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United States District Court, Northern District of Illinois, E.D

October 3, 1983


The opinion of the court was delivered by: Shadur, District Judge.


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 robbery.

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 7-11(a)"):

  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 action.

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 life.*fn5

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
  unwarranted conviction.

  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).

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