Cokeley v. Lockhart

• Decision Date: 25 February 1992
• Docket Number: No. 90-2295,90-2295
• Citation: 951 F.2d 916
• Parties: Dickie COKELEY, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 916

951 F.2d 916

Dickie COKELEY, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.

No. 90-2295.

United States Court of Appeals Eighth Circuit.

Submitted May 15, 1991.

Decided Dec. 20, 1991.

Rehearing and Rehearing En Banc

Denied Feb. 25, 1992.

Daniel R. Carter, Little Rock, Ark., for appellant.

Olan W. Reeves, Little Rock, Ark. (Ron Fields, on the brief), for appellee.

Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BRIGHT, Senior Circuit Judge.

Dickie Cokeley appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Cokeley contends that he was found guilty and sentenced for a crime for which he was not properly charged. We reverse and grant the writ subject to the condition that the State may conduct a new trial within a reasonable period.

I. BACKGROUND

Cokeley, an inmate of the Arkansas Department of Corrections was convicted of the crime of rape. The events giving rise to this conviction occurred on July 26, 1984 in Miller County, Arkansas. Cokeley fled across the Arkansas-Texas border, but was apprehended by local police in New Boston, Texas, who returned him to the proper authorities in Arkansas. The subsequently filed information charged Cokeley specifically with having "wilfully, unlawfully and feloniously engage[d] in sexual intercourse ... by forcible compulsion" in violation of Ark.Stat.Ann. § 41-1803(1)(a) (Supp.1985) (since codified at Ark.Code Ann. § 5-14-103(a)(1) (1987)). That statute reads:

A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:

(1) By forcible compulsion;....

At trial, the victim testified that Cokeley had forced her to engage in both oral sex and intercourse. Cokeley, testifying on his own behalf, contended that he and the victim did not engage in sexual intercourse. He conceded that he and the victim did engage in oral sex; however, he contended that the act was consensual.

The testimony regarding oral sex prompted the trial judge to instruct the jury on rape by deviate activity, ¹ as well as rape by sexual intercourse, despite the fact that the charging document upon which the State proceeded to trial charged Cokeley only with rape by sexual intercourse. The trial judge specifically instructed the jury to return a guilty verdict if it found that the State established that Cokeley had forced the victim to engage either in sexual intercourse or deviate sexual activity. In returning a general verdict of guilty, the jury did not specify which of the two means of commission of rape it found Cokeley had committed. In accordance with the guilty verdict, the trial court sentenced Cokeley to a forty-year prison term.

On direct appeal to the Arkansas Supreme Court, Cokeley contended that the trial judge should not have instructed the jury on rape by deviate activity because the State had charged him only with rape by sexual intercourse. Thus, according to Cokeley, the subsequent general verdict constituted a conviction for a crime for which he was not charged.

The Arkansas Supreme Court rejected Cokeley's contentions on appeal and upheld the conviction. State v. Cokeley, 288 Ark. 349, 705 S.W.2d 425, cert. denied, 479 U.S. 856, 107 S.Ct. 195, 93 L.Ed.2d 127 (1986). The court specifically held that the Arkansas rape statute constituted a single criminal offense with two means of commission and concluded that the instructions to the jury comported with the language of the statute and thus were proper. In reaching its holding, however, the court expressly overruled its previous interpretation of the Arkansas rape statute in Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983), where it held that the statute created two distinct criminal offenses, each of which must be charged separately.

The Arkansas Supreme Court later denied Cokeley's petition for rehearing. Cokeley subsequently filed a petition for post-conviction relief which the state court rejected, thus exhausting Cokeley's available state remedies. Cokeley then filed the present petition seeking habeas relief, pursuant to 28 U.S.C. § 2254, in the District Court for the Eastern District of Arkansas. Cokeley principally reasserted the arguments regarding conviction on an uncharged offense which the Arkansas Supreme Court had rejected on direct appeal. The district court, stating that it was bound by the state court's interpretation of the rape statute as a single criminal offense with two possible means of commission, denied Cokeley's petition. This appeal followed.

II. DISCUSSION

The only issue which concerns us on appeal is Cokeley's claim that his fourteenth amendment due process and sixth amendment rights were violated because he was convicted of a crime for which he was not charged. ² "It is axiomatic that a conviction upon a charge not made ... constitutes a denial of due process." Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979) (citing Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978)); see also Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). "Th[is] standard[ ] no more than reflect[s] a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend." Id. (citing e.g., Hovey v. Elliott, 167 U.S. 409, 416-20, 17 S.Ct. 841, 844-45, 42 L.Ed. 215 (1897)); see also In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948).

This fundamental component of due process, guaranteed under the sixth amendment, is incorporated in the fourteenth amendment and cannot be abridged by the states. Hulstine v. Morris, 819 F.2d 861 (8th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988); Goodloe v. Parratt, 605 F.2d 1041, 1045 (8th Cir.1979); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937). The state of Arkansas similarly accords criminal defendants such a guarantee under its own constitution, expressly providing criminal defendants the fundamental right to be "informed of the nature and cause of the accusation" against them. Ark. Const. art. 2, § 10.

The notice requirement "is implemented primarily by charging papers which contain the elements of the offense so as to fairly inform a defendant of the charge against which he must defend." Goodloe, 605 F.2d at 1045 (citations omitted). The Due Process Clause does not require states in drafting charging papers to observe the stricter requirements of the Fifth Amendment Indictment Clause which apply in federal cases. Indeed, we have stated that the sufficiency of a charging document is "primarily a question of state law." Id. at 1045 n. 12 (citations omitted); Wilkerson v. Wyrick, 806 F.2d 161, 164 (8th Cir.1986), cert. denied, 481 U.S. 1071, 107 S.Ct. 2466, 95 L.Ed.2d 875 (1987). However, the notice provided by a state must comport with the due process guarantee of a fair trial to state prisoners. Id. (citing Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221 1226, 31 L.Ed.2d 536 (1972)). Thus, violations of a right to a fair trial arising from lack of fair and reasonable notice are cognizable in habeas corpus proceedings. Id. (citing Ridgeway v. Hutto, 474 F.2d 22 (8th Cir.1973); Blake v. Morford, 563 F.2d 248 (6th Cir.1977), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978)).

Cokeley asserts that the trial judge instructed the jury, and the jury returned a guilty verdict, on a charge not included in the information under which he was prosecuted. The information filed by the State charged Cokeley solely with having "wilfully, unlawfully and feloniously engage[d] in sexual intercourse ... by forcible compulsion." The trial court, on the other hand, instructed the jury to return a verdict of guilty if it found that Cokeley "engaged in sexual intercourse or deviate sexual activity ... by forcible compulsion." (emphasis added).

Cokeley, on appeal, again contends that rape by sexual intercourse and rape by deviate sexual activity are two distinct and separate crimes which must be charged individually and with particularity. The State, on the other hand, contends that the rape statute creates a single criminal offense with two possible means of commission. The determination of which of these two interpretations of the Arkansas rape statute properly applies to Cokeley's case is critical to the validity of Cokeley's claim. Thus, a more detailed discussion of Arkansas case law construing the rape statute is necessary to our decision.

In Cokeley v. State, the Arkansas Supreme Court, in rejecting the two-crime interpretation of the rape statute and adopting instead the State's proffered construction of the statute, stated that the Arkansas rape statute "provides for just one offense of rape with two different [means] of commission." 705 S.W.2d at 426. According to the court, the elements of the crime of rape under the statute are "the sexual act and forcible compulsion." Id. Thus, the statute's disjunctive form in delineating the means of commission ("sexual intercourse or deviate sexual activity") is not to be accorded any substantive significance.

The Cokeley court's holding, on its face, would appear to resolve the issue on appeal in the State's favor because federal courts considering habeas matters must apply the state court's interpretation of state law. E.g., Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 382, 78 L.Ed.2d 187 (1983) (per curiam). Although the interpretive gloss on the statute may bind this court as a...