People v. Salazar , 162 Ill. 2d 513 ( 1994 )

JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, defendant, Manuel Salazar, was found guilty of murdering an on-duty police officer. (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), (b)(1).) The jury found that the defendant should be sentenced to death for this offense (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(d)) and the trial court entered conviction and sentence in accordance with the jury’s findings. On appeal, this court affirmed the defendant’s conviction and sentence (People v. Salazar (1988), 126 Ill. 2d 424). Defendant filed a petition for post-conviction relief alleging ineffective assistance of counsel. (725 ILCS 5/122 — 1 et seq. (West 1992).) Following an evidentiary hearing, the trial court denied defendant’s request for post-conviction relief. Defendant appeals. 134 Ill. 2d R. 651(a).

BACKGROUND

Defendant was prosecuted and convicted for the shooting death of Officer Martin Murrin that occurred on September 12, 1984, while the officer was allegedly attempting to arrest defendant on an outstanding felony warrant. Defendant’s defense at trial was that he shot the police officer in self-defense. This court’s previous opinion contains a detailed statement of the evidence presented at defendant’s trial. (See Salazar, 126 Ill. 2d at 435-49.) We restate the evidence only to the extent necessary to resolve the issues presented in this appeal from the dismissal of defendant’s post-conviction petition.

Evidence presented at defendant’s trial showed that shortly before the date of the incident, Officer Murrin had seen a flyer indicating the defendant was "wanted” on an outstanding felony arrest warrant and that Officer Murrin told his partner that he "was going to find defendant.” (Salazar, 126 Ill. 2d at 436.) As Officer Murrin and his partner were patrolling the vicinity in a marked police car, they passed a vehicle in which defendant was a passenger. They pursued the automobile, the car slowed, and defendant ran out of the car. Officer Murrin followed defendant on foot, with his gun drawn. See Salazar, 126 Ill. 2d at 435-36.

When defendant ran from the officer, defendant was carrying a gym bag. Witnesses testified that they saw the officer follow the defendant into an alleyway. Shortly thereafter, they heard shots fired. Officer Murrin’s partner found Officer Murrin in the alley. The officer had been shot five times. William Pitts testified that he saw Officer Murrin follow the defendant and heard the officer say to defendant, "Stop fighting, ***. I got you. You are under arrest.” (Salazar, 126 Ill. 2d at 436-37.) Pitts testified that he then heard gunshots. Officer Robert Brenczewski, who had interviewed witnesses following the shooting, testified at defendant’s trial. Officer Brenczewski testified that when he interviewed Pitts after the incident, Pitts informed the officer that Pitts "heard a type of talking which he could not make out.” Salazar, 126 Ill. 2d at 437.

Defendant testified at his trial that he shot Officer Murrin in self-defense. According to his trial testimony, defendant ran into the alley and heard someone shout "Freeze.” Defendant stated that he looked behind him and saw Officer Murrin. Defendant continued to run because he wanted to dispose of the gun in his gym bag. Defendant testified that he ran into an alley that was a dead-end, threw the gym bag away, and raised his hands above his head. Defendant stated that Officer Murrin came up to the defendant and hit the defendant several times, causing defendant to fall to the ground. The officer then knelt on top of him and continued to hit the defendant several more times. Defendant stated that he told the officer several times, "I give. I give.” However, Officer Murrin continued to hit the defendant. The defendant testified that he either pushed or punched the officer and the officer reached for his revolver. Defendant stated that he also reached for Officer Murrin’s weapon. Defendant testified that they continued to struggle until the defendant fell backward. Defendant stated that the gun fired repeatedly when he fell. He testified that he ran away, jumped over a fence, and threw away the officer’s revolver. See Salazar, 126 Ill. 2d at 448.

Following the incident, police officers discovered defendant’s gym bag near the scene. In the bag, the officers found various items including a pair of brass knuckles, a Smith and Wesson 9 millimeter semiautomatic gun, and two bullet clips. (See Salazar, 126 Ill. 2d at 441.) Tests revealed that Officer Murrin’s "left hand was on or near the muzzle of a firearm when it discharged” and that his "right hand could have been on or near as it was discharged.” (Salazar, 126 Ill. 2d at 440-41.) Forensic evidence indicated that the officer had suffered injuries "consistent with blunt trauma” including "abrasions or scrapes as well as bruising on the skin.” Salazar, 126 Ill. 2d at 442.

After the shooting, defendant ran from the scene to the home of the parents of Pedro Palacios, a friend of defendant, who lived nearby. Pedro testified that he encountered the defendant in the garage while defendant was putting on the clothes belonging to one of Pedro’s brothers. Pedro stated at trial that he saw that "defendant’s face was ’puffed up’ on the right side” and that he had "a problem recognizing defendant at first.” (Salazar, 126 Ill. 2d at 438.) Pedro also stated that defendant told them that defendant had been chased by a police officer, and that although he had tried to surrender, the officer continued to hit defendant repeatedly. Pedro testified that the defendant said that when he could no longer tolerate the beating, he reached for the officer’s gun and shot the officer.

The jury found defendant guilty of murder in the shooting death of Officer Murrin. The jury further determined that there was no mitigating evidence sufficient to preclude imposition of the death penalty. Defendant’s conviction and sentence were affirmed on direct appeal (see Salazar, 126 Ill. 2d 424).

In his petition for post-conviction relief, defendant alleged, inter alia, that his appellate counsel was ineffective for failing to raise certain arguments during defendant’s direct appeal. Following an evidentiary hearing, the trial court denied defendant’s post-conviction petition. He appeals to this court. 134 111. 2d R 651(a).

ANALYSIS

The defendant’s first argument in support of his post-conviction petition relies on this court’s decision in People v. Reddick (1988), 123 Ill. 2d 184. In Reddick, this court held that the Illinois pattern jury instructions regarding murder and voluntary manslaughter, used by the trial court at the Reddick defendants’ trials, incorrectly advised the jury that it was the State’s burden to prove one of the mitigating mental states that would reduce murder to voluntary manslaughter. This court determined that the instructions should have told the jury that it was the State’s burden to disprove the pertinent mitigating mental states. (Reddick, 123 Ill. 2d at 193-97; see also People v. Shields (1991), 143 Ill. 2d 435, 442.) In Reddick, this court explained the improper effect of the erroneous jury instructions on the jury’s determination of the defendants’ guilt:

"The voluntary manslaughter instructions indicate that to obtain a voluntary manslaughter conviction the People must prove the existence of one of the alternative mitigating mental conditions which the People contend did not exist. By contrast, the murder instruction makes no mention of the mitigating mental conditions. These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter. The reason is that even if a mitigating mental state is proved, it will have been proved by the defendant, not the People.” Reddick, 123 Ill. 2d at 194-95.

The jury instructions utilized by the trial court in the present case were the same as those found defective in Reddick. Notwithstanding this Reddick error, the State contends that the defendant is not entitled to post-conviction relief because any Reddick defect in the instructions used at defendant’s jury trial was not of constitutional proportion. According to the State, a Red-dick error in jury instructions does not amount to a violation of constitutional due process. To support this argument, the State relies on Gilmore v. Taylor (1993), 508 U.S. 333, 124 L. Ed. 2d 306, 113 S. Ct. 2112.

We need not address the question of whether Red-dick error is a constitutional violation in order to determine whether defendant is entitled to post-conviction relief. Defendant argues that because the jury instructions given in his trial violated the directives of Reddick, the defendant should receive a new trial. Defendant presents this argument in a petition for post-conviction relief. According to precedent of this court, an action filed under the Post-Conviction Hearing Act is a collateral attack on the defendant’s conviction and sentence, not an appeal from that conviction and sentence. (People v. Ruiz (1989), 132 Ill. 2d 1, 9.) The purpose of a post-conviction proceeding is to consider constitutional arguments that the defendant did not raise, and could not have raised, in his direct appeal. (People v. Hall (1993), 157 Ill. 2d 324, 330; People v. Owens (1989), 129 Ill. 2d 303, 307-08.) The record shows that this court’s decision in Reddick was filed while defendant’s direct appeal was pending before this court. As a result, defendant could have raised a Reddick argument in his direct appeal from his conviction and sentence. See Shields, 143 Ill. 2d at 445.

Generally, the defendant’s missed opportunity to raise the Reddick issue in his direct appeal could preclude this court’s consideration of his Reddick argument in this post-conviction proceeding. However, defendant’s Reddick argument is based upon an allegation that defendant was deprived of the effective assistance of counsel. This court has noted that it is appropriate, in a post-conviction proceeding, to address the merits of a defendant’s claim that his appellate attorney was ineffective for failing to present certain arguments during the defendant’s direct appeal. (E.g., People v. Stewart (1990), 141 Ill. 2d 107.) For example, in People v. Ruiz (1989), 132 Ill. 2d 1, this court observed:

"An action for post-conviction relief represents a collateral attack on a prior judgment; it is not an appeal from the underlying conviction and sentence. [Citations.] To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of Federal or State constitutional rights in the proceedings that produced the judgment under attack [citation]. Rulings on issues that were previously raised at trial and on direct appeal are res judicata, and issues that could have been raised in the original proceedings, but were not, will be deemed waived. [Citation.]

The primary constitutional claim undergirding the defendant’s arguments for post-conviction relief is that he was denied the effective assistance of counsel both at trial and on direct appeal. *** The State responds that several of the issues pertaining to trial counsel’s representation must be deemed waived because they were matters of record and therefore could have been raised on direct appeal. We have previously held, however, that counsel cannot be expected to argue his own incompetency [citation], and such a rule would be applicable here, where trial counsel hired the attorney who handled the appeal. Moreover, we note that the defendant has made the additional allegation that appellate counsel was ineffective for failing to raise the matters on direct appeal. The alleged ineffectiveness of appellate counsel will not operate as a bar to consideration of those issues. [Citation.]” Ruiz, 132 Ill. 2d at 9-10.

In light of this precedent, we will consider defendant’s Reddick argument in the context of defendant’s assertion that his appellate counsel, who was also his trial attorney, was ineffective because the attorney failed to argue, in defendant’s direct appeal from his conviction, that there was reversible error in the jury instructions under this court’s pronouncements in Reddick, 123 Ill. 2d 184. Generally, ineffective assistance of counsel is found where the attorney’s representation fell below an objectively reasonable standard of competence and where the deficiencies in counsel’s representation prejudiced the defendant’s defense at trial such that the defendant was deprived of a fundamentally fair trial. See, e.g., Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Caballero (1989), 126 Ill. 2d 248, 269-70.

As previously noted, it is undisputed in the present appeal that the jury instructions concerning murder and voluntary manslaughter given at defendant’s trial were in violation of Reddick. The court’s decision in Reddick was announced while defendant’s direct appeal was pending before this court. Five months elapsed between the date on which the Reddick decision was filed and the announcement of the decision in defendant’s direct appeal from his conviction and sentence. During this period, defendant’s attorney did not file a motion requesting this court to consider whether there had been Reddick error at defendant’s trial. At the hearing on defendant’s post-conviction petition, defendant’s appellate counsel could not account for or explain his failure to bring to this court’s attention an allegation that Red-dick error had occurred during defendant’s trial. We conclude that the defendant’s attorney was ineffective for his failure to raise a Reddick argument during defendant’s direct appeal. See, e.g., People v. Logan (1991), 224 Ill. App. 3d 735 (appellate counsel’s failure to raise meritorious issue on appeal deprived defendant of effective assistance of counsel).

Having determined that defendant was deprived of the effective assistance of counsel when his attorney failed to argue Reddick on direct appeal from defendant’s criminal conviction, we turn to a determination of whether defendant should receive a new trial. A defendant is not automatically entitled to a new trial whenever there has been a Reddick violation, and an infraction of Reddick is not per se reversible error. In order to be awarded a new trial because of Reddick error, the defendant must show that his defense was prejudiced by the failure to follow Reddick at trial. (See, e.g., People v. Shields (1991), 143 Ill. 2d 435, 445.) The State contends that defendant was not prejudiced by his attorney’s failure to raise the Reddick issue on direct appeal. The State argues that, because the evidence against the defendant was overwhelming, the failure of defendant’s appellate counsel to raise a Reddick issue with respect to the jury instructions in the instant cause was harmless error beyond a reasonable doubt.

To support this argument, the State relies upon certain statements set forth in this court’s opinion in defendant’s direct appeal. Specifically, this court stated that the "defendant *** was also a forcible felon at the time of the instant offense [and therefore] cannot claim a qualified right to meet excessive force with deadly force and it is defendant who must suffer the legal consequences of his choice to kill.” (Salazar, 126 Ill. 2d at 467.) The State claims that in this quoted comment, this court "found that as a matter of law, defendant, a fleeing felon, was not entitled to assert self-defense.” We disagree.

The statement appearing in this court’s opinion, quoted by the State, appears in a paragraph in which this court found that the trial court did not abuse its discretion when it gave the jury certain nonpattern jury instructions. The trial court’s instructions had advised the jury, in pertinent part, that if the jury found the defendant attacked the officer while he was attempting to evade arrest, the jury could reasonably conclude that the defendant was a fleeing felon, who could not claim a right to use deadly force in his own defense. Thus, the remarks of this court upon which the State now relies were made in reference to the propriety of instructions to guide the jury in the event that the jury found that the defendant was a fleeing felon at the time of the incident. See Salazar, 126 Ill. 2d at 465-67.

However, if the defendant terminated his efforts to escape and surrendered to the officer, then defendant was no longer a fleeing felon attempting to elude arrest by the police officer. The comments made by this court in defendant’s direct appeal did not refer to the appropriate instructions to be applied by the jury in its determination of whether the defendant was or was not a fleeing felon at the time of the homicide. If the jury accepted the defendant’s claim that he had surrendered to Officer Murrin, that thereafter the officer began to assault the defendant, and that the defendant believed, albeit unreasonably, that the force he used in defending himself was necessary to prevent his imminent death or great bodily harm to himself, the jury could have found the defendant guilty of voluntary manslaughter. (See generally People v. McGraw (1958), 13 Ill. 2d 249; People v. Doody (1931), 343 Ill. 194; People v. Forte (1915), 269 Ill. 505, 512; People v. Smith (1993), 242 Ill. App. 3d 344, 347-48; People v. Lyda (1989), 190 Ill. App. 3d 540, 545; People v. Veatch (1986), 145 Ill. App. 3d 23, 29; People v. Bailey (1982), 108 Ill. App. 3d 392, 398; People v. Fort (1970), 119 Ill. App. 2d 350, 355; 720 ILCS Ann. 5/7 — 7, Committee Comments — 1961, at 362 (Smith-Hurd 1993).) Consequently, this court’s comments in defendant’s direct appeal did not find, as a matter of law, that the defendant was a forcible felon who was fleeing arrest at the time of the offense, nor did those comments foreclose the giving of jury instructions on voluntary manslaughter.

The State contends that the evidence presented at defendant’s jury trial showed the defendant was not justified in shooting Officer Murrin, because the defendant was attempting to escape arrest when the defendant began to attack the officer. However, our review of the record reveals evidence which could have persuaded a properly instructed jury to find that the defendant had terminated his efforts to escape or avoid arrest by the officer, and that the defendant believed, perhaps unreasonably, that Officer Murrin was going to shoot him. Defendant’s trial testimony indicated that the defendant shot the officer during the course of a struggle with the officer that started after the defendant attempted to surrender to the officer and the officer began to assault the defendant. Other evidence tended to corroborate defendant’s version of the occurrence. For example, Pedro Palacios testified that when he saw defendant shortly after the incident, defendant’s face was swollen and difficult to recognize. Pedro also stated at trial that defendant told him defendant had been chased by a police officer with whom defendant had a struggle. According to Pedro’s trial testimony, defendant said that he shot the officer after defendant surrendered because the officer had beaten the defendant and defendant believed Officer Murrin was going to shoot him. Tests revealed that at least one of Officer Murrin’s hands was on his revolver when it was discharged, and medical evidence showed that the officer had suffered injuries which indicated a recent struggle. Forensic evidence also indicated the shots were fired from very close range.

The State asserts that the defendant’s version of the incident was "contradicted by the other evidence at trial in such a fashion as to render defendant’s version that he acted in self-defense highly improbable.” However, it was the province of the jury to determine whether defendant’s explanation of the shooting was "highly improbable.”

The State points out that defendant shot Officer Murrin five times at close range and that the officer suffered bruises and abrasions as a result of his struggle with defendant. As we determined in defendant’s direct appeal from his conviction, the State’s evidence, when coupled with all of the other evidence presented at trial, was sufficient for the jury to find, beyond a reasonable doubt, that the defendant was guilty of murder. (Salazar, 126 Ill. 2d at 435-54.) The determination of the defendant’s guilt was made by the jury, however, not by this court upon review. In order to make that determination, the jury was entitled to accurate instructions that properly advised the jury of the State’s burden consistent with Reddick. The jury instructions in the present case did not accurately advise the jury of the State’s burden to disprove the defendant’s affirmative defense in accordance with Reddick. The defendant’s account of the incident, the testimony of other witnesses regarding the shooting, and the testimony regarding the physical condition of the defendant and Officer Murrin following the altercation could have persuaded properly instructed jurors to conclude that defendant was guilty of voluntary manslaughter, rather than murder. Whether the defendant should be found guilty of murder or manslaughter must be resolved by a properly instructed jury at a new trial on remand of the present cause.

The State argues that it is significant the jury did not return verdicts on both voluntary manslaughter and murder, as did the jury in People v. Mikell (1991), 217 Ill. App. 3d 814. The State argues that it is also significant that the jury in the present cause imposed the death penalty for the defendant’s murder conviction. We do not believe that the jury’s failure to return inconsistent verdicts, or the jury’s decision to impose the death penalty, demonstrates that the jury would have found the defendant guilty of murder even if the jury had been properly instructed under Reddick.

In light of this disposition, we need not and do not address the parties’ remaining arguments with respect to defendant’s request for post-conviction relief. For the reasons stated, the judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.