Pruett v. Norris

• Citation: 153 F.3d 579
• Decision Date: 07 August 1998
• Docket Number: Nos. 97-2004,97-2236,s. 97-2004
• Parties: Marion Albert PRUETT, Appellee, v. Larry NORRIS, Appellant. Marion Albert PRUETT, Appellant, v. Larry NORRIS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 579

153 F.3d 579

Marion Albert PRUETT, Appellee, v. Larry NORRIS, Appellant.

Marion Albert PRUETT, Appellant, v. Larry NORRIS, Appellee.

Nos. 97-2004, 97-2236.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1998.

Decided Aug. 7, 1998.

Darnisa Evans Johnson, Sr. Asst. Atty. Gen., Little Rock, AR, argued, for appellant.

Thomas M. Lahiff, Jr., New York City, argued, for appellee.

Before WOLLMAN and LOKEN, Circuit Judges, and BOGUE, ¹ District Judge.

WOLLMAN, Circuit Judge.

Larry Norris, Director of the Arkansas Department of Correction (the State), appeals from the district court's judgment granting Marion Albert Pruett's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We reverse.

I.

In 1979, Pruett was released from a 23-year federal penitentiary sentence for bank robbery, apparently in exchange for his testimony against an underworld figure with whom he was serving time. Pruett was placed in the Federal Witness Protection Program in New Mexico, where he lived under an assumed identity with his wife, Pamela Sue Carnuteson. In April of 1981, Carnuteson was found murdered, her body beaten with a hammer and burned with gasoline. Before authorities could gather enough evidence against him, Pruett fled and embarked on a cross-country spree of armed robberies, abductions, and murder. Among Pruett's more brutal offenses were the murder of Peggy Lowe, a savings and loan officer whom he abducted during a robbery in Jackson, Mississippi, and later shot in the back of the head, and the murders of James R. Balderson and Anthony Taitt, two store clerks whom he shot during separate robberies on the same day in two Colorado cities. ²

On October 11, 1981, Pruett arrived in Fort Smith, Arkansas, and began scouting the city for a place to commit yet another robbery. He looked for a bank or a store, but since it was Sunday and most establishments were closed he decided to park his car in a secluded, wooded area known as Horseshoe Bend. There, he injected himself with cocaine and consumed whiskey for several hours. Sometime after midnight, Pruett drove to a nearby Convenience Corner grocery mart he had observed on his previous trip to town. Through the window, he could see that Bobbie Jean Robertson, the young woman who worked the 11:00 p.m. to 7:00 a.m. shift, was alone. As Pruett recalled during his confession: "I pulled in and was going to get gas and I seen that there was a girl working there by herself and I said well hell, I think I'll just rob her and kill her so that's what I done."

Pruett entered the store armed with a .38 caliber revolver and instructed Ms. Robertson to place the money from the cash register in a paper bag. He told her to get her pocketbook and then ordered her into his car. As he drove to the secluded area where he had earlier parked, Pruett assured Ms. Robertson that if she cooperated she would be released. When they reached Horseshoe Bend, he instructed Ms. Robertson to get out of the car. She began walking away, then turned and asked if she could have her purse. Still in the car, Pruett raised his revolver and fired. The first bullet struck Ms. Robertson on the upper left thigh, fracturing her femur. As Ms. Robertson struggled and tried to run away, she was struck by a bullet in the right shoulder and fell to the ground. Pruett pulled his car around, got out, and walked over to her. He bent down, pressed the muzzle of his revolver against the young woman's left temple, and fired the third and fatal shot. Pruett returned to his car and drove off with the pocketbook and approximately $165.00 from the store. The next day, police discovered Ms. Robertson's body in a thicket of weeds and small brush just a few feet from the dirt road where she had been murdered.

Five days later, Pruett was stopped for speeding in Texas. The officer saw the holster containing Pruett's .38 caliber revolver protruding from beneath the front seat of Pruett's automobile and arrested him.

Pruett was returned to Mississippi, where he was charged in state court with the murder of Peggy Lowe. ³ While awaiting trial in Mississippi, Pruett was interviewed by Detective Larry Hammond of the Fort Smith Police Department, to whom he provided a detailed confession to the murder of Bobbie Jean Robertson. A jury convicted Pruett of Ms. Lowe's murder and he was sentenced to death. ⁴ Pruett was then remanded to the custody of the United States and sent to Colorado to be tried for the murders of Balderson and Taitt. Pruett pled guilty to those crimes and received consecutive life sentences.

Pruett was returned to Arkansas to face charges in Ms. Robertson's death. He was arraigned on a capital murder charge on June 12, 1982, in the circuit court of Sebastian County and pled not guilty. The public defender was appointed to assist Pruett, who asked to represent himself. After discussions with counsel, the court set trial for August 30, 1982. In late July, the defense filed a motion for a continuance, which the court denied. In early August, the defense filed a motion for change of venue. At a subsequent pre-trial hearing, the defense renewed its motion for continuance. The court again denied the motion, but informed the public defender that it would grant a continuance in all other cases set for trial in which he was involved. Three days later, the court granted the motion for change of venue and transferred the trial to Van Buren in Crawford County, which is adjacent to Sebastian County and in the same judicial district.

On August 30, voir dire began as scheduled. The defense moved to have the jury panel quashed, for continuance, and for a second change of venue. These motions were denied. After voir dire was completed, the defense renewed its motions to quash the jury panel and for a second change of venue. Once again, the motions were denied. On September 9, 1982, after a trial that featured Pruett himself delivering a closing argument in which he admitted to having killed Ms. Robertson, the jury found Pruett guilty of capital murder. At the conclusion of the penalty phase of the trial, the jury sentenced Pruett to death by electrocution. The court entered judgment on the verdict and sentence, and set Pruett's execution for March 10, 1983. Pruett was then remanded to New Mexico to face charges for the murder of his wife. ⁵ Pruett was then returned to Mississippi and placed in the custody of the Mississippi Department of Correction.

Meanwhile, Pruett's conviction and sentence for Ms. Robertson's murder were affirmed by the Supreme Court of Arkansas. See Pruett v. Arkansas, 282 Ark. 304, 669 S.W.2d 186, 191 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 362, 83 L.Ed.2d 298 (1984). The court denied his subsequent petition for postconviction relief. See Pruett v. Arkansas, 287 Ark. 124, 697 S.W.2d 872, 879 ( 1985) (per curiam). In June of 1987, Governor Clinton filed a demand that Pruett be returned to Arkansas to face execution for Robertson's murder. In March of 1988, Pruett was extradited from Mississippi to Arkansas and remanded to the Department of Correction to await execution of sentence. Execution was set for April 7, 1988. The district court granted Pruett a stay of execution on April 4, 1988, pending a ruling on his petition for writ of habeas corpus filed that day pursuant to 28 U.S.C. § 2254.

Following proceedings that extended over a period of some nine years, the district court granted Pruett's habeas petition. See Pruett v. Norris, 959 F.Supp. 1066, 1092 (E.D.Ark.1997). The court vacated Pruett's conviction and sentence and ordered the State to release him or retry him within 120 days. See id. Although denying fourteen other asserted grounds for relief, as well as a challenge to the constitutionality of Pruett's extradition from Mississippi, the court held that: (1) Pruett had been denied a fair trial because of pretrial publicity, see id. at 1070-81, and (2) the admission of hypnotically refreshed testimony during the penalty phase of his trial violated Pruett's right of confrontation. See id. at 1081-83. The district court denied the State's motion to stay its order granting habeas relief. After the State filed its notice of appeal, we stayed the district court's order pending this appeal.

II.

When considering a state prisoner's habeas petition to determine whether circumstances mandate postconviction relief, a federal court's review is limited to determining whether the conviction or sentence was obtained in violation of the Constitution, laws, or treaties of the United States. See Crump v. Caspari, 116 F.3d 326, 327 (8th Cir.1997) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)); 28 U.S.C. § 2254(a). In making this assessment, we presume state court findings to be correct unless it is apparent that there was some deficiency in the fact-finding process. See Amrine v. Bowersox, 128 F.3d 1222, 1228 (8th Cir.1997) (en banc); 28 U.S.C. § 2254(d) (1994). ⁶ The presumption of correctness applies to all factual determinations made by state courts of competent jurisdiction, including trial courts and appellate courts. See Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). We review the district court's factual findings for clear error and its legal conclusions de novo. See Hadley v. Groose, 97 F.3d 1131, 1134 (8th Cir.1996).

The State first challenges the district court's determination that Pruett was denied a fair trial because of pretrial publicity. Specifically, the district court faulted the trial court's refusal to grant Pruett's motion for a second change of venue and its refusal to grant a continuance that presumably would have allowed Pruett to gather additional evidence to support such a motion. See Pruett, 959 F.Supp. at 1077. Additionally, the district court stated that "[t]he trial judge further erred in accepting at face value the belief of the jurors impaneled that they could ignore what they...