Franks v. Alford
| Decision Date | 05 June 1987 |
| Docket Number | No. 85-2088,85-2088 |
| Citation | 820 F.2d 345 |
| Parties | Alton Carol FRANKS, Petitioner-Appellant, v. Mack ALFORD, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William P. Earley, Asst. Federal Public Defender, Oklahoma City, Okl., for petitioner-appellant.
Rozia M. McKinney, Asst. Atty. Gen. (Robert H. Henry, Atty. Gen., with her, on the brief), State of Okl., Oklahoma City, Okl., for respondent-appellee.
Before SEYMOUR, REINHARDT, * and TACHA, Circuit Judges.
Alton Franks brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1982), contending that his constitutional rights under the Sixth and Fourteenth Amendments were denied when the Oklahoma Court of Criminal Appeals modified his conviction from first degree murder to second degree murder instead of overturning his conviction. 1 The district court denied relief. Franks appeals and we reverse.
The state court record reflects the following facts. On the evening of September 29, 1977, Franks committed an armed robbery of a supermarket. A police officer, unaware of the robbery, stopped Franks after observing him speeding and running stop signs. Franks pointed a gun at the officer and disarmed him. The officer shoved Franks to the ground and ran. Franks fired shots from two guns before driving away without turning on his headlights. Shortly thereafter, he ran a stop sign and collided with another vehicle. The collision killed a three-month-old infant passenger in the other vehicle.
Franks was charged with felony murder under Okla.Stat. tit. 21, Sec. 701.7(B) (1981), which provides:
"A person also commits the crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first degree burglary or first degree arson."
The one-count information cited the supermarket robbery, robbery of the officer, and escape from lawful custody as the felony grounds. Franks admitted commiting the underlying offenses. At the first stage of the trial, after being instructed on first degree felony murder, second degree murder, first degree manslaughter, and negligent homicide, the jury found Franks guilty of first degree felony murder. At the second stage, the jury fixed Franks' punishment as death.
On direct appeal, the Oklahoma Court of Criminal Appeals reversed the felony murder conviction. The court held, inter alia, that (1) the facts did not support a finding of escape from lawful custody, and (2) there was no causal connection between the robberies and the homicide. Franks v. State, 636 P.2d 361 (Okla.Crim.App.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1729, 72 L.Ed.2d 147 (1982). Without further explanation, the court also held that the evidence supported Franks' guilt of second degree murder, defined under Okla.Stat. tit. 21, Sec. 701.8(1) as homicide "perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual." The court then modified Franks' conviction to second degree murder and reduced his sentence from death to life in prison, the maximum punishment for that crime. Franks applied for state post-conviction relief, challenging the modification of both his judgment of conviction and his sentence. The state district court ruled that the Court of Criminal Appeals was justified in modifying Franks' conviction and sentence. The Court of Criminal Appeals affirmed.
In his federal habeas petition, Franks asserted that the alteration of his conviction by the state appellate court under the facts of this case denied his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments. In rejecting this claim, the district court pointed out that Franks had requested instructions on lesser degrees of homicide and had not objected to the instruction on second degree murder based on Okla.Stat. tit. 21, Sec. 701.8. Citing Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the court held that this failure to object was a procedural default precluding Franks from thereafter contesting his conviction of second degree murder. Notwithstanding the finding of default, the district court proceeded to decide that the state court's action was not constitutionally infirm because, when the evidence at trial was viewed most favorably to the prosecution, any rational jury would have found the essential elements of murder in the second degree beyond a reasonable doubt.
On appeal, Franks argues that the district court misperceived the nature of his claim. We agree. Franks is not objecting to the propriety of giving an instruction on second degree murder, or to the content of the one given. Nor is he asserting that the record could not support a conviction of that crime. He contends that the Court of Criminal Appeals in essence convicted him of second degree murder on appeal and thereby denied him his constitutional right to have a jury assess his guilt of second degree murder. The asserted error thus occurred at the appellate level, and the procedural bypass rules of Fay and Wainwright do not apply.
Because "trial by jury in criminal cases is fundamental to the American scheme of justice, ... the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which--were they to be tried in a federal court--would come within the Sixth Amendment's guarantee." Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). Significantly, the Supreme Court has pointed out that "the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges." Id. at 156, 88 S.Ct. at 1451. Co...
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