823 F.2d 1241 (8th Cir. 1987), 86-5369, Clark v. Wood

Docket Nº:86-5369, 86-5370.
Citation:823 F.2d 1241
Party Name:Edward Richard CLARK, Appellant, v. Frank W. WOOD, etc., Appellee.
Case Date:July 07, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1241

823 F.2d 1241 (8th Cir. 1987)

Edward Richard CLARK, Appellant,

v.

Frank W. WOOD, etc., Appellee.

Nos. 86-5369, 86-5370.

United States Court of Appeals, Eighth Circuit

July 7, 1987

Submitted March 11, 1987.

Rehearing Denied Aug. 6, 1987.

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Carol Grant, Minneapolis, Minn., for appellant.

Paul Kempainen, St. Paul, Minn., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Edward Richard Clark appeals the district court's 1 denials of his petitions for writs of habeas corpus challenging his Minnesota convictions for first degree murder. We affirm.

Clark was convicted in 1974 for the first degree murder of Michael Jiminez and sentenced to life imprisonment. He was convicted in 1975 for the first degree murder of Michael's wife, Barbara, and sentenced to life imprisonment. A brief summary of the facts underlying his convictions follows.

I. BACKGROUND

On the evening of April 21, 1974, Clark picked up the Jiminezes on Interstate 35/80 northwest of Des Moines, Iowa. The Jiminezes were hitchhiking from Kansas to Minnesota. Clark was driving from California,

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where he had been working, to Michigan, where his family resided.

Clark allegedly arrived in Michigan during the early morning hours of April 23. Later that morning Michael Jiminez' body was found partially concealed by railroad ties in Blue Earth County, Minnesota. He had died from a gunshot wound to the back of his head. A cardboard box containing a number of items belonging to the Jiminezes was found in a nearby state park. Several days later Barbara's naked body was found lying face down in Scotch Lake in Le Sueur County, Minnesota. The most probable cause of death was strangulation, but drowning could not be ruled out.

Found near Michael's body were a skull fragment, a matchbook from Lake Tahoe's Harrah's Casino Motel (where Clark had cashed checks two nights before he picked up the Jiminezes), two ball-point pens (with personalized lettering that was identical to the lettering on pens distributed by Clark's employer to all its employees), an empty .44 magnum cartridge (later determined to have been fired from the rifle found in Clark's possession), and tire tracks (with measurements consistent with the measurements of the tires on Clark's vehicle). Found near Barbara's body were a piece of pink cloth, which was believed to be used as a gag (and later was identified as the corner of a torn pink sheet found in Clark's possession), her shoe, and tire tracks (the measurements of which were consistent with the tires on Clark's vehicle).

In addition to items belonging to the Jiminezes, the cardboard box also contained a plastic cup (a box of plastic cups was later found in Clark's possession), a box of Medico pipe cleaners (similar pipe cleaners, a box of Medico filters, three pipes, and pipe tobacco were later found in Clark's possession), a sticker indicating protection by electronic alarm (identical stickers were found in Clark's vehicle and on its windows), a bingo coupon from Harrah's Casino Motel, and two receipts from California Business Machines with Clark's name on them (Clark had rented a typewriter from this shop shortly before he traveled to Michigan).

The authorities contacted the owner of California Business Machines, who later alerted the authorities when Clark returned to rent another typewriter. Clark was arrested and his vehicle impounded. Searches pursuant to warrants were made of his vehicle and of a storage shelter that he rented. These searches turned up the rifle, the torn pink sheet, the boxes of plastic cups and Medico pipe filters, pipe cleaners, pipes, tobacco, brochures from Harrah's Casino Motel, and the alarm system stickers.

Clark was returned to Minnesota and indicted on two counts of first degree murder. Because the bodies were found in two different counties, the crimes were tried separately.

Clark testified at the trial for the murder of Michael that he picked up a third hitchhiker who he allowed to drive while Clark slept. Clark explained that he awoke alone in his vehicle in the early morning hours of April 22 on a gravel road in rural Minnesota. After searching for the hitchhikers he threw out the cardboard box. Clark also maintained that in any event he was in Illinois when the murders occurred. A phone company official testified that a call was made to Clark's home in Michigan from a phone adjacent to the tollway in Belvidere, Illinois at 5:03 p.m. on April 22. Clark's wife testified that Clark made that call. The jury rejected Clark's version of what happened and found him guilty. He was sentenced to life imprisonment.

Although Clark did not testify at the trial for the murder of Barbara, part of his testimony from the trial for the murder of Michael was admitted into evidence. The phone company official also testified at the trial for the murder of Barbara. The jury found Clark guilty for the murder of Barbara and he was sentenced to life imprisonment.

Clark sought post-conviction relief in state court, challenging his convictions on numerous grounds. The relief was denied and the denials were affirmed by the Minnesota Supreme Court. State v. Clark, 296 N.W.2d 359 (Minn.1980) (Clark I ); State v. Clark, 296 N.W.2d 372 (Minn.1980)

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(Clark II ). Clark then sought habeas corpus relief in federal district court. The district court accepted the magistrate's recommendations that Clark's petitions be denied, and the denials have been consolidated and are now before this court.

II. DISCUSSION

Clark raises several contentions concerning the trial for the murder of Michael Jiminez (hereinafter referred to as the Blue Earth trial), several concerning the trial for the murder of Barbara Jiminez (hereinafter referred to as the Le Sueur trial), and several common to both trials. Our discussion is organized accordingly.

A. Blue Earth Trial

Clark's first contention concerns juror impartiality. He contends that he was denied due process because he was convicted by a jury that was not impartial. Clark attributes the lack of impartiality to pretrial publicity, to an improper jury contact, and to some of the jurors seeing him in handcuffs.

Clark argues that because of the pretrial publicity it was impossible to impanel an impartial jury and he should have been granted a change of venue. Clark maintains that a series of newspaper articles reporting the murder as a "gangland-style" slaying, reporting that the authorities had narrowed their investigation from three suspects to one, and reporting that the authorities had arrested Clark for the murder prejudicially implicated him as the murderer. Clark claims that the prejudicial effect of the publicity is demonstrated by the fact that many of the prospective jurors had formed opinions about the case and that all the jurors ultimately seated had read or heard about the case.

To be sure, pretrial publicity may be so prejudicial as to require that a conviction be set aside. See 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). But the publicity in this case did not rise to the prejudicial level of that in Sheppard and Dowd. Indeed, the coverage was widespread, but there are no allegations or indications in the record that the publicity was anything but accurate and objective. See United States v. McNalley, 485 F.2d 398, 403 (8th Cir.1973) (widespread or even adverse publicity not in itself enough grounds for change of venue), cert. denied, 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974). Moreover, the existence of prejudice among prospective jurors, or that many of them have read or heard about the case, does not necessarily mean that an impartial jury cannot be impaneled. Mastrian v. McManus, 554 F.2d 813, 818 (8th Cir.), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977). "It is not necessary that the jurors be totally ignorant of the facts and issues involved." Id. "The test is whether the prospective juror 'can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' " Id. (quoting Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975)). The voir dire testimony in this case demonstrates that the jurors who were ultimately seated had not formed an opinion about the murder and that each could base his or her decision on the evidence presented. Therefore, the impartiality of the jury is fairly supported by the record, see Patton v. Yount, 467 U.S. 1025, 1031-32 n. 7, 104 S.Ct. 2885, 2889 n. 7, 581 L.Ed.2d 847 (1984), and Clark is not entitled to relief on this ground.

Clark also argues that he was denied due process because two anonymous phone calls were made to the home of one of the jurors. The juror reported the incident to the trial judge as soon as the court reconvened. 2 Clark maintains that he was

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prejudiced because the juror was intimidated and because the judge failed to interview the jurors individually. We disagree. The record indicates as a matter of law that the contact was harmless. The contact was not coercive or threatening. The juror later testified that he decided to stay home that evening, contrary to previous plans, not because he was afraid but because he did not want to subject his children, who would be left at home, to the anonymous calls. Contrary to Clark's contention, therefore, the juror was not intimidated by the...

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