Ill.Dec. Ill.App.3d 146 201 on a relied Appellate Court Illinois defendant) (re (black (1990) N.E.2d 1345 determining that bar procedural state although no rec hearing manding for Batson claim. See a Batson raise cotdd not venire). composition entire ord of racial 1038, 255, 109 Reed, S.Ct. 489 v. Harris had, Additionally, Illinois (1989). “adequate,” beTo 308 L.Ed.2d 103 considering of discrimination claims “firmly established must be rule at trials selection black defendants Kentucky, v. James followed.” regularly Batson, appeal cases on prior to remanded 1830, 1835, 80 348, 341, Batson, contrary claim State’s after Gilmore, 988 (1984); v. Lilly 346 L.Ed.2d number establish the failure to waiver (7th Cir.), 783, 785 Andrews, People venire. Blacks on the 154, 116 114 469, 451, 548 N.E.2d Ill.Dec. 139 132 Ill.2d (“a infrequently, unex (1993) applied rule (1989). 1025 freakishly not constitute or pectedly, a non- Additionally, in case where another ground”) adequate state independent record of to make a failed black defendant McCaughtry, (citing Prihoda decid Powers was composition before Cir.1990)). racial (7th 1379, 1383 hearing for a ed, courts remanded Illinois invariably do courts appellate used prosecution whether determine a defen claim because reject a discrimination discriminatory challenges for peremptory compo of racial make a record dant failed to Pecor, Ill.App.3d People v. 213 purposes. Ill.App.3d Hughes, 257 People v. e.g., See sition. 600, N.E.2d 1064 472, 157 572 Ill.Dec. 1030 628 N.E.2d Ill.Dec. Pecor, 153 Ill.2d People v. aff'd, defendant) (black (noting that (1993) failure (1992). also See N.E.2d Ill.Dec. does composition of racial make a record Ramirez, Ill.App.3d People v. review, appellate necessarily preclude 595 N.E.2d Ill.Dec. People hearing); remanding for Batson challenge Pecor, Batson the defendant’s Ramirez, 171 Ill.Dec. Ill.App.3d he was by the court because (non-black trial (1992) was denied defen 884, 595 N.E.2d racial no record of made He white. appeal but direct pre-Powers, trial dant’s was jury. Powers or decision) (re venire composition time of Powers pending at was ap- Pecor’s the defendant while pros was decided hearing to discern manding for Batson AppeUate pending in the Illinois peal al peremptory strikes reasons ecution’s hearing. Court, for a Batson remanded which composition of of racial though no record affirmed, noting Supreme Court Green, Ill. The Illinois jury); People v. venire here, or attempt to make record “[a]ny 593 N.E.2d Ill.Dec. App.3d clearly the law in his claim where defendant) persist (remanding for Bat- (1992) (black time, been, contrary, have would any if Blacks clear although not hearing son do not We judicial resources. Gaston, a Ill. waste jury); People v. on anticipate have to should a defendant 644, 131 believe 486, 592 N.E.2d 169 Ill.Dec. App.3d Powers, subsequently moved light ation defen- the venire members to remove from Pecor, Ill.App.3d People v. race”). to cite for leave dant’s (1991) 600, 472, 572 N.E.2d Ill.Dec. Appellate issued its decision Court The Illinois below) for 1990, (discussed support of motion petition his filed a and Rosa on December Su May Illinois Supreme appeal Court. to the Illinois On leave to reconsideration. for Pecor, Illi- April granted on 1991. The leave to cite decided Rosa preme Powers was petition on Rosa’s Supreme Court denied for reconsideration. nois April motion denied his and also for reconsider- then filed motion 3. Rosa an change eventual the law in order to basis of prima race. A showing is facie “ Pecor, preserve ‘by review.” presenting issue 180 made facts and relevant cir Ill.Dec. at N.E.2d at cumstances raise an inference that the government peremptory used the challenges distinguish The State would us Pecor to exclude order venire members because here, because the record is not clear that the ” of their race.’ Mojica, United States judge trial Rosa’s Batson challenge denied (7th Cir.) (citation omitted), not black. After reviewing U.S. —, 113 S.Ct. transcript, we do not find State’s (1993). 124 L.Ed.2d 653 If a defendant argument persuasive. judge While the trial prima makes a showing, the burden facie explicitly reasons, did not his only state prosecutor shifts to give race-neutral challenge by prosecution was that Rosa reason for his of peremptory use challenges. prima could not establish a ease be- facie Finally, the trial court must determine cause he is not black.16 whether the defendant has carried his bur We find that the reason articulated showing den purposeful discrimination. Appellate Illinois Court for denying Rosa’s York, Hernandez v. 352, 359, New 500 U.S. Batson claim “adequate” is not an 114 L.Ed.2d 395 ground. appellate courts do not uni- The trial court did not determine formly bar Batson claims when a defendant that Rosa failed to prima make a show facie has failed to make a .composi- record of racial ing prosecution used its peremptory Also, tion. the Illinois Court’s deci- challenges reasons, for racial apparently but sion in Pecor demonstrates that the record- only prima ruled that a case could not facie preservation “adequate” rule is not be established because of Rosa’s race. limited situation where a non-black defen- attorney timely objection, made a but dant like Rosa could not raise a Batson claim pursue not objection allowed to his (and here, at the time his trial could not demand explanation race-neutral from the raise the claim Appellate when the Illinois prosecution at that time. Because Powers decision), Court rendered its subsequent- but Rosa, applies to he is ruling entitled to a ly is entitled raise a Batson claim because whether he can satisfy the Batson elements appeal his pending on direct review ultimately prove prosecution when Powers was decided. purposeful used discrimination when it exer Batson, Under a defendant must first cised peremptory its challenges.17 See Dun prima make a showing that prose ham v. Inc., Frank’s Nursery Crafts, & facie cutor used peremptory challenges (7th Cir.1990) F.2d 1281 (ruling that Batson prosecution argued 16. After the prima that no harmless error standard enunciated in Brecht. facie case had made been because Rosa was not Vasquez Hillery, See jurors, same race as the excluded (1986) (systematic 88 L.Ed.2d 598 exclusion discussion followed: grand jury subject blacks from to harmless Judge, just [The Prosecution]: for the rec- ("when analysis) petit jury has been se ord, by arguing [Rosa is not of the same upon improper lected criteria ... we have re jurors] race as the excluded we are not conced- quired reversal of the conviction because the ing that there are no other for the reasons ascertained," effect of the violation cannot id. challenges, Judge. (plurality opinion)); S.Ct. at 623 They [The indicating, they Defense]: are not Fulminante, 279, 294, 310, Arizona going are, are not what the indicate reasons 1246, 1256-57, 1265, obviously. (five (1991) justices concluding that harmless prima [The Prosecution]: No facie case has analysis apply should to admission of an been made. involuntary justices confession and four dissent right. The Court: All ing point, citing Vasquez all example [The Defense]: I ask for a mistrial. ("unlawful of constitutional error exclusion of The Court: denied. Motion members grand race from defendant's Tr. at 84-85. jury”) subject analysis); to harmless error trial, 17. While is selection associated awith Beyer, Ramseur v. 1225-1226 n. 6 we do not believe the Court would — (3d Cir.1992), denied, deem a Batson violation a error "constitutional (1993). S.Ct. type” of the trial that we apply so would the is based is harmless instructional error de the remanding for eases and applies to civil judg- of prima impermissible case substitution a on an of whether termination facie shown), cert. judges could be on a factual appellate discrimination ment of federal L.Ed.2d jury. I do of the state court for that matter (1991). ought to court a federal habeas not believe drastically prerogative the of into intrude so released Rosa court ordered The district jury. that the the retried, found both had but unless denied murder-manslaughter instructions outset, that the it be stressed At the must per- prosecution’s that the process due contin the analysis presupposes that follows may have been based challenges emptory Lane, 905 F.2d vitality of Falconer v. ued above, we conclude As discussed race. (7th Cir.1990), despite the this circuit in on account to release entitled is not in critique of that Log- decision Supreme Court’s murder-manslaughter instructions. the respect U.S. —, to the Bat- step Taylor, S.Ct. ically the next Gilmore court hearing district (1993). be a point son would Until peremptory chal- the whether to determine plenary fash is raised briefed matter However, given on race. based lenges were ion, law of the circuit remains the Falconer (more years) than six time passage the accordingly. proceed and we trial, hearing to determine a since jurors Falconer, were excluded panel this court held whether In unsatisfactory. The district be instructions, race well ear pattern murder the Illinois hearing be if a would decide court should grounds by the on state law lier invalidated so, court should if district productive; Reddick, People Supreme Court Illinois hearing. If Rosa carries a Batson conduct 526 N.E.2d 122 Ill.Dec. 123 Ill.2d pros- that the proving burden his ultimate Clause Due Process also violated the discrimination purposeful racial used ecution The federal Amendment. of the Fourteenth challenges, peremptory its when exercised in Falconer this court infirmity identified order release court should then district was different therefore If Rosa does days. within 120 unless retried court upon the state ground relied burden, be relief should carry then his Reddick, Supreme Court In Reddick. a hear- decides If district court denied. that, matter as a view had taken the determining satisfactory for ing could not law, should the instructions of state order issue, should district court of dis the burden government placed within 120 unless retried Rosa’s release mitigat doubt a beyond a reasonable proving days.18 contrast, court By this ing state. mental judgment of district Accordingly, the that, federal a matter of acknowledged cause Remanded and the is court VACATED law, proof with burden of constitutional on the Batson proceedings further for may be defense an affirmative respect opinion. in accordance with grounds held, however, It party.1 either placed on were infirm be pattern instructions part concurring in RIPPLE, Judge, Circuit pre cause, instructions although the murder dissenting part. voluntary manslaughter instruc ceded va- majority’s decision to I concur jury that tions, tell the they explicitly did court and district judgment cate the if it murder verdict not return it could proceedings on case for further remand the miti possessed a the defendant found that dissent from respectfully I the Batson issue. possible, con was It gating mental state. deny further relief the court’s decision court, to find cluded the the instructional ground that ever without guilty of murder view, defendant my conclusion harmless. York, retried, course, Patterson New 1. See the instructional if Rosa 18. Of become moot. trial will first considering whether he was entitled to point the this instructional error must be voluntary manslaughter Explicit conviction. quite differently assessed from other errors scale, misdirection on this concluded the that arise in the course of trial. Some are court, violates the Process Due Clause. “structural” in subject nature and not at all reaching conclusion, this court relied .the analysis. harmless error See Sullivan v. principally Supreme — holding Court’s Louisiana, —, —, U.S. 113 S.Ct. in Cupp Naughten, 414 U.S. S.Ct. 2078, 2082, (1993) (holding (1973). case, In that the that a constitutionally deficient reasonable- Court had held that may federal courts error). doubt instruction cannot be harmless overturn a state ground conviction on the hand, On the other other instructions that the instructions were erroneous misstate the task of the in assessing unless those instructions can be said to have evidence subject before it are to harmless infected the entire trial. Id. at 94 S.Ct. analysis. error California, See Carella v. at 400-01. 263, 266-67, 109 491 U.S. 2419, 2421-22, S.Ct. today issue before us (1989) is whether the 105 L.Ed.2d 218 (holding that an in error in identified Falconer can be consid struction that a car kept days rental past ered harmless. If it considered, be so can agreement the rental “shall be presumed to we must applicable determine the standard have been embezzled” impermissibly shifts in making such a determination. In Brecht proof, subject burden of but is to harm — Abrahamson, —, —, U.S. 113 less analysis); Clark, error Rose v. 478 U.S. 1710, 1717, S.Ct. 123 L.Ed.2d 353 570, 582, 106 3101, 3108, S.Ct. 92 L,Ed.2d 460 Supreme Court, through pen of (1986) the Chief (holding that an instruction that im- Justice, held that ought “trial error” to be permissibly shifts the burden of proof on the evaluated under review the stan of issue prosecution malice in a murder is dard enunciated earlier in Kotteakos v. Unit subject to analysis); harmless error Sand States, ed 328 U.S. Montana, strom v. 526-27, U.S. L.Ed. error,” “Trial the Chief 2450, 2460-61, S.Ct. (1979) 61 L.Ed.2d 39 “ wrote, Justice during ‘oceur[s] the presen (holding constitutionally in erroneous ” tation of jury.’ at —, case to the Id. struction establishing conclusive presumption 113 S.Ct. at (quoting Arizona v. Fulmi perpetrator ordinary intends the conse nante, quences voluntary subject acts is to harm 1263-64, (1991)). It is sus analysis). error less These make cases clear ceptible to analysis harmless error because it that, holds, majority error Falconer is quantitatively assessed in the context subject to analysis. harmless error Howev of the other presented evidence that is at er, Ias shall in detail the paragraphs that trial. Id. As the Court set forth in follow, application of the harmless error rule Brecht, standard, under a reviewing poses problems, these cases concep both court must determine whether the error practical, tual and not faced when we deal “ ‘had injurious substantial and or in effect types other error arise determining fluence in jury’s verdict.’” course trial. — Brecht, at —, 113 S.Ct. at 1722 Kotteakos, (quoting As the case U.S. at instructions that establish 1253). mandatory “At presumptions or spec other end of the instructions that trum,” Justice, shift the proof, continued the burden of Chief it struc are indeed difficult tural defects in the trial assess the of an mechanism that effect instruction such as “infect id., entire trial at issue in process,” Falconer present and the 113 S.Ct. at explicitly case that therefore skews decision- require making process automatic reversal. “Trial error” that might so not even usually admissibility involves the consider the mitigating evidence circumstances that propriety argument acquittal counsel. would result principal Here, however, we deal with charge another form of only conviction on the lesser in- that arises the course of trial— cluded offense. When traditional formu- instructional error. It is well established lation of the harmless test of Kotteakos inquiry is not Because the this error of situation.2 uncritically to instructional applied is the can established from Falconer, guilt be whether the contours by presented type the found record, guilt was ever whether radically ex but are analysis error harmless of jury, reviewing court must by the a consequently properly courts Federal panded. instruction that could that the determine supplying miss position of placed are jury’s in such a indeed, efforts and, have misdirected the jury findings of the ing factual a in its way play did not role verdict. convic drastic uphold the to relying on evidence Carella, at 2423 S.Ct. 491 U.S. at considered. not the tion that (1st (Scalia, J., ap- concurring). Under Duval, Libby v. See — grossly so error proach, instructional U.S. —, 115 S.Ct. Cir.), cert. jury’s inquiry is harmless L.Ed.2d — (1994) (Stahl, J., the misdirects dis facts be established the when it can senting). to other jury necessarily pursuant found the trial-type usual forms In the ease closely to are so related instructions correct erroneously evidence admitted such as in- by the erroneous proved be the fact to jury, the sort argument the improper jury could not have a rational struction that by contemplated assessment quantitative finding also former without found the facts by the review- accomplished easily is Brecht by instruc- the erroneous the addressed fact it the entire court has before ing court. The impermissible pre- an tion. In the case of the whether easily can determine record predicate acts example, the sumption, erroneously admitted by the fact established may so instructions correct established an established to nevertheless evidence was requisite intent conclusively the establish lawfully ad- overwhelming degree other the jury could rational conclude that no evidence; can judgment therefore mitted act the criminal committed defendant erroneously ad- the to whether made as be that was have the intent question, but did not and erro- had a substantial mitted evidence pre- subject impermissible the also the jury’s Such verdict. neous influence Carella, 272, 109 sumption. at See when the far more difficult approach is an Rose, 478 (discussing U.S. at 2424 S.Ct. upon not assess is called appellate court 3106-07). such as cases jury had that the information effect us, jury’s inquiry in which the one before effect of it to assess the before but affirmatively so that skewed information having considered relevant not guilty of murder might find the defendant finding law which the having made or not included considering the lesser even without it to make. requires might also manslaughter, the error offense of noted, already it is clear As I have before the evidence when be harmless difficulty precedent the established finding of permit a simply did not court approach standard Kotteakos applying manslaughter. errors that these instructional does mean approach circuit’s of this the course While a harmless under ought not be evaluated situation the Falconer error in to harmless mean analysis. Nor does garment, seamless perhaps has been inapplicable in ought holding of Brecht whole, recognize eases, do read as a our an simply means that It instances. such suggests, majority principles. As these precisely more approach, tailored analytical that, language taken do our contain cases particular error on the nature of can nev- alone, that Falconer error suggests must be found. proceedings, fairness of the however, each of Notably, be harmless. er point- has Circuit Judge First As Stahl possibility explore did Libby, these cases opinion in dissenting ed out reasonably might not of record the evidence opinion Carella concurring Scalia’s Justice man- offense 263, 267-73, the lesser included raise 109 S.Ct. California, 491 Gilmore, Taylor v. slaughter. See 2419, 2421-24, offers (7th Cir.1992), on other rev’d help in that is of considerable a formulation where applicable to other situations addressing sis Carella 2. Justice Scalia fact-finding role. deprived of its juty has been that created conclusive instruction erroneous Carella, at 2423. however, noted, analy- that his presumption. He — U.S. —, grounds, approach Justice Sealia’s to error of this (1993) (noting L.Ed.2d 306 that the error was sort prior was formulated to Brecht. It is clear, “inherently prejudicial,” however, examining but also analysis that his depen- is not the record to determine that upon particular the lesser in dent formulation of the by evidence); cluded offense was raised standard of review. The Justice’s opinion is Huch, (7th Fleming explanation v. 924 particular F.2d dangers pre- Cir.1991) (same); Lane, by sented deprive Rose v. instructions that jury F.2d (7th Cir.), fact-finding its explanation role —an 515, 112 (1990) (same). makes clear that such an L.Ed.2d 526 alteration easily A case function cannot later makes no such be reference to the neutralized because it impossibility but, is far closer to a notably, harmless error “structural” error than the approaches typical trial-type Certainly, error. analysis by harmless error allowing approach urged by asking whether Justice Sca- the lesser included offense lia in Carella to survive reasonably compatible Brecht is by raised the evidence. See judicial with the principles of Corrections, Dep’t Flowers restraint re-emphasized federalism (7th opinion. Cir.1992), vacated on other — Judge out, As points Stahl fact-finding grounds, U.S. —, judges federal on habeas hardly review is L.Ed.2d 656 present Our Chief judicial evidence of restraint. Nor Judge re- when, analysis followed similar writ quired by healthy concept of federalism. ing the court in United Kerley, States v. Federal respect courts are to (7th the factual Cir.1988), 838 F.2d 932 he held that the findings courts,4 of the state not supplement instructing district court’s error in not them. jury respect to one element the of fense was harmless because the element was majority As the quite frankly admits, reli- “not contestable.” Id. at 939. ance on the harmless error doctrine requires case judges of this court foregoing approach may The well result in perform a jury may task that the never a determination of harmless substan addressed because of the erroneous in- tially fewer instances than in usual “trial requires structions. It panel resolve However, error” situation. this difference in credibility matters of weigh the evidence result is due to problem the difference in the primary guilt issue of or innocence. presented. Court has ac right Mr. Rosa has a to have guilt knowledged that all errors neatly cannot be innocence by jury, determined fed- classified as either “structural” or “trial” er appellate judges. eral Accordingly, I re- Brecht, rors. Justice, the Chief referring spectfully dissent. to Justice White’s earlier observation in Ful-m inante, noted that “structural” and “trial” opposite errors were at ends “spec Brecht, trum” of constitutional errors.

U.S. at (emphasis S.Ct. at 1717

added). Explicit misdirection responsibility

its to consider the evidence

tending support acquittal on principal

charge and conviction on the lesser included

offense very is an error different

admission of tainted evidence. That it must differently by treated a reviewing court

ought surprising. not be Fulminante, 279, 290-91, Mata, 591, 598, 3.Arizona 499 U.S. 4.See Sumner 1246, 1254-55, (1991) (1982) S.Ct (per (White, J., curiam) (holding dissenting part). federal courts defer- owe findings ence to the of fact of state courts on review).

Case Details

Case Name: Orlando Rosa v. Howard A. Peters, Iii, Director, Illinois Department of Corrections

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 30, 1994

Citation: 36 F.3d 625

Docket Number: 92-3258

Court Abbreviation: 7th Cir.