163 F.3d 1144 (9th Cir. 1998), 90-35627, Fetterly v. Paskett

Docket Nº:90-35627.
Citation:163 F.3d 1144
Party Name: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.
Case Date:December 31, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1144

163 F.3d 1144 (9th Cir. 1998)

D.A.R. 37

Donald Kenneth FETTERLY, Petitioner-Appellant,


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

December 31, 1998

Submission Deferred July 9, 1993 Reargued and Submitted March 31, 1993

Submission Deferred July 9, 1993

Resubmitted Nov. 30, 1998.

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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

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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.


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...

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