State v. Lankford

• Decision Date: 04 April 1989
• Docket Number: 16170,Nos. 15760,s. 15760
• Citation: 116 Idaho 279,775 P.2d 593
• Parties: STATE of Idaho, Plaintiff-respondent, v. Bryan Stuart LANKFORD, Defendant-appellant.
• Court: Idaho Supreme Court

Page 593

775 P.2d 593

116 Idaho 279

STATE of Idaho, Plaintiff-respondent, v. Bryan Stuart LANKFORD, Defendant-appellant.

Nos. 15760, 16170.

Supreme Court of Idaho.

April 4, 1989.

Joan M. Fisher, Genessee, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen. (argued), Boise, for plaintiff-respondent.

BAKES, Justice.

This matter is before us on remand from the Supreme Court of the United States. That Court vacated our decision affirming Bryan Lankford's conviction and death sentence, State v. Lankford, 113 Idaho 688, 747 P.2d 710 (1987), and remanded for further consideration in light of its recent decision in Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). Lankford v. Idaho, 486 U.S. 1051, 108 S.Ct. 2815, 100 L.Ed.2d 917 (1988). After further consideration we again affirm the judgment of conviction and sentence imposed.

I

Our decision on remand requires us to analyze the United States Supreme Court opinion in Satterwhite. The Court began its opinion with the following:

"In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), we recognized that defendants formally charged with capital crimes have a Sixth Amendment right to consult with counsel before submitting to psychiatric examinations designed to determine their future dangerousness." 108 S.Ct. at 1794-1795.

The Court in Satterwhite further stated:

"We granted certiorari to decide whether harmless error analysis applies to violations of the Sixth Amendment right set out in Estelle v. Smith." 108 S.Ct. at 1796.

The Court in Satterwhite held that the harmless error analysis does apply.

In this case Lankford did not raise the issue of a sixth amendment violation either at trial or on appeal. Accordingly, this issue is waived. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). ¹

II

Lankford also argues that his fifth amendment privilege against self incrimination was violated when the trial court referred in sentencing to Lankford's testimony at the hearing for Mark's new trial motion. In its "FINDINGS OF THE COURT IN CONSIDERING DEATH PENALTY UNDER SECTION 19-2515, IDAHO CODE," the trial court considered the objective of "rehabilitation" and noted:

"The defendant has shown no remorse for his offenses. He has not cooperated with authorities after his arrest. He has told authorities that he and his brother had nothing whatsoever to do with the death of the Bravences. He has testified that his brother was alone involved in the murders. He has testified (On October 10, 1984, in the companion case, State v. Mark Lankford, Idaho County Case No. 20158) that he called the Lewiston Tribune and claimed that it was he alone who murdered the Bravences[.] [T]his he later denied and offered the explanation which is set forth in the addendum to the presentence investigation report under date of October 3, 1984, to the effect that it was simply part of a plan that would secure freedom for his brother who could in turn free him.

"Suffice it to say that defendant has failed to take any responsibility whatsoever for his actions. This court specifically finds that the defendant has no capacity for rehabilitation."

Assuming that Satterwhite applies equally where a fifth amendment violation is shown, as distinguished from a sixth amendment violation, we now analyze the fifth amendment issue since it was adequately raised on direct appeal and therefore was not waived.

As we stated in our original opinion, footnote 7, there is no factual predicate for a fifth amendment violation. Footnote 7 states:

"7. Lankford asserts that the district court judge used the immunized testimony in its findings of fact to support the imposition of the death penalty. However, the record does not support that assertion. While the district court described Lankford's testimony at his brother's motion for new trial in its sentencing memorandum, it was not considered as an aspect of any of the statutory aggravating circumstances found by the court. During the district court's oral discussion of the sentence, the judge stated:

'The defendant has shown no remorse for his offenses. He has not cooperated with authorities after his arrest. He has told authorities that he and his brother had nothing whatsoever to do with the death of the Bravences. He has testified that his brother was alone involved in the murders. He has testified on October 10, 1984 in the companion case, State v. Mark Lankford, Idaho County Case No. 20158, that he called the Lewiston Tribune and claimed that it was he alone who murdered the Bravences. This he later denied and offered the explanation which is set forth in the addendum to the presentence investigation report under date of October 3, 1984, to the effect that it was simply part of a plan that would secure freedom for his brother, who could in turn free him.'

"Although it is true that the district court judge pointed out the conflicting testimony given by Lankford at various times, including the testimony given pursuant to the immunity agreement, there has been no showing that the sentence was based upon the comments quoted above."

After further review of the "FINDINGS OF THE COURT IN CONSIDERING DEATH PENALTY UNDER SECTION 19-2515, IDAHO CODE," we continue to adhere to the view expressed in footnote 7 of our original opinion. Accordingly, we find no factual predicate for Lankford's claim.

III

Even if we assume that the trial court considered Bryan's testimony at Mark's motion for new trial in arriving at Bryan's sentence, this consideration does not constitute a violation of the fifth amendment. Lankford's testimony at his brother's hearing for new trial related a version of facts given twice previously, once voluntarily at his own trial and again at Mark's trial pursuant to the immunity agreement. That testimony, as the trial court noted, was that "his brother was alone involved in the murders." This differed from Lankford's original version, that neither were involved. The whole basis of Mark's motion for new trial was that Bryan Lankford telephoned a local newspaper, the Lewiston Tribune, recanted his previous testimony and asserted, as the trial court noted, "that it was he [Bryan] alone who murdered the Bravences." By the time the motion was heard, Bryan Lankford had recanted the version he gave to the Lewiston Tribune, and reasserted the version he gave at his own trial and at his brother's trial.

The trial court's only reference at sentencing to Bryan Lankford's testimony given at the hearing on Mark's motion for a new trial, was to note the recurrent changes in Bryan Lankford's story. The trial court did not believe the substance of Bryan's Tribune story--that he alone committed murder. In denying Mark's motion for new trial, the trial court stated:

"I'm satisfied that the new evidence that does consist of the statement by Bryan Lankford to the effect that he was totally responsible for the death or deaths of the Bravences was false. That particular statement was merely a product of depression, an effort, perhaps to get attention, certainly an effort to get out of trouble or to avoid punishment for what he did, and it is a very real possibility that two involved in a crime such as this, after they are both convicted of first degree murder, could tell then, different stories to help one get a new trial and, then, the other one could help the other get a new trial and certainly eventually hope for the acquittal of both or the acquittal of one."

The only consideration given to Lankford's testimony at Mark's new trial proceeding was that it again supported the trial court's observation that Lankford had not taken responsibility for his actions as evidenced by his repeated attempts to upset the course of justice by constantly changing his story, which damaged his credibility in the eyes of the court.

When Bryan Lankford, while represented by counsel, voluntarily took the stand in his own defense, testified at length concerning the entire transaction, and was cross examined, he effectively waived any immunity he had under the fifth amendment with respect to the subject matter of the testimony he gave. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). Having thus waived any privilege against self incrimination, the trial court could consider at sentencing the fact that Lankford was continually giving false testimony under oath, by his ever changing version of the facts. As the trial court noted, Lankford, by continuing to change his story, "failed to take any responsibility whatsoever for his actions." To the trial court, Lankford's continual testifying falsely under oath evidenced a scheming on his part which demonstrated a lack of "capacity for rehabilitation."

Lankford argues that the sentencing was a proceeding entirely separate from his trial and that he can therefore reassert his waived privilege. However, if a defendant has previously waived his privilege against self incrimination by voluntarily testifying at trial, that waiver continues into sentencing with respect to the testimony voluntarily given at trial. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). See also Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); cf. United States v. Houp, 462 F.2d 1338, 1340 (8th Cir.1972) ("Once the privilege is effectively waived, the information given is admissible at any subsequent trial," citing Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1981)); Neely v. State, 97 Wis.2d 38, 292 N.W.2d 859, 864 (1980) ("[A] defendant who takes the stand in his own behalf cannot then claim the privilege against cross examination on matters reasonably related to the subject matter of his direct examination," citing McGautha v....