Lankford v. Foster

• Decision Date: 12 August 1982
• Docket Number: Civ. A. No. 81-0159-R.
• Citation: 546 F. Supp. 241
• Parties: Charles LANKFORD, Petitioner, v. O. S. FOSTER, Sheriff, Respondent.
• Court: U.S. District Court — Western District of Virginia

546 F. Supp. 241

Charles LANKFORD, Petitioner, v. O. S. FOSTER, Sheriff, Respondent.

Civ. A. No. 81-0159-R.

United States District Court, W. D. Virginia, Roanoke Division.

August 12, 1982.

Christopher M. Hopkins, Hall, Surovell, Jackson & Colten, P. C., Fairfax, Va., Alan H. Levine, Clark, Wulf & Levine, New York City, for petitioner.

Thomas D. Bagwell, Asst. Atty. Gen., Richmond, Va., for respondent.

MEMORANDUM OPINION

TURK, Chief Judge.

Charles Lankford, currently incarcerated at the Roanoke County-Salem Jail Facility, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241-2254. Petitioner is detained pursuant to the judgment of the Circuit Court for the County of Fairfax entered on December 19, 1978, whereby petitioner was convicted of three counts of forcible sodomy and sentenced to ten years on each count with the terms to run consecutively, and with one term suspended.

STATEMENT OF FACTS

Charles Lankford until 1968 spent most of his life incarcerated for certain felonies, none of which was sex related. After his release, petitioner participated in numerous community rehabilitative activities. These activities ranged from a juvenile delinquent counselor to Director of a local branch of Offenders Aid and Restoration. Petitioner sought and was granted a full executive pardon for his prior offenses. In the course of his activities, petitioner received a number of awards and recognitions for his community service. In 1975, petitioner unsuccessfully campaigned for the Office of Sheriff of Fairfax County.

In 1968, petitioner married within a short time of his release. The woman he married had two daughters, one fourteen and the other nine, and one son, aged twelve or thirteen. Approximately one year after their marriage, a daughter was born. Eventually both the oldest daughter and the son by the wife's previous marriage left home. In 1975, the marriage began to fail. In March of 1978, petitioner and his wife entered into a voluntary separation agreement which provided, inter alia, joint custody of the daughter of their marriage with primary custody to be vested with petitioner. Despite petitioner's attempts to save the marriage, he filed for divorce on April 7, 1978, and sought sole custody of his daughter.

The prosecutrix in the convictions currently being challenged was the youngest step-daughter of petitioner. She was eight years old at the time her mother married petitioner. She lived in the Lankford home until August of 1977 when she left to join her natural father and attend college in Florida. Sometime in April of 1978, the stepdaughter related to her natural father that she had been sodomized on numerous occasions by petitioner while she had been living at the Lankford home between 1970 and 1976. As a result of these allegations, petitioner was indicted on three counts of sodomy. The indictments charged sodomy by petitioner with the mouth, by force, on or about December 20, 1975, sodomy by the mouth, by force, on or about October 2, 1976, and sodomy with the mouth, by force, on or about November 12, 1976, all in violation of Va. Code § 18.2-361 (1950).

Petitioner retained as counsel for the sodomy charges the same counsel who was representing him in the divorce proceedings. At the preliminary hearing, which was not recorded or in any other manner transcribed¹, certain evidence was presented. The preliminary hearing revealed for the first time the allegations of numerous uncharged sexual assaults. It also confirmed that petitioner was unsure of, or refused to commit herself to, the exact dates of the charged offenses for the October and November, 1976, assaults. Counsel submitted a Motion to Dismiss the two counts on due process grounds; however, the motion was denied.

The trial of the case was before a jury on December 18-19, 1978. The trial judge conducted the voir dire without any input from defense counsel or the Commonwealth's Attorney. The voir dire consisted solely of those questions prescribed by the Virginia Supreme Court in Rule 3A:20(a).

The defense put forth by petitioner's counsel involved both an alibi defense and an attack on the credibility of the prosecutrix.² Counsel later conceded that the alibi defense was not a strong one but it was there and might as well be used. Magistrate's Hearing, p. 320. Counsel therefore introduced evidence establishing the alibis through the testimony of the petitioner and various witnesses. The attempted attack on the credibility of the prosecutrix occurred through questioning phrased so as to indicate that the prosecutrix was assisting her natural mother in obtaining the custody of the daughter of the Lankford marriage through the timing of the revelations. Counsel also attempted to stress the incredibility of the number of assaults without any complaints from the prosecutrix until almost eighteen months after the last incident and without any knowledge of any other member of the family.

The Commonwealth prosecuted the case by calling five witnesses. The prosecutrix testified that the uncharged incidents began occurring at the age of nine and continued over one hundred times. She stated that she did not realize the significance of the encounters although petitioner told her not to tell her mother since knowledge of the incidents would hurt her mother. Other testimony brought out the facts that she developed a hatred for Lankford as her sexual awareness developed, she threatened Lankford with a knife during one quarrel, Lankford offered to set her up in business after her move to Florida, as well as to make her a beneficiary on his life insurance policy, and that the charges were brought at her natural father's insistence that her mother notify authorities.

Mrs. Lankford, the natural mother of the prosecutrix, testified for the prosecution with no objection from the defense counsel.³ Her testimony consisted of describing the marital and family relationships with petitioner from its beginning to some time after the separation. Included were statements that the prosecutrix moved to a room with a lock on the door when her sister moved out of the house.

The prosecution rested its case on the first day of trial and the defense began its case on the second day. Counsel for the defendant did not meet with petitioner on the intervening night to discuss the case or otherwise prepare the petitioner for the following day. As its case, the defense presented five witnesses on petitioner's behalf. The first witness implied the reason for the charges being brought was for the prosecutrix's mother to obtain custody over the Lankford's daughter. The next three witnesses provided the alibi defense upon which counsel relied. Although the prosecutrix had not determined the exact dates of the charged assaults, the witnesses stated where petitioner had been at the times the assaults allegedly had taken place. Finally, the petitioner was put on the stand to proffer evidence in the form of denials of the charged acts and possible motives for the accusations. He also elaborated on and disputed earlier testimony from his wife and step-daughter. Specifically, petitioner testified as to the discipline he accorded the step-daughter, denied the step-daughter's testimony that he offered to make her beneficiary on a life insurance policy, confirmed that sexual relations between he and his wife ceased shortly after the birth of their daughter, disputed the wife's testimony regarding violent outbursts after their separation and contended that the charges were a means of obtaining custody of their daughter.

After petitioner's testimony, the defense rested and the prosecution called rebuttal witnesses. These witnesses included a policeman, the brother of the prosecutrix, and the natural father of the prosecutrix. The testimony elicited from these individuals indicated that the prosecutrix was treated more leniently than the others, that the petitioner had offered to set the prosecutrix up in business, and that a warrant served upon petitioner for an argument with his wife was on a certain date instead of the date mentioned by the petitioner.

The Commonwealth's Attorney and counsel for defense submitted the jury instructions to the judge for examination and approval. None of the instructions so submitted defined either the crime in terms of the elements required for the Commonwealth to meet its burden of proof nor the elements themselves. The judge instructed the jury as to the crime through a reading of the statute but did not on his own motion define the crimes or their elements. The jury found petitioner guilty on all three counts and fixed his punishment at ten years, the maximum, on each count. The sentence on the third count ultimately ran concurrently with the other two sentences.

GROUNDS ASSERTED FOR HABEAS RELIEF

Petitioner primarily challenges the validity of his conviction by alleging that his attorney rendered ineffective assistance of counsel. Specifically, petitioner states the following acts and omissions rendered the assistance of counsel ineffective:

a. Defense counsel did not cause the testimony at the preliminary hearing to be recorded so as to provide a basis for subsequent impeachment of the prosecutrix;

b. Defense counsel did not attempt to exclude the prosecutrix's testimony as to prior uncharged acts;

c. Counsel failed to investigate available witnesses who could provide insight into the relationship between petitioner and the prosecutrix, and provide a motive for the accusation. Counsel also failed to secure the services of a psychiatrist to testify as to the motivation of the prosecutrix in making the accusation;

d. Counsel failed to discover during voir dire whether the jurors had strong feelings about sexual crimes;

e. Counsel failed to exclude petitioner's wife as a witness or moving for a mistrial when she was called;

f. Counsel did not rebut certain testimony deemed prejudicial to petitioner. Specifically, counsel

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