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UNITED STATES EX REL. REED v. LANE

October 3, 1983

UNITED STATES OF AMERICA EX REL. FRED REED, PETITIONER,
v.
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.

Facts*fn2

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 ...

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