Arthur Mitchell v. Donald Enloe, 7th Circuit Court of Appeals No. 14-2946, 3/24/16
The Seventh Circuit rejects Mitchell’s claims that the lawyer representing him at his state murder was ineffective because he should have asked for a provocation instruction as well as a self-defense instruction, because the two defenses were inconsistent and the jury clearly rejected the testimony on which provocation would have been based.
Mitchell was charged with murdering Neal, but he claimed he acted in self-defense because Neal attacked him with a wrench. The trial court instructed the jury on acting based on unreasonable belief in the necessity of self-defense, which mitigates first degree murder to second degree murder. But trial counsel didn’t request an alternative instruction based on provocation, which is based on a defendant acting “under a sudden and intense passion resulting from serious provocation by” the victim and would also have mitigated the offense to second degree. (Slip op. at 4-8, 11). The state courts rejected Mitchell’s ineffective claim on the ground it was reasonable trial strategy to ask only for self-defense, as provocation was inconsistent with the defense theory of the case. The Seventh Circuit concurs:
We agree with the circuit and district courts that the evidence in the record cannot support both a provocation theory and self‐defense theory. Mitchell testified at trial that he “wasn’t upset” and “just wanted to leave” [after Neal attacked him.] It would have been clearly inconsistent for counsel to present evidence that Mitchell was acting because of sudden and intense passion given this testimony. Thus, trial counsel acted reasonably by not presenting the provocation instruction. The district court and the Illinois Appellate Court correctly found that it would not have been proper—and likely would have confused the jury—to provide a second degree murder instruction based on provocation.
Mitchell also fails to show that he was prejudiced due to counsel’s failure to request a provocation instruction. See Smith v. McKee, 598 F.3d 374, 388 (7th Cir. 2010) (“Prejudice means, ‘an error which so infected the entire trial that the resulting conviction violates due process.’” (citation omitted)). To convict for second degree murder under either self‐defense or provocation, the jury would have had to believe Mitchell’s version of events. But the forensic evidence contradicts Mitchell’s story. The jury took a view of the evidence that permitted conviction for first degree murder. It is unlikely that the jury would have disregarded that evidence and believed Mitchell’s account even if counsel had presented an alternative provocation instruction.
Mitchell also claimed the state’s crucial eyewitness lied about getting leniency from the state for her testimony, but this claim is both procedurally defaulted (because it was not timely presented in collateral state court proceedings) and harmless (because her credibility was “vigorously attacked on multiple fronts by defense counsel” at trial, and even the prosecutor conceded she was incredible and instead focussed on the inconsistencies between the physical evidence and Mitchell’s testimony). (Slip op. at 8-9, 13-15 & n.5).
