554 F.2d 813 (8th Cir. 1977), 76-1427, Mastrian v. McManus

Docket Nº:76-1427.
Citation:554 F.2d 813
Party Name:Norman J. MASTRIAN, Petitioner-Appellant, v. Bruce W. McMANUS, Warden, Minnesota State Prison, Respondent-Appellee.
Case Date:April 05, 1977
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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554 F.2d 813 (8th Cir. 1977)

Norman J. MASTRIAN, Petitioner-Appellant,

v.

Bruce W. McMANUS, Warden, Minnesota State Prison, Respondent-Appellee.

No. 76-1427.

United States Court of Appeals, Eighth Circuit

April 5, 1977

Submitted Nov. 8, 1976.

Certiorari Denied June 27, 1977.

See 97 S.Ct. 2985.

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Jack S. Nordby, St. Paul, Minn., for appellant.

Steven C. DeCoster, Asst. Ramsey County Atty., St. Paul, Minn., for appellee; Warren Spannaus, Atty. Gen., William B. Randall, Ramsey County Atty., St. Paul, Minn., on the brief.

Before GIBSON, Chief Judge, and HEANEY and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

Norman Mastrian was charged by indictment with the murder of Carol Thompson. 1 He was granted a change of venue from St. Paul to Duluth, Minnesota, tried in the latter city and convicted of first degree murder. His motions for a judgment of acquittal or for a new trial, for arrest of judgment, and for a new trial based on newly discovered evidence were each denied in post-trial orders by the state district court. The Minnesota Supreme Court affirmed the judgment of conviction and the denials of his several motions. State v. Mastrian, 285 Minn. 51, 171 N.W.2d 695, cert. denied, 397 U.S. 1049, 90 S.Ct. 1381, 25 L.Ed.2d 662 (1969).

By petition for writ of habeas corpus to the federal District Court for the District of Minnesota, Mastrian alleged several violations of his constitutional rights: first, that prejudicial publicity and attendant errors of the court denied him a fair trial by an impartial jury; second, that he was prejudiced by his illegal arrest; third, that the two-year delay by the federal District Court in hearing his petition effectively violated his right to habeas corpus; and fourth, that the totality of constitutional and nonconstitutional errors committed before and during trial amounted to a denial of due process. In addition, he urged that he was entitled to a new trial based on newly discovered evidence. On appeal, he raises each of the claims asserted in his petition for habeas corpus. We are convinced that the District Court properly denied each of these claims.

I. The Prejudicial Publicity and Its Consequences.

Mastrian argues that massive publicity in the news media attending both the Thompson trial 2 and his own prevented the impanelling of an impartial jury and otherwise denied him of a fair trial. Mastrian raises three subarguments: first, that massive pretrial publicity made it impossible to impanel an impartial jury and prevented him from receiving a fair trial; second, that publicity before and during trial was such that the trial court erred in denying his motion to sequester the jury; and third, that remarks by the court during the course of the trial aggravated damage done by the prejudicial publicity and required the accused to prove his innocence.

Before addressing these subarguments, we acknowledge the importance of arriving at a fair balance between the constitutional right of the accused to be tried only on the evidence and argument presented at trial, Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3

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L.Ed.2d 1250 (1959); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879 (1907), and the constitutional guaranty that the press be allowed to report what transpires in the courtroom. Sheppard v. Maxwell, supra; Craig v. Harvey, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1967); Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). A democratic society is served by an active and aggressive press which subjects the police, prosecutors and judicial processes to extensive public scrutiny and criticism. Sheppard v. Maxwell, supra. For this reason, courts have been unwilling to impose any direct limitations on the press's reportorial function. But when excesses in press coverage of controversial trials have threatened the accused's right to an impartial jury, courts have been quick to grant appropriate remedies. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). See Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (Black, J., dissenting); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). With this in mind, we turn to Mastrian's contention regarding pretrial publicity.

(a) The impact of pretrial publicity.

The record before this Court demonstrates that there was substantial pretrial publicity in the Minneapolis-St. Paul area. Thompson was tried there and his trial generated considerable publicity. Mastrian was scheduled to be tried there before his change of venue motion was granted. The record also reveals that information respecting Mastrian's prior convictions and arrests was released to the Twin Cities media by law enforcement officials, along with statements as to his guilt.

Mastrian's first argument is that the quantity and nature of pretrial publicity denied him a fair trial as a matter of law. He also claims that both the release of prior convictions and arrest information and the published statements on his guilt by enforcement officials violated ABA standards relating to fair trial and free press. 3 He urges that we condemn such practices by the giving the standards the force of law and granting him a new trial.

In our view, adequate steps were taken to mitigate the potentially harmful effects of each of the violations Mastrian alleges. Media coverage in the Duluth community was restrained in comparison to other cases in which the Supreme Court has granted new trials. Compare Sheppard v. Maxwell, supra; Estes v. Texas, supra. See also Marshall v. United States, supra; Bridges v. California, supra. The record reveals that the bulk of the unfavorable media attention occurred in the Twin Cities area. Most of this publicity occurred between April and September of 1963. Jury selection was delayed until February, 1964. This time lapse probably helped dissipate the impact of some unfavorable publicity. But of far greater significance is the fact that the trial venue was changed to Duluth, Minnesota, some 150 miles from the Twin Cities area and substantially outside of its media coverage. This factor alone serves to distinguish Mastrian's situation from that of Dr. Sheppard in that the latter's trial was held in the same location where the unfavorable publicity occurred.

The same can be said with respect to the statements of enforcement officials and the release of prior conviction and arrest information. While we think law enforcement officials should prospectively adhere to the quoted ABA standards, we cannot at this time fault them or the press for failing, in 1963 and 1964, to follow standards not yet articulated. Such violations as might have

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occurred do not so offend constitutional due process that we should hold as a matter of law that these violations require the voiding of Mastrian's conviction. By and large, the statements were made by enforcement officials in Ramsey County and were released to the Twin Cities media. Their impact was mitigated by the same steps the trial court took to deal generally with adverse pretrial publicity.

Mastrian's next argument is that the Duluth area itself was so infected by pretrial publicity that an impartial jury could not be chosen. He points to the fact that forty-two percent of those examined for jury duty admitted to having an opinion as to his guilt and that all twelve jurors chosen had read about the case. The existence of prejudice among some voir dire examinees or the fact that many have read about the case is not conclusive evidence that an impartial jury cannot be found. It is not necessary that the jurors be totally ignorant of the facts and issues involved. Irvin v. Dowd,supra, 366 U.S. at 722, 81 S.Ct. 1639. With our present methods of communication, it is unlikely "any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case." Irvin v. Dowd, supra at 722-723, 81 S.Ct. at 1642. The test is whether a prospective juror "can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Murphy v. Florida, supra 421 U.S. at 800, 95 S.Ct. at 2036, quoting with approval from Irvin v. Dowd, supra, 366 U.S. at 732, 81 S.Ct. at 1643. See United States v. Woods, 486 F.2d 172, 174 (8th Cir. 1973); United States v. McNally, 485 F.2d 398, 403 (8th Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974). Although we may not set aside the trial court's finding on the issue of juror impartiality unless error is manifest, we are required to independently evaluate the voir dire testimony of the impanelled jurors. Murphy v. Florida,supra, 421 U.S. at 800, 95 S.Ct. 2031; Irvin v. Dowd, supra, 366 U.S. at 723, 81 S.Ct. 1639.

The record shows that nearly half of the ninety-two veniremen called for duty either had not formed an opinion as to Mastrian's guilt or claimed they could remain impartial. Each of those chosen for jury duty claimed during voir dire to have no present opinion as to Mastrian's guilt. Thus, the facts of this case are readily distinguishable from those in Dowd where eight of the twelve jurors chosen admitted during voir dire that they thought the defendant was guilty. Moreover, we think it of some import that Mastrian's counsel did not exercise all of his peremptory challenges during voir dire and did not move to dismiss the...

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