Lankford v. Foltz
| Decision Date | 30 July 1985 |
| Docket Number | PETITIONER-APPELLANT,RESPONDENT-APPELLEE |
| Citation | 770 F.2d 166 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. ARTHUR LANKFORD,, v. DALE FOLTZ, NO. 84-1814 |
| Court | U.S. Court of Appeals — Sixth Circuit |
E.D.Mich.
AFFIRMED
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
Before: MERRITT and WELLFORD, Circuit Judges; and SPIEGEL, District Judge. *
In this appeal from District Judge Cohn's denial of his habeas corpus petition, Arthur Lankford, convicted in March, 1978, by a Wayne County, Michigan, Circuit Court jury of first degree murder, argues that he was denied his Fourtheenth Amendment right to notice of the charges against him because the prosecution added and the trial court instructed the jury on a charge of first degree premeditated murder when the information charged only first degree felony murder. He also contends that his trial was rendered fundamentally unfair, in violation of the Sixth Amendment, by various acts of prosecutorial misconduct, and that his jury conviction was not supported by sufficient evidence. While our reasoning regarding emendation of the information differs from that of Judge Cohn, we affirm the District Court's decision and deny Lankford's petition.
I.
Lankford was convicted of first degree murder in connection with the killing of Ben Davis during the robbery of a card game in Ecorse, Michigan, on May 3, 1977. The evidence presented by the prosecution showed that Lankford met with four other men at the home of his girlfriend on the evening of May 2, 1977, planned the robbery, and waited outside in an automobile while the robbery and murder occurred. Dan Allen testified (see A. 131-45) that Lankford picked him up in his car on that evening and asked him if he wanted to make some money by robbing a card game at The Hole, a backroom card parlor in a bar in Ecorse. Allen acted as the door man for card games at The Hole, where his father and uncle often played, and Lankford told Allen that Allen's role in the robbery would be to leave the back door to The Hole open for the others to enter.
Allen testified further that after he accepted Lankford's offer, they drove to the home of Eleanor Coleman, Lankford's girlfriend, where he met Marion Robinson, Richard MacDonald and Richard, an as yet unapprehended member of the group. Allen testified that Lankford called each member of the group into the kitchen, and talked to them separately. MacDonald testified (see A. 161-188) that Lankford told him they were going to do a 'ripoff,' and Allen said Lankford asked him if he was all set to go. Both Allen and MacDonald testified that Lankford's girlfriend made several phone calls to The Hole during the course of the evening, each time asking if Ben Davis was there.
At approximately 1:30 in the morning on May 3, Lankford, MacDonald, Allen, Robinson and Richard left Lankford's girlfriend's house in Lankford's car. Lankford stopped at two houses where he went inside and returned with a sawed off shotgun and rifle, and then drove to his own home where he obtained a pistol. As they drove to The Hole, MacDonald asked about the type of the pistol, and, apparently impressed that it was a nine millimeter blue steel revolver, asked if he could use it in the robbery. Lankford told him that Richard was going to use the pistol.
When they arrived at The Hole, Lankford and Allen went in briefly and then Lankford returned to await Allen's phone call at a nearby pay phone booth. Lankford took the call, and returned to his car while MacDonald, carrying the shotgun, Robinson, carrying the rifle, and Richard, revolver in hand, went into The Hole through the back door which Allen had opened. MacDonald and Robinson wore stocking masks but Richard did not wear a mask.
MacDonald stated that upon entering The Hole, Robinson shouted that it was a stickup and ordered everyone to get up against the wall. MacDonald went into the bathroom to retrieve some of the card players who had attempted to hide there. When he returned, he saw Richard standing over Ben Davis with his pistol at Davis' head, and heard Davis mumbling something before immediately seeing Richard's gun fire and Davis slump to the floor. MacDonald said he was shocked and argued with Richard over why he had shot Davis. The group fled, without apparently finding any money, and returned to Lankford's car, where MacDonald told Lankford that a man had been shot. When Richard got into the car, Lankford turned to him and asked, 'Was it Ben?' who had been shot. Allen stated that later, after they had returned to Lankford's girlfriend's home, Robinson and MacDonald told him they had no idea why Richard had shot Davis.
In an attempt to establish that the robbery was set up by Lankford as a cover for Davis' murder, the prosecution introduced testimony by Bessie Moore, one of the card players who frequented The Hole. She said the same card game had been robbed several weeks before, and that Ben Davis had stated on several occasions that he knew two of the men who had robbed the game and was going to kill them. A. 90-100, 107-09. Allen testified that in his initial conversation on May 2 with Lankford, Lankford told him that the robbery would be safe and nobody would be hurt, just like the earlier robbery. A. 159. The prosecution thus attempted to show that Lankford arranged Davis' murder because Davis knew that Lankford had participated in the previous robbery and was going to kill him.
Lankford relied on an alibi defense. He and his father testified that he had driven to Atlanta Georgia, on April 23, 1977, and was in Atlanta on the date of the crime.
Lankford was charged by information, as is the normal method of bringing criminal charges in Michigan. The first count charged that 'while in the perpetration or attempted perpetration of ROBBERY (Lankford) did kill and murder one BEN DAVIS, JR., Contrary to Sec. 750.316, M.C.L.A.' A. 14. He was thus charged generally with first degree murder, since M.C.L.A. Sec. 750.316 provides that both 'wilful, deliberate and premeditated killing' and killing 'committed in the perpetration, or attempt to perpetrate any . . . robbery' shall constitute first degree murder. Lankford was also charged with possession of a firearm while in commission of a felony(felony-firearm) under M.C.L.A. 750.227(b). 1
Lankford's trial was severed from that of his codefendants. At an earlier trial, MacDonald was convicted of armed robbery and possession of a firearm while in commission of a felony, and Robinson was acquitted of all charges. Allen had not been tried when Lankford's trial was held. In exchange for Allen's testimony, the prosecutor agreed to charge Allen with armed robbery, to dismiss the first degree murder charge against him, and to recommend leniency at sentencing. According to the prosecution's opening statement, Richard, the unapprehended killer, was Lankford's cousin.
In his opening statement to the jury, the prosecutor said the charge against Lankford was murder in the first degree, either through a premeditated plan to kill Davis or under the felony-murder statute. A. 55-59. The defendant raised no objection during this portion of the opening statement.
The prosecution's theory of the case given by the court in its jury charge was that 'Ben Davis was shot and killed during the perpetration of the robbery and further that the murder of Ben Davis was planned' and that 'defendant planned the death of Ben Davis' and also planned the felony underlying the felony-murder charge. A. 367. Lankford's counsel objected to instructing the jury on the prosecution's planned murder theory on the ground that no evidence had been supported to substantiate the theory, but the trial court overruled that objection, finding there was circumstantial evidence supporting the theory. A. 266-67.
The trial court instructed the jury on the elements of felony murder but not on the elements of first-degree premeditated murder. A. 359-361. However, the court also instructed the jury that they could convict Lankford of first degree premeditated murder:
You have been instructed there are two kinds of first degree murder. Those two kinds are: One, willful, deliberate and premeditated murder and two, felony murder. Both are kinds of first degree murder.
A verdict in a criminal case must be unanimous. To be unanimous, each of you must agree upon which kind of first degree murder has been proven or that both kinds of first degree murder have been proven.
In otherwords, before you may return a verdict of guilty of first degree murder, each of you must agree that the verdict is willful, deliberate and premeditated murder or each of you must agree that the verdict is felony murder.
A. 363.
During its deliberations, the jury twice asked for definitions of the possible verdicts and the elements of the crimes for which Lankford could be convicted, but while the court reinstructed the jury on first degree felony-murder, second degree murder, and felony-firearm, on neither occasion did it repeat its original instruction that Lankford could be found guilty of first degree premeditated murder. A. 378-85, 390-95.
The jury found Lankford guilty of murder in the first degree and felony-firearm. A. 398. On May 12, 1980, the Michigan Court of Appeals affirmed Lankford's convictions in an unpublished memorandum opinion. People v. Lankford, No. 78-2783. On May 27, 1981, the Michigan Supreme Court reversed Lankford's felony-firearm conviction due to erroneous jury instructions and remanded the case for a new trial on the felony-firearm charge. People v. Lankford, 411 Mich. 939 (1981). Lankford has apparently never been retried on the felony-firearm charge.
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