Kevin Czech v. Michael Melvin

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1838
KEVIN CZECH,
Petitioner-Appellant,
v.
MICHAEL MELVIN, WARDEN
PONTIAC CORRECTIONAL CENTER,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14-cv-02012 — Robert W. Gettleman, Judge.
____________________
ARGUED FEBRUARY 14, 2018 — DECIDED SEPTEMBER 21, 2018
____________________
Before EASTERBROOK and ROVNER, Circuit Judges, and
GRIESBACH, District Judge. *
GRIESBACH, District Judge. An Illinois jury convicted Kevin
Czech of first-degree murder and aggravated discharge of a
* Of the Eastern District of Wisconsin, sitting by designation.
2 No. 17-1838
firearm for his role in a drive-by shooting that resulted in the
death of a fourteen-year-old bystander. Czech argued on di-
rect appeal that his trial counsel was ineffective for failing to
challenge the felony murder instruction that was submitted to
the jury in conjunction with a general verdict. The Illinois Ap-
pellate Court determined that the felony murder instruction
violated Illinois law, but concluded the error was harmless.
The Supreme Court of Illinois declined further review. After
an unsuccessful motion for post-conviction relief on other
grounds, Czech sought federal collateral relief under 28
U.S.C. § 2254. The district court denied relief, reasoning that,
although the conviction violated clearly established federal
law, the error did not have a substantial and injurious effect
on the jury’s verdict. We affirm.
I. Background
On September 24, 1999, fourteen-year-old Alonzo Zuniga
was shot and killed in a drive-by shooting in Chicago by
members of the Maniac Latin Disciples (MLD) directed at the
Latin Kings, a rival gang. By all accounts, Zuniga was an in-
nocent bystander not affiliated with either gang. In the course
of their investigation, Chicago police quickly learned that the
shooter was thirteen-year-old Marquis Falls. Though too
young to be a full member of the MLD, Falls was considered
a “pee-wee” member and had been assigned the task of hold-
ing a .357 revolver for the gang. The driver of the car was
eighteen-year-old MLD member Roberto Mejia. Other occu-
pants included Mejia’s girlfriend, fifteen-year-old Nancy Ma-
laves, and Czech, who was then twenty years old and also a
member of the MLD.
Based on evidence that he had planned the “drive-by” and
directed Falls to shoot at the rival gang members, Czech was
No. 17-1838 3
charged with first-degree murder and aggravated discharge
of a firearm on the theory that he was legally responsible for
Falls’ actions. At trial, the court instructed the jury on four
ways in which it could find Czech guilty of first-degree mur-
der. One of the options, felony murder, required that the vic-
tim be killed during the commission of another felony, in this
case, the crime of aggravated discharge of a firearm. The jury
returned a general verdict, finding Czech guilty of first-de-
gree murder and aggravated discharge of a firearm.
In the meantime, after Czech was convicted but before his
appeal, the Illinois Supreme Court held in People v. Morgan
that aggravated discharge of a firearm could not serve as the
predicate felony of a felony murder conviction. 758 N.E.2d
813 (Ill. 2001). The Court noted that if every death caused by
the aggravated discharge of a firearm could be charged as fel-
ony murder, “[t]he result could be to effectively eliminate the
second degree murder statute and also to eliminate the need
for the State to prove an intentional or knowing killing in most
murder cases.” Id. at 838 (internal quotations omitted). To
avoid this result, the Court concluded that “where the acts
constituting [the underlying felony] arise from and are inher-
ent in the act of murder itself, those acts cannot serve as pred-
icate felonies for a charge of felony murder.” Id. In other
words, the aggravated discharge of a firearm could not serve
as the underlying felony in a felony murder conviction if it
did not have an independent felonious purpose.
On direct appeal, Czech argued that his trial counsel pro-
vided ineffective assistance of counsel in failing to object to
the jury instruction on felony murder. Czech claimed that the
trial court erred in instructing the jury that it could find him
guilty of first-degree murder based on a felony murder theory
4 No. 17-1838
in light of Morgan. The Illinois Court of Appeals agreed that
the instruction was improper under Illinois law because the
acts establishing the crime of aggravated discharge of a fire-
arm arose from and are inherent in the act of murder. It nev-
ertheless found the error to be harmless, explaining that un-
der Illinois law the court must presume that the jury con-
victed Czech of the most serious crime charged, intentional or
knowing murder. The court also concluded that “[b]ased on
the overwhelming evidence of defendant’s guilt in the record,
it is not reasonably likely that, but for this error, the decision
reached would have been different.” Supplemental Appendix
(SA) 19–20. Because the error was harmless, the court con-
cluded Czech’s ineffective assistance of counsel claim failed.
Czech then filed a pro se petition for habeas corpus pursu-
ant to 28 U.S.C. § 2254, challenging his murder conviction. As
relevant here, Czech argued that the inclusion of the felony
murder instruction violated his due process rights. The dis-
trict court appointed counsel and found that the general ver-
dict conviction violated clearly established federal law be-
cause it contained an improper method of conviction. The
court nevertheless concluded that Czech was not entitled to
relief. It reasoned that the error did not have a substantial and
injurious effect on the jury because the evidence of his guilt
was overwhelming. The district court thereupon denied
Czech’s petition in its entirety but granted Czech a certificate
of appealability on the issue of whether the inclusion of the
improper felony murder instruction resulted in harmless er-
ror.
II. Analysis
We review the district court’s denial of a petition for writ
of habeas corpus de novo. Carter v. Thompson, 690 F.3d 837, 843
No. 17-1838 5
(7th Cir. 2012). In considering habeas petitions that challenge
state court convictions, “[o]ur review is governed (and greatly
limited) by the Anti-terrorism and Effective Death Penalty Act
of 1996 (‘AEDPA’).” Hicks v. Hepp, 871 F.3d 513, 524 (7th Cir.
2017) (citation omitted). Pursuant to the statute, habeas relief
cannot be granted for persons in custody pursuant to a judg-
ment of a state court unless the adjudication of the claim: “(1)
resulted in a decision that was contrary to, or involved an un-
reasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable de-
termination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d).
A. Due Process
In this case, Czech contends that, because the felony mur-
der instruction was invalid as a matter of state law, its inclu-
sion in the general verdict returned by the jury violated his
right to due process. The issue, then, is whether a jury instruc-
tion that departs from state law necessarily violates the Con-
stitution. We have been down this road before.
In Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), the peti-
tioner argued that the trial court violated her constitutional
rights by giving the same combination of murder and volun-
tary manslaughter instructions that was found to violate Illi-
nois state law in People v. Reddick, 526 N.E.2d 141 (Ill. 1988). In
Reddick, the Illinois Supreme Court held that, under Illinois
law, it was “grave error” for a court to give murder and vol-
untary manslaughter instructions without warning the jury
that to return a verdict of murder, the state must prove be-
yond a reasonable doubt that the “manslaughter defenses”
are without merit. In considering Falconer’s petition for
6 No. 17-1838
federal habeas relief, this court found the jury instruction er-
ror redressable under the Constitution as a violation of the
defendant’s due process right. We explained that when the Il-
linois Pattern Jury Instructions for murder and voluntary
manslaughter were given together, the jury may have been
left with the false impression that it could convict the peti-
tioner of murder even if she possessed a mitigating mental
state described in the voluntary manslaughter instruction. 905
F.2d at 1136. “Explicit misdirection on this scale,” we held,
“violates the constitutional guarantee of due process.” Id. at
1137.
In Gilmore v. Taylor, the Supreme Court held that the
“new” rule this court announced in Falconer could not provide
the basis for retroactive federal habeas corpus relief. 508 U.S.
333 (1993). Applying Teague v. Lane, 489 U.S. 288 (1989), the
Court found that the Falconer rule was not compelled by
“precedent existing at the time the defendant’s conviction be-
came final.” 508 U.S. at 340 (citation omitted). Notably, Gil-
more did not say whether Falconer was correctly decided; nor
did it expressly overrule Falconer. But in reversing this court’s
retroactive application of Falconer, the Court expressed its dis-
agreement with this court “that our precedent foreordained
the result in Falconer … .” Id. at 344. Gilmore also noted that
“[o]utside of the capital context, we have never said that the
possibility of a jury misapplying state law gives rise to a fed-
eral 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.” Id. at 342 (citing Estelle v.
McGuire, 502 U.S. 62 (1991)).
From this pre-AEDPA line of cases, the “clearly estab-
lished federal law”—that is, law “determined by the Supreme
No. 17-1838 7
Court of the United States,” 28 U.S.C. § 2254(d)(1)—appears
to be that “instructions that [only] contain errors of state law
may not form the basis for federal habeas relief.” Gilmore, 508
U.S. at 342 (citation omitted); see also Pulley v. Harris, 465 U.S.
37, 41 (1984) (“A federal court may not issue the writ on the
basis of a perceived error of state law.”). But in this case Czech
contends, and the district court found, that the state court ren-
dered decisions contrary to the clearly established federal law
set forth in Stromberg v. California, 283 U.S. 359 (1931), and
Yates v. United States, 354 U.S. 298 (1957). He relies on Strom-
berg and Yates for the proposition that a general verdict re-
turned by a jury that has been instructed on alternative
grounds for finding the defendant guilty, one of which is im-
proper under state law, violates his federal right to due pro-
cess. The respondent, on the other hand, contends that neither
Stromberg nor Yates clearly established the constitutional claim
on which Czech relies.
In Stromberg, the defendant was charged with violating
California Penal Code 403a for displaying a red flag or banner
in a public place as a sign, symbol, or emblem used to oppose
organized government, to invite anarchistic action, or to aid
seditious propaganda. 283 U.S. at 361. The court instructed
the jury that the defendant could be convicted if the flag was
displayed for any of these three purposes. The jury convicted
the defendant for violating the statute in a general verdict that
did not indicate which part of the statute the defendant had
violated. The Supreme Court found that a conviction based
on the first clause—displaying a flag that was a symbol of op-
position to organized government—violated the defendant’s
First Amendment right to free speech. The Court then consid-
ered whether the jury’s general verdict should be set aside,
noting that if “any of the clauses in question is invalid under
8 No. 17-1838
the Federal Constitution, the conviction cannot be upheld.”
Id. at 368. The Court reversed the defendant’s conviction be-
cause it was impossible to determine whether the conviction
rested upon the invalid criminal charge. Id. at 370. Stromberg
thus stands for the principle that “where a provision of the
Constitution forbids conviction on a particular ground, the
constitutional guarantee is violated by a general verdict that
may have rested on that ground.” Griffin v. United States, 502
U.S. 46, 53 (1991). It clearly does not apply here.
The Supreme Court extended Stromberg’s holding twenty-
six years later to a federal prosecution in Yates. There, the de-
fendants were charged in a single count with a Smith Act con-
spiracy advocating the overthrow of government and organ-
izing, as the Communist Party, a society of citizens to over-
throw the government. 354 U.S. at 300. The defendants were
convicted, but the jury’s general verdict did not indicate
whether it found the defendants guilty of the “advocating”
charge or the “organizing” charge. The Court concluded that
the “organizing” charge was barred by the Smith Act’s three-
year statute of limitations. Without referring to the Due Pro-
cess Clause, the Court cited Stromberg and held that a general
verdict must be set aside where it “is supportable on one
ground, but not on the other, and it is impossible to tell which
ground the jury selected.” Id. at 312. The Court therefore re-
versed the conviction because it was unclear whether the con-
viction rested on the time-barred “organizing” charge.
The Court questioned the extension of its holding in
Stromberg to Yates in Griffin, describing it as “an unexplained
extension, explicitly invoking neither the Due Process Clause
(which is an unlikely basis) nor our supervisory powers over
the procedures employed in a federal prosecution.” 502 U.S.
No. 17-1838 9
at 55–56. In Griffin, also a federal prosecution, the Court was
confronted with the question of whether the Due Process
Clause of the Fifth Amendment required that a general ver-
dict of guilty on a multiple-object conspiracy charge in a fed-
eral prosecution be set aside if the evidence is inadequate to
support conviction as to one of the objects submitted to the
jury. In holding that it did not, the Court rejected the argu-
ment that Yates had overturned the long-standing common
law rule that “a general jury verdict was valid so long as it
was legally supportable on one of the submitted grounds-
even though that gave no assurance that a valid ground, ra-
ther than an invalid one, was actually the basis for the jury’s
action.” Id. at 49. Though Griffin did not overrule Yates, the
Court declined to extend its holding to cases in which “one of
the possible bases of conviction was neither unconstitutional
as in Stromberg nor even illegal as in Yates, but merely unsup-
ported by sufficient evidence.” Id. at 56.
This appeared to be the law in 2004 when the Illinois Ap-
pellate Court rejected Czech’s claim of error and affirmed his
conviction. No Supreme Court precedent clearly established
that a conviction entered on a general verdict was unconstitu-
tional merely because the jury instructions included a legal
theory that was invalid under state law. Indeed, Gilmore at
least suggested that it did not. Stromberg stood only for the
narrow proposition that a general verdict must be set aside
when one of the possible bases for conviction was unconstitu-
tional. And while Yates had applied that rule to federal prose-
cutions in which a possible basis of conviction was legally im-
proper, it was unclear whether its holding was grounded in
the Due Process Clause. Normally, that absence of clearly es-
tablished federal law at the time the state court decided the
case would be dispositive. But further delay in the exhaustion
10 No. 17-1838
of Czech’s state court remedies and a more recent decision by
the Supreme Court added an additional wrinkle to his case.
As noted above, the Illinois Appellate Court issued its de-
cision rejecting Czech’s claim of instructional error and af-
firming his conviction in 2004. After the Illinois Supreme
Court denied Czech’s petition for leave to appeal, Czech re-
turned to the trial court with a motion for post-conviction re-
lief on grounds not relevant here. The trial court’s order deny-
ing that motion was finally affirmed by the Appellate Court
on March 26, 2013, and again the Illinois Supreme Court de-
nied review. It was at that point that Czech filed his petition
for federal relief under § 2254.
In the meantime, while Czech’s motion for post-conviction
relief on other grounds was pending in the state courts, the
Supreme Court decided Hedgpeth v. Pulido, 555 U.S. 57 (2008).
In Hedgpeth, the Court vacated the Ninth Circuit’s decision af-
firming the district court’s grant of § 2254 relief on the ground
that the state court’s felony murder jury instructions on mul-
tiple theories of guilt, one of which was invalid under state
law, violated the petitioner’s constitutional rights. The lower
courts had granted the petition without considering whether
the petitioner suffered any prejudice, holding that the instruc-
tion constituted structural error that requires that the convic-
tion based on a general verdict be set aside regardless of
whether the error resulted in prejudice. In vacating the Ninth
Circuit’s decision, the Court held that such an error was not
structural and relief was not warranted unless a reviewing
court found that “the flaw in the instructions ‘had substantial
and injurious effect or influence in determining the jury’s ver-
dict.’” Id. at 58 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623
(1993)). The Court then remanded the case back to the lower
No. 17-1838 11
court to determine in the first instance whether the error was
harmless.
In light of Hedgpeth, the district court’s conclusion that
Yates constitutes clearly established federal law was under-
standable. At first glance, it appears that the Court implicitly
accepted the lower courts’ conclusion that Yates was based on
constitutional error, id. at 60, a conclusion it had found “un-
likely” in Griffin. 502 U.S. at 56. After all, if there was no vio-
lation of federal law, then there was no need to reach the issue
of whether the violation was structural and remand the case
for a determination of whether the error was harmless. In-
stead of overturning the lower court’s ruling that constitu-
tional error had been shown, Hedgpeth let stand the lower
courts’ ruling that Yates constituted clearly established federal
law that jury instructions on multiple theories of guilt, one of
which is invalid under state law, is a violation of due process.
See also Sorich v. United States, 709 F.3d 670, 673 (7th Cir. 2013)
(“The Supreme Court ruled in Yates v. United States, 354 U.S.
298 (1957), that constitutional error occurs when a jury is in-
structed on alternative theories of guilt and returns a general
verdict that may have relied on a legally invalid one.”). And
since Yates preceded Czech’s conviction by more than forty
years, the district court understandably concluded that the
jury instructions in his case likewise violated clearly estab-
lished federal law and proceeded to determine whether the
error was harmless under Brecht.
It is important to note, however, that the Court in Hedgpeth
did not expressly hold that instructing a jury on multiple the-
ories of guilt, one of which is legally improper, is a constitu-
tional error. Instead, the Court addressed only the narrow is-
sue of whether such an error is subject to harmless-error
12 No. 17-1838
review. We question whether “clearly established federal
law” can be established by implication. But even assuming it
can be established in this manner, we are satisfied that Czech
is not entitled to relief here. This follows because, even if con-
stitutional error was shown, the district court correctly found
it to be harmless.
B. Harmless Error
On habeas review, a constitutional error is considered
harmless unless it can be shown to have “had substantial and
injurious effect or influence in determining the jury’s verdict.”
Jones v. Basinger, 635 F.3d 1030, 1052 (7th Cir. 2011) (quoting
Brecht, 507 U.S. at 622). That is, petitioners “are not entitled to
habeas relief based on trial error unless they can establish that
it resulted in ‘actual prejudice.’” Brecht, 507 U.S. at 637. “We
apply this ‘actual prejudice’ standard regardless of whether
the state appellate court determined that the error was harm-
less beyond a reasonable doubt under Chapman v. California,
386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).” Jones, 635 F.3d
at 1052; see also Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015)
(“[T]he Brecht standard ‘subsumes’ the requirements that §
2254(d) imposes when a federal habeas petitioner contests a
state court’s determination that a constitutional error was
harmless under Chapman.” (citing Fry v. Pliler, 551 U.S. 112,
120 (2007))). When making a determination under Brecht, the
reviewing court must make a “de novo examination of the rec-
ord as a whole” to decide whether a properly instructed jury
would have arrived at the same verdict, absent the error. Jen-
kins v. Nelson, 157 F.3d 485, 495 (7th Cir. 1998). If a habeas
court “has so much as a ‘grave doubt as to the harmlessness
of [a constitutional error], it should grant relief.’” Jones, 635
No. 17-1838 13
F.3d at 1052 (quoting O’Neal v. McAninch, 513 U.S. 432, 439
(1995)).
In this case, the jury was instructed that a person commits
the offense of first-degree murder when he kills an individual
if in performing the act which caused the death he (1) intends
to kill; (2) intends to do great bodily harm to that individual
or another; (3) knows that his acts will create a strong proba-
bility of death or great bodily harm to the individual or an-
other; or (4) is committing the act of aggravated discharge of
a firearm. SA 354. Only the fourth basis for a finding of guilt
on the crime of aggravated discharge of a firearm was im-
proper. A finding of guilt on any of the three remaining bases
offered by the court would have been proper. To decide
whether the error was harmless, then, we must examine the
record as a whole to determine whether one or more of the
lawful bases for a finding of guilt “was overwhelmingly es-
tablished by the evidence, such that a rational jury, absent the
error, would have arrived at the same verdict.” Jenkins, 157
F.3d at 495. From our review of the entire record, we agree
with the district court that the evidence against Czech was
overwhelming and that a reasonable jury would have reached
the same verdict on at least two of the remaining bases.
There was no dispute that Czech was in the car with Mejia,
Malaves, and Falls when Mejia drove past the gathering of
Latin Kings and Falls opened fire on them. Czech admitted as
much and more in his own statements to police. SA 225–30,
241–42. The only real question was whether it was Czech who
directed Mejia to drive by the Kings’ location and ordered
thirteen-year-old Falls to shoot at them.
Falls, who had pled guilty to the murder of Zuniga in ju-
venile court, testified that it was Czech who originally gave
14 No. 17-1838
him the .357 revolver to hold and who told him to retrieve it
from the alley where he had hidden it on the night of the
shooting. SA 108–16. According to Falls, Czech told him “he
needed a gun to go and shoot at the Kings.” SA 116, 118. As
they approached the street where the Kings were gathered,
Czech, who was seated in the back seat on the driver’s side of
the car, instructed Falls that if the Kings were on his side of
the car he would shoot, and if they were on the passenger
side, Falls would shoot. SA 119. When it turned out they were
on the passenger side, Czech handed the gun to Falls. As
Mejia drove around the block, Falls switched seats with Ma-
laves, who was seated in the front passenger seat, because the
rear window would not roll down completely. SA 122. Then,
as they drove by the Kings again, Czech pointed out a gang
member named Chino and told Falls to shoot. Falls estimated
that he fired five shots, and as they sped away, Czech was
shouting “D love, King Killer, stuff like that.” SA 123.
Malaves, who was fifteen-years-old at the time of the
shooting, corroborated much of Falls’ account. Malaves testi-
fied that Mejia, who was her boyfriend at the time, planned to
take her to a movie that evening with Czech and his girlfriend.
The plan changed, however, when they picked up Czech in
Mejia’s car. Upon entering the car, Czech told Mejia they were
going to “cruise by the Kings.” SA 70. But first, Czech told
Mejia they had to pick up Falls. After they picked up Falls,
Mejia was directed to the alley where Falls retrieved the gun.
When Falls got back into the car, Czech directed Mejia to drive
to Monticello and Drake, where the Kings were gathered. Ma-
laves testified that as they drove by the Kings, Czech rolled
down his window, made King gang signs and yelled “King
love,” in an apparent attempt to lull them into a false sense of
security. SA 73–77. They then went around the block and
No. 17-1838 15
Malaves climbed into the back seat and changed places with
Falls. As they approached the gathering of Kings again, Czech
told Malaves to cover her ears because she was about to hear
a loud noise. Malaves testified that she ducked down on the
floor and heard gunshots and Czech screaming “King Killer”
and “Maniac love.” SA 79–80.
Although Czech argues that Malaves’ testimony does not
fully support Falls’ account, we find no significant inconsist-
encies from our review of the transcript. Malaves was unable
to recount all of what Czech said to Falls while they drove to
where the shooting occurred, but she explained that this was
in part because she was not paying attention and also because
Czech and Falls were in the back seat and the car radio was
playing loudly. SA 105–06. What she did recount supports the
conclusion that it was Czech’s idea to drive by where the
Kings were gathered, Czech knew Falls was going to shoot
before the shots were fired, and Czech approved of Falls’ ac-
tions. Further support was provided by the Chicago Police de-
tective who interviewed Czech and testified that Czech ad-
mitted that he told Mejia to drive to the Kings’ territory but
first had him pick up Falls who retrieved the gun. SA 225–27.
According to the detective, Czech also admitted that he
shouted “D Killer” and “King Love” when they drove past
the Kings gathering the first time, and then told Falls to switch
seats with Malaves before they drove past the Kings the sec-
ond time because the rear windows did not roll down all the
way. He also admitted he told Malaves to cover her ears and
keep her head down before Falls fired the gun out the win-
dow. Although Czech was less forthcoming in his videotaped
interview, the earlier version recounted by the detective pro-
vided strong support for Falls’ and Malaves’ testimony. View-
ing the record as a whole, there was ample evidence that
16 No. 17-1838
Czech directed Falls to shoot at the Kings and intended or, at
a minimum, knew there was a strong probability of death or
great bodily harm.
Czech nevertheless argues that the inclusion of the felony
murder instruction had a substantial and injurious effect on
the jury’s verdict because the prosecution emphasized the in-
struction as part of its theory of the case. Relying on Jensen v.
Clements, 800 F.3d 892 (7th Cir. 2015), Czech argues that the
fact that the prosecution emphasized the felony murder in-
struction in its closing requires the conclusion that the error
was prejudicial. Jensen involved a letter written by the defend-
ant’s wife before her death accusing him of her murder. There
was no dispute that the admission of the letter at trial violated
the defendant’s confrontation rights under the Sixth Amend-
ment. The sole issue before us was whether the admission of
the letter was prejudicial. In holding that it was, we noted that
the “letter from the grave” had played a key role in the case
from the outset, the prosecution had emphasized in its clos-
ing, and the evidence was “all circumstantial and subject to
more than one interpretation.” Id. at 905–06. We thus con-
cluded that the admission of the letter had a substantial and
injurious effect on the verdict.
Here, we are not dealing with a powerful piece of incrim-
inating evidence that formed the centerpiece of the prosecu-
tion’s case, but one of four separate theories of liability. We do
not agree that the prosecution’s primary theory at trial was
that Czech was guilty of first-degree murder under the felony
murder instruction or that the instruction was the center of
the prosecution’s case as the letter was in Jensen. The prosecu-
tion predominately urged the jury to convict on a theory of
knowing or intentional murder. After analyzing how the State
No. 17-1838 17
had met the elements of this theory, the prosecution ex-
plained that felony murder was a final option the jury could
consider if the jury was “inclined to give [Czech] the benefit
of any conceivable doubt.” SA 317. The mere fact that the
prosecution offered felony murder as a fallback argument
does not mean the evidence establishing guilt under the alter-
native theories was lacking. In any event, under Brecht, it is
the strength of the evidence as a whole, and not the closing
argument of the prosecution, that determines whether the er-
ror was harmless.
From our review of the evidence as a whole, we conclude
that a properly instructed jury would have arrived at the same
verdict. We cannot say that the inclusion of the felony murder
theory in the general verdict “had substantial and injurious
effect or influence in determining the jury’s verdict” or re-
sulted in actual prejudice to Czech. Brecht, 507 U.S. at 622. We
thus conclude that the error, assuming it was of constitutional
magnitude, was harmless. The judgment of the district court
is therefore affirmed.