Bendingfield v. Parke, 89-5462
| Decision Date | 12 April 1990 |
| Docket Number | No. 89-5462,89-5462 |
| Citation | 899 F.2d 1221 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Lorenzo BENDINGFIELD, Petitioner-Appellee, v. Al C. PARKE, Warden, Kentucky State Reformatory, Frederic J. Cowan, Attorney General of the Commonwealth of Kentucky, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before WELLFORD and DAVID A. NELSON, Circuit Judges, and LAWRENCE P. ZATKOFF *, District Judge.
Petitioner Lorenzo Bendingfield was convicted in a Kentucky state court of robbing a store. Bendingfield appealed to the Kentucky Supreme Court which affirmed the conviction. Bendingfield then sought habeas relief, and the district court concluded that Bendingfield had been denied the opportunity to confront a key witness against him, granting the writ. The Commonwealth has appealed.
On October 30, 1985, a food mart in Jefferson County, Kentucky (variously referred to as Thornton Oil and Thornton Food Mart) was robbed at gunpoint. The cashier identified the gunman as Jeffery Palmer, who confessed and implicated Bendingfield as his partner in the robbery. The cashier then made a positive identification of Bendingfield as having been in the store with Palmer at the time of the robbery.
The cashier testified that Bendingfield and Palmer remained in the store for some time before Palmer pulled a gun and instructed the cashier to lie down on the floor. The cashier saw Bendingfield look over the counter into the cash drawer, but he did not see which of the two men actually removed the money for the drawer.
Palmer agreed to testify against Bendingfield under a plea agreement. At trial, however, Palmer sought to invoke his fifth amendment right against self-incrimination to avoid testifying. The trial court ruled that Palmer had no such right in light of the plea agreement, and Palmer was sworn as a witness, despite his indication that he would decline to answer questions about this robbery. Palmer refused to answer most of the prosecution's questions. We set out the relevant portion of the direct examination:
After Palmer was declared a hostile witness, the questioning continued:
The prosecution then posed a series of leading questions in which details of the robbery were suggested, but Palmer also refused to answer the questions. Bendingfield's attorney then cross-examined Palmer, who responded to the questions, but none of them directly concerned the robbery in question. The questions posed by Bendingfield's attorney concerned Palmer's past record and his plea agreement:
The prosecution then called a police detective who testified that she was present when Palmer first implicated Bendingfield, as well as when Palmer made a videotaped statement implicating Bendingfield. The prosecution then moved to introduce the relevant portion of the videotape into evidence. The motion was granted over defense counsel's objection, and the videotape was presented to the jury. It seems to be conceded by all parties that Palmer's taped statement clearly implicated Bendingfield in the commission of the crime charged. Following the playing of the videotape, Palmer indicated that he would not respond to questions by the prosecution.
Bendingfield's counsel then again cross-examined Palmer:
Bendingfield was convicted and sentenced to twenty years as a persistent felony offender. He filed a direct appeal with the Kentucky Supreme Court, raising the same issues as in his later petition for habeas corpus relief. The Kentucky Supreme Court rejected Bendingfield's contentions, stating:
It is not true that appellant was denied confrontation with a witness against him because both Palmer and the police detective testified at trial and both were subjected to cross-examination, and each of them answered every question posed to them on...
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Bendingfield v. O'Dea
...court's decision, holding that Bendingfield was not deprived of meaningful cross-examination of the witness. Bendingfield v. Parke, 899 F.2d 1221 (6th Cir.1990) (per curiam). Bendingfield did not cross-appeal, or raise in any manner, the two arguments rejected or the two arguments not consi......