Snell v. Lockhart

• Decision Date: 22 March 1994
• Docket Number: 92-2265,Nos. 92-2157,s. 92-2157
• Citation: 14 F.3d 1289
• Parties: Richard Wayne SNELL, Appellant, v. A.L. LOCKHART, Appellee. Richard Wayne SNELL, Appellee, v. A.L. LOCKHART, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1289

14 F.3d 1289

Richard Wayne SNELL, Appellant, v. A.L. LOCKHART, Appellee.

Richard Wayne SNELL, Appellee, v. A.L. LOCKHART, Appellant.

Nos. 92-2157, 92-2265.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 15, 1993.

Decided Jan. 28, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied March

22, 1994.

Jeffrey Rosenzweig, Little Rock, AR, argued (G. William Currier and Beth Haroules, New York City, and John J. McAvoy and Harriet Ann Robinson, Washington, DC, on the brief), for appellant/cross-appellee.

Jackie W. Gillean, Deputy Atty. Gen., Little Rock, AR, argued, for appellee/cross-appellant.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

HENLEY, Senior Circuit Judge.

Richard Wayne Snell appeals the judgment of the district court ¹ partially denying his petition for a writ of habeas corpus. A.L. Lockhart, the Director of the Arkansas Department of Correction, cross-appeals to the extent the district court granted Snell's petition. We affirm in part and reverse in part.

I.

On November 3, 1983, William Stumpp was murdered during a robbery of his pawnshop in Texarkana, Arkansas. The case baffled authorities for almost eight months, but on June 30, 1984, Snell was apprehended in Broken Bow, Oklahoma, after he shot and killed Arkansas State Trooper Louis Bryant on a western Arkansas highway. Though Snell was originally charged only with the Bryant murder, investigators soon uncovered evidence linking him to the Stumpp murder. After a widely publicized trial, a jury convicted Snell for the murder of Trooper Bryant and sentenced him to life imprisonment without parole. ² On November 1, 1984, the same day he was sentenced in the Bryant case, prosecutors charged Snell for the murder of Stumpp. The Stumpp trial took place between August 13 and August 15, 1985, in Miller County Circuit Court in Texarkana. Court appointed attorneys Marshall Moore and Rick Shumaker represented Snell. At the conclusion of the trial, the jury convicted Snell of capital murder and sentenced him to die by lethal injection.

The Arkansas Supreme Court affirmed the conviction and sentence. Snell v. State, 721 S.W.2d 628 (Ark.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 202, 98 L.Ed.2d 153 (1987). The court later denied Snell's petition for post-conviction relief pursuant to Arkansas Criminal Procedure Rule 37. ³ Snell v. State, No. CR 85-206, 1988 WL 81730, (Ark. Oct. 3, 1988) (per curiam), cert. denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989).

On June 16, 1989, Snell filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1977). After seven days of hearings the district court denied Snell's petition as to his conviction. However, the court found that Snell's sixth amendment right to effective assistance of counsel had been violated because his attorneys had not objected to a jury instruction concerning the "pecuniary gain" aggravating circumstance. The district court therefore vacated Snell's death sentence and remanded to the Arkansas Supreme Court for appellate reweighing. Snell v. Lockhart, 791 F.Supp. 1367 (E.D.Ark.1992). The parties subsequently appealed to this court.

We review the district court's legal conclusions under a de novo standard. Prince v. Lockhart, 971 F.2d 118, 120 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1394, 122 L.Ed.2d 768 (1993). However, we reverse the court's factual findings only if clearly erroneous. Id.

II.

Snell asserted in his habeas petition that his rights to a fair trial and an impartial jury under the sixth and fourteenth amendments were violated due to massive amounts of pretrial publicity and the failure of the trial court to grant a change of venue. The district court rejected the claim because the record established that all jurors were impartial. On appeal, Snell initially asserts that prejudice should be presumed because the pretrial publicity in Miller County was so pervasive and inflammatory that a fair trial was impossible. He notes that during the thirteen months between the Bryant murder and the Stumpp trial local newspapers disseminated approximately two hundred articles relating to either the Bryant or Stumpp killings, to Snell himself, to the survivalist movement with which he was associated, ⁴ or to the deaths of four policemen in a traffic accident while en route to Bryant's funeral. Similar stories were also prominent on local television and radio. In the hearings below, Snell presented expert witnesses who testified that the publicity preceding Snell's trial was as great or greater than the publicity in virtually any other trial they had seen. However, the district court's opinion does not discuss Snell's argument that prejudice should be presumed without a review of the voir dire.

Prejudice may be "presumed from pretrial publicity when pretrial publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held." Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986); see also Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). However, this principle is rarely applicable, being reserved for extreme situations. Coleman, 778 F.2d at 1490; see also Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980) ("[O]nly in Rideau, itself, has the Supreme Court reversed a state court conviction on this basis of presumed prejudice deriving solely from pretrial publicity."), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981). Indeed, two of the cases upon which Snell heavily relies involved something more than mere pretrial publicity. In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Supreme Court noted that in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), both of which Snell cites extensively, prejudice was indeed presumed. However, the Court found those cases to be exceptional not because of the amount of publicity but rather because of the "circus atmosphere" of the trial proceedings themselves:

The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.

Murphy, 421 U.S. at 799, 95 S.Ct. at 2035 (emphasis added). The Eighth Circuit has been similarly reluctant to presume prejudice. See, e.g., Perry v. Lockhart, 871 F.2d 1384, 1391 (8th Cir.) ("Pretrial publicity can be the grounds for reversal only if it has actually prejudiced the jury."), cert. denied, 493 U.S. 959, 110 S.Ct. 378, 107 L.Ed.2d 363 (1989); Simmons v. Lockhart, 814 F.2d 504, 509 (8th Cir.1987) ("But the fact that potentially prejudicial material was published does not conclusively demonstrate that a fair trial is impossible in the local area. The press has a duty to report matters of legitimate public interest."), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 717 (1988); United States v. McNally, 485 F.2d 398, 403 (8th Cir.1973) ("Just because, however, there has been widespread or even adverse publicity is not in itself grounds to grant a change of venue."), cert. denied, 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974).

As an initial matter, we note that the expert testimony Snell presented in the district court is not decisive. Though the testimony establishes that the amount of publicity was great, it does not persuade us that the publicity was sufficiently prejudicial or inflammatory. One witness did attempt to analyze the content of the newspaper articles by counting the number of words in the articles creating either a negative image of Snell or a positive image of the victims. However, the record provides no evidence of what words the expert considered important. Moreover, the experts' comparisons between Snell's case and cases where venue was transferred are not conclusive, for we do not presume prejudice on collateral review merely because other trial judges would have granted a change of venue. A higher standard must be met when a petitioner seeks habeas relief on the basis of presumed prejudice. See Murphy, 421 U.S. at 804, 95 S.Ct. at 2038 (Burger, C.J., concurring) ("Although I would not hesitate to reverse petitioner's conviction in the exercise of our supervisory powers, were this a federal case, I agree with the Court that the circumstances of petitioner's trial did not rise to the level of a violation of the Due Process Clause of the Fourteenth Amendment."). To determine whether Snell has met that standard, we consider the circumstances preceding his trial.

As to the media reports themselves, the district court found that they were primarily factual rather than inflammatory. Upon review of the record, we conclude that that factual finding is not clearly erroneous, for the articles and broadcasts, though numerous, were fair, objective, and generally limited to a recitation of established facts. Few relevant editorials were released, and though several reports contained expressions of sadness or loss, very few hostile or vengeful statements were publicized. Furthermore, the media never represented that Snell's guilt was a foregone conclusion, as reports took care to describe him as a "suspect" or as the "alleged" culprit. The objective nature of the publicity is significant, for "[c]learly we must distinguish between largely factual publicity and that which is invidious or inflammatory." United States v. Faul, 748 F.2d 1204, 1212 (8th Cir.1984), cert. denied, 472 U.S....