Wansley v. Slayton, No. 73-1151.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: RUSSELL, Circuit
• Citation: 487 F.2d 90
• Parties: Thomas Carlton WANSLEY, Appellee, v. A. E. SLAYTON, Superintendent of the Virginia State Penitentiary, Appellant.
• Docket Number: No. 73-1151.
• Decision Date: 08 November 1973

487 F.2d 90 (1973)

Thomas Carlton WANSLEY, Appellee,
v.
A. E. SLAYTON, Superintendent of the Virginia State Penitentiary, Appellant.

No. 73-1151.

United States Court of Appeals, Fourth Circuit.

Argued May 8, 1973.

Decided November 8, 1973.

487 F.2d 91

Gilbert W. Haith, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellant.

William M. Kunstler, New York City (Philip J. Hirschkop, Alexandria, Va., and Charles M. L. Mangum, Lynchburg, Va., on brief), for appellee.

487 F.2d 92

Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.

RUSSELL, Circuit Judge:

The petitioner is a state prisoner, convicted of rape and robbery in the Corporation Court of Lynchburg, Virginia, in March, 1967. The alleged offense occurred in December, 1962. The petitioner had been tried twice earlier. At the first trial in February, 1963, he was convicted but his conviction was reversed by the Virginia Supreme Court. Wansley v. Commonwealth (1964) 205 Va. 419, 137 S.E.2d 870.¹ The second trial on the robbery charge in October, 1966, resulted in a mistrial. In this third trial, held almost five years after his alleged offense, the petitioner was convicted. He appealed his conviction to the State Supreme Court, which affirmed² and unsuccessfully sought certiorari in the United States Supreme Court.³ He then filed this proceeding in the District Court. He was granted habeas relief by the District Court and the Commonwealth has appealed. We reverse with directions to dismiss the petition.

The District Court based its grant of relief on three grounds: 1. Prejudicial pre-trial publicity; 2. Improper admission of evidence; and 3. Illegal grand jury. We shall consider seriatim these grounds.

I.

The first position asserted by the petitioner and upheld by the District Court was that the trial court denied him the right to a fair and impartial trial by refusing his motion for a change of venue based on prejudicial pre-trial publicity. It is well established that due process requires that an accused receive a trial by a fair and impartial jury "free from outside influences";⁴ and if there has been publicity which, by reason of its impact on the jury, raises the "reasonable likelihood"⁵ or probability that the accused has been prejudiced in his right to a fair trial, the trial court is obligated to take appropriate steps to determine whether in fact the accused can secure under the circumstances a fair trial.⁶ Whether there has been such prejudicial publicity requiring action by the Court is to be determined by an evaluation of "the totality of the surrounding facts" in the matter.⁷ Ordinarily, under such a rule, the evaluation will be based both on the pre-trial publicity complained of and on its impact, if any, on the jury,⁸

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as developed through adequate voir dire examination of the jurors.⁹ The recency of prejudicial publicity is important in determining whether such publicity is likely to affect an accused's right to a fair trial.¹⁰ Obviously, where considerable time has elapsed since publication, the probability or likelihood of impact is appreciably lessened. This has been recognized in the construction given Rule 21(a), Federal Rules of Criminal Procedure, authorizing a change of venue in federal criminal trials where there has been impermissibly prejudicial pre-trial publicity. To warrant a change of venue under this rule, the publicity must have been "recent, widespread and highly damaging to the defendants." 1 Wright, Federal Practice and Procedure, § 342, p. 623. The same principle has been applied where State trials were under review on due process grounds. Uniformly, in the State trials, in which federal habeas relief has been sustained by the Supreme Court on the ground of prejudicial publicity, the inflammatory and prejudicial publicity has been close in time to the actual trial. Thus, in Irvin v. Dowd, supra (366 U.S. 717 at p. 725, 81 S.Ct. 1639, at p. 1644), "a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his the defendant's trial." In Sheppard v. Maxwell, supra (384 U.S. at p. 333, 86 S.Ct. 1507), the massive prejudicial publicity continued through the trial itself, to all of which the jurors trying the case were exposed.¹¹ Beck v. Washington (1962) 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98, presents the reverse situation and prompted a contrary result. There, it was concluded that a lapse of nine and a half months was sufficient time for the impact of any prejudicial publicity to subside. Taken as a whole, then, the relevant decisions of the Supreme Court, as well as of lower federal courts, emphasize, as does the Federal Criminal Rule, that recency is a critical factor to be considered in connection with any claim of

487 F.2d 94

pre-trial prejudicial publicity.¹² Finally, the burden of establishing prejudicial pre-trial publicity rests on him who asserts it.¹³ Whether the defendant has sustained that burden is a matter to be independently evaluated, on appellate review, on a consideration of the record.¹⁴

The pre-trial publicity on which the District Court predicated its findings is identified and discussed in its opinion. That prejudicial of the accused's claim of innocence was published largely "within two weeks after Wansley's arrest." It followed a series of rapes and robberies in the community apparently committed by the same person. It was stated in the record that four separate rapes had been committed. Three whites and a black were the victims. Naturally, there was considerable publicity. When Wansley in the latter part of 1962 was arrested and charged with the crimes, his apprehension and arrest were given a great deal of publicity by the local press. His picture was published under the caption, "Rapist Caught". The police authorities were quoted to the effect that the petitioner had "confessed to raping two women and attacking one." It was stated that he had retraced his trail of crime for the authorities. There were other alleged details given in these articles in late 1962 and early 1963. As the District Court found, there can be little question that these articles were prejudicial to accused's rights in any trial held quickly thereafter. The petitioner's first trial followed close on their publication. But we are not concerned with that trial or its fairness; the Virginia Supreme Court reversed the petitioner's conviction at that trial. And the prejudicial publicity which preceded such trial took place almost five years before the trial with which this petition is concerned. This publicity, concededly adverse and prejudicial can, under no possible theory, be regarded as "recent" as it relates to petitioner's trial in 1967. If a proper remedy for such adverse publicity is, as Sheppard suggests, to "continue the case until the threat of the adverse publicity abates",¹⁵ certainly a trial almost five years later represents an appropriate delay; it undoubtedly is far more than was found in Beck to be sufficient to offset widespread publicity of a very damaging character. Moreover, between the trial in 1963 and the trial in 1967, newspaper interest in Wansley's case—and we may assume local interest, too, for otherwise the press would not have been so reticent—abated and there were only occasional references to his case and then only when some court proceedings were imminent. Any specific newspaper references to the petitioner made during this period, as they are described in the District Court's opinion, were matter-of-fact statements, clearly not flamboyant or inflammatory. They consisted primarily of descriptions of the petitioner as "twice-convicted", included in a report that he was to be retried. So far as the opinion of the District Court would indicate, there was no reiteration of any statement that petitioner had confessed;

487 F.2d 95

no details of the alleged crime were set forth; there was no reference to any testimony at the prior trials. Too, the facts published were accurate: The petitioner had been "twice convicted" and he was to be "retried". The petitioner complains, though, that the news articles should have explained that his two convictions had been reversed.¹⁶ It would seem that this would have necessarily followed from the statement that he was to be "retried". There would have been no occasion for a retrial had his convictions not been reversed. It is scarcely to be assumed that such sparse references to the petitioner as these between 1963 and 1967 could have created an atmosphere of community prejudice against the petitioner. What was printed in the local press in this period was the normal court items that appear regularly in the press. To find such so prejudicial as to render a trial held in the community where they were published violative of due process would mean that few trials could ever be held in a land where freedom of the press is considered invaluable. The most strongly pressed complaint of the petitioner on publicity in the period from 1963 to 1967 deals with comments published from time to time, not about the petitioner, but about one of his counsel. Whenever the press published the information that petitioner was to be tried, it often referred to one of his counsel, a national figure whose name had often appeared in the news, as an attorney who "has been linked on numerous occasions with Communist-front organizations and efforts." It is doubtful, however, that any pre-trial reference in the press to an accused's attorney in the absence of any prejudicial or unfair comment on the accused himself or the merits of his offense, can justify a finding that the accused's right to a fair trial has been so prejudiced that due process is violated.¹⁷

The District Court made reference, also, in its opinion on this point, to two other items, neither of which it would seem is particularly relevant. One was an editorial in the...