Rollins v. Wyrick
| Decision Date | 11 April 1978 |
| Docket Number | No. 77-1521,77-1521 |
| Citation | 574 F.2d 420 |
| Parties | James H. ROLLINS, Appellant, v. Donald WYRICK, Warden, Missouri State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Bruce E. Houdek, Millin & Houdek, Kansas City, Mo., for appellant.
John D. Ashcroft, Atty. Gen. and Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
Petitioner James Henry Rollins appeals from the district court's 1 denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.
On March 20, 1968, a jury in Boone County, Missouri, found Rollins guilty of illegally dispensing marijuana in violation of Mo.Rev.Stat. § 195.020 (Vernon), and imposed a sentence of five years imprisonment in the Missouri State Penitentiary. 2 This judgment was appealed and affirmed by the Missouri Supreme Court on January 12, 1970. State v. Rollins, 449 S.W.2d 585 (Mo.1970). Rollins' petition for writ of certiorari to the United States Supreme Court was denied on June 22, 1970. Rollins v. Missouri, 399 U.S. 915, 90 S.Ct. 2220, 26 L.Ed.2d 573 (1970). He has exhausted his state remedies. Rollins began serving his sentence on this charge on February 6, 1976. 3
On June 16, 1976, Rollins filed a petition for writ of habeas corpus in the Western District of Missouri. On February 7, 1977, an evidentiary hearing was held on his petition and on May 23, 1977, the district court issued a memorandum opinion and judgment denying the petition.
The sole issue raised on this appeal is whether the denial of Rollins' motion for a continuance resulted in a violation of his constitutional right to a fair and impartial jury. See Murphy v. Florida, 421 U.S. 794, 799-803, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Rollins contends that excessive pretrial publicity concerning his civil rights activities and his arrest and expulsion from the university, the setting of his trial on the same date as a referendum on a fair housing ordinance in Columbia, Missouri, and certain comments made by three prospective jurors during voir dire examination cumulatively prevented him from receiving a fair trial.
The facts adduced at trial and in petitioner's hearing in the district court indicate that Rollins was a resident of St. Louis, Missouri, until he enrolled at the University of Missouri in Columbia in 1961. He immediately became active in the civil rights movement in Columbia. Eventually he became an officer of CORE, a militant civil rights organization, and participated in a number of activities which were controversial, at least among a number of white citizens of Columbia.
After he completed his undergraduate studies Rollins enrolled in the University of Missouri Law School in Columbia. In March of 1967 Rollins was arrested on the charge of dispensing marijuana. As a result of his arrest Rollins was expulsed from the University before completion of that semester and there was substantial coverage by the news media concerning the circumstances of his dismissal.
On January 2, 1968, Rollins' trial was set for March 19, 1968. On February 5, 1968, a fair housing ordinance was introduced in the Columbia City Council and on February 19 that body set the date for an election on that issue as March 19, 1968. The election, which had become a racially-charged issue, received a substantial amount of coverage in the local newspaper.
On the morning of trial Rollins' attorney moved for a continuance upon the grounds that the trial was to be held on the same date as the referendum on the fair housing ordinance. The motion for continuance was denied, no motion for change of venue was filed, and Rollins' counsel announced he was ready for trial.
Rollins' attorney was permitted to conduct extensive voir dire examination, individually questioning the prospective jurors. Four of the veniremen were challenged for cause by petitioner, and all four challenges were sustained by the trial court.
In the trial the prosecution presented evidence which sufficiently proved Rollins' guilt. Testimony showed that on the evening of March 5, 1967, Sharon Turner was entertaining a boyfriend, Larry Duncan, at her apartment. At approximately 10:30 p. m., Rollins appeared at the front door and asked Turner if her roommate, Mary Monsees, was home. When told that she was not home, Rollins left a bag with Turner and told her to give it to Monsees. Duncan testified that he saw Rollins hand the package to Turner. After Rollins left, Duncan opened the package and discovered that it contained approximately one and one-half pounds of marijuana. Duncan placed a small sample in an envelope and put the rest in Monsees' room. When Monsees returned home at approximately 12:15 a. m. Turner informed her that Rollins had been by and left a package for her and that he wanted her to call. Monsees testified that she then called Rollins and he asked her: "Did you get the package that I left there for you?"
The following day Duncan took the sample from the bag to the police. After an analysis of the sample, a search warrant was obtained and the package was seized from Monsees' room. An analysis showed that the package contained marijuana. Rollins denied any participation in the crime and produced witnesses that testified he was elsewhere on that evening.
In the leading case on pretrial publicity, Sheppard v. Maxwell, 384 U.S. 333, (86 S.Ct. 1507, 16 L.Ed.2d 600) (1966), the Supreme Court stated:
Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.
Id. at 362-63, 86 S.Ct. at 1522.
This passage was cited by the Missouri Supreme Court and the district court. These courts applied the standard established by the Supreme Court and found no violation of Rollins' constitutional right to a fair...
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Cody v. Missouri Bd. of Probation & Parole
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