Lucas v. O'Dea

• Decision Date: 18 December 1998
• Docket Number: Nos. 97-5907,97-6047,s. 97-5907
• Citation: 179 F.3d 412
• Parties: Larry S. LUCAS, Petitioner-Appellee (97-5907)/Petitioner-Appellant (97-6047), v. Michael J. O'DEA, Warden, Respondent-Appellant (97-5907)/Respondent-Appellee (97-6047). . Argued (97-6047) and Submitted (97-5907)
• Court: U.S. Court of Appeals — Sixth Circuit

179 F.3d 412

Larry S. LUCAS, Petitioner-Appellee (97-5907)/Petitioner-Appellant (97-6047), v. Michael J. O'DEA, Warden, Respondent-Appellant (97-5907)/Respondent-Appellee (97-6047).

Nos. 97-5907, 97-6047.

United States Court of Appeals Sixth Circuit.

Argued (97-6047) and Submitted (97-5907) Dec. 18, 1998.

Decided and Filed June 2, 1999.

Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 96-00482--Charles M. Allen, District Judge.

ARGUED: Jamie L. Haworth, FEDERAL PUBLIC DEFENDER'S OFFICE, Louisville, Kentucky, for Appellant. Vickie L. Wise, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Jamie L. Haworth, Patrick J. Bouldin, FEDERAL PUBLIC DEFENDER'S OFFICE, Louisville, Kentucky, Vickie L. Wise, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellant. W. Brady Miller, MARKS & MILLER, Louisville, Kentucky, Vickie L. Wise, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Before: MERRITT, KENNEDY, and GILMAN, Circuit Judges.

AMENDED OPINION

RONALD LEE GILMAN, Circuit Judge.

In 1988, a jury trial in the Circuit Court of Meade County, Kentucky resulted in Larry S. Lucas's being convicted on two counts of first-degree robbery, one count of wanton murder, and one count of being a persistent felony offender in the first degree. These convictions arose out of the armed robbery of a pawn shop by Lucas and two other men, during which the shop's owner was shot and killed. Lucas was sentenced to 180 years of imprisonment for the murder, 100 years of imprisonment for the robbery of the shop owner, and 50 years of imprisonment for the robbery of a customer.

This matter is now before us as a result of the petition for a writ of habeas corpus that Lucas filed in the United States District Court for the Western District of Kentucky pursuant to 28 U.S.C. § 2254. The district court denied all of his claims but one. It granted relief on the claim that a fatal variance existed between Lucas's indictment and the jury instruction on the murder charge. The district court held that this amounted to a constructive amendment to the indictment, depriving him of his Fourteenth Amendment right to be on notice of the charges against him.

Lucas appeals the district court's denial of his claims that (a) defense counsel was ineffective in failing to object to the "persistent felony offender" sentence enhancement, and (b) he was exposed to double jeopardy. The Commonwealth appeals the district court's grant of habeas corpus relief as to the murder conviction. For the reasons set forth below, we AFFIRM all of the decisions of the district court.

I. BACKGROUND

On January 9, 1987, Larry Lucas entered a pawn shop in Radcliffe, Kentucky with two other men, Crawford Irwin and Bruce Walker. The three men robbed the pawn shop. In the course of the robbery, the store's owner, Paul Zurla, was shot and killed. The men also robbed Christopher Wheeler, a customer of the store. The evidence at trial showed that Lucas was carrying a .45 caliber pistol at the time of the robbery.

On February 2, 1987, Lucas was indicted by the Meade County grand jury for (a) the robberies in the first degree of Christopher Wheeler and Paul Zurla, pursuant to Kentucky Revised Statutes § 515.020, (b) for the intentional murder of Paul Zurla, pursuant to KRS § 507.020, and (c) for being a persistent felony offender in the first degree, pursuant to KRS § 532.080. The murder indictment stated that Lucas "shot ... Paul Zurla with a pistol, causing his death...."

At trial, evidence was presented that a .45 caliber bullet killed Zurla. Wheeler, however, testified that he did not know whether Lucas or Irwin fired the fatal shot. Lucas's entire defense to the murder charge was that he did not shoot Zurla. At the close of the trial, the court gave the jury a form titled "Instructions to the Jury on the Charge of Murder." The instructions stated that the jury could find Lucas guilty if it found that Paul Zurla had been killed in the course of a robbery in which Lucas had participated, and "[t]hat by so participating in that robbery, the Defendant was wantonly engaging in conduct which created a grave risk of death to another and that he thereby caused Paul Zurla's death under circumstances manifesting an extreme indifference to human life." The instructions further stated that "it is immaterial which one of them fired the shot that killed Paul Zurla."

Based upon these instructions, the jury found Lucas guilty of murder. The instruction form was not specific as to the category of the murder charge submitted to the jury. On collateral review of this case, however, the Kentucky Supreme Court acknowledged that wanton murder was the applicable offense. Because conviction of intentional murder requires proof that Lucas shot Zurla, it is a different offense than wanton murder.

At sentencing, the court applied the persistent felony offender statute to enhance Lucas's murder sentence. His counsel did not object to this enhancement.

On direct appeal, Lucas claimed that his counsel was ineffective in failing to object to the sentencing enhancement, and that his convictions of both first degree robbery and of wanton murder constituted unconstitutional double jeopardy. He did not object to the variance between his murder indictment and the jury instructions. All of Lucas's claims on direct appeal were denied. In the state collateral proceedings, the Kentucky courts declined to hear any of Lucas's claims that could have been raised on direct appeal but were not. Again no relief was granted by the Kentucky courts.

Lucas then filed a petition for a writ of habeas corpus in the federal courts pursuant to 28 U.S.C. § 2254. He raised numerous claims, including that (a) the court's jury instruction on wanton murder constituted a constructive amendment to the indictment, (b) the trial court should not have applied a sentence enhancement under Kentucky's "Persistent Felony Offender" statute, (c) his convictions for wanton murder and first-degree robbery exposed him to double jeopardy, and (d) his attorney's failure to raise these errors at trial or in a motion for a new trial constituted ineffective assistance of counsel. Finding that the difference between the indictment for intentional murder and the jury instruction permitting conviction for wanton murder was a "fatal variance" (also known as a "constructive amendment"), the district court granted habeas corpus relief as to that claim. All of the remaining claims were denied. Both Lucas and the Commonwealth of Kentucky have appealed.

II. ANALYSIS

A. The "fatal variance"

1. Standard of review

In appeals of federal habeas corpus proceedings, we review the district court's legal conclusions de novo and its factual findings under a "clearly erroneous" standard. See Fair v. United States, 157 F.3d 427, 430 (6th Cir.1998). A habeas petitioner's ineffective assistance of counsel claim is a mixed question of law and fact, for which district-court determinations are subject to de novo review. See Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir.1997) (holding that counsel in capital case was ineffective in failing to have a defense theory, to cross-examine witnesses, or to make a closing argument). Finally, we review the district court's decision applying the "cause and prejudice" rules to the "procedural bar" issues de novo. See Lusk v. Singletary, 112 F.3d 1103, 1105 (11th Cir.1997) (holding that it was not necessary to hold a hearing before denying habeas corpus relief on the grounds of a state procedural bar).

2. The constructive amendment

A modification at trial that acts to broaden the charge contained in an indictment constitutes reversible error. See Stirone v. United States, 361 U.S. 212, 217-19, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (holding that where the indictment charged that defendant had unlawfully interfered with interstate commerce with respect to the importation of sand from other states by a manufacturer of ready-mix concrete, it was error to charge the jury that the defendant's guilt could be rested either on a finding that the sand had been shipped in interstate commerce or that the concrete would be incorporated into a steel mill which would manufacture articles to be shipped in interstate commerce).

There are two types of modifications to indictments--amendments and variances. See United States v. Ford, 872 F.2d 1231, 1235 (6th Cir.1989). The court in Ford illucidated the difference between them as follows:

As amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of an indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.

Id. (quoting Gaither v. United States, 413 F.2d 1061, 1071 (D.C.Cir.1969)) (italics in original).

In Ford, the indictment charged the defendant with possession of a firearm on or around a certain date, but the court gave a jury instruction permitting conviction if the jury found that he possessed the firearm over a one-year period. This was held to be a constructive amendment. See id. at 1236. A change from the indictment material enough to result in a constructive amendment is also called a "fatal variance." See, e.g., United States v. Ellis, 121 F.3d 908, 923 (6th Cir.1997) (holding that where an indictment encompasses the specific legal theory or evidence used at trial, no constructive amendment occurs.). In this case, Lucas was charged with intentional murder, but the jury instructions permitted conviction for wanton murder. This variance is sufficiently material to constitute a constructive amendment.

The court in Ford also held that a constructive amendment is per se prejudicial error. See 872 F.2d at 1235. See also United...