Fetterly v. Paskett

• Decision Date: 31 December 1998
• Docket Number: No. 90-35627,90-35627
• Citation: 163 F.3d 1144
• Parties: 99 Cal. Daily Op. Serv. 13, 1999 Daily Journal D.A.R. 37 Donald Kenneth FETTERLY, Petitioner-Appellant, v. Dave PASKETT, Warden, Idaho State Prison; and Alan G. Lance, * Attorney General of the State of Idaho, Respondents-Appellees. . Re
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1144

163 F.3d 1144

99 Cal. Daily Op. Serv. 13, 1999 Daily Journal

D.A.R. 37

Donald Kenneth FETTERLY, Petitioner-Appellant, v. Dave PASKETT, Warden, Idaho State Prison; and Alan G Lance, ^* Attorney General of the State of Idaho, Respondents-Appellees.

No. 90-35627.

United States Court of Appeals Ninth Circuit.

Reargued and Submitted March 31, 1993

Submission Deferred July 9, 1993

Resubmitted Nov. 30, 1998.

Decided Dec. 31, 1998.

Thomas J. McCabe, Westberg, McCabe & Collins, Boise, Idaho; David J. Burman, Perkins Coie, Seattle, Washington, for the petitioner-appellant.

Lynn E. Thomas, Solicitor General, Office of the Attorney General of the State of Idaho, Boise, Idaho, for the respondents-appellees.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding ^**. D.C. No. CV-89-1106-MJC.

Before: SCHROEDER, LEAVY, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

In 1993, we entertained an appeal by petitioner Fetterly from a denial by the district court of his petition for a writ of habeas corpus. Rather than decide the substantive claims in his petition, however, we deferred submission and issued a limited remand to the district court for further proceedings. We concluded that the district court erred in denying Fetterly a stay he requested in order to exhaust in state court newly identified federal constitutional claims. Our remand included an order to the district court to permit Fetterly to amend his petition to add newly exhausted claims. ¹

On remand, Fetterly's petition was eventually resolved by the district court as to his sentence of death. The district court ordered resentencing, and the State of Idaho acquiesced in that order. The State correctly points out, however, that Fetterly should not be resentenced until we resolve his pending habeas claims going to the validity of his convictions; and Fetterly agrees. Thus, we have stayed the district court's resentencing order, and we now proceed to the merits of his claims, each of which was rejected by the district court in 1990. In so doing, we borrow heavily without attribution from the district court's detailed Memorandum Decisions dated February 15, 1990, April 10, 1990, and August 1, 1990. ²

The claims we evaluate are (1) whether Fetterly was denied due process as a result of pretrial publicity and the trial court's denial of his multiple motions for change of venue, change of venire, and a continuance; and (2) whether his constitutional right against self-incrimination was violated by the admission in evidence of certain custodial statements he made to the police after his arrest.

I Pretrial Publicity

Shortly after they were arrested for an unrelated theft, Fetterly and Karla Windsor entered Sterling Grammer's home in his absence with the intent to steal Grammer's belongings and then his car. When Grammer returned home, Fetterly savagely stabbed him to death, and he and Windsor took their victim's car and dumped his body in the Snake River. Their avowed purpose was to get a "fresh start" in life. After fishermen discovered Grammer's body, police arrested Fetterly and Windsor whom they had recently observed driving both Grammer's car and his truck.

In support of his claim that pretrial publicity deprived him of his right to a fair trial, Fetterly submits material printed in local newspapers, the Idaho Press-Tribune and the Idaho Statesman. ³ These articles, which appeared before petitioner's trial on at least fourteen occasions, basically tell all, including: (1) every element of the offense; (2) the petitioner's prior criminal record; (3) the petitioner's recent release from jail on a separate and unrelated charge; (4) the petitioner's confession; and (5) the prosecuting attorney's claim that petitioner's confession "nails [him] to the wall." The sources of this information were the prosecutor and the local sheriff.

Because of this publicity, the petitioner requested a change of venue, or in the alternative the selection of jurors from outside the area covered by the two newspapers. The trial judge denied the motions without prejudice, reserving his final decision until completion of voir dire. The purpose of the trial judge was to determine whether enough impartial jurors could be found to hear the State's case.

On the day the jury panel was summoned for the beginning of voir dire, another extensive front page headlines article appeared in the Idaho Press-Tribune. The article repeated much of the information of which Fetterly complains. The case was also the subject of radio and television coverage. The next morning, the first day of trial, the petitioner's counsel moved once again for a change of venue and a continuance. The motions were denied, but the trial judge did permit separate and individual voir dire of the prospective jurors.

Fetterly makes two arguments about the pretrial publicity in this case. First, he argues that it was so extensive and damaging that we should presume prejudice and grant his writ. As authority for this proposition he refers us, inter alia, to Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Second, he asserts that the record reveals actual prejudice on the part of the jury that convicted him, prejudice generated by the prosecutor and the sheriff working with the media. Relying on Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), Fetterly says he has made an adequate showing of actual prejudice to compel the conclusion that he did not have a fair trial. We disagree with him on both counts.

The district court carefully examined the relevant publicity in this case, compared it to the publicity in cases involving presumed prejudice, and concluded that the comparison did not measure up. We agree. In the main, although the publicity-most of which occurred months before the trial-was comprehensive, it was no more extensive than what usually occurs in a case such as this; and other than the prosecutor's aggressive statement about "nailing" Fetterly to the wall, the publicity was not likely-even in a small rural community-to so poison the well that a fair trial was not possible. Moreover, the publicity focused on the facts of the case, not on inflammatory material that could not have been admitted in evidence.

The conclusive proof of this pudding is in the eating. When we examine the record for actual prejudice, we find none. The linkage that Fetterly must demonstrate does not exist. What we learn from the transcript of the voir dire of each individual juror who heard Fetterly's case is exactly what the district court learned from reviewing the same record. ⁴

The following jurors were selected to hear the evidence: (1) Carol Trimble, (2) George Puga, (3) Shirley Rau, (4) Carolyn Vermaas, (5) Mary Hennis, (6) Juanita Tabor, (7) Trula Carrow, (8) Earl Wright, (9) Virginia Schroder, (10) Hazel Davenport, (11) David Knoulton, (12) Marjorie Pulley, and (13) Gloria Gonzalez (alternate who did not deliberate). As far as we can tell from the record, not one of these jurors entered this trial either tainted by publicity or with an opinion regarding Fetterly's guilt. ⁵

Juror Carol Trimble had heard some facts surrounding the case; however, she had not formed an opinion. (Tr. of Voir Dire at 134-35). In addition, the facts that this juror had heard about prior to trial were facts which were introduced in evidence at trial. Juror George Puga stated that he had not read or heard anything about the case, which was supported by the fact that he did not take the local newspaper. He said, "I work graveyard during the day, and take care of my kids. I just watch very little T.V." (Tr. of Voir Dire at 141, 143). Juror Shirley Rau had read a newspaper article which contained some evidentiary facts about the case; however, it appears that the facts she could remember were introduced at trial. (Tr. of Voir Dire at 199). Juror Rau assured the court that she had not formed an opinion as to the defendant's guilt or innocence. (Tr. of Voir Dire at 199). Juror Carolyn Vermaas had read an article about someone being killed, but said, "I don't remember any of the details." (Tr. of Voir Dire at 204). She also indicated that she had not formed an opinion. Id. Juror Mary Hennis did not take or read the newspaper and knew nothing about the case. She said, "I've not heard anything specific about this case other than there was a case coming up." (Tr. of Voir Dire at 68). Juror Juanita Tabor also told the court that she knew nothing about the facts of the case. (Tr. of Voir Dire at 101). Juror Trula Carrow had heard that the case was going to trial but was not aware of any specific facts. (Tr. of Voir Dire at 117-18). Juror Earl Wright had scanned over a newspaper article, but he could not remember any specific facts. (Tr. of Voir Dire at 185). Mr. Wright also stated that he had not formed any opinions concerning the defendant's guilt or innocence. Id. Juror Virginia Schroder had read that a jury was going to be selected, but knew nothing factual about Fetterly or the case. (Tr. of Voir Dire at 167). Juror Hazel Davenport had heard about the case several months prior to the trial but could not remember any specifics at the time of trial. (Tr. of Voir Dire at 47). When asked whether he had learned anything about the case from the news, Juror David Knoulton said he did not know anything about it. (Tr. of Voir Dire at 48). Juror Marjorie Pulley knew some facts about the case but stated she had not formed any opinions and could be impartial. (Tr. of Voir Dire at 109-10). Finally, alternate Juror, Gloria Gonzalez, vaguely remembered hearing something about the case but could not remember the specifics. She also had not formed any opinions. (Tr. of Voir Dire at 216).

The night the jury was...