State v. Lankford

• Decision Date: 10 July 1989
• Docket Number: 16192,Nos. 15759,s. 15759
• Citation: 781 P.2d 197,116 Idaho 860
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Mark Henry LANKFORD, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 197

781 P.2d 197

116 Idaho 860

STATE of Idaho, Plaintiff-Respondent, v. Mark Henry LANKFORD, Defendant-Appellant.

Nos. 15759, 16192.

Supreme Court of Idaho.

July 10, 1989.

Rehearing Denied Oct. 31, 1989.

[116 Idaho 863] Gregory Fitzmaurice, Grangeville, Idaho, for defendant-appellant.

Jim Jones, Atty. Gen. and Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent. Lynn E. Thomas argued.

HUNTLEY, Justice.

On May 4, 1984, Mark Henry Lankford was found guilty on two counts of first degree murder. Following the verdicts, the trial court held a sentencing hearing and sentenced Lankford to death. Lankford appeals the murder convictions and sentence, the denial of his amended petition for post-conviction relief, and the trial court's denial of his second motion for new trial. The appeals have been consolidated pursuant to I.C. § 19-2719 (1987). This matter is also before the Court on automatic In June of 1983, Mark Lankford and his brother Bryan Lankford packed their belongings and fled from their home state of Texas because Bryan had violated his probation for a robbery conviction and did not want to be sent back to jail. The Lankfords eventually made their way to Idaho County, Idaho, where they camped in a remote forest campground for several days. At that same time, retired Marine officer Robert Bravence and his wife, Cheryl, were vacationing in a nearby campground.

[116 Idaho 864] review under the provisions of I.C. § 19-2827 (1987).

On September 24, 1983, the bodies of Robert and Cheryl Bravence were found by hunters in the Idaho County forest. Approximately one-fourth of a mile from the bodies a 1982 Chevrolet Camaro registered to Mark Henry Lankford, of Houston, Texas was found. On or about the 5th of July 1983, a vehicle registered to Robert and Cheryl Bravence was located in Los Angeles, California. Fingerprints taken from items found in the Bravence vehicle were identified as belonging to Mark Henry Lankford and Bryan Stuart Lankford.

On October 2, 1983, Mark Lankford and Bryan were arrested in Liberty County, Texas. Subsequent to the arrest, authorities found items belonging to the Bravences in a Liberty County campsite. The Lankfords were extradited to Idaho where they were tried separately for the murders of Robert and Cheryl Bravence. Bryan Lankford agreed to be a witness for the State at his brother's trial because he believed the State Prosecutor had offered him an indeterminate life sentence instead of the death penalty in exchange for his testimony.

Bryan testified as follows: After reaching the Idaho County forest where they hid out, Mark and Bryan decided to steal an automobile from a campsite in the area. They reasoned that, because the monthly payments on Mark's car were delinquent, the police would be searching for it and so they needed to abandon it to avoid capture. They left the car in the woods covered with brush and set off to steal another car. They walked down a mountain road which eventually led to a campsite occupied by Robert Bravence and his wife Cheryl. Bryan entered the campsite first, with a shotgun draped over his arms, and engaged the Bravences in conversation. Shortly thereafter Mrs. Bravence left the campsite to go down to a nearby stream for some water. After Mrs. Bravence left, Mark Lankford ran out from behind some bushes where he had been hiding, and into the campsite and ordered Robert Bravence to kneel on the ground in front of him. Mark Lankford then hit Robert Bravence in the back of the head with a brown wooden night stick. When Cheryl Bravence returned to the campsite she rushed to the side of her husband who was lying on the ground. Mark Lankford ordered her to kneel down on the ground next to the body of her husband and struck her in the back of the neck with the same nightstick. The Lankfords placed the Bravences' bodies into the Bravence van and drove back to their former campsite where Mark hid the bodies near his Camaro. The Lankfords then drove the Bravence van to Oregon and later to California where they abandoned it in Los Angeles. During their travels they purchased food and accommodations with the Bravences' credit card.

Following Bryan Lankford's testimony on direct examination, Mark Lankford, contrary to advice from counsel and the court, decided to act as his own attorney and cross-examine his brother. After Mark Lankford's inadequate attempt at cross-examination and objection by his attorney, the trial court allowed the attorney to resume his role. At this point, Bryan Lankford invoked his Fifth Amendment privilege and initially refused to answer the trial counsel's questions on cross-examination.

In addition to Bryan Lankford's testimony, pertaining to the causes of death, the State's medical experts testified that the Bravences died from multiple blows to the skull.

After Mark and Bryan were each convicted in separate trials for the first degree murders of Robert and Cheryl Bravence On October 15, 1984, the court issued its Findings in Consideration of the Death Penalty. Judgment and sentence of Death was imposed on October 16, 1984.

[116 Idaho 865] Bryan recanted the testimony he gave at Mark's trial on three different occasions. At Mark's sentencing hearing Bryan testified that in a phone conversation he told a reporter with the Lewiston Morning Tribune that he had lied under oath at Mark's trial and that it had been he who had bludgeoned the Bravences, that he used a rock and that Mark Lankford was not present at the scene. Later, at Mark Lankford's motion for a new trial, Bryan Lankford indicated that he had lied to the Lewiston Tribune. Finally, after being sentenced to death, Bryan Lankford executed a written statement in which he indicated his full culpability for the Bravence deaths and Mark's Lankford's innocence. Then on May 29, 1986, at Mark's second motion for a new trial, Bryan testified that he was primarily responsible for the murders. He further testified that his testimony at his brother's trial was false.

I.

Lankford's Decision to Waive His Right to Counsel and Cross-examine His Brother Pro Se.

Mark Lankford claims that he was deprived of his right to counsel as guaranteed by the sixth and fourteenth amendments to the United States Constitution and art. 1, § 13 of the Idaho Constitution when the trial court allowed him to cross-examine his brother pro se. He claims that Idaho case law, Bement v. State, 91 Idaho 388, 395, 422 P.2d 55 (1966), and I.C. § 19-857 (1987), mandate that more than a mere affirmative waiver is needed to show that the defendant knowingly and intelligently waived his right to counsel. Lankford claims that the trial court did not conduct the requisite penetrating and extensive examination into all of the circumstances of Lankford's waiver; and, as a result, he was allowed to waive his right to counsel in the heat of passion and without sufficient knowledge of his waiver's potential ramifications.

Criminal defendants have the right to be represented by counsel as guaranteed by the sixth and fourteenth amendments of the United States Constitution and art. I, § 13 of the Idaho Constitution. In addition to guaranteeing the right to counsel, it has been held that the sixth amendment guarantees that a defendant has an independent constitutional right to proceed pro se when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 812-836, 95 S.Ct. 2525, 2529-2542, 45 L.Ed.2d 562 (1975); United States v. Harris, 683 F.2d 322, 324-325 (9th Cir.1982) (the Harris court found that the defendant must be aware of the nature of the charges filed against him and the possible penalties flowing from those charges, as well as the dangers and disadvantages of self representation. The Harris court also held that the trial court must discuss with the defendant, in open court, whether the defendant's waiver was knowingly and intelligently made, with an understanding of the charges, and possible penalties and dangers of self representation.) See State v. McCabe, 101 Idaho 727, 729, 620 P.2d 300 (1980), in which this Court cites Faretta.

Ultimately, the decision of whether to exercise the right to counsel or proceed pro se is for the defendant to make. The role of the trial court is simply to ensure that where the defendant waives the right to counsel he or she does so knowingly and intelligently.

In this case, the trial court went to great lengths to ensure that Mark Lankford's waiver of his right to counsel was made knowingly and intelligently, and to dissuade Lankford from proceeding pro se. The trial court warned him of the hazards he would encounter, that he had an insufficient background to examine the witnesses, and that he would be held to the Rules of Evidence if he elected to proceed on his own behalf. In spite of these warnings, Lankford insisted on waiving his right to counsel and proceeded pro se during the cross-examination of his brother. In response to Lankford's insistence, the trial court did the only thing it could do--it granted his wish. Even though the trial We affirm the trial court on this issue.

[116 Idaho 866] court allowed Lankford to proceed pro se, the record reflects the court still protected him as much as it could under the circumstances. It allowed Lankford's counsel to remain present during Lankford's pro se activities; it assisted him on procedural points during his attempt at cross-examination; and finally, it allowed Lankford's attorney to go through an entire recross-examination after Lankford terminated his botched attempt.

II.

The Trial Court's Instruction That Malice Could Be Established by Proof That the Killing Took Place During the Perpetration or Attempted Perpetration of a Robbery.

Lankford argues that the giving of Instruction No. 24(a) was reversible error. The instruction reads:

The term malice does not necessarily import ill will toward the individual injured, but signifies rather a general malignant recklessness...