Holt v. Wyrick, 80-2004

Decision Date14 May 1981
Docket NumberNo. 80-2004,80-2004
Citation649 F.2d 543
PartiesEugene HOLT, Appellant, v. Donald WYRICK, Warden, Missouri State Penitentiary, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

James E. Reeves, Ward & Reeves, Caruthersville, Mo., for appellant.

John Ashcroft, Atty. Gen., Michael Elbein, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before BRIGHT and ROSS, Circuit Judges; and HARRIS, Senior District Judge. *

BRIGHT, Circuit Judge.

Eugene Holt, a Missouri state prisoner, appeals from an order denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Holt's first trial for murder ended in a mistrial. In his second trial, the jury convicted Holt of second degree murder and sentenced him to life imprisonment. The Missouri Supreme Court affirmed Holt's conviction in an extensive opinion written by Judge Seiler. State v. Holt, 592 S.W.2d 759 (1980). Holt then filed a petition seeking habeas corpus relief in federal district court, 1 which referred the petition to Magistrate William S. Bahn. In a well-reasoned opinion, Magistrate Bahn recommended dismissal of the petition on all grounds asserted by Holt, and Judge Hungate adopted the magistrate's recommendations in their entirety.

On appeal, Holt renews his assertions:

1) that the state denied him a fair trial because the jury consisted, in part, of bystander veniremen selected by the local sheriff;

2) that the jury had no evidentiary basis for convicting Holt of second degree murder, as a lesser included offense of capital murder;

3) that the evidence supporting his conviction, nothing more than "an incredible story told by a mental defective," was insufficient to convince any rational trier of fact of Holt's guilt beyond a reasonable doubt;

4) that the court deprived Holt of his right to confront and cross-examine witnesses against him by admitting the preliminary hearing testimony of the state's witness, Wanda Sue McAllister;

5) that the state invaded Holt's right to counsel by surreptitiously recording Holt's telephone conversations with witness McAllister prior to trial; and

6) that the state subjected Holt to double jeopardy by retrying him after the first trial judge, sua sponte, declared a mistrial when the jury reported a deadlock after a short period of deliberation.

Having fully reviewed the record, we affirm.

I. Factual Background.

The Missouri Supreme Court ably set out the general factual background of the case.

(A)ppellant, thirty-five years old, and his wife operated a small grocery store. Appellant became infatuated with a sixteen-year-old, Wanda Sue McAllister. Early in 1976, they became lovers. Appellant several times said he was going to kill his wife, mentioning drowning her, shooting her, rigging the bathtub so she would be electrocuted, and hiring someone to kill her. Roger Dale Jackson, age twenty, a cousin of Wanda, and not overly bright, testified that appellant offered to pay him $1000 to kill Mrs. Holt and also said he would forget about Jackson's unpaid bill at the grocery store.

The Saturday before the killing appellant took Jackson home with him, showed him the gun to use, and told him that the following Tuesday was the day. On Tuesday afternoon, Jackson met appellant at an agreed location behind a school house. Appellant again took Jackson to the house, gave him a handgun, told him where to wait and how his wife would enter the house, and instructed him to drag the body into the bathroom, douse the clothing and bathroom with lighter fluid, turn on the gas stove and leave. Appellant would attend a basketball game at Neeleyville, some fifty miles or so away, and return after it was all over.

Jackson waited for Mrs. Holt, shot her four times in the back, ran out the back door, went home and told his wife what he had done and hid the gun in the attic. Shortly thereafter Jackson pleaded guilty to second degree murder on the understanding he would receive a twenty-five year sentence and would testify against appellant.

Appellant testified in his own behalf and admitted his infatuation and affair with Wanda McAllister, but denied having anything to do with killing his wife, with having hired Jackson to do so, or taking Jackson to the house. It was appellant's position that Jackson was a border-line mental defective, that he was angry with Mrs. Holt because she had refused him a sandwich and soft drink at the grocery store because of his unpaid bill and that his cousin, Wanda, was the one who persuaded him to shoot Mrs. Holt. (State v. Holt, supra, 592 S.W.2d 763.)

II. Jury Selection.

Although the murder occurred in Pemiscot County, Holt's trial took place in New Madrid County after a change of venue. Because the regular panel had been partially depleted, the trial judge ordered the new Madrid County sheriff to select an additional twenty-five jurors. The venire from which Holt's jury was selected consisted of twenty persons from the regular panel and twenty-five supplemental jurors selected by the sheriff.

Holt argues that the sheriff's selection of the supplemental jurors deprived him of a fair trial. Relying on Ross v. Wyrick, 581 F.2d 172 (8th Cir. 1978), and Henson v. Wyrick, 634 F.2d 1080 (8th Cir. 1980), cert. denied, -- U.S. --, 101 S.Ct. 1417, 67 L.Ed.2d 383, 49 U.S.L.W. 3619 (U.S.1981), Holt argues that a sheriff's selection of jurors is inherently prejudicial because the sheriff's choices likely will mirror the sheriff's bias toward the prosecution and produce a conviction-prone jury.

The Missouri Supreme Court and the federal magistrate properly distinguished Ross v. Wyrick as the court in Ross addressed the issue of racial discrimination in jury selection. See State v. Holt, supra, 592 S.W.2d at 768.

This court's decision in Henson v. Wyrick, supra, likewise does not require reversal. In that case, the sheriff, whose subordinates investigated the crime and made the arrest, hand-picked the additional jurors from among his acquaintances. We granted habeas corpus relief because there existed the danger of a "conviction-prone" jury because of the "great potential for the sheriff to hand-pick jurors sympathetic to the prosecution." Id. at 1084.

In this case, however, the facts differ significantly from those in Henson. First, the sheriff's office in neighboring Pemiscot County, rather than the New Madrid County sheriff's office, conducted the investigation. As the Missouri Supreme Court commented:

Since the sheriff and his deputies were not involved in this case prior to trial, there was no question of the sheriff acting out of loyalty to deputies or on the basis of special knowledge of the facts of the case. (State v. Holt, supra, 592 S.W.2d at 768.)

Equally important, Holt presented no evidence that the sheriff selected only his acquaintances for the jury.

Although we express concern with the fundamental fairness in this method of selecting bystander jurors, the record in this case discloses no basis for inferring a deprivation of due process. Accordingly, we reject Holt's contention.

III. Second Degree Murder Conviction as Denial of Due Process.

The trial court instructed the jury on capital murder, second degree murder, and manslaughter. 2 The jury found Holt guilty of second degree murder and sentenced him to life imprisonment. In his petition, Holt challenges the sufficiency of the evidence supporting his conviction on two grounds.

Holt first contends that his conviction for second degree murder violates due process because the jury could not rationally acquit him of capital murder, yet convict him of second degree murder. Holt argues that the state, consistent with the requirements of capital murder, attempted to prove that he deliberately planned the murder of his wife by hiring Jackson to kill her and that the jury, by acquitting him of capital murder, rejected the heart of the prosecution's case.

The Missouri Supreme Court rejected this claim. State v. Holt, supra, 592 S.W.2d at 764. The court reasoned that the jury accepted the state's evidence, but decided to convict him of second degree murder as a matter of leniency. The court concluded that "the jury had a right to convict on either the capital murder or second degree murder charge, provided there was evidence before the jury to support such a conviction." Id. This conclusion rests on the state court's interpretation of the Missouri murder statutes. We are thus not faced with an issue cognizable in a federal habeas corpus petition, as long as the state introduced sufficient evidence to support the second degree murder conviction. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979); Davis v. Campbell, 608 F.2d 317, 319 (8th Cir. 1979).

Holt also contends that his conviction rested on insufficient evidence because no rational trier of fact could have believed the testimony of Roger Jackson. Holt characterizes Jackson as a "mentally defective" murderer whose testimony was "impeached by every conceivable means recognized by law." 3 The trial court found Jackson to be of sound mind and competent to testify. The state's medical expert disputed Holt's evidence and concluded that Jackson was not mentally retarded. As the magistrate reasoned, "(e)ven if we concede that Jackson was not the best witness," the other evidence of Holt's guilt was strong and convincing. In addition to Jackson's testimony that Holt offered him money and a gun to kill Mrs. Holt, the state presented corroborative evidence of Holt's participation in the crime. Wanda Sue McAllister and Margaret Jackson testified that Holt repeatedly expressed his intention to kill his wife. McAllister also confirmed Holt's specific plan to hire Jackson to kill Mrs. Holt. From our independent review of the record, we conclude that the Missouri Supreme Court correctly ruled that sufficient evidence supported the conviction of second degree murder. Holt's conviction, therefore, does not...

To continue reading

Request your trial
30 cases
  • Pilchak v. Camper, 86-0972-CV-W-8.
    • United States
    • U.S. District Court — Western District of Missouri
    • 23 Marzo 1990
    ...(Mo.1981), the court held that it was permissible for the trial judge to have the sheriff choose additional veniremen. In Holt v. Wyrick, 649 F.2d 543 (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982), the Eighth Circuit Court of Appeals upheld the practice ......
  • Lindsey v. Smith
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 12 Junio 1987
    ...inherent in the situation rather than the considered judgment of all the jurors." Id. at 509, 98 S.Ct. at 832; see Holt v. Wyrick, 649 F.2d 543 (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982). Similarly unfounded is appellant's claim of unconstitutional pr......
  • Whitepipe v. Weber
    • United States
    • U.S. District Court — District of South Dakota
    • 29 Noviembre 2007
    ...sheriff personally selected his acquaintances as additional panel members and seven of them actually served on: the jury), Holt v. Wyrick, 649 F.2d 543, (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982) (a case where the additional panel members were selecte......
  • Burris v. Farley, 3:92cv0755 AS.
    • United States
    • U.S. District Court — Northern District of Indiana
    • 27 Enero 1994
    ...of a federal court on collateral attack. E.g., Jones v. Thieret; Garcia v. Perringer, 878 F.2d 360, 362 (11th Cir.1989); Holt v. Wyrick, 649 F.2d 543, 547 (8th Cir.1981). But cf. McGuire v. Estelle, 902 F.2d 749 (9th Cir.1990), rehearing denied, 919 F.2d 578 (1990), cert. granted, ___ U.S. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT