778 F.2d 1487 (11th Cir. 1985), 82-8310, Coleman v. Kemp

Docket Nº:82-8310.
Citation:778 F.2d 1487
Party Name:Wayne Carl COLEMAN, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.
Case Date:December 09, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1487

778 F.2d 1487 (11th Cir. 1985)

Wayne Carl COLEMAN, Petitioner-Appellant,


Ralph KEMP, Warden, Georgia Diagnostic and Classification

Center, Respondent- Appellee.

No. 82-8310.

United States Court of Appeals, Eleventh Circuit

December 9, 1985

Rehearing and Rehearing En Banc Denied Jan. 31, 1986.

Page 1488

Joseph M. Nursey, Millard C. Farmer, Atlanta, Ga., for petitioner-appellant.

Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before JOHNSON, ANDERSON and CLARK, Circuit Judges.

ANDERSON, Circuit Judge:

In this capital case, petitioner Wayne Coleman appeals from the federal district court's order denying his petition for habeas corpus relief. At trial, the state's evidence revealed the following tragic facts. On May 14, 1973, Coleman and Carl Isaacs entered Jerry Alday's mobile home in Donalsonville, in Seminole County, Georgia, while their two companions, George Dungee and Billy Isaacs, remained outside initially. Several members of the Alday family began to arrive shortly thereafter. When Ned and Jerry Alday drove up in a jeep, Coleman, Carl Isaacs and Billy Isaacs forced the two to enter the home. Coleman then forced Ned Alday into the home's north bedroom and shot him in the head several times. Carl Isaacs forced Jerry Alday into the south bedroom and shot him in the head several times. Jimmy Alday then drove up on a tractor, knocked on the door, and entered. Carl Isaacs forced him into the living room and shot him to death. Mary Alday, Jerry's wife, then drove up and Carl Isaacs forced her inside. Immediately thereafter, Aubrey and Chester Alday arrived in a pickup truck. While Mary Alday was forced into the bathroom, Carl Isaacs took Aubrey to the south bedroom and killed him. Coleman took Chester Alday to the other bedroom and killed him there. Mary Alday was then raped on the kitchen floor, taken from the mobile home, raped again in a wooded area, and then shot to death by Dungee. 1

On September 4, 1973, a Seminole County grand jury indicted Coleman, Carl Isaacs, Dungee, and Billy Isaacs on six counts of murder. Some three months later, Billy Isaacs pleaded guilty to armed robbery and burglary. He was sentenced to a forty-year prison term. In January, 1974, the three remaining defendants were tried separately, convicted, and sentenced to death by electrocution. Carl Isaacs' trial began on Monday, December 31, 1973; Dungee's trial began the following Monday, January 7, 1974, and Coleman's on the next succeeding Monday, January 14.

The Supreme Court of Georgia affirmed Coleman's convictions and sentences. The United States Supreme Court subsequently denied his petition for writ of certiorari. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976) (Justice Hill dissenting on the basis of the pretrial publicity), cert. denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977). Coleman filed a state habeas corpus petition in the Superior Court of Tattnall County. On June 13, 1980, the superior court denied Coleman's habeas corpus petition. On October 31, 1980, the Supreme Court of Georgia denied Coleman's application for a certificate of probable cause to appeal. The United States Supreme Court denied Coleman's second petition for writ of certiorari. Coleman v. Balkcom, 451 U.S. 949, 101 S.Ct. 2994, 68 L.Ed.2d 334 (1981).

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On July 8, 1981, Coleman filed for habeas corpus relief in the United States District Court for the Middle District of Georgia. In answer to Coleman's habeas corpus petition, respondent conceded that Coleman had exhausted available state remedies for the issues raised in his petition. The district court denied Coleman's petition. Coleman v. Zant, No. 81-42-THOM (M.D.Ga. Mar. 11, 1982). Coleman appealed to this court. Among other issues, Coleman argued that the federal district court erred in denying his request for discovery and an evidentiary hearing. After reviewing the record, we remanded to the district court for an evidentiary hearing. Coleman v. Zant, 708 F.2d 541 (11th Cir.1983). After further evidentiary development, the district court on March 18, 1985, again denied Coleman's petition for habeas corpus relief.

Petitioner raises six issues: (1) whether pretrial publicity and the community's atmosphere were so prejudicial and inflammatory that the trial court's refusal to grant petitioner's motion for a change of venue deprived him of rights guaranteed by the Sixth, Eighth, and Fourteenth Amendments; (2) whether the special prosecutor's participation in the trial deprived him of rights guaranteed by the Sixth, Eighth and Fourteenth Amendments; (3) whether the Constitution required the state trial judge's disqualification because he was the special prosecutor's uncle; (4) whether the trial court's jury instructions impermissibly shifted the burden of proof of intent and malice from the state to the defendant in violation of the Fourteenth Amendment's due process clause; (5) whether petitioner was denied effective assistance of counsel; and (6) whether the trial court's sentencing instructions adequately informed the jury as to its duty to consider mitigating circumstances. Since we conclude that this case is of that rare breed which does exceed the extremely high threshold test of presumed prejudice requiring a change of venue, we decline to rule on the other issues raised by Coleman.

In Part I we discuss briefly the relevant legal standard. In Part II, we describe the publicity surrounding the petitioner's trial. To convey an accurate picture of the sentiment in this small rural community, we have found it necessary to provide a comprehensive description of the publicity, beginning with the printed media, then the broadcast media, and finally, word-of-mouth communication in Seminole County. In Part III, we apply the legal standard to the totality of the circumstances generated by the publicity surrounding the petitioner's trial, as evidenced by the record in the case.


The standards governing the change of venue issue were explained briefly in Coleman v. Zant, 708 F.2d 541, 544 (11th Cir.1983), but those standards bear repeating. Ultimately, those standards derive from the Fourteenth Amendment's due process clause, which safeguards a defendant's Sixth Amendment right to be tried by "a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). The trial court may be unable to seat an impartial jury because of prejudicial pretrial publicity or an inflamed community atmosphere. In such a case, due process requires the trial court to grant defendant's motion for a change of venue, Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963), or a continuance, Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). At issue is the fundamental fairness of the defendant's trial, Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). There are two standards which guide analysis of this question, the "actual prejudice" standard and the "presumed prejudice" standard. Because we grant relief on the presumed prejudice claim, we do not address the actual prejudice argument raised by Coleman.

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Prejudice is presumed from pretrial publicity when pretrial publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held. Rideau v. Louisiana, 373 U.S. at 726-27, 83 S.Ct. at 1644-45; Murphy v. Florida, 421 U.S. at 798-99, 95 S.Ct. at 2035; Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980), 2 cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981); see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). The presumed prejudice principle is "rare[ly]" applicable, Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976), and is reserved for an "extreme situation." Mayola, supra, at 997. In fact, our research has uncovered only a very few additional cases in which relief was granted on the basis of presumed prejudice. See United States ex rel. Bloeth v. Denno, 313 F.2d 364 (2d Cir.), cert. denied, 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963); Pamplin v. Mason, 364 F.2d 1 (5th Cir.1966). The particular standard was clearly stated in Mayola v. Alabama: "where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, '[jury] prejudice is presumed and there is no further duty to establish bias.' " 623 F.2d at 997 (quoting in part from United States v. Capo, 595 F.2d 1086, 1090 (5th Cir.1979), cert. denied, 444 U.S. 1012, 100 S.Ct. 660, 62 L.Ed.2d 641 (1980)).

Because the question whether prejudice should be presumed is by its very nature shaped by the facts, we begin by reviewing the two key Supreme Court cases on that issue. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), is the only Supreme Court decision in which prejudice was presumed from pretrial publicity and no other outside influences. In Rideau, the defendant confessed to robbing a bank in Calcasieu Parish, kidnapping three of the bank's employees, and killing one of them. This confession was videotaped and subsequently broadcast three times by a local television station. The three broadcasts were seen respectively by 24,000, 53,000, and 29,000 people in the community. Id. at 724, 83 S.Ct. at 1418. At that time, Calcasieu...

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