Eaglin v. Welborn

• Decision Date: 23 January 1995
• Docket Number: No. 93-1561,93-1561
• Citation: Eaglin v. Welborn, 41 F.3d 268 (7th Cir. 1995)
• Parties: Kenneth EAGLIN, Petitioner-Appellee, v. George C. WELBORN and Roland W. Burris, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 268

41 F.3d 268

Kenneth EAGLIN, Petitioner-Appellee, v. George C. WELBORN and Roland W. Burris, Respondents-Appellants.

No. 93-1561.

United States Court of Appeals Seventh Circuit.

Argued Nov. 9, 1993.

Decided Oct. 28, 1994.

Rehearing and Rehearing En Banc

Granted, Opinion Vacated

Jan. 23, 1995.

Maribeth Egert Dura (argued), Faupel & Corrigan, Peoria, IL, for petitioner-appellee.

Penelope Moutoussamy George (argued), Office of the Atty. Gen., Crim. Appeals Div., Chicago, IL, for respondents-appellants.

Before CUDAHY and ROVNER, Circuit Judges, and WILL, District Judge. ^*

OPINION

WILL, District Judge.

This is an appeal from the District Court's grant of Eaglin's petition for a writ of habeas corpus. The facts are largely undisputed.

FACTS

Petitioner, Kenneth Eaglin, was convicted in 1990 by a jury of solicitation of murder for hire and sentenced to 34 years imprisonment. At trial, he sought both to deny that he had knowingly committed the crime and also to assert the defense that his actions were the product of entrapment by a police informant and a police officer.

The state court trial judge, relying on the Illinois Supreme Court's decision in People v. Gillespie, 136 Ill.2d 496, 145 Ill.Dec. 915, 557 N.E.2d 894 (1990), refused to instruct the jury on the entrapment defense because Eaglin was also denying that he had any intent to kill, one of the essential elements of the crime charged, and, therefore, was denying that he had committed the crime.

The Illinois Appellate Court affirmed the conviction holding that Eaglin was not entitled to the entrapment instruction, again on the basis of the Illinois Supreme Court's holding in Gillespie. People v. Eaglin, 224 Ill.App.3d 668, 167 Ill.Dec. 8, 586 N.E.2d 1280 (3d Dist.1992). Rehearing was denied on March 6, 1992. A petition for leave to appeal to the Illinois Supreme Court was denied on June 3, 1992. The petition for a writ of habeas corpus was granted by the District Court on February 24, 1993, 815 F.Supp. 1181. For the reasons stated herein, we affirm the grant of the writ.

The facts with respect to the events leading up to Eaglin's being charged are also largely undisputed. Much of the state's evidence was the testimony of the informant, Joseph Roberts, who had started working part time at Eaglin's construction company in April 1990. Roberts, then age 21, had previously been at least twice convicted of felonies, had served time in jail and, at the time of the events here involved, faced two Petitions to Revoke Probation with respect to prior convictions.

During this time, Roberts and Eaglin had several conversations regarding their mutual custody problems involving their children and the authorities, the Fulton County State's Attorney, Joan Scott, and the Illinois Department of Children and Family Services. Roberts testified that on or about June 27, 1990, he told Eaglin's wife that there was a hit man who had been hired to kill her. Mrs. Eaglin separately testified to this conversation stating, "[Roberts] said that someone was going to pay a hit man $10,000 to gun me down.... And Joe told me that it was as a warning to my husband to back off, because he knew too much about someone at the courthouse here in Fulton County." R. 1010. Roberts also conveyed these threats to Eaglin.

On the following day, June 28, Roberts met Eaglin and told him that he had contacted the hit man involved, a man named Paul Long. According to Eaglin, Roberts stated that he had learned that the Fulton County State's Attorney, Joan Scott, was the person responsible for the threats to Eaglin's wife and family.

Roberts also allegedly told Eaglin that State's Attorney Scott had hired Long to kill his wife. Long was purportedly a former cellmate of Roberts, but there is no evidence that Roberts ever talked to him about, or that he was actually aware of, any of the circumstances described here.

Eaglin testified that, when Roberts identified Scott as the person who had hired a hit man to kill Mrs. Eaglin, he asked:

Why would Joan Scott, a State's Attorney who is supposed to uphold the law, want to kill my wife?

R. 1068. Roberts, Eaglin testified, said that Scott wanted "to get even" and to make Eaglin "worm and squirm," that he had been a travesty to justice in the county and she had not been able to convict him. Eaglin testified that out of fear for his family's safety, he told Roberts to contact Long to keep him from harming his wife.

The next day, on June 29, 1990, Roberts told Eaglin that he had made a deal with Long. The deal was that Long would kill Scott instead of Mrs. Eaglin. Eaglin told Roberts he did not want Scott killed, he simply wanted Roberts to "arrange for my family not being killed, not to kill Joan Scott." Roberts then responded:

What are you trying to do, get us both killed.... Once you make a deal with these people, ... there is no backing out.... If he thinks you're going to back out, he will kill you and me, not a hesitation.

R. 1072. Roberts then informed Eaglin that Long wanted $5,000. Eaglin testified:

[Roberts] wanted $5,000. I told him I did not have $5,000. He said, "Isn't your wife's life and yours worth it. Can't you sell some stuff or borrow the money or get it in some way.... You know, if he doesn't get to you, your wife eventually or you," he says, "Then he would come back and kill your kids."

R. 1073.

Between the meeting on June 29, 1990 and July 12, 1990, Roberts persistently attempted to get the $5,000 from Eaglin, in order ostensibly to pay Long. Crystal Wilson King testified that she had lived with Joe Roberts and that Roberts telephoned Eaglin daily. She stated that during one of the phone conversations, Roberts "told Kenny that if he tried to back out of the deal with this hit man, that him, his wife and kids would be killed." R. 948.

Having received no money from Eaglin, on July 12, Roberts telephoned Officer Daniel Daly of the Fulton County Sheriff's Department. He told Daly that Eaglin was planning to have State's Attorney Scott killed. He further stated that Eaglin had inquired whether Roberts knew of anyone who could commit the crime. Roberts stated that he had volunteered Long's name and that Eaglin had reportedly discussed payment and inquired about the length of time Long would need to prepare.

On July 26, 1990, at the request of law enforcement officials, Roberts went to Eaglin's house and told Eaglin that the hit man was ready to proceed. At Roberts' request, Eaglin provided Roberts with a photo of State's Attorney Scott which had been clipped from a newspaper and which Roberts knew Eaglin had. This conversation was recorded via an eavesdropping device which was hidden on Roberts.

The next day, again at the request of the police, Roberts telephoned Eaglin. He told Eaglin that the hit man Long wanted to talk to him. Roberts then handed the phone to Gerald Kempf, a deputy sheriff who purported to be Long. Eaglin never stated in the conversation that he wanted Scott dead but kept saying "Do what you want. I don't care." R. 1091. He also agreed to pay Kempf alias Long $2,000 in the hope, he testified, that Long would refuse to kill Scott for only $2,000 which would end the matter. He also testified, "I can't imagine anyone taking a life for $2,000, sir," R. 1092, an understandable belief since, if apprehended, the hit man would certainly face the death penalty. He further testified that he was surprised when the pseudo hit man agreed. Kempf described Eaglin in the conversation as "confused." This conversation, which was also recorded, was the basis for the solicitation charge.

In the conversation, Kempf alias Long and Eaglin arranged to meet in a parking lot. They met. No money was exchanged but after a short conversation, Eaglin was arrested.

The State's theory as to why Eaglin had sufficient animosity towards Scott to contract for her murder was that she had attempted to remove his and his wife's children from his household under charges of neglect. These custody controversies involving Scott and the Illinois Department of Children and Family Services started in 1987 and included the filing by Scott of perjury charges against both Eaglin's wife and his parents and the brief imprisonment of Mrs. Eaglin on a contempt charge. Finally, an effort was being made at the time of the events here involved to terminate his and his wife's parental rights and make the children available for adoption.

On the basis of the foregoing facts, Eaglin asked the trial judge, in addition to the other instructions, to give an instruction on the defense of entrapment. That request was refused, not on the ground that the evidence was insufficient to warrant a jury finding entrapment but on the ground that Eaglin had "clearly denied on several occasions that he ever intended that the victim be murdered," and thus, under Gillespie, entrapment was not to be considered as an instruction to be given to the jury in Illinois.

DISCUSSION

In his petition for a writ of habeas corpus, Eaglin asserted four grounds: (1) his Fourteenth Amendment right to due process had been violated when the trial court refused to instruct the jury on the defense of entrapment; (2) his Fourteenth Amendment right to due process was violated because the trial court's instruction defining first degree murder stated that the defendant must either have intended to kill or do great bodily harm; (3) his Fourteenth Amendment right to a fair and impartial trial was violated when the trial judge removed Joan Scott, the Fulton County State's Attorney, as the prosecutor because of an obvious conflict of interest and appointed Kevin Lyons, the Peoria County State's Attorney, as a special prosecutor without any authority to do so; and (4) his Fourteenth Amendment right to due process was violated because the rule requiring that a defendant admit to committing a crime as a precondition to asserting an entrapment defense violates his privilege against self-incrimination...