OCTOBER TERM, 1992
Syllabus
GILMORE
v. TAYLOR
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 91-1738. Argued March 2, 1993-Decided June 7,1993
At his trial in Illinois state court, respondent Taylor admitted
the killing with which he was charged, but presented evidence to
support his claim that he was only guilty of voluntary
manslaughter. The jury received instructions modeled after the
state pattern instructions on murder and voluntary manslaughter and
convicted Taylor of murder. After the conviction and sentence
became final, he sought federal habeas relief on the ground that
the jury instructions violated the Fourteenth Amendment's Due
Process Clause. While his case was pending, the Court of Appeals,
relying on
Cupp v.
Naughten, 414 U. S. 141, held as
much, finding that because the pattern murder instructions preceded
the voluntary-manslaughter instructions, but did not expressly
direct a jury that it could not return a murder conviction if it
found that a defendant possessed a mitigating mental state, it was
possible for a jury to find that a defendant was guilty of murder
without even considering whether he was entitled to a
voluntary-manslaughter conviction.
Falconer v.
Lane,
905 F.2d
1129. The State conceded that Taylor's jury instructions were
unconstitutional, but argued that the
Falconer rule was
"new" within the meaning of
Teague v.
Lane, 489 U. S. 288, and could
not form the basis for federal habeas relief. The District Court
agreed, but the Court of Appeals reversed, concluding that
Boyde v.
California, 494 U. S. 370, and
Connecticut v.
Johnson, 460 U. S. 73 (plurality
opinion), rather than
Cupp, were specific enough to have
compelled the result in
Falconer.
Held: The
Falconer rule is "new" within the
meaning of
Teague and may not provide the basis for federal
habeas relief. Pp. 339-346.
(a) Subject to two narrow exceptions, a case that is decided
after a defendant's conviction and sentence become final may not
provide the basis for federal habeas relief if it announces a new
rule, i.
e., a result that was not dictated by precedent at
the time the defendant's conviction became final. This principle
validates reasonable, good-faith interpretations of existing
precedents made by state courts and therefore effectuates the
States' interest in the finality of criminal convictions and
fosters comity between federal and state courts. Pp. 339-340.
(b) The flaw found in
Falconer was not that the
instructions somehow lessened the State's burden of proof below
that constitutionally required
334
Syllabus
by cases such as
In re Winship, 397 U. S. 358, but rather
that the instructions prevented the jury from considering evidence
of an affirmative defense. Cases following
Cupp in the
Winship line establish that States must prove guilt beyond a
reasonable doubt with respect to every element of the offense
charged, but may place on defendants the burden of proving
affirmative defenses, see
Martin v.
Ohio, 480 U. S.
228; Patterson v.
New York, 432 U. S. 197, and, thus,
make clear that
Cupp is an unlikely progenitor of the
Falconer rule. Nor do the other cases cited by the Court of
Appeals dictate the
Falconer result.
Boyde, supra-in
which the Court clarified the standard for reviewing on habeas a
claim that ambiguous instructions impermissibly restricted a jury's
consideration of constitutionally relevant evidence-was a capital
case, with respect to which the Eighth Amendment requires a greater
degree of accuracy and factfinding than in noncapital cases. In
contrast, in noncapital cases, instructions containing state-law
errors may not form the basis for federal habeas relief,
Estelle v.
McGuire, 502 U. S. 62, and there is
no counterpart to the Eighth Amendment's doctrine of
constitutionally relevant evidence in capital cases.
Connecticut v.
Johnson, supra, and
Sandstrom
v.
Montana, 442 U. S. 510, which it
discusses, flow from
Winship's due process guarantee, which
does not apply to affirmative defenses. The jury's failure to
consider Taylor's affirmative defense is not a violation of his due
process right to present a complete defense, since the cases
involving that right have dealt only with the exclusion of evidence
and the testimony of defense witnesses, and since Taylor's
expansive reading of these cases would nullify the rule reaffirmed
in
Estelle v.
McGuire, supra. Pp.340-344.
(c) The
Falconer rule does not fall into either of
Teague's exceptions.
The rule does not "decriminalize" any class of conduct or fall
into that small core of rules requiring observance of those
procedures that are implicit in the concept of ordered liberty. Pp.
344-346.
954 F.2d
441, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
SCALIA, KENNEDY, and THOMAS, JJ., joined, and in all but n. 3 of
which SOUTER, J., joined. O'CONNOR, J., filed an opinion concurring
in the judgment, in which WHITE, J., joined,
post, p. 346.
BLACKMUN, J., filed a dissenting opinion, in which STEVENS, J.,
joined,
post, p. 352.
Mark E. Wilson, Assistant Attorney General of Illinois,
argued the cause for petitioner. With him on the briefs were
Roland W Burris, Attorney General,
Rosalyn B.
335
Kaplan, Solicitor General, and Terence M. Madsen, Marcia L.
Friedl, and Steven J. Zick, Assistant Attorneys General.
Lawrence C.
Marshall, by appointment of the Court,
506 U. S. 1018, argued the cause for respondent. With him on the
brief were
Roy T. Englert, Jr., Robert Agostinelli, and
Timothy P. O'Neill. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.t
Respondent Kevin Taylor was convicted of murder by an Illinois
jury and sentenced to 35 years' imprisonment. After his conviction
and sentence became final, he sought federal habeas relief on the
ground that the jury instructions given at his trial violated the
Fourteenth Amendment's Due Process Clause. The Court of Appeals for
the Seventh Circuit granted relief on the basis of its recent
decision in
Falconer v.
Lane, 905
F.2d 1129 (1990), which held that the Illinois pattern jury
instructions on murder and voluntary manslaughter were
unconstitutional because they allowed a jury to return a murder
verdict without considering whether the defendant possessed a
mental state that would support a voluntary-manslaughter verdict
instead. We conclude that the rule announced in
Falconer was
not dictated by prior precedent and is therefore "new" within the
meaning of
Teague v.
Lane, 489 U. S. 288 (1989).
Accordingly, the
Falconer rule may not provide the basis for
federal habeas relief in respondent's case.
Early one morning in September 1985, respondent became involved
in a dispute with his former wife and her live-in
*
Kent S.
Scheidegger and
Charles L. Hobson
filed a brief for the Criminal Justice Legal Foundation as
amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the
American Civil Liberties Union et al. by Larry W Yackle, Steven R.
Shapiro, Leslie A. Harris, John A. Powell, and Harvey Grossman; and
for Nicholas deB. Katzenbach et al. by George N. Leighton and
George H. Kendall.
tJU8TICE SOUTER joins all but footnote 3 of this opinion.
336
boyfriend, Scott Siniscalchi, over custodial arrangements for
his daughter. A fracas ensued between the three adults, during
which respondent stabbed Siniscalchi seven times with a hunting
knife. Siniscalchi died from these wounds, and respondent was
arrested at his home later that morning.
Respondent was charged with murder. Ill. Rev. Stat., ch. 38, ,
9-1 (1985). At trial, he took the stand and admitted killing
Siniscalchi, but claimed he was acting under a sudden and intense
passion provoked by Siniscalchi, and was therefore only guilty of
the lesser included offense of voluntary manslaughter. , 9-2. At
the close of all the evidence, the trial judge found that there was
sufficient evidence supporting respondent's "heat of passion"
defense to require an instruction on voluntary manslaughter, and
instructed the jury as follows:
"To sustain the charge of murder, the State must prove the
following propositions:
"First: That the Defendant performed the acts which caused the
death of Scott Siniscalchi; and
"Second: That when the Defendant did so he intended to kill or
do great bodily harm to Scott Siniscalchi; or he knew that his act
would cause death or great bodily harm to Scott Siniscalchi; or he
knew that his acts created a strong probability of death or great
bodily harm to Scott Siniscalchi; or he was committing the offense
of home invasion.
"If you find from your consideration of all the evidence that
each one of these propositions has been proved beyond a reasonable
doubt, you should find the Defendant guilty.
"If you find from your consideration of all the evidence that
anyone of these propositions has not been proved beyond a
reasonable doubt, you should find the Defendant not guilty.
337
"To sustain the charge of voluntary manslaughter, the evidence
must prove the following propositions:
"First: That the Defendant performed the acts which caused the
death of Scott Siniscalchi; and
"Second: That when the Defendant did so he intended to kill or
do great bodily harm to Scott Siniscalchi; or he knew that such
acts would [sic] death or great bodily harm to Scott Siniscalchi;
or he knew that such acts created a strong probability of death or
great bodily harm to Scott Siniscalchi;
"Third: That when the Defendant did so he acted under a sudden
and intense passion, resulting from serious provocation by
another.
"If you find from your consideration of all the evidence that
each one of these propositions has been proved beyond a reasonable
doubt, you should find the Defendant guilty.
"If you find from your consideration of all the evidence that
anyone of these propositions has not been proved beyond a
reasonable doubt, you should find the Defendant not guilty.
"As stated previously, the Defendant is charged with committing
the offense of murder and voluntary manslaughter. If you find the
Defendant guilty, you must find him guilty of either offense; but
not both. On the other hand, if you find the Defendant not guilty,
you can find him not guilty on either or both offenses." App.
128-131.
These instructions were modeled after, and virtually identical
to, the Illinois pattern jury instructions on murder and voluntary
manslaughter, which were formally adopted in 1981, Illinois Pattern
Jury Instructions-Criminal §§ 7.02 and 7.04 (2d ed. 1981), but on
which Illinois judges had relied since 1961, when the State enacted
the definitions of murder and voluntary manslaughter that governed
until 1987. See Haddad, Allocation of Burdens in Murder-Voluntary
Man-
338
slaughter Cases: An Affirmative Defense Approach, 59 Chi.Kent L.
Rev. 23 (1982).1 Respondent did not object to the instructions. The
jury returned a guilty verdict on the murder charge, and respondent
was sentenced to 35 years' imprisonment.
Respondent unsuccessfully challenged his conviction on appeal,
then filed a petition for state postconviction relief. The Circuit
Court dismissed the petition. But while respondent's appeal was
pending, the Illinois Supreme Court invalidated the Illinois
pattern jury instructions on murder and voluntary manslaughter.
People v.
Reddick, 123 Ill. 2d 184, 526 N. E. 2d 141
(1988). According to the Supreme Court, under Illinois law, the
instructions should have placed on the prosecution the burden of
disproving beyond a reasonable doubt that the defendant
possessed a mitigating mental state.
Id., at 197, 526 N. E.
2d, at 146. Respondent sought to take advantage of
Reddick
on appeal, but the Court of Appeals affirmed the denial of
postconviction relief on the ground that
Reddick did not
involve constitutional error, the only type of error that would
support the grant of relief.
People v.
Taylor, 181
Ill. App. 3d 538, 536 N. E. 2d 1312 (1989). The Illinois Supreme
Court denied respondent's request for leave to appeal.
Having exhausted his state remedies, respondent sought federal
habeas relief, attacking his conviction on the ground that the jury
instructions given at his trial violated due process. Eleven days
later, the Court of Appeals for the Seventh Circuit held as much in
Falconer v.
Lane, 905 F.2d
1129 (1990). The defect identified by the
Falconer court
was quite different from that identified in
Reddick: Because
the
1 Effective July 1, 1987, the offense of voluntary manslaughter
was reclassified as second-degree murder and the burden of proof as
to the existence of a mitigating mental state was expressly placed
on the defendant. Ill. Rev. Stat., ch. 38, , 9-2 (1987). The
Illinois pattern jury instructions were rewritten accordingly. 1
Illinois Pattern Jury Instructions-Criminal § 7.02B (3d ed. 1992,
Supp. 1993).
339
murder instructions preceded the voluntary-manslaughter
instructions, but did not expressly direct the jury that it could
not return a murder conviction if it found that the defendant
possessed a mitigating mental state, it was possible for a jury to
find that a defendant was guilty of murder without even considering
whether he was entitled to a voluntarymanslaughter conviction
instead. 905 F. 2d, at 1136. "Explicit misdirection on this scale,"
the Seventh Circuit held, "violates the constitutional guarantee of
due process."
Id., at 1137. In reaching this conclusion, the
Court of Appeals placed principal reliance on
Cupp v.
Naughten, 414
U. S. 141 (1973).
At respondent's federal habeas proceeding, the State conceded
that the jury instructions given at respondent's trial were
unconstitutional under
Falconer, but argued that the rule
announced in
Falconer was "new" within the meaning of
Teague v.
Lane, 489 U. S. 288 (1989), and
therefore could not form the basis for federal habeas relief. The
District Court agreed, but the Court of Appeals reversed.
954 F.2d
441 (1992). Although the Seventh Circuit now thought
Cupp was "too general to have compelled
Falconer
within the meaning of
Teague," 954 F. 2d, at 452, it
concluded that
Boyde v.
California, 494 U. S. 370 (1990), and
Connecticut v.
Johnson, 460 U. S. 73 (1983)
(plurality opinion), were "specific enough to have compelled" the
result reached in
Falconer, 954 F. 2d, at 453. Accordingly,
the Court of Appeals held that the rule announced in
Falconer was not "new" within the meaning of
Teague,
and that
Teague therefore did not bar the retroactive
application of
Falconer in respondent's case.
Id., at
453. We granted certiorari, 506 U. S. 814 (1992), and now
reverse.
The retroactivity of
Falconer under
Teague and its
progeny is the only question before us in this case. Subject to two
narrow exceptions, a case that is decided after a defendant's
conviction and sentence become final may not provide
340
the basis for federal habeas relief if it announces a "new
rule."
Graham v.
Collins, 506 U. S. 461, 466-467
(1993);
Stringer v.
Black, 503 U. S. 222, 227
(1992);
Teague, supra, at 305-311 (plurality opinion).
Though we have offered various formulations of what constitutes a
new rule, put "meaningfully for the majority of cases, a decision
announces a new rule' "if the result was not
dictated by
precedent existing at the time the defendant's conviction became
finaL"'"
Butler v.
McKellar, 494 U. S. 407, 412 (1990)
(quoting
Penry v.
Lynaugh, 492 U. S. 302, 314
(1989), in turn quoting
Teague, supra, at 301 (emphasis in
original)); see also
Graham, supra, at 467;
Sawyer v.
Smith, 497 U.
S. 227, 234 (1990);
Saffle v.
Parks, 494 U. S. 484, 488
(1990);
Penry v.
Lynaugh, 492 U. S. 302, 329
(1989). "The 'new rule' principle ... validates reasonable,
good-faith interpretations of existing precedents made by state
courts," 494 U. S., at 414, and thus effectuates the States'
interest in the finality of criminal convictions and fosters comity
between federal and state courts.
We begin our analysis with the actual flaw found by the
Falconer court in the challenged jury instructions. It was
not that they somehow lessened the State's burden of proof below
that constitutionally required by cases such as
In re
Winship,
397 U. S.
358 (1970); nor was it that the instructions affirmatively
misstated applicable state law. (The Court of Appeals in no way
relied upon
People v.
Reddick, supra, which the
Illinois Supreme Court had subsequently held was subject to
prospective application only.
People v.
Flowers, 138
Ill. 2d 218, 561 N. E. 2d 674 (1990).) Rather, the flaw identified
by the
Falconer court was that when the jury instructions
were read consecutively, with the elements of murder set forth
before the elements of voluntary manslaughter, a juror could
conclude that the defendant was guilty of murder after applying the
elements of that offense without continuing on to decide whether
the elements of voluntary manslaughter were also made out, so as to
justify returning a verdict on that lesser offense instead.
341
In concluding that this defect violated due process, the
Falconer court relied on
Cupp v.
Naughten,
supra. That case involved a due process challenge to a jury
instruction that witnesses are presumed to tell the truth, which
the defendant claimed had the effect of shifting the burden of
proof on his innocence. Because the jury had been explicitly
instructed on the defendant's presumption of innocence as well as
the State's burden of proving guilt beyond a reasonable doubt, we
held that the instruction did not amount to a constitutional
violation. See 414 U. S., at 149.
We think
Cupp is an unlikely progenitor of the rule
announced in
Falconer, a view now shared by the Seventh
Circuit. The cases following
Cupp in the
Winship line
establish that States must prove guilt beyond a reasonable doubt
with respect to every element of the offense charged, but that they
may place on defendants the burden of proving affirmative defenses.
See
Martin v.
Ohio, 480 U. S. 228 (1987);
Patterson v.
New York, 432 U. S. 197 (1977). The
State argues that these later cases support the proposition that
any error committed in instructing a jury with respect to an
affirmative defense, which does not lessen the State's
Winship burden in proving every element of the offense
charged beyond a reasonable doubt, is one wholly of state law. Cf.
Engle v.
Isaac, 456 U. S. 107, 119-121,
and n. 21 (1982) (challenge to correctness of self-defense
instructions under state law provides no basis for federal habeas
relief). We need not address this contention other than to say that
cases like
Patterson and
Martin make it crystal clear
that
Cupp does not compel the result reached in
Falconer.
In its decision in the present case, the Court of Appeals
offered two additional cases which it believed
did dictate
the result in
Falconer. The first is
Boyde v.
California, supra. There, we clarified the standard for
reviewing on federal habeas a claim that ambiguous jury
instructions impermissibly restricted the jury's consideration of
"constitutionally relevant evidence." 494 U. S., at 380. Although
Boyde was de-
342
cided after respondent's conviction and sentence became final,
it did not work a change in the law favoring criminal defendants,
and therefore may be considered in our
Teague analysis. See
Lockhart v.
Fretwell, 506 U. S. 364, 373
(1993). Nevertheless,
Boyde was a capital case, with respect
to which we have held that the Eighth Amendment requires a greater
degree of accuracy and factfinding than would be true in a
noncapital case. See
Herrera v.
Collins, 506 U. S. 390,399 (1993);
Beck v.
Alabama, 447 U. S. 625 (1980).
Outside of the capital context, we have never said that the
possibility of a jury misapplying state law gives rise to federal
constitutional error. To the contrary, we have held that
instructions that contain errors of state law may not form the
basis for federal habeas relief.
Estelle v.
McGuire,
502 U. S. 62
(1991).
Moreover, under the standard fashioned in
Boyde, the
relevant inquiry is "whether there is a reasonable likelihood that
the jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evidence."
494 U. S., at 380. In
Boyde, the petitioner argued that the
trial court's instruction on California's "catchall" factor for
determining whether a defendant should be sentenced to death
restricted the jury's consideration of certain mitigating evidence.
Since "[t]he Eighth Amendment requires that the jury be able to
consider and give effect to all relevant mitigating evidence," id.,
at 377-378, this evidence was plainly constitutionally relevant. In
this case, by contrast, petitioner argues that the challenged
instructions prevented the jury from considering evidence of his
affirmative defense. But in a noncapital case such as this there is
no counterpart to the Eighth Amendment's doctrine of
"constitutionally relevant evidence" in capital cases.
The Court of Appeals also relied on the plurality opinion in
Connecticut v.
Johnson, 460 U. S. 73 (1983). That
case dealt with the question whether an instruction that violates
due process under
Sandstrom v.
Montana, 442 U. S.
510
343
(1979), may be subject to harmless-error analysis. But in the
course of deciding this question, the plurality discussed the
nature of
Sandstrom error, and it is this discussion on
which the Court of Appeals relied below.
Sandstrom is a
lineal descendant of
Winship; it simply held that an
instruction which creates a presumption of fact violates due
process if it relieves the State of its burden of proving all of
the elements of the offense charged beyond a reasonable doubt. The
Court of Appeals read the
Johnson plurality's discussion of
Sandstrom as establishing the "due process principle" that
instructions are unconstitutional if they lead "the jury to ignore
exculpatory evidence in finding the defendant guilty of
murder beyond a reasonable doubt." 954 F. 2d, at 453 (emphasis
added). But neither
Sandstrom nor
Johnson can be
stretched that far beyond
Winship. The most that can be said
of the instructions given at respondent's trial is that they
created a risk that the jury would fail to consider evidence that
related to an affirmative defense, with respect to which
Winship's due process guarantee does not apply. See
Martin v.
Ohio, supra; Patterson v.
New York,
supra.
Respondent offers a separate (but related) rationale he claims
is supported by our cases and also compels the Seventh Circuit's
ruling in
Falconer: viz., the jury instructions given at his
trial interfered with his fundamental right to present a defense.
We have previously stated that "the Constitution guarantees
criminal defendants 'a meaningful opportunity to present a complete
defense.'"
Crane v.
Kentucky, 476 U. S. 683, 690 (1986)
(quoting
California v.
Trombetta, 467 U. S. 479, 485
(1984)). But the cases in which we have invoked this principle
dealt with the exclusion of evidence, see,
e. g., Crane v.
Kentucky, supra; Chambers v.
Mississippi, 410 U. S. 284 (1973), or
the testimony of defense witnesses, see,
e. g., Webb v.
Texas, 409 U.
S. 95 (1972)
(per curiam); Washington v.
Texas,
388 U. S. 14
(1967). None of them involved restrictions imposed on a defendant's
ability to present an affirmative defense. Drawing on these
cases,
344
respondent argues that the right to present a defense includes
the right to have the jury consider it, and that confusing
instructions on state law which prevent a jury from considering an
affirmative defense therefore violate due process.2 But such an
expansive reading of our cases would make a nullity of the rule
reaffirmed in
Estelle v.
McGuire, supra, that
instructional errors of state law generally may not form the basis
for federal habeas relief. And the level of generality at which
respondent invokes this line of cases is far too great to provide
any meaningful guidance for purposes of our
Teague inquiry.
See
Saffle v.
Parks, 494 U. S., at 491.
For the foregoing reasons, we disagree with the Seventh Circuit
and respondent that our precedent foreordained the result in
Falconer, and therefore hold that the rule announced in
Falconer is "new" within the meaning of
Teague.3
2 Respondent also relies on
Cool v.
United States,
409 U. S. 100
(1972)
(per curiam). That case involved a due process
challenge to an instruction that the jury should disregard defense
testimony unless it believed beyond a reasonable doubt that the
testimony was true. Relying on
In re Winship,
397 U. S. 358 (1970), and
Washington v.
Texas, 388 U. S. 14 (1967), we
held that this instruction required reversal of the defendant's
conviction because it "place[d] an improper burden on the defense
and allow[ed] the jury to convict despite its failure to find guilt
beyond a reasonable doubt." 409 U. S., at 102-103. This, in turn,
we emphasized, contravened
Winship's command that the State
must prove guilt beyond a reasonable doubt. 409 U. S., at 104.
Cool is a progeny of
Winship, and therefore provides
no predicate under
Teague for the rule announced in
Falconer.
3 Strongly fortifying this conclusion is the fact that the
instructions deemed unconstitutional in
Falconer were
modeled after, and virtually identical to, the Illinois pattern
jury instructions on murder and voluntary manslaughter, which were
formally adopted in 1981-five years before respondent's trial-but
on which Illinois judges had relied since 1961. As we have stated,
the purpose of
Teague's "new rule" principle is to
"validat[e] reasonable, good-faith interpretations of existing
precedents made by state courts."
Butler v.
McKellar,
494 U. S. 407,414
(1990). The existence of such an institutionalized state practice
over a period of years is
345
All that remains to be decided is whether this rule falls into
one of
Teague's exceptions, under which a new rule may be
given retroactive effect on collateral review. The first exception
applies to those rules that "plac[e] certain kinds of primary,
private individual conduct beyond the power of the criminal
law-making authority to proscribe."
Teague v.
Lane,
489 U. S., at 307 (plurality opinion) (internal quotation marks
omitted). This exception is clearly inapplicable here, since the
rule announced in
Falconer does not "decriminalize" any
class of conduct. See
Saffle v.
Parks, supra, at 495.
Teague's second exception permits the retroactive
application of "'watershed rules of criminal procedure' implicating
the fundamental fairness and accuracy of the criminal proceeding."
494 U. S., at 495 (quoting
Teague, supra, at 311). This
exception is also inapplicable. Although the
Falconer court
expressed concern that the jury might have been confused by the
instructions in question, we cannot say that its holding falls into
that "small core of rules requiring 'observance of those procedures
that ... are implicit in the concept of ordered liberty.'"
Graham v.
Collins, 506 U. S., at 478 (quoting
Teague, supra, at 311 (internal quotation marks
omitted)).4
Because the rule announced in
Falconer is "new" within
the meaning of
Teague and does not fall into one of
Teague's exceptions, it cannot provide the basis for federal
habeas
strong evidence of the reasonableness of the interpretations
given existing precedent by state courts.
4JU8TICE BLACKMUN in dissent would elevate the instructional
defect contained in the Illinois pattern jury instructions on
murder and voluntary manslaughter not merely to the level of a
federal constitutional violation, but to one that is so fundamental
as to come within
Teague's second exception. He reaches this
result by combining several different constitutional principles-the
prohibition against
ex post facto laws, the right to a fair
trial, and the right to remain silent-into an unrecognizable
constitutional stew.
346
O'CONNOR, J., concurring in judgment
relief in respondent's case. The judgment of the Court of
Appeals is therefore
Reversed.
JUSTICE O'CONNOR, with whom JUSTICE WHITE joins, concurring in
the judgment.
Kevin Taylor admitted that he had killed Scott Siniscalchi.
He contended, however, that he had "act[ed] under a sudden and
intense passion resulting from serious provocation by
[Siniscalchi]." Ill. Rev. Stat., ch. 38, , 9-2 (1985). If Taylor's
account is to be believed, then, under the law of the State of
Illinois, he is not guilty of murder but rather of manslaughter.
Ibid. At trial, Taylor took the stand and admitted to the
two elements of murder. He asked only that the jury consider his
state of mind when he acted and convict him of voluntary
manslaughter, acquitting him of murder. Illinois law is clear that
this put the jury to a choice: Taylor could be convicted only of
manslaughter or murder-not of both. Indeed, because Taylor produced
sufficient evidence to raise the defense of sudden passion,
Illinois law required the State to negate Taylor's defense beyond a
reasonable doubt.
People v.
Reddick, 123 Ill. 2d 184,
197, 526 N. E. 2d 141, 146 (1988). As a result, the jury should not
have been permitted to convict Taylor of murder if there was so
much as a reasonable possibility that Taylor's manslaughter defense
had merit.
Ibid.
In
Falconer v.
Lane, 905 F.2d
1129 (1990), the Court of Appeals for the Seventh Circuit held
that instructions similar to those given at Taylor's trial did not
comport with Illinois law and were ambiguous at best. In Taylor's
case, according to the Court of Appeals, this ambiguity resulted in
a reasonable likelihood that the jury misunderstood those
instructions, and that once it found Taylor guilty of the two
elements of murder (to which Taylor had admitted), the jury simply
stopped deliberating without considering the possibility that
Taylor was guilty only of manslaughter. 954 F. 2d
347
441, 442 (1992). In other words, the court concluded that there
was a reasonable likelihood that the jury never considered Taylor's
defense of sudden and provoked passion, even though the trial court
thought there was sufficient evidence of the defense for the issue
to reach the jury and even though the State bore the burden of
proving its absence beyond a reasonable doubt. This, the court
held, violated due process.
Id., at 450.
The Court of Appeals, however, understood that our decision in
Teague v.
Lane, 489 U. S. 288 (1989)
(plurality opinion), bars the announcement of new rules on habeas
corpus. 954 F. 2d, at 451. Accordingly, it examined our precedents
to determine whether its decision was "dictated" by our prior
decisions. In so doing, the court construed our cases in
Boyde v.
California, 494 U. S. 370 (1990), and
Connecticut v.
Johnson, 460 U. S. 73 (1983)
(plurality opinion), as compelling its conclusion that the
instructions used in Taylor's case violated due process. 954 F. 2d,
at 452-453. It therefore held that its rule was not "new" and
ordered that a writ of habeas corpus issue unless Taylor was
retried within 120 days.
Id., at 453.
I agree with the majority today that the rule the Court of
Appeals announced was at least susceptible to debate among
reasonable jurists. See
Butler v.
McKellar, 494 U. S. 407, 415
(1990). For that reason, I agree that under
Teague a federal
court cannot issue a writ of habeas corpus based on the ambiguous
instructions in dispute here. In so deciding, however, I would not
reach out to decide the merits of the rule, nor would I construe
our cases so narrowly as the Court does. For that reason, I write
separately.
Prior to
Boyde, we phrased the standard for reviewing
jury instructions in a variety of ways, not all of which were
consistent. Compare
Mills v.
Maryland, 486 U. S. 367, 384 (1988)
(constitutional error occurs when there is a "substantial
probability" the instructions precluded consideration of
constitutionally relevant evidence), with
Sandstrom v.
Mon-
348
O'CONNOR, J., concurring in judgment
tana, 442
U. S. 510, 523 (1979) (constitutional error occurs when jurors
"could reasonably have concluded" that the instructions created a
presumption of guilt on an element of the crime). In
Boyde,
we clarified that when the claim is that a single jury "instruction
is ambiguous and therefore subject to an erroneous interpretation,"
the proper inquiry is "whether there is a reasonable likelihood
that the jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evidence."
494 U. S., at 380. As the Court notes, we chose the more
restrictive standard in that case, and, as a result,
Boyde
itself did not state a new rule. The Court, however, finds
Boyde inapplicable because it was a capital case.
Ante, at 342.
It is true that we clarified the standard for reviewing jury
instructions in a capital case, but
Boyde did not purport to
limit application of that standard to capital cases, nor have we so
limited it. In
Estelle v.
McGuire, 502 U. S. 62 (1991), for
example, the Court reviewed an ambiguous state-law instruction in a
noncapital case. Although I disagreed with the Court's conclusion
regarding the effect of that ambiguous instruction, see id., at
76-80 (O'CONNOR, J., concurring in part and dissenting in part), I
agreed with the standard it used in reaching its conclusion:
"'whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way' that violates the
Constitution."
Id., at 72 (quoting
Boyde v.
California, supra). It is clear that the "reasonable
likelihood" standard of
Boyde applies to noncapital
cases.
Although the Court's opinion today might be read as implying
that erroneous jury instructions may never give rise to
constitutional error outside of capital cases,
ante, at 342,
such an implication would misconstrue our precedent. When the Court
states that "instructions that contain errors of state law may not
form the basis for federal habeas relief,"
ibid. (citing
Estelle v.
McGuire, supra), it must mean that a mere
error of state law, one that does not rise to the level of
349
a constitutional violation, may not be corrected on federal
habeas. Some erroneous state-law instructions, however, may violate
due process and hence form the basis for relief, even in a
noncapital case. In
McGuire, a majority of the Court found
that the particular erroneous instruction at issue did not give
rise to a constitutional violation, but the very fact that the
Court scrutinized the instruction belies any assertion that
erroneous instructions can violate due process only in capital
cases.
We have not held that the Eighth Amendment's requirement that
the jury be allowed to consider and give effect to all relevant
mitigating evidence in capital cases, see,
e. g.,
Boyde,
supra, applies to noncapital cases. Nevertheless, we have held
that other constitutional amendments create "constitutionally
relevant evidence" that the jury must be able to consider. See,
e. g., Rock v.
Arkansas, 483 U. S. 44, 51 (1987)
("The right to testify on one's own behalf at a criminal trial has
sources in several provisions of the Constitution");
Delaware v.
Van Arsdall, 475 U. S. 673, 678-679
(1986) (REHNQUIST, J.) ("[T]he Confrontation Clause guarantees an
opportunity for effective cross-examination" (internal
quotation marks omitted)). The category of "constitutionally
relevant evidence" is not limited to capital cases.
In this case, the question is not whether application of the
"reasonable likelihood" standard of
Boyde is a new rule. It
is not. See
ante, at 341-342;
supra, at 348. Nor is
the question whether jury instructions may be so erroneous under
state law as to rise to the level of a constitutional violation. It
is clear to me that they may. See,
e. g., McGuire, 502 U.
S., at 72; id., at 78 (O'CONNOR, J., concurring in part and
dissenting in part). The question is whether reasonable jurists
could disagree over whether the particular erroneous instruction at
issue here-which we assume created a reasonable likelihood that the
jury did not consider Taylor's affirmative defense once it
determined the two elements of murder were established-violated the
Constitution.
350
O'CONNOR, J., concurring in judgment
Our cases do not provide a clear answer to that question.
Due process, of course, requires that the State prove every
element of a criminal offense beyond a reasonable doubt.
In
re Winship,
397 U. S.
358 (1970). This straightforward proposition has spawned a
number of corollary rules, among them the rule that the State may
not "us[e] evidentiary presumptions in a jury charge that have the
effect of relieving the State of its burden of persuasion beyond a
reasonable doubt of every essential element of a crime."
Francis v.
Franklin, 471 U. S. 307, 313
(1985). Accord,
Rose v.
Clark, 478 U. S. 570, 580
(1986);
Connecticut v.
Johnson, 460 U. S., at 84-85
(plurality opinion);
Sandstrom, supra, at 521-523. The Court
of Appeals extended these cases-which themselves are the "logical
extension" of
Winship, see
Rose, supra, at 580-one
step further. It read them as standing for the proposition that any
instruction that leads "the jury to ignore exculpatory evidence in
finding the defendant guilty of murder beyond a reasonable doubt"
violates due process; it disregarded as meaningless the distinction
between elements of the offense and affirmative defenses. 954 F.
2d, at 453.
Our opinions in
Martin v.
Ohio, 480 U. S. 228 (1987), and
Patterson v.
New York, 432 U. S. 197 (1977),
however, make clear that at least in some circumstances the
distinction is not meaningless. In
Patterson, we held that
the Due Process Clause did not require the State to prove the
absence of the affirmative defense of extreme emotional disturbance
beyond a reasonable doubt; the State instead could place the burden
of proving the defense on the defendant.
Id., at 210. We
reaffirmed this holding in
Martin, supra, and rejected
petitioner's claim that requiring her to prove self-defense by a
preponderance of the evidence shifted to petitioner the burden of
disproving the elements of the crime.
Id., at 233234.
(Although
Martin was decided after Taylor's conviction
became final, its holding, like
Boyde's, was not a new
rule.)
351
This case differs from
Martin and
Patterson in at
least two ways. First, Taylor had only the burden of production and
not the burden of persuasion; once he produced sufficient evidence
for the issue to go to the jury, the State was required to prove
the absence of his defense beyond a reasonable doubt. See
Reddick, 123 Ill. 2d, at 197, 526 N. E. 2d, at 146. Second,
Taylor's contention does not concern the allocation of burdens of
proof; he argues that the jury did not consider his defense at all.
Nevertheless, I cannot say that our prior cases
compel the
rule articulated by the Court of Appeals. At the very least,
Martin and
Patterson confirm that the rule the Court
of Appeals promulgated here goes beyond what we hitherto have said
the Constitution requires.
The purpose of
Teague is to promote the finality of
statecourt judgments. When a state court makes a "reasonable,
good-faith interpretatio[n]" of our precedents as they exist at the
time of decision, that decision should not be overturned on federal
habeas review.
Butler, 494 U. S., at 413414. Whatever the
merits of the Court of Appeals' constitutional holding, an issue
that is not before us, the Illinois courts were not unreasonable in
concluding that the error in Taylor's instructions was not
constitutional error. The State is not required to allow the
defense of sudden and provoked passion at all, and the State is
free to allow it while requiring the defendant to prove it.
Martin, supra; Patterson, supra. It is not a begrudging or
unreasonable application of these principles to hold that jury
instructions that create a reasonable likelihood the jury will not
consider the defense do not violate the Constitution.
Because our cases do not resolve conclusively the question
whether it violates due process to give an instruction that is
reasonably likely to prevent the jury from considering an
affirmative defense, or a hybrid defense such as the State of
Illinois permits, resolution of the issue on habeas would require
us to promulgate a new rule. Like the Court, I be-
352
lieve that this rule does not fall within either of
Teague's exceptions to nonretroactive application of new
rules on habeas. The rule does not place any conduct, much less"
'primary, private individual conduct[,] beyond the power of the
criminal law-making authority to proscribe.'''
Teague, 489
U. S., at 311 (quoting
Mackey v.
United States,
401 U. S. 667,
675 (1971) (Harlan, J., concurring in judgments in part and
dissenting in part)). Nor does the rule embody a "procedur[e]
without which the likelihood of an accurate conviction is seriously
diminished." 489 U. S., at 313. As noted above, the Constitution
does not require the State to provide an affirmative defense to
murder; a rule that, once such a defense is provided, the
instructions must not prevent the jury from considering it is "a
far cry from the kind of absolute prerequisite to fundamental
fairness that is implicit in the concept of ordered liberty."
Id., at 314 (internal quotation marks omitted).
The rule the Court of Appeals promulgated is not compelled by
precedent, nor does it fall within one of the two
Teague
exceptions. I therefore agree with the Court that the Court of
Appeals erred in applying that rule in this case. I do not join the
Court's opinion, however, because it could be read (wrongly, in my
view) as suggesting that the Court of Appeals' decision in this
case applied not only a new rule, but also an incorrect one. I
would reserve that question until we address it on direct
review.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins,
dissenting.
The Court today holds that it cannot decide whether Kevin Taylor
has suffered a denial of due process, because
Teague v.
Lane, 489 U.
S. 288 (1989), and its progeny preclude the announcement or
application of a new rule on federal habeas corpus. The Court
further concludes, as it must in order to avoid reaching the
merits, that neither exception to
Teague's proscription of a
new rule applies in this case. See
ante, at
353
345. The second
Teague exception permits the retroactive
application of" 'watershed rules of criminal procedure' implicating
the fundamental fairness and accuracy of the criminal proceeding,"
Saffle v.
Parks, 494 U. S. 484, 495 (1990)
(quoting
Teague, 489 U. S., at 311). Unlike the Court, I am
fully persuaded that this exception does apply in this case.
Therefore, even assuming,
arguendo, that the majority is
correct in concluding that Taylor asks this Court to announce a
"new rule,"
Teague does not preclude the retroactive
application of that rule.
Taylor argues that the substantive criminal law existing at the
time of a defendant's alleged offense must be the law that governs
the trial of that offense. I believe that he is correct and that
the principle he asserts is a fundamental one. I therefore would
affirm the judgment of the Court of Appeals.
I
At the time that Taylor was tried for the "murder" of Scott
Siniscalchi, Illinois law defined murder and voluntary manslaughter
as two distinct crimes, albeit with two elements in common. To be
guilty of either crime, a defendant had to have (1) caused the
death of the victim, and (2) intended to kill or cause great bodily
harm to the victim.1 The distinction between voluntary manslaughter
and murder at the time of Taylor's offense was that a defendant who
acted either "under a sudden and intense passion resulting from
serious provocation," or under an unreasonable (but honest) belief
that deadly force was justified to prevent the defendant's own
imminent death or great bodily harm, was guilty of voluntary
manslaughter but not guilty of murder. Ill. Rev. Stat., ch. 38, ,
9-2 (1985). In other words, under Illinois law at the time of
Taylor's offense, a person who killed
1 The intent element would also be satisfied if the defendant
knew that his acts would cause or create a strong probability of
death or great bodily harm, or if the defendant had been attempting
or committing a forcible felony at the time. See Ill. Rev. Stat.,
ch. 38, n 9-1(2) and (3) (1985).
354
under specific circumstances of provocation was
innocent of
murder.
At the close of Taylor's trial, the presiding judge found that
sufficient evidence in support of voluntary manslaughter had been
presented to require a jury instruction under Illinois law. The
judge therefore determined that he would "let the Jury decide ...
whether that provocation existed here or did not exist here." App.
96. No one has challenged this finding on appeal. Yet the presiding
judge did not explain to the jury that provocation was an
affirmative defense to murder. Instead, after telling the jury
about the two elements of murder (intent and causation of death),
the judge stated: "If you find from your consideration of all the
evidence that each one of these propositions has been proved beyond
a reasonable doubt, you should find the Defendant guilty."
Id., at 129. The judge went on to instruct the jury that a
person is guilty of voluntary manslaughter when he has killed an
individual while possessing the requisite state of mind, and at
"the time of the killing he acts under a sudden and intense passion
resulting from serious provocatin [sic] by the deceased. Serious
provocation is conduct sufficient to excite an intense passion in a
reasonable person."
Id., at 130. Finally, the judge gave the
following instruction in an apparent attempt to explain the
relation between the murder and the voluntary manslaughter
charges:
"As stated previously, the Defendant is charged with committing
the offense of murder and voluntary manslaughter. If you find the
Defendant guilty, you must find him guilty of either offense; but
not both. On the other hand, if you find the Defendant not guilty,
you can find him not guilty on either or both offenses."
Id., at 131.
Even the prosecutor thought these instructions may have failed
to inform the jury of the relation between the offenses of murder
and manslaughter under Illinois law.
Id., at 98-
355
99. He accordingly suggested that the judge include an
instruction explaining that Taylor's provocation claim could serve
to constitute a complete defense to the murder charge.
Id.,
at 99. The prosecutor indicated that he had raised this possibility
because "I just don't want to knowingly create error here."
Id., at 101. The trial judge declined the suggestion and
responded to the prosecutor's concern: "We're not doing it
knowingly; we're doing it out of ignorance."
Ibid.
After deliberations, the jury announced that it had found Taylor
guilty of murder. It then returned a signed verdict form to that
effect.
Id., at 131, 137. The jury never mentioned the
manslaughter charge and returned unsigned both the guilty and
not-guilty forms for that offense.
Id., at 139-140.
II
A jury instruction is unconstitutional if there is a "reasonable
likelihood that the jury has applied the challenged instruction in
a way that prevents the consideration of constitutionally relevant
evidence."
Boyde v.
California, 494 U. S. 370, 380
(1990).2 I explain in greater detail below why testimony that
demonstrates that a defendant killed under provocation is
constitutionally relevant evidence in a murder trial in Illinois. A
threshold question, however, is whether the jury's instructions in
this case created a reasonable likelihood that the jury would not
consider such provocation evidence.
No one appears to contest the proposition that a jury of lay
people would not understand from the instructions that it should
find Taylor not guilty of murder if it concluded that he acted
under provocation. The judge explained to the
2 The Court implies,
ante, at 342, that the
Boyde
standard might be confined to capital cases. The Court's citation
of
Estelle v.
McGuire, 502 U. S. 62 (1991),
however, belies that implication, because
Estelle v.
McGuire reaffirmed the
Boyde standard and was itself
not a capital case. See also
ante, at 348 (O'CONNOR, J.,
concurring in judgment).
356
jury that it could convict Taylor of either murder or
manslaughter (or neither), but not both. App. 131. In instructing
that Taylor could not be found guilty of both offenses, however,
the judge failed to explain that a defendant, in fact, could
satisfy the elements of both offenses. He failed to inform the jury
that indeed
whenever the elements of voluntary manslaughter
(intent, causation, and provocation) are satisfied, the elements of
murder (intent and causation) are satisfied as well. And, of
course, he therefore did not clarify that the jury must choose
manslaughter over murder in the event that the elements of both
offenses are made out.
The relation between murder and voluntary manslaughter in
Illinois at the time of Taylor's offense was a complicated one.
Provocation was both a component of manslaughter and a defense to
murder. The easy way to convey this idea is to explain that to find
a defendant guilty of murder, the jury must find (1) that there was
intent, (2) that there was causation, and (3) that there was no
provocation. The prosecutor explained to the judge that he might
have had to provide such an instruction under Illinois law. See
id., at 99.
What the judge actually did, however, was simply to list the
elements of each offense, starting with murder, tell the jury that
it could convict Taylor of only one but not of both, and send the
jury to deliberate. In the deliberation room, the jurors had four
sheets of paper,3 each of which provided spaces for the jurors'
signatures. The sheets indicated, respectively, verdicts of "Not
Guilty of the offense of murder," "Guilty of the offense of
murder," "Not Guilty of the offense of Voluntary Manslaughter," and
"Guilty of the offense of Voluntary Manslaughter," in that order.
See id., at 135, 137, 139-140. The jurors signed neither the guilty
nor the notguilty verdict forms regarding voluntary manslaughter.
This is almost certainly because the instruction for murder
3 Two additional sheets referred to the crime of home invasion,
for which Taylor was tried and convicted. This conviction, however,
is no longer at issue in this case.
357
preceded the instruction for manslaughter, the verdict forms for
murder preceded the verdict forms for manslaughter, and the jurors
understood that once they had found Taylor guilty of murder, they
could not, consistent with the judge's instructions, find him
guilty of manslaughter. There was therefore no need, under the
instructions they received, to consider manslaughter and
provocation. Taylor's jury never knew that provocation made out a
complete defense to murder.
The State itself concedes that the instructions "violated state
law by permitting the jury to find Taylor guilty of murder without
considering his affirmative defense." Brief for Petitioner 12.
According to a unanimous Illinois Supreme Court evaluating the same
instructions given in another case: "These instructions essentially
assure that, if the jury follows them, the jury cannot possibly
convict a defendant of voluntary manslaughter."
People v.
Reddick, 123 Ill. 2d 184, 194, 526 N. E. 2d 141, 145 (1988).
The Seventh Circuit concluded: "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."
Falconer v.
Lane, 905 F.2d
1129, 1136 (1990). Because of the jury's ignorance, respondent
Taylor suffered a fundamental deprivation of his constitutional
rights that seriously diminished the likelihood of an accurate
conviction.
III
To understand why an instruction that prevents the jury from
considering provocation evidence violates the Constitution, it is
necessary to examine the operation of the criminal law in
regulating the conduct of citizens in a free society. As explained
below, the instructions in this case in effect created an
ex
post facto law, diminished the likelihood of an accurate
conviction, and deprived Taylor of his right to a fair trial.
358
A 1
This Court consistently has held that the Constitution requires
a State to provide notice to its citizens of what conduct will
subject them to criminal penalties and of what those penalties are.
See
Miller v.
Florida, 482 U. S. 423, 429 (1987)
(explaining the constitutional prohibition against
ex post
facto laws, U. S. Const., Art. I, § 9, cl. 3, § 10, cl. 1);
Beazell v.
Ohio, 269 U. S. 167, 169 (1925)
(same);
Buckley v.
Valeo, 424 U. S. 1, 77 (1976)
(explaining the due process requirement that defendants be on
notice that their conduct violates the criminal law);
Bouie
v.
City of Columbia, 378 U. S. 347, 351 (1964) (same).
People can conform their conduct to the dictates of the criminal
law only if they can know what the criminal law has to say about
their conduct. Proper warning is a constitutional imperative.
Illinois, through its criminal statutes, warned Taylor that his
actions, as conceded at trial, were against the law. Illinois,
however, did not warn him that murder and voluntary manslaughter
would be treated as interchangeable or equivalent offenses. A
defendant convicted of voluntary manslaughter, for example, could
be incarcerated for as short a term as 4 years, and could be
imprisoned for a maximum term of 15 years. A convicted murderer, in
contrast, could be imprisoned for no fewer than 20 years and up to
a maximum of 40 years, absent aggravating factors. See Ill. Rev.
Stat., ch. 38, "9-2(c), 1005-8-1(1) and (4) (1985). Under Illinois
law at the time of Taylor's acts, then, the offense that he claims
he committed-voluntary manslaughter-was not treated as an offense
of nearly the same seriousness as murder.4 Nevertheless, in the
presence of provocation evidence,
4 This distinction between murder and voluntary manslaughter is
hardly a recent innovation in the criminal law. "[T]he presence or
absence of the heat of passion on sudden provocation-has been,
almost from the inception of the common law of homicide, the single
most important factor
359
a murder instruction read without an adequate explanation of the
affirmative defense of provocation treats murder and voluntary
manslaughter as equivalent offenses. Because provocation evidence
was undisputedly present in this case, the failure to explain its
operation as a defense to murder amounted to the application to
Taylor of an
ex post facto murder law.
A useful analogy to the relation between voluntary manslaughter
and murder in this case is the relation between self-defense and
murder elsewhere in the criminal law. In those States in which
self-defense is an affirmative defense to murder, the Constitution
does not require that the prosecution disprove self-defense beyond
a reasonable doubt. See,
e. g., Martin v.
Ohio,
480 U. S. 228,
233, 234 (1987). This is because only
elements of an offense
impose this heavy burden of proof upon the State.
Ibid.
Despite its status as an affirmative defense, however, self-defense
converts what is otherwise murder into justifiable homicide. In
other words, the person who kills in self-defense, instead of being
guilty of murder, is guilty of no offense at all.
It is easy to see in the context of self-defense how the
omission of an affirmative-defense instruction fundamentally denies
the defendant due process. Consider the following hypothetical
example. As a citizen who is presumed to know the law, see
Atkins v.
Parker, 472 U. S. 115, 130
(1985), Jane Doe chooses to kill John Smith when he threatens her
with substantial bodily harm or death, on the correct theory that
she is not committing murder under state law. Doe has a right to
rely on the representation of her state legislature that her
conduct is legal. If the State then were to try her for murder and
not permit her to plead self-defense, the State's breach of this
representation undoubtedly would violate principles of fundamental
fairness.
in determining the degree of culpability attaching to an
unlawful homicide."
Mullaney v.
Wilbur, 421 U. S. 684, 696
(1975).
360
It may be more difficult to sympathize with Kevin Taylor than
with the hypothetical Jane Doe, because Doe acted legally and
Taylor concededly did not. Not all crimes are equal, however, and
if Illinois announces that it will treat murder more seriously than
voluntary manslaughter, then Taylor has a right to rely on that
announcement when he makes a decision to engage in conduct
punishable as a less serious crime. This Court in
Mullaney
v.
Wilbur, 421
U. S. 684, 698 (1975), said:
"Indeed, when viewed in terms of the potential difference in
restrictions of personal liberty attendant to each conviction, the
distinction ... between murder and manslaughter may be of greater
importance than the difference between guilt or innocence for many
lesser crimes."
2
By equating voluntary manslaughter with murder and thereby, in
effect, applying an
ex post facto murder law to Taylor, the
instructions in this case made it highly likely that the jury would
return an inaccurate murder conviction.
As explained above, under Illinois law at the time of Taylor's
offense, the presence of provocation reduced murder to voluntary
manslaughter. This meant that state law defined the category of
murder to exclude voluntary manslaughter and therefore considered a
person who was guilty of voluntary manslaughter also to be innocent
of murder. Any procedure that increased the likelihood of a murder
conviction despite the presence of provocation, thus also
decreasing the likelihood of a manslaughter conviction, was
therefore a procedure that diminished the likelihood of an accurate
conviction by the jury. Because the procedure in this case
prevented the jury from even
considering the voluntary
manslaughter option, it severely diminished the likelihood of an
accurate conviction. See
Butler v.
McKellar, 494 U. S. 407, 416
(1990). The instructions given in this case essen-
361
tially ensured that a person guilty of voluntary manslaughter
would be convicted, wrongly, of murder.
Returning to the hypothetical example set forth above, the
omission of a self-defense instruction in Jane Doe's case would
distort the definition of murder by causing the jury to include
killings in self-defense within that definition. A person who kills
in self-defense, however, like a person who kills under
provocation, is not guilty of murder under state law and is
therefore not subject to the penalties prescribed for murder. Any
conviction that results from the omission of a state-law
affirmative defense is therefore, in the case of provocation and in
the case of self-defense, an inaccurate conviction.
The State suggests that the right asserted by Taylor is the same
as that recognized by this Court in
Beck v.
Alabama,
447 U. S. 625
(1980). See Brief for Petitioner 17. In
Beck, this Court
held that a capital defendant is entitled to a lesser included
offense instruction if there is evidence in the record to support
such an instruction. We left open the question whether
Beck
applies in the noncapital context. 447 U. S., at 638, n. 14. The
State here asserts that because many Courts of Appeals have
rejected such a right in the noncapital context, this Court could
do the same with respect to Taylor's claim. See Brief for
Petitioner 17, and n. 7. This assertion is without merit.
Like the right Taylor claims,
Beck entitles certain
defendants to have the jury consider less drastic alternatives to
murder. This, however, is where the similarity between the two
rights ends. In
Beck, the Court's concern and the reason for
the required lesser included offense instruction was that jurors
might ignore their reasonable-doubt instruction. Where the
defendant is "'plainly guilty of
some offense,'" 447 U. S.,
at 634, quoting
Keeble v.
United States, 412 U. S. 205, 213 (1973)
(emphasis in original), there is a risk that absent a lesser
included offense instruction, the jurors will convict a defendant
of capital murder, thereby exposing him
362
to the death penalty, because they do not want to set a guilty
person free. In other words, the failure to provide a lesser
included offense instruction in the capital context is a problem
only to the extent that we fear that jurors will choose to
disregard or nullify their reasonable-doubt instruction.
In Taylor's case, the concern is just the opposite-that the
jurors
will follow their instructions and thereby convict
the defendant of murder because they are ignorant of the fact that
provocation reduces the offense to voluntary manslaughter. The
failure to include a proper voluntary manslaughter instruction
literally distorts the definition of murder by extending it to
include voluntary manslaughter and thereby misinforming the
jury.
Whether or not we would choose to extend
Beck and its
presumption of jury nullification to the noncapital defendant has
no bearing on the outcome of this case. The right at issue here is
one premised upon the notion that jurors faithfully follow what
they understand to be their instructions. This premise clearly
operates in the capital and noncapital contexts alike. See
Richardson v.
Marsh, 481 U. S. 200, 211
(1987).
B
Through his instructions, then, the trial judge in this case
applied an
ex post facto murder law to Taylor and thereby
misled the jury as to the definition of murder. But the trial judge
also violated another of Taylor's constitutional rights. When the
judge prevented Taylor's jurors from considering his provocation
defense, the judge deprived Taylor of his Sixth Amendment and
Fourteenth Amendment right to a fair trial.
The Fifth and Fourteenth Amendments to the Constitution
guarantee every criminal defendant the right to remain silent. Our
precedents have explained that this right precludes the State from
calling the defendant as a witness for the prosecution. See,
e.
g., South Dakota v.
Neville, 459 U. S. 553, 563 (1983)
(the "classic Fifth Amendment viola-
363
tion" consists of requiring the defendant to testify at his own
criminal trial);
Malloy v.
Hogan, 378 U. S. 1 (1964) (the
Fourteenth Amendment Due Process Clause incorporates the Fifth
Amendment right to remain silent against the States). The State
must provide all evidence necessary to a conviction if the
defendant chooses not to testify.
Taylor gave up this important right and took the witness stand
to testify about his crime. He evidently did so to avail himself of
the provocation defense provided by Illinois law. Taylor admitted
under oath that he broke into his former wife's home and
intentionally and fatally stabbed Scott Siniscalchi. App. 80-81. He
also testified, however, that he had been provoked by the victim.
Id., at 76-81. In its closing argument, the defense
therefore asked the jury to find that he had acted under sudden and
intense passion when he killed Siniscalchi and therefore was not
guilty of murder.
Id., at 112-121.
When the judge instructed the jurors, he effectively told them
to disregard Taylor's provocation testimony. Absent that testimony,
of course, the most important evidence before the jurors when they
deliberated was that Taylor had taken the stand and had sworn to
them that his actions violated both elements of the murder statute.
As far as the jurors could tell, Taylor had confessed to the crime
of murder in open court.
Taylor never indicated a desire to plead guilty to murder.
Indeed, he offered testimony that tended to show that he was
innocent of murder. Yet the trial judge failed to follow the
very statute that had prompted Taylor to testify. By so doing, the
judge effectively transformed exculpatory testimony into a plea of
guilty to murder. When a defendant intentionally pleads guilty to
an offense, he has a constitutional right to be informed about the
consequences of his plea. See
Mabry v.
Johnson,
467 U. S. 504,
509 (1984);
Marshall v.
Lonberger, 459 U. S. 422, 436
(1983). Taylor, however, was never apprised of the consequences of
his testi-
364
mony. Instead, he was affirmatively misled into unknowingly
confessing to a crime of which he claimed he was innocent. The
judge's erroneous instructions thereby vitiated Taylor's right to a
fair trial, guaranteed him by the Sixth and Fourteenth
Amendments.
IV
The omission of an adequate affirmative-defense instruction
constitutes a profound violation of a defendant's constitutional
rights. It creates an
ex post facto law, misinforms the jury
as to the governing legal principles, and denies a defendant his
right to a fair trial. "Although the precise contours of [the
second
Teague] exception may be difficult to discern, we
have usually cited
Gideon v.
Wainwright, 372 U. S.
335 (1963), holding that a defendant has the right to be
represented by counsel in all criminal trials for serious offenses,
to illustrate the type of rule coming within the exception."
Saffle v.
Parks, 494 U. S., at 495. The right to an
affirmative-defense instruction that jurors can understand when
there is evidence to support an affirmative defense is as
significant to the fairness and accuracy of a criminal proceeding
as is the right to counsel. It is indeed critical in a case like
this one, where the defendant takes the stand and concedes the
elements of murder in order to prove his affirmative defense.
Kevin Taylor has not requested a rule that would unreasonably
place stumbling blocks in the path of law enforcement, nor has he
asked this Court to announce a rule that is only marginally related
to the underlying right to a fair trial. On the contrary, he has
asked that he be convicted of voluntary manslaughter if he is
guilty of voluntary manslaughter, that he be spared a sentence for
murder if he is innocent of murder, and that his judge not
effectively instruct the jury to disregard the exculpatory part of
his testimony and attend
365
only to that which would ensure a conviction for murder. If he
is denied what he asks, he is denied a fair trial. 5
I respectfully dissent and would affirm the judgment of the
Court of Appeals.
5 The Court's footnote 4,
ante, at 345, added by THE
CHIEF JUSTICE after the dissenting opinion circulated, hardly
deserves acknowledgment, let alone comment. I had thought that this
was a court of justice and that a criminal defendant in this
country could expect to receive a genuine analysis of the
constitutional issues in his case rather than the dismissive and
conc1usory rhetoric with which Kevin Taylor is here treated. I
adhere to my derided "constitutional stew."
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