Swindler v. Lockhart

• Decision Date: 06 November 1989
• Docket Number: No. 88-2387,88-2387
• Citation: 885 F.2d 1342
• Parties: John Edward SWINDLER, Appellant, v. A.L. LOCKHART, Commissioner of the Arkansas Dept. of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1342

885 F.2d 1342

John Edward SWINDLER, Appellant, v. A.L. LOCKHART, Commissioner of the Arkansas Dept. of Correction, Appellee.

No. 88-2387.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1989.

Decided Sept. 26, 1989.

Rehearing and Rehearing En Banc Denied Nov. 6, 1989.

Thurman Ragar, Jr., Van Buren, Ark., for appellant.

Jack Gillean, Little Rock, Ark., for appellee.

Before BOWMAN and WOLLMAN, Circuit Judges, and HENLEY, Senior Circuit Judge.

BOWMAN, Circuit Judge.

John Edward Swindler appeals from the District Court's ¹ denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We affirm.

On September 24, 1976, Swindler, in flight from South Carolina where he was wanted for the murders of two teenagers, stopped off at a service station in Fort Smith, Arkansas apparently to ask directions to Kansas City. At the service station, Swindler was approached by Randy Basnett, a Fort Smith police officer. Swindler shot and killed Officer Basnett. Before he died, Basnett was able to fire five or six times through the car door injuring Swindler. Swindler was caught shortly thereafter.

Swindler was convicted of capital felony murder for the shooting death of Officer Basnett, and was sentenced to death. The Supreme Court of Arkansas overturned that conviction because the trial court erroneously refused to grant a change of venue from Sebastian County, the situs of the killing, and because the trial court failed to excuse three jurors. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978).

Swindler was retried in Scott County, Arkansas, which adjoins Sebastian County, and convicted of capital felony murder for the second time and sentenced to death. The second conviction and death sentence were affirmed by the Supreme Court of Arkansas. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S.Ct. 630, 66 L.Ed.2d 511 (1980). Subsequently, Swindler sought post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. This relief also was denied by the Supreme Court of Arkansas. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981), cert. denied, 454 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981).

State post-conviction remedies thus exhausted, Swindler filed a writ of habeas corpus in the District Court pursuant to 28 U.S.C. Secs. 2242 and 2254 alleging six grounds for relief: (1) a venireman was erroneously excluded after he voiced only general objections to the death penalty; (2) Swindler was improperly denied a second change of venue; (3) jurors biased against Swindler were seated against the objections of defense counsel; (4) Swindler was denied a continuance at the penalty phase of his trial to enable him to present a witness on his behalf; (5) an "aggravating circumstance" was erroneously considered by the jury during the penalty phase of his trial; and (6) Swindler was denied effective assistance of counsel at trial.

After a hearing, the District Court denied Swindler's petition. 693 F.Supp. 760 (E.D.Ark. (1988)). On appeal, Swindler repeats his six grounds for relief. Finding the claims meritless, we affirm the judgment of the District Court.

I.

Swindler contends that a member of the venire, Mr. Carmack, was excluded improperly after expressing only a general objection to the death penalty. We disagree.

In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme Court clarified the standard for determining when a prospective juror may be excluded for cause because of his view on capital punishment. Witt held that the proper test is whether the juror's views on capital punishment would " 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Id. at 424, 105 S.Ct. at 852 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)). The Court rejected the standard, taken from a footnote in Witherspoon v. Illinois, 391 U.S. 510, 522-3 n. 21, 88 S.Ct. 1770, 1776-77, n. 21, 20 L.Ed.2d 776 (1969), that in order to exclude a juror for cause it must be "unmistakably clear" that the juror would "automatically" vote against the imposition of the death penalty. ² Witt, 469 U.S. at 424-25, 105 S.Ct. at 852. In this regard, this Circuit recently stated:

We perceive the fundamental difference between Witherspoon and the Adams-Witt rule to be one of lessened degree as to the burden of proof. In order to exclude a juror under Witt the State no longer must show that it is unmistakably clear that the juror's opposition to capital punishment would automatically cause exclusion.

Hulsey v. Sargent, 865 F.2d 954, 956 (8th Cir.1989) (footnote omitted).

Witt also clarified the degree of deference a federal habeas court must give to a state trial judge's determination that a potential juror's opposition to the death penalty is cause for exclusion. The Court stated:

Last term, in Patton [v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) ], we held that a trial judge's finding that a particular venireman was not biased and therefore was properly seated was a finding of fact subject to Sec. 2254(d). We noted that the question whether a venireman is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireman's state of mind. We also noted that such a finding is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province. Such determinations were entitled to deference even on direct review; "[t]he respect paid such findings in a habeas proceeding certainly should be no less." Id., at 1038, 104 S.Ct. at 2892.

Patton's holding applies equally well to a trial court's determination that a prospective capital sentencing juror was properly excluded for cause.

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Once it is recognized that excluding prospective capital sentencing jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias, Patton must control. The trial judge is of course applying some kind of legal standard to what he sees and hears, but his predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record. These are the "factual issues" that are subject to Sec. 2254(d).

Witt, 469 U.S. at 428-29, 105 S.Ct. at 854 (footnotes omitted). It follows from Patton and Witt that our task in this section 2254 case is to determine whether fair support exists in the record as a whole for the trial court's determination that Carmack's view on capital punishment would "prevent or substantially impair the performance of his duties as a juror." See Darden v. Wainwright, 477 U.S. 168, 176, 106 S.Ct. 2464, 2469, 91 L.Ed.2d 144 (1986); Hulsey, 865 F.2d at 959.

The voir dire of Carmack was as follows:

Q. Let me ask you this. Do you think the death penalty is proper punishment for some crimes?

A. I wouldn't think so.

Q. Do you believe in the death penalty?

A. Not so much.

Q. Do you understand that under the law of Arkansas that it is the jury that finds whether a person is guilty or not guilty, and then if the jury finds the defendant guilty then the jury actually sets the punishment, that is not done by the Judge. Now, if you were on this jury, and you listened to all the evidence, could you, under any circumstances, vote for the death penalty?

A. I wouldn't want to.

Q. I understand you might not want to, but you know it is the law of Arkansas, and if you listened to the evidence and you found that under our law this was a proper case for the death penalty, then could you follow Arkansas law, or would you stick to your own personal feelings?

A. Well, now I would stick to what I believe in.

Q. So are you telling me that no matter what the facts are, or what the law is, that you would not vote for the death penalty?

A. No, I don't think I would.

Q. Okay, now you say you don't think you would. Can you tell me for sure that you would or would not?

A. Well, I wouldn't then, I will put it that way.

Q. No matter what the facts were, or what the law was, you would not vote for the death penalty?

A. No, I don't believe I could, and then have a clear conscience.

MR. KARR: I submit him for cause, Your Honor.

THE COURT: All right, Mr. Carmack, apparently what you are telling Mr. Karr is that you do oppose or have conscientious objections to the death penalty?

A: Right.

THE COURT: Now, what he has asked you is, and I want to ask you, too, to be sure that I understand. Is that feeling that you have or your belief so fixed and strong that regardless of what the facts might be, regardless of how bad they might be, or how aggravating they might be, in any case, that under no circumstances could you consider imposing the death penalty?

A. I wouldn't.

THE COURT: In any case?

A. I don't believe I would.

DEFENSE ATTORNEY: I have no questions, your Honor.

THE COURT: All right, he will be excused for cause.

(Tr. 1446-48). We conclude that the preceding voir dire provides ample support for the trial court's determination that Carmack should be excused because of his opposition to the death penalty. Therefore, we affirm the District Court's ruling that the trial court properly excluded this juror. ³ 693 F.Supp. at 763.

II.

Swindler next argues that the state trial court erred in denying his motion for a second change of venue. Swindler argues that he was entitled to a change of venue because of adverse pretrial publicity surrounding his retrial. Swindler further contends that he was denied a second change of venue because an Arkansas statute, Ark.Code Ann. Sec. 16-88-207 (1987), which purportedly limits a criminal defendant to one change of venue, was unconstitutionally applied. We disagree.

After Swindler's first conviction was reversed by the Arkansas Supreme Court because the...