The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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 ...