362 F.2d 908 (9th Cir. 1966), 20602, Hilliard v. State of Arizona

Docket Nº:20602.
Citation:362 F.2d 908
Party Name:Felton M. HILLIARD, Appellant, v. STATE OF ARIZONA, Appellee.
Case Date:June 24, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 908

362 F.2d 908 (9th Cir. 1966)

Felton M. HILLIARD, Appellant,



No. 20602.

United States Court of Appeals, Ninth Circuit.

June 24, 1966

Page 909

         Lawrence C. Cantor, Phoenix, Ariz., for appellant.

         Darrell F. Smith, Atty. Gen. of Ariz., James S. Tegart, Asst. Atty. Gen. of Ariz., Phoenix, Ariz., for appellee.

         Before HAMLEY and JERTBERG, Circuit Judges, and THOMPSON, District Judge.

         THOMPSON, District Judge:

         This is an appeal from the denial by the United States District Court for the District of Arizona of Felton M. Hilliard's Petition for a Writ of Habeas Corpus. Appellant was convicted of rape and burglary by a jury in an Arizona trial court in 1959. When the case came on for trial, one of the prospective jurors stated, on voir dire: 'Your Honor, I don't know if I am acquainted with him (the defendant) or not, but he is the one that attacked my daughter several years ago, so * * *.' The trial judge promptly declared a mistrial, dismissed the jury panel, and, on the following day, excused all the new prospective jurors who indicated they had heard of the events of the preceding day. After a defense motion for a continuance until a new jury venire 1 could be called was denied, a jury chosen from the remaining prospective jurors was impaneled.

         At the commencement of the trial, and again at the end of that day's proceedings, the Judge instructed the jury regarding their duties as jurors, admonishing them to avoid out of court communications relating to the case, including newspaper articles. 2 That evening and again on the morning of the next day, there appeared in the local newspapers articles respecting Hilliard's initial court appearance and the resulting mistrial. 3 When Court convened the next day, the trial judge refused defense counsel's request to poll the jury to ascertain if any of the jurors had read the articles. This refusal and the denial of a continuance, which were the subject of an unsuccessful appeal to the Supreme Court of Arizona, reported at 89 Ariz. 129, 359 P.2d 66, constitute the bases for the Petition, and it is urged that these events resulted in denial to Appellant of his constitutional right to a trial by a fair and impartial jury. The District Court disagreed with this contention, and so do we.

          It is clear that massive adverse publicity and intrusion of representatives of the news media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed by due process of law are denied to the defendant. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, decided June 6,

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1966; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). This is not such a case. Unless we can say that the events which transpired during the state court proceedings amounted to a denial of a fair trial-- by which we mean the minimum procedural protections required by the Fourteenth Amendment-- we must affirm. As the Supreme Court stated in Spies v. Illinois, 123 U.S. 131, 179-180, 8 S.Ct. 22, 30-31, 31 L.Ed. 80 (1887):

         'In Reynolds v. U.S. (98 U.S. 145, 25 L.Ed. 244), * * * we said '* * * The case must be one in which it is manifest the law left nothing to the 'conscience or discretion' of the court.' If such is the degree of strictness which is required in the ordinary cases of writs of error from one court to another in the same general jurisdiction, it certainly ought not to be relaxed in a case where, as in this, the ground relied on for the reversal by this court of a judgment of the highest court of the State is, that the error complained of is so gross as to amount in law to a denial by the State of a trial by an impartial jury to one who is accused of crime.'

          When a juror's impartiality is put in issue, the nature and extent of permissible inquiry of that juror, to ascertain if he has any opinions about the case and if so, whether such opinions would influence him and prevent him from finding his verdict solely in accordance with the evidence presented in Court, is a matter within the discretion of the trial judge and raises no constitutional issue unless the procedures followed are, as a whole, unreasonable and devoid of purpose to obtain an impartial tribunal. Reynolds v. United States, supra; Connors v. United States, 158 U.S. 408, 15 S.Ct. 951, 39 L.Ed. 1033 (1895); Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). Cases such as Itow v. United States, 223 F. 25 (9th Cir. 1915); United States v. Mesarosh, 223 F.2d 449 (3rd Cir. 1955); United States v. Jannsen, 339 F.2d 916 (7th Cir. 1965); Palmer v. United States, 340 F.2d 48 (5th Cir. 1964); and Semler v. United States,...

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