Lockett v. Arn, 83-3142

• Decision Date: 09 August 1984
• Docket Number: No. 83-3142,83-3142
• Citation: 740 F.2d 407
• Parties: Sandra LOCKETT, Petitioner-Appellant, v. Dorothy ARN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 407

740 F.2d 407

Sandra LOCKETT, Petitioner-Appellant, v. Dorothy ARN, Respondent-Appellee.

No. 83-3142.

United States Court of Appeals Sixth Circuit.

Argued Aug. 29, 1983.

Decided July 3, 1984.

Rehearing and Rehearing En Banc

Denied Aug. 9, 1984.

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Max Kravitz, William H. Bluth, Gerald G. Simmons, Columbus, Ohio, for petitioner-appellant.

William J. Brown, Atty. Gen., Karen A. Kolmacic, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.

Before JONES, Circuit Judge, and PECK and BROWN, Senior Circuit Judges.

BAILEY BROWN, Senior Circuit Judge.

Following this court's decision granting habeas relief to appellant Sandra Lockett, appellee moved for rehearing. The appellee's motion is granted and the opinion and order of this court filed in this case on February 14, 1984 are vacated.

On appeal, Lockett contends that the district court improperly denied her petition for habeas corpus. Lockett makes three constitutional challenges to her Ohio conviction for aggravated murder and aggravated robbery on the grounds of: (1) improper jury instructions, (2) ineffective assistance of counsel, and (3) an improper refusal to grant a continuance. We conclude that the appellant's failure to raise her constitutional objection to the jury instructions at trial precludes our review of those instructions on petition for collateral relief. We also find appellant's other claims without merit. Accordingly, we affirm the judgment of the district court.

BACKGROUND

Sandra Lockett was charged with the aggravated murder and aggravated robbery

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of a pawnshop operator in Akron, Ohio. The State's case rested primarily on the testimony of a coparticipant, Al Parker, who agreed to cooperate in return for a lesser charge.

According to Parker's testimony, he, Lockett, Lockett's brother, James Lockett, and Parker's friend, Nathan Earl Dew, agreed to a common plan to rob the victim. The scheme called for Dew and James Lockett to enter the pawnshop and pretend to pawn a ring. After they had engaged the pawnbroker in this transaction, Parker would enter the shop and ask to examine a gun. Parker, who would be concealing bullets, would load the gun and proceed to rob the shop. Sandra Lockett, who knew the operator, would remain outside the shop in an automobile.

The robbery proceeded according to plan until the pawnshop operator grabbed the gun held by Parker. With Parker's finger on the trigger, the gun went off and the victim was killed. Parker fled the shop to the car where Sandra Lockett waited with the engine running. After Parker told Lockett what had happened, she placed the gun in her purse and drove to a relative's house where she called a taxi. Shortly after leaving the house in the taxi, Parker and Lockett were stopped by the police and questioned. Later, Lockett hid Dew and Parker in the attic of her parents' home.

Parker was subsequently apprehended and charged with aggravated robbery and aggravated murder with specifications, the latter offense punishable by death. Prior to trial, Parker pled guilty to the murder charge and agreed to testify against Lockett. In return for his testimony, the prosecutor dropped the aggravated robbery charge and the specifications to the murder charge, thereby removing the possibility of the death penalty. Lockett's brother and Dew were convicted of aggravated murder with specifications.

At Sandra Lockett's separate trial, her counsel, in the opening statement to the jury, explained her account of the circumstances surrounding the robbery. Lockett thought that Dew and her brother merely intended to pawn the ring. The defense called Lockett's brother and Dew to the stand; both invoked their fifth amendment privilege and refused to testify. Lockett chose not to testify in spite of her counsel's warning that if she did not testify, her defense would consist solely of cross-examination of the prosecution's witnesses.

Lockett was charged with aggravated robbery and aggravated murder. The aggravating specifications as to murder were (1) that the murder was "committed for the purpose of escaping detection, apprehension, trial or punishment" for aggravated robbery, and (2) that the murder was "committed while ... committing, attempting to commit, or fleeing immediately after committing or attempting to commit ... aggravated robbery." The jury was instructed that, in order to find Lockett guilty of aggravated murder, it had to find that she purposely had killed the pawnbroker while committing or attempting to commit aggravated robbery. The jury was charged that one who

purposely aids, helps, associates himself or herself with another for the purpose of committing a crime is regarded as if he or she were the principal offender and is just as guilty as if the person performed every act constituting the offense...

The trial court also instructed the jury regarding the intent requirement:

A person engaged in a common design with others to rob by force and violence an individual or individuals of their property is presumed to acquiesce in whatever may reasonably be necessary to accomplish the object of their enterprise...

If the conspired robbery and the manner of its accomplishment would be reasonably likely to produce death, each plotter is equally guilty with the principal offender ...

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The jury returned a verdict of guilty and the court, following Ohio's statutory procedure, sentenced Lockett to death.

Lockett's convictions were affirmed on appeal by the Ohio Court of Appeals and the Ohio Supreme Court. State v. Lockett, 49 Ohio St.2d 48, 358 N.E.2d 1062 (1976). The United States Supreme Court struck down her death sentence but rejected her challenges to the convictions. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

Lockett's initial petition for writ of habeas corpus was dismissed by the district court for failure to exhaust her remedies available under Ohio's post-conviction statute, OHIO REV.CODE ANN. Sec. 2953.21. Thereafter, Lockett amended her petition and deleted the unexhausted claims. The district court then found Lockett's claims to be without merit and her petition was dismissed. This appeal followed.

I. The Jury Instructions

Lockett claims that the trial court's instructions unconstitutionally shifted the burden of proving intent or purpose for the crime of aggravated murder under OHIO REV.ANN. Sec. 2903.01. In particular, Lockett objects to the instruction that a "person engaged in a common design with others to rob by force and violence an individual or individuals of their property is presumed to acquiesce in whatever may reasonably be necessary to accomplish the object of their enterprise." Lockett, relying on Sandstrom v. Montana, 442 U.S. 510, 512, 99 S.Ct. 2450, 2453, 61 L.Ed.2d 39 (1979), contends that this instruction violated due process because it forced her to assume the burden of disproving intent or purpose, a necessary element of the crime.

Lockett concedes that she failed to object to the jury instructions at trial as required by Rule 30, OHIO R.CRIM.P. Such a failure to comply with the state's contemporaneous objection rule would ordinarily preclude a federal court from reviewing the instructions on a collateral attack. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Lockett maintains, however, that the Ohio courts waived her procedural default when they reviewed the merits of her claims on direct appeal. Alternatively, Lockett contends that her procedural default should be excused because she can demonstrate cause and actual prejudice for her failure to object. Id. We consider each of these arguments in turn.

Where a state procedural rule precludes litigation of a constitutional claim on appeal, a state prisoner is barred from raising the claim in a federal habeas proceeding absent a showing of cause and prejudice. Wainwright v. Sykes; Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982). Lockett's failure to object at trial to the challenged instructions violated Rule 30, OHIO R.CRIM.P. This failure is adequate, under Ohio law, to bar appellate consideration of an objection. Engle v. Isaac, 456 U.S. at 125, 102 S.Ct. at 1570. See also State v. Phillips, 27 Ohio St.2d 294, 272 N.E.2d 347, 352 (1971).

A habeas petitioner may avoid a federal court's application of a state's contemporaneous objection rule by showing that the state courts did not rely on the procedural default in disposing of the constitutional claims. See Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) (summary rejection on the merits of a constitutional objection by state court demonstrates that the state court did not rely on procedural default). Lockett contends that, in the examination of the sufficiency of evidence on the element of intent or purpose to kill, the Ohio courts considered her constitutional challenges to the jury instructions and thereby waived her violation of the contemporaneous

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objection rule. On Lockett's challenge to the sufficiency of the evidence, the Ohio Supreme Court interpreted the provisions of the aggravated murder statute, OHIO REV.CODE ANN. Sec. 2903.01, and the complicity provision, OHIO REV.CODE ANN. Sec. 2923.03. The court's discussion of the statutory requirement of intent and the proof on this issue, Lockett now maintains, demonstrates that the state court waived her failure to raise constitutional objections to the instructions at trial.

After careful consideration of Lockett's brief on direct appeal and the opinions by the Ohio Supreme Court and Ohio Court of Appeals, we are satisfied that Lockett never made the claim that the jury instructions unconstitutionally shifted the burden to her to prove absence of intent or purpose to kill. Lockett did contend that the murder statute required proof that Parker had a purpose to kill and that she shared that purpose. The evidence, she maintained, did not prove...