State v. Lankford

Decision Date03 July 2017
Docket NumberDocket No. 35617
CourtIdaho Supreme Court
Parties STATE of Idaho, Plaintiff-Respondent, v. Mark H. LANKFORD, Defendant-Appellant.

Eric Fredericksen, State Appellate Public Defender, Boise, for appellant. Shannon N. Romero argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. LaMont Anderson argued.

HORTON, Justice.

Mark Henry Lankford (Lankford) appeals from his judgment of conviction after a jury in Idaho County district court found him guilty of two counts of felony murder. Lankford argues that the district court erred in multiple ways and that he is entitled to a new trial. The State argues that Lankford has failed to prove that reversible error was committed by the district court and that Lankford's convictions should be affirmed.


Lankford and his brother, Bryan Lankford (Bryan), were both convicted and sentenced to death for the 1983 murders of Robert and Cheryl Bravence, who were brutally murdered while camping in the Sheep Creek area of Idaho County. State v. Lankford , 116 Idaho 860, 781 P.2d 197 (1989) ; State v. Lankford , 113 Idaho 688, 747 P.2d 710 (1987). Bryan's death sentence was overturned by the Supreme Court of the United States because the State failed to provide him with notice that the death penalty could be imposed. Lankford v. Idaho , 500 U.S. 110, 127, 111 S.Ct. 1723, 1733, 114 L.Ed.2d 173, 188–89 (1991). The Ninth Circuit vacated Lankford's conviction and sentence and ordered the State to re-try Lankford or release him. Lankford v. Arave , 468 F.3d 578, 592 (9th Cir. 2006) (finding ineffective assistance of counsel based upon Lankford's attorney requesting a jury instruction that failed to adequately instruct jurors regarding accomplice testimony).

A new trial was held in 2008, and on February 13, 2008, a jury again found Lankford guilty of both murders. Lankford then filed a motion for new trial. In July 2008, Lankford was sentenced to two consecutive fixed life sentences, which he timely appealed. The appeal was suspended until proceedings on Lankford's motions for new trial were decided. On October 7, 2009, the district court denied Lankford's motion for new trial.1 Lankford filed his Second Motion for a New Trial on October 29, 2009, and on December 6, 2013, that motion was denied as well. Lankford timely appealed from the denial of his motions for new trial. Lankford also filed a pro se Rule 35 motion for correction of an illegal sentence which the district court found to be untimely.2 On July 25, 2016, this Court released its original decision in this appeal. We thereafter granted the State's petition for rehearing.


Lankford advances four primary arguments in support of his claim that the district court erred. These are that the district court: (1) made biased and prejudicial comments during voir dire; (2) provided erroneous and misleading jury instructions; (3) violated Idaho Code section 19-2405 ; and (4) improperly denied Lankford's pro se Rule 35 motion. In addition to these claimed errors by the district court, Lankford alleges prosecutorial misconduct and that the cumulative effect of the district court's errors and the prosecutor's misconduct warrant a new trial. Lankford's contentions will be discussed in turn.

A. The district court did not err during voir dire.

Lankford contends that he was denied his right to due process and a fair trial because, during the course of voir dire, the district court advised potential jurors that there had been a previous trial. Lankford argues that this irreparably prejudiced the jury and that a new trial is warranted. The State responds that Lankford's claim is barred by the invited error doctrine and that Lankford has failed to establish fundamental error.

1. Standard of Review

We review constitutional claims de novo. State v. Easley , 156 Idaho 214, 218, 322 P.3d 296, 300 (2014). However, because Lankford did not object to the district court's statements to the jury, he must demonstrate that the district court's actions constituted fundamental error. State v. Draper , 151 Idaho 576, 588, 261 P.3d 853, 865 (2011). Fundamental error is error that: "(1) violates one or more of the defendant's unwaived constitutional rights; (2) plainly exists (without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision); and (3) was not harmless." State v. Perry , 150 Idaho 209, 228, 245 P.3d 961, 980 (2010).

2. Lankford's claim is not barred by the invited error doctrine.

"The purpose of the invited error doctrine is to prevent a party who caused or played an important role in prompting a trial court to give or not give an instruction from later challenging that decision on appeal." State v. Blake , 133 Idaho 237, 240, 985 P.2d 117, 120 (1999). "It has long been the law in Idaho that one may not successfully complain of errors one has acquiesced in or invited. Errors consented to, acquiesced in, or invited are not reversible." State v. Dunlap , 155 Idaho 345, 379, 313 P.3d 1, 35 (2013) (internal citations omitted) (quoting State v. Owsley , 105 Idaho 836, 838, 673 P.2d 436, 438 (1983) ). However, an appellant who did not encourage the district court to offer the specific instructions given, but merely failed to object, is not precluded by the invited error doctrine from raising an issue on appeal. State v. Adamcik , 152 Idaho 445, 477, 272 P.3d 417, 449 (2012) ; Blake , 133 Idaho at 240, 985 P.2d at 120.

While the State has presented various transcript excerpts and other evidence which suggest that Lankford explicitly agreed to the district court's voir dire advisement regarding the prior trial, the State ultimately concedes that, although discussed between the parties, "there is nothing in the record explicitly stating what [defense] counsel suggested" the court do to handle the issue of the earlier trial. Because there is no record of explicit suggestion, encouragement, or acquiescence by Lankford regarding the advisement and because a failure to object is not enough to invoke the invited error doctrine, we hold that Lankford's claim is not barred and will consider the underlying claim of fundamental error.

3. The district court's advisement about Lankford's prior trial did not constitute fundamental error.

Lankford argues that the district court's statement about a prior trial and appeal is indistinguishable from telling the jury that Lankford had been found guilty and convicted by a previous jury. Indeed, Lankford states "The district court told jurors during voir dire that Mark had previously been tried and convicted of the charged crimes in 1984...." Lankford then contends that the district court's statement was "inherently prejudicial," "cannot be cured or minimized by a contemporaneous limiting instruction," affected the "base structure" of a constitutional right, and requires that Lankford's "convictions must be vacated." More succinctly stated, Lankford is arguing that the district court's advisement created an implied bias in the jury.

As this Court has noted many times, the right to a fair trial before an impartial jury is fundamental to both the U.S. Constitution and the Idaho Constitution. U.S. Const. amends. VI, XIV ; Idaho const. art. 1, sections 7, 13 ; see also, e.g. , State v. Abdullah , 158 Idaho 386, 421, 348 P.3d 1, 36 (2014). The Supreme Court of the United States has noted: "It is elementary that a fair trial in a fair tribunal is a basic requirement of due process," Weiss v. United States , 510 U.S. 163, 178, 114 S.Ct. 752, 761, 127 L.Ed.2d 1, 15–16 (1994) ; and this Court has stated that the due process requirements of the Idaho Constitution require "a trial by a fair and impartial jury." State v. Nadlman , 63 Idaho 153, 163, 118 P.2d 58, 62 (1941). The impartiality of a juror may be challenged for "actual or implied" bias. United States v. Wood , 299 U.S. 123, 133, 57 S.Ct. 177, 179, 81 L.Ed. 78, 81–82 (1936) ; Abdullah , 158 Idaho at 421, 348 P.3d at 36. Actual bias deals with the specific state of mind of an individual juror and is proved by questioning the juror as to whether he or she can serve with entire impartiality. I.C. § 19-2018(2) ; Abdullah , 158 Idaho at 421–22, 348 P.3d at 36–37. Implied bias, however, conclusively presumes bias as a matter of law based on the existence of a specific fact. I.C. § 19-2018(1) ; Wood , 299 U.S. at 133, 57 S.Ct. at 179, 81 L.Ed. at 81–82.

Many courts, including the Supreme Court of the United States, have held that the fact that a juror knew that the defendant has been found guilty or convicted by a previous jury for the same crime creates an implied bias and constitutes fundamental error because it is inherently prejudicial. Leonard v. United States , 378 U.S. 544, 544, 84 S.Ct. 1696, 1696, 12 L.Ed.2d 1028, 1028 (1964) (per curiam) (recognizing that a jury containing jurors that had previously heard a defendant pronounced guilty in open court on similar charges was "plainly erroneous"); see also, e.g. , Arthur v. Bordenkircher , 715 F.2d 118, 120 (4th Cir. 1983) ; United States v. Williams , 568 F.2d 464, 470–71 (5th Cir. 1978) ; Bailey v. State , 521 A.2d 1069, 1076 (Del. 1987) ; Salas v. People , 177 Colo. 264, 493 P.2d 1356, 1357 (1972) ; State v. Lee , 346 So.2d 682, 683–85 (La. 1977) ; Weber v. State , 501 So.2d 1379, 1381–85 (Fla. Dist. Ct. App. 1987). But see State v. Fraga , 864 N.W.2d 615, 621–23 (Minn. 2015) (holding that the knowledge of two jurors that defendant was previously convicted for the same charges did not create an implied bias); People v. Dashnaw , 116 A.D.3d 1222, 1229–30, 983 N.Y.S.2d 681 (2014) (holding that a trial court's statement to potential jurors that the defendant's prior conviction had been reversed did not deprive the defendant of a fair trial where jurors had been repeatedly instructed that they could not consider that...

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