United States District Court, Northern District of Illinois, E.D
October 3, 1983
UNITED STATES OF AMERICA EX REL. FRED REED, PETITIONER,
MICHAEL LANE, DIRECTOR, ILLINOIS DEPARTMENT OF CORRECTIONS AND JAMES GREER, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Fred Reed ("Reed") has petitioned for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.*fn1 For the reasons stated in this
memorandum opinion and order, Reed's petition is granted.
As the result of his participation in two killings and a
related robbery, Reed was convicted of two counts of murder and
one of armed robbery. All his available state court remedies have
been exhausted, and he is now serving concurrent prison terms of
50 to 100 years for each murder and 20 to 30 years for armed
According to the trial testimony one of the murder victims,
Michael Robbins ("Robbins"), was killed over a narcotics
trafficking territorial dispute involving Robbins, Lonnie Hall
("Hall") and others. About 10:30 p.m. August 28, 1977 Hall came
into Reed's apartment with a gun and told Reed he wanted to use
Reed to gain entry into Robbins' apartment (Robbins lived in the
courtway right next to Reed's apartment). Hall threatened Reed,
telling him to accompany Hall to Robbins' place or Reed "would
come up dead." They went to Robbins' apartment, Reed knocked and
identified himself, and Robbins opened the door. Hall forced his
way into the apartment, ordered Robbins to lie down on the bed
and told Reed to tie him up. Reed tied Robbins' legs and Hall
tied his hands. Hall then covered Robbins' head with a pillow and
shot him twice.
As Hall and Reed left Robbins' apartment Beverly Truitt
("Truitt") opened her door and asked what happened. Hall pushed
her back into her apartment and shot her twice. When Hall came
out of her apartment he had some jewelry. At Reed's request Hall
gave him three or four rings, a bracelet and necklace.
Reed's Constitutional Claim
Reed claims constitutional error in the trial court's refusal
to give a tendered jury instruction on the affirmative defense of
compulsion. Under Ill.Rev.Stat. ch. 38, § 7-11(a) ("Section
A person is not guilty of an offense, other than an
offense punishable with death, by reason of conduct
which he performs under the compulsion of threat or
menace of the imminent infliction of death or great
bodily harm, if he reasonably believes death or great
bodily harm will be inflicted upon him if he does not
perform such conduct.
Section 7-11(a) and its permissible reading are the focus of this
In respondents' answer here the State maintains (as it did in
the state courts) Reed was not entitled to the compulsion
instruction because he committed "an offense punishable with
death."*fn3 Here as in the state courts, Reed counters such a
construction of Section 7-11(a) was constitutionally
impermissible, because Reed was compelled to help commit Robbins'
murder at a time when Reed had not yet come within the statutory
"punishable with death" exception.
In affirming Reed's conviction, the Illinois Appellate Court
rejected his proposed reading of Section 7-11(a). 104 Ill. App.3d
at 337-39, 60 Ill.Dec. at 85-86, 432 N.E.2d at 984-85. This Court
is bound by that construction in state law terms. Israel v. Odom,
521 F.2d 1370, 1376 (7th Cir. 1975); United States ex rel.
Hanrahan v. Bosse, 547 F. Supp. 718, 720-21 (N.D.Ill. 1982).
At this point, then, the question is whether that binding
construction of Section 7-11(a) denied Reed due process under the
Fourteenth Amendment. Reed contends:
1. At the time he admittedly participated in
Robbins' murder, Reed had committed no prior murder.
Therefore the Robbins murder could not have involved
the quality of intent or conduct necessary for
sentencing Reed to death under Section 9-1(b)(3).
2. At the time of the Robbins murder Reed could not
reasonably have anticipated Hall's later murder of
Truitt. That later murder cannot be the retroactive
predicate for making Reed's involvement in the
earlier offense punishable by death.
Essentially Reed relies on the principle that due process
requires a person to be fairly apprised of criminal consequences
at the time he acts — in this case at the time he reacted to the
compulsion he claims Hall visited upon him immediately preceding
Robbins' murder. If such notice is not fairly given by a statute,
that statute is deemed unconstitutionally vague under the
standard of United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct.
808, 812, 98 L.Ed. 989 (1954):
The constitutional requirement of definiteness is
violated by a criminal statute that fails to give a
person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute. The
underlying principle is that no man shall be held
criminally responsible for conduct which he could not
reasonably understand to be proscribed.
Of course every such argument relies on a fiction: the notion
that a person bent on criminal activity is indeed aware of what
the law provides, as though the potential murderer carries a copy
of the Illinois Criminal Code with him (or has it committed to
memory). But it is a necessary fiction if the concept of mens rea
is not to be subverted.*fn4
This Court then must look at what Reed
was fairly apprised of at the time he was confronted with the
decision of how to act in the face of Hall's menace to his own
In terms of that necessary fiction, had Reed looked at the
statute when forced to decide what action to take in conjunction
with Robbins' murder, he would have known from the plain
statutory language the compulsion defense was available to him.
Under that defense Reed could yield to Hall's death threat
without putting his own life in jeopardy (via a potential death
sentence) by so yielding.*fn6 That was the legal matrix in which
Reed was entitled to make his decision about what action to
take. What was surely not obvious from the face of the statute
and then-existing case law*fn7 was that a later event — Hall's
gratuitous murder of Truitt — would deprive Reed of the
compulsion defense on the theory that as a whole two or more
murders are punishable by death.
Now the Illinois Appellate Court has taught Section 7-11(a)
must be read that latter way. That gloss on the statute binds
this Court as a matter of statutory construction. It does not
however bind this Court as to the constitutional effect of that
construction. Under the standard enunciated in United States v.
Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2203, 60 L.Ed.2d
755 (1979), the language of the Illinois statute — as contrasted
with its post-hoc interpretation by the Illinois courts — did not
"state with sufficient clarity the consequences of violating a
given criminal statute." Accordingly this Court holds Section
7-11(a), with the patina added by the Illinois courts, is
unconstitutionally vague in due process terms as to Reed.*fn8
That due process deprivation impacted on Reed by the trial
court's refusal to give the requested instruction as to
compulsion (an instruction that would have conformed to the
statute's natural meaning without the constitutionally flawed
reading). In an effort to avoid that conclusion, respondents have
advanced two further arguments:
1. There is insufficient evidence of compulsion in
the record to warrant an instruction on the issue.
2. Even were that no so, failure to give the
instruction did not result in a "fundamental
miscarriage of justice."
On the first issue, the "come up dead" testimony was plainly
enough on its own to raise the compulsion defense. Once the issue
was raised by the evidence, the state court was obligated to
instruct the jury on the affirmative defense of compulsion.
People v. Wallace, 100 Ill. App.3d 424, 430, 55 Ill.Dec. 692, 698,
426 N.E.2d 1017
, 1023 (1st Dist. 1981).*fn9
As for respondents' second argument, it cannot be blinked that
the jury's unawareness of a compulsion defense subjected Reed to
a conviction of Robbins' murder that would not have occurred had
the jury credited and given full effect to the "come up dead"
testimony. In conjunction with the Truitt conviction,*fn10 Reed was
thus exposed to a potential death penalty — a result that would
not have obtained on a conviction as to Truitt alone.
Such "risk enhancement" is strongly redolent of the situation
dealt with in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65
L.Ed.2d 392 (1980), where failure to give an instruction on a
lesser-included offense enhanced the defendant's risk of being
convicted of a capital offense. What the Court said in Beck — the
principle that prompted its decision — applies with equal force
here (id. at 637-38, 100 S.Ct. at 2389-90, footnotes omitted):
For when the evidence unquestionably establishes that
the defendant is guilty of a serious, violent
offense — but leaves some doubt with respect to an
element that would justify conviction of a capital
offense — the failure to give the jury the "third
option" of convicting on a lesser included offense
would seem inevitably to enhance the risk of an
Such a risk cannot be tolerated in a case in which
the defendant's life is at stake. As we have often
stated, there is a significant constitutional
difference between the death penalty and lesser
"[D]eath is a different kind of punishment from any
other which may be imposed in this country. . . .
From the point of view of the defendant, it is
different in both its severity and its finality.
From the point of view of society, the action of
the sovereign in taking the life of one of its
citizens also differs dramatically from any other
legitimate state action. It is of vital importance
to the defendant and to the community that any
decision to impose the death sentence be, and
appear to be, based on reason rather than caprice
or emotion." Gardner v. Florida, 430 U.S. 349,
357-358 [97 S.Ct. 1197, 1204, 51 L.Ed.2d 393
(1977)] (opinion of Stevens, J.).
To insure that the death penalty is indeed imposed on
the basis of "reason rather than caprice or emotion,"
we have invalidated procedural rules that tended to
diminish the reliability of the sentencing
determination. The same reasoning must apply to rules
that diminish the reliability of the guilt
determination. Thus, if the unavailability of a
lesser included offense instruction enhances the risk
of an unwarranted conviction, Alabama is
constitutionally prohibited from withdrawing that
option from the jury in a capital case.
That enhancement of risk — for Reed was in fact potentially
subjected to a death sentence, though the trial court's ultimate
decision was to impose a 50- to 100-year term — effectively
distinguishes Reed's situation from the line of cases applying a
more stringent standard to the usual erroneous jury instruction
or the usual erroneously omitted jury instruction.*fn11 See the
discussion in Nichols v. Gagnon, 710 F.2d 1267, 1269-72 (7th
Cir. 1983). Indeed, under the circumstances of this case, the
omission of the compulsion instruction satisfied that more
stringent test of "fundamental miscarriage of justice" announced
in such cases as Nichols.
Reed's petition for writ of habeas corpus is granted.
Respondents are ordered to discharge Reed unless the State of
Illinois gives him a new trial within a reasonable time (which,
absent a showing by respondents, shall be conclusively deemed to
require retrial within 120 days).