Latosha Armstead v. MATTHEW J. FRANK , Secretary

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3980
L ATOSHA A RMSTEAD ,
Petitioner-Appellant,
v.
M ATTHEW J. F RANK , Secretary,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 C 115—Lynn Adelman, Judge.
____________
A RGUED M AY 26, 2004—D ECIDED S EPTEMBER 8, 2004
____________
Before B AUER , P OSNER and C OFFEY , Circuit Judges.
B AUER , Circuit Judge. Petitioner-Appellant Latosha
Armstead brought this habeas corpus claim under 28 U.S.C.
§ 2254 challenging her Wisconsin state conviction for first-
degree intentional homicide, party to a crime. The district
court denied the petition. Armstead appeals.
I. Background
In March 1997, Petitioner-Appellant Latosha Armstead,
age thirteen, was living with her grandmother, younger sister,

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2 No. 03-3980
and eighteen-year-old boyfriend James Williams. Around
that time, Armstead and Williams began discussing a plan
to steal a car. The car they planned to steal belonged to
Charlotte Brown, a home health aid worker who assisted
Armstead’s grandmother. The final plan called for murder-
ing Brown.
On March 10, 1997, Brown was scheduled to perform home-
care for Armstead’s grandmother. When Brown arrived,
Armstead and Williams asked her for a ride to visit a sick
relative. Brown agreed. Armstead got into the front seat
and Williams got in back. At some point during the ride,
Brown was directed into an alley and told to stop. Armstead
dropped her Walkman, as the plan dictated, and when
Brown reached over to pick it up, Williams looped a phone
cord around Brown’s neck. Armstead testified that she at-
tempted to cut the cord from around Brown’s neck using a
knife. Instead of cutting the cord, she succeeded in cutting
Brown’s neck. These cuts, however, were not deep and did
not directly contribute to Brown’s death from strangulation.
With the killing complete, Williams placed Brown’s corpse
in the back seat and called a friend named Pawpaw
(Sparticus Outlaw) for assistance. Armstead and Williams,
with the body of Brown, drove to Pawpaw’s house. Brown’s
body was dumped behind an abandoned house where it was
found at about six o’clock on the evening of March 10, 1997.
On March 11, 1997, Armstead and Williams returned home
with the car. Armstead told her mother, who was visiting at
the time, that her father had given her the car. After going
for a ride together, Armstead gave the vehicle to her
mother. On March 13, 1997, the police stopped Armstead’s
mother while she was driving Brown’s car.
Armstead and Williams were charged for the crime, but
they were tried separately. Despite her age, Armstead was
charged as an adult. She was convicted by a jury for first-
degree intentional homicide, party to a crime, and sen-

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No. 03-3980 3
tenced to life in prison. She appealed that conviction but it
was affirmed by the Wisconsin Court of Appeals.
Armstead filed for a writ of habeas corpus in the district
court for the Eastern District of Wisconsin. The petition was
denied. We granted a certificate of appealability as to
whether the trial court’s failure to give a felony murder in-
struction violated due process; whether the statutes govern-
ing juveniles under the jurisdiction of the adult courts
violate due process and equal protection; and whether the
trial court’s refusal to give an abandonment of intent
instruction violated due process.
II. Discussion
A. Failure to Instruct the Jury on Felony Murder
Armstead claims that her constitutional right to Due
Process was violated when the state trial court refused to
instruct the jury on the lesser-included-offense of felony
murder. The Wisconsin Court of Appeals did not address
the question of due process. Instead, it found the error to
instruct the jury was harmless error under state law. We
review the claim under 28 U.S.C. § 2254(a) and ask whether
Petitioner’s custody is a violation of the Constitution of the
United States. “We review the district court’s findings of
fact for clear error and its rulings on issues of law de novo.”
Reeves v. Battles, 272 F.3d 918, 920 (7th Cir. 2001).
In general, the failure of a state trial court to instruct
the jury on a lesser offense does not implicate a federal
constitutional question and will not be considered in a
federal habeas corpus proceeding. However, the omis-
sion of an instruction regarding a particular offense
may effectively result in a directed verdict, thereby
implicating Sixth and Fourteenth Amendment rights.
In a habeas action, the question is not whether the failure
to instruct on a lesser included offense was correct or

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4 No. 03-3980
incorrect under state law, but rather whether failure to
do so constituted a defect so fundamental that it results
in a complete miscarriage of justice or omission incon-
sistent with the standards of fair procedure. The
specific inquiry here is whether the failure to provide
[the contested instruction] so infected the entire trial
that the resulting conviction violated the appellant’s
right to due process. Because it is the omission of an
instruction that is at issue in this case, the appellant’s
burden is “especially heavy” because “omission, or an
incomplete instruction, is less likely to be prejudicial
than a misstatement of the law.”
Reeves, 272 F.3d at 920 (internal citations removed).
We are not persuaded that the failure to instruct the jury
on felony murder resulted in a miscarriage of justice.
Armstead testified that she withdrew from the conspiracy
prior to the murder but retained her intent to steal the car.
Armstead argues “that Latosha [Armstead] was guilty of
felony murder and not first-degree intentional homicide as
she abandoned the requisite intent to kill Brown.” However,
it is clear even from her account that she did not withdraw
from the plan prior to Williams looping the cord around
Brown’s neck. She dropped her Walkman on the floor of the
car so that Brown would lean over to pick it up; this was,
according to Petitioner’s brief, part of the plan. It was not
until Williams was in the process of strangling Brown that
Armstead says she withdrew. This is not legally sufficient to
prevent criminal liability for murder. Zelenka v. State, 266
N.W.2d 279, 288 (Wis. 1978). So, with the keystone of
Armstead’s argument removed, she offers no other reason
why the jury would have acquitted her of first-degree
intentional homicide but convicted her of felony murder.
There was no miscarriage of justice.

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No. 03-3980 5
B. Failure to Instruct Jury on Abandonment of Intent
Armstead argues that her right to present a defense was
violated when the trial court refused to give one of the two
proffered abandonment of intent instructions. As she states
in her brief, a defendant is entitled to have the jury con-
sider any defense which is supported by the evidence.
Fletcher v. State, 228 N.W.2d 708, 711 (Wis. 1975). As we
noted above, Armstead’s argument that she abandoned her
intent immediately prior to the death of Brown does not
address the issue. Once the bullet has left the gun, it is too
late to withdraw. See Zelenka, 266 N.W.2d at 288. Armstead
does not address this point in her briefs despite the fact that
the Wisconsin Court of Appeals partially based its findings
on such a proposition. State v. Armstead, 630 N.W.2d 275,
¶ 15 (Wis. Ct. App. 1st Dist. 2001).
C. Constitutionality of Wis. Stat. §§ 938.183 and 970.032
Throughout her appeals Armstead has argued that these
two statutes result in different treatment of children and
adults in adult criminal court. The state court on appeal
held, “[t]his claim, however, is moot because, . . . the failure
to give the felony murder instruction was harmless error. .
. . Accordingly, we need not address her claims of equal
protection and due process.” Armstead, 630 N.W.2d 275, at
¶ 12. Armstead again argued equal protection and due
process violations in the district court. Respondent consis-
tently answered that the state court’s finding was an
adequate and independent state ground and therefore,
there should be no review of this claim in federal habeas
proceedings. Armstead did not respond to this argument
until after the district court had entered judgment based on
respondent’s argument. She admits that this was an error
but nonetheless asks that we review the merits of this
claim. “To fail to do so would result in a fundamental
miscarriage of justice and would significantly prejudice the

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6 No. 03-3980
defendant,” she says. However, there is no further discus-
sion as to what prejudice or what miscarriage of justice she
refers to; this is simply a conclusory statement. Without more,
this constitutes waiver of the issue. Anderson v. Flexel, Inc., 47
F.3d 243, 247 (7th Cir. 1995); accord Holland v. Big River
Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999) (“[A]n issue
presented for the first time in a motion pursuant to Federal
Rule of Civil Procedure 59(e) generally is not timely raised;
accordingly, such an issue is not preserved for appellate
review unless the district court exercises its discretion to
excuse the party’s lack of timeliness and consider[s] the
issue.”) (citing Havoco of America, Ltd. v. Sumitomo Corp.
of America, 971 F.2d 1332, 1336 (7th Cir. 1992).
III. Conclusion
The district court’s decision denying the Petitioner-
Appellant habeas corpus relief is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-8-04

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