... clearly does not rise to the level of constitutional error when the failure was correct as a matter of state law.” 593 F.2d at 267. He noted also that “the highest court of Kentucky expressly held that the state trial court did not err in refusing to give the requested lesser included offense instruction.” I do not find any error in this conclusion. Shortly after this court decided Pilón, however, the Supreme Court invalidated on due process grounds an Alabama law which forbade the jury to consider a verdict of guilt of a lesser included offense in a capital case when the evidence would have supported such a verdict. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). See also Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982) (<HOLDING>). Beck was concerned with imposition of the
holding that defendant was not entitled to entrapment instruction when there was insufficient evidence to support such an instruction holding that beck requires that a lesser included offense instruction be given when the evidence warrants such an instruction as a matter of due process in a capital case holding that due process does not require a lesser included offense instruction of manslaughter where not requested holding that when no objection was made to jury instruction evidence to support finding based on instruction should be assessed in light of the instruction given holding that a lesser included offense instruction might be constitutionally required in capital cases because of their unique nature