Graham v. Mabry, 80-1875

• Citation: 645 F.2d 603
• Decision Date: 03 April 1981
• Docket Number: No. 80-1875,80-1875
• Parties: Daniel Lon GRAHAM, Appellant, v. James MABRY, Commissioner, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 603

645 F.2d 603

Daniel Lon GRAHAM, Appellant, v. James MABRY, Commissioner, Appellee.

No. 80-1875.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 11, 1981.

Decided April 3, 1981.

Melva Harmon, Little Rock, Ark., for appellant.

Steve Clark, Atty. Gen., by Jack W. Dickerson, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before LAY, Chief Judge, and STEPHENSON and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

Daniel Lon Graham was convicted of first-degree murder in 1971 in the Circuit Court of Washington County, Arkansas. The conviction was affirmed on direct appeal, but the Supreme Court of Arkansas reduced the sentence from death by electrocution to life imprisonment. Graham v. State, 253 Ark. 462, 486 S.W.2d 678 (1972). A petition for post-conviction relief under what was then Rule One of the Arkansas Supreme Court's Rules of Criminal Procedure (now Ark.R.Crim.P. 37) was unsuccessful. Graham then brought a petition for habeas corpus in the United States District Court for the Eastern District of Arkansas. ¹ The district court appointed counsel and held an evidentiary hearing. After three full but unpublished opinions dealing with various aspects of the case, the petition was dismissed with prejudice, and this appeal followed. Graham argues that he is being held in violation of the federal Constitution for two reasons: (1) Bob Squires, a man with whom Graham had had a business quarrel, was seated on the trial jury; and (2) pretrial publicity was so massive that the jury which found Graham guilty was not impartial. We affirm, for reasons that will be separately set out with respect to each of these contentions.

I. The Seating of Juror Bob Squires

At the request of defense counsel, each potential juror was separately examined by court and counsel in chambers. When Bob Squires was called for voir dire examination, ten jurors had been seated. He testified that he lived at Springdale, Arkansas, where the crime took place, and that he had known Graham. Squires was an employee of George's Feed and Supply, in charge of placing chickens with growers. Graham was a grower whose chickens came from George's. Squires gave the following evidence with respect to his association with Graham:

Q. (By the Court) Well, from that association did you develop any prejudice towards him in this case?

A. No, I haven't.

Q. Could you be fair to him, to his cause?

A. I think I would.

Q. (By defense counsel) Now, Mr. Squires, you never had any difficulty with Mr. Graham during the time you knew him, did you?

A. No, sir.

Q. You don't have any prejudices or anything at all back there from your association with him that would carry over into this courtroom?

A. None at all.

Counsel did not challenge Squires for cause. Nor did he use a peremptory challenge, although at the time he had one left. Squires was pronounced acceptable by both sides and became a member of the trial jury.

At the evidentiary hearing in the district court, Graham was the only witness who testified on this issue. Neither Squires, nor the public defender who conducted the voir dire of Squires, nor either of Graham's other two court-appointed trial attorneys, was called as a witness. Graham said he had been a chicken farmer, dealing with Squires at George's Feed & Supply Co., in the fall of 1968. According to Graham, his chicken house burned, and he notified Squires that for this reason he could not accept a delivery of chickens scheduled for the next day. He testified that he and Squires "cussed" each other, both over the telephone and at Squires's office, and that Squires told him he was tired of people breaking their contracts and said Graham would never get any more chickens. Graham said that during the jury selection he told his lawyer that he and Squires had had "some bad misunderstanding," and that counsel had told him, " 'We have used all of our twelve challenges to excuse a juror, or whatever, and we'll just have to see if we can excuse him on cause.' Or something like that."

The district court held that the objection to an alleged bias on the part of Squires was not open on federal habeas corpus because it had not been made in the state trial court, as required by Arkansas's contemporaneous-objection statute, Ark.Stat.Ann. § 43-1914. ² We agree. The leading case is Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), in which the Supreme Court held that the failure of trial counsel in a state court to object to the admissibility of a confession on Miranda grounds, barred the defendant from raising that issue in federal habeas corpus, absent a showing of cause for the noncompliance with the state's contemporaneous-objection rule, and a showing of actual prejudice resulting from the alleged constitutional violation. The "cause" and "prejudice" formulation of Wainwright was drawn from the decision one Term earlier in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), holding that a district court erred by considering on habeas corpus a contention that black people had been systematically excluded from a state grand jury, when defense counsel had not timely made that argument under the law of the state. In a collateral attack on a conviction, the Court held, petitioner must make "not only a showing of 'cause' for the defendant's failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice." Id. at 542, 96 S.Ct. at 1711 (footnote omitted).

The opinion of the Court in Wainwright forcefully explains the reasons for honoring a contemporaneous-objection rule:

The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.

433 U.S. at 90, 97 S.Ct. at 2508.

A court faced with the contention that some state procedural default bars federal habeas corpus relief must first decide whether the question is to be decided according to the "cause" and "prejudice" requirement of Wainwright v. Sykes, supra, or according to the older rule of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), under which federal habeas will lie unless the petitioner's noncompliance with state rules of procedure was a deliberate bypass of the state courts. The opinion of the Court in Wainwright v. Sykes itself does not answer this question. Fay was not overruled, however, so the lower courts are safe in assuming, it seems, that part of Fay survives Wainwright. In Rinehart v. Brewer, 561 F.2d 126 (8th Cir. 1977), this Court indicated that Fay still applies where the alleged waiver of an objection was the result of a defendant's own decision. "However," we went on to say, "where the waiver relates to events during trial such as waived objections or counsel's tactical decisions the 'cause and prejudice' standard applies." Id. at 130 n.6.

This distinction between decisions made by the client himself and decisions made by counsel on his behalf was adumbrated in the concurring opinion of Mr. Chief Justice Burger in Wainwright v. Sykes, 433 U.S. at 91-94, 97 S.Ct. at 2508-2510. Not only Rinehart, discussed above, but also later cases decided by this Court indicate that we have adopted the distinction. In Collins v. Auger, 577 F.2d 1107, 1109 (8th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979), the "cause" and "prejudice" requirements were said to apply to "trial errors," for example, objections to the introduction of evidence, including a confession or admission of the defendant. In Parton v. Wyrick, 614 F.2d 154 (8th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 131, 66 L.Ed.2d 56 (1980), the Wainwright rule was held to bar consideration on federal habeas of a contention that prior convictions had been improperly used against petitioner, where no objection had been made to that use at trial in the state courts. And in Dietz v. Solem, 640 F.2d 126 (8th Cir. 1981), the cause-and-prejudice test of Wainwright v. Sykes was applied to failure to object to an improper jury instruction.

In the light of these authorities, we hold that Wainwright v. Sykes, rather than Fay v. Noia, is the controlling authority in the instant case. Some decisions with respect to the conduct of a criminal case are customarily made by the client himself whether to plead guilty, whether to waive trial by jury, whether to appeal, and the like. Other decisions, which may as a practical matter be equally important, are typically made by counsel whether to object to the introduction of certain evidence, whether to object to jury instructions, and so forth. The question of how to conduct voir dire of potential jurors, and whether to challenge a juror, either for cause or peremptorily, is well within the usual function of trial counsel. An attorney will, to be sure, consult with his client about the members of a jury panel, in order to determine if the client knows any of them, or has any reason to believe that one or the other of the jurors might be favorable or...