The opinion of the court was delivered by: WOODS
HENRY WOODS, U.S. District Judge
Thomas Simmons, white a thirty-seven-year-old white male was convicted of four counts of capital murder and sentenced to death for killing four persons in 1981. The facts are related in detail in the opinion of the Supreme Court of Arkansas, 278 Ark. 305, 645 S.W.2d 680 (1983) and will only be briefly reviewed at this time.
Jawana and Larry Price agreed to handle the sale of a used car owned by Mrs. Price's employer, Holly Gentry. On Monday morning, January 5, 1981, Mrs. Price admitted a man into the Price's apartment who professed interest in the car and when she left for work, Larry Price and the man were having coffee in the kitchen. Mr. Price failed to keep a lunch date with his wife and when she discovered he had not reported for work, she went to the police station accompanied by Gentry to report her husband missing. After talking with police officers, Mrs. Price and Gentry left to return to the Price's apartment and a policeman, Tate, went in a blue, unmarked police car to meet them there.
A short time later, a neighbor saw a man make three trips from the apartment complex to the blue car. On the first trip, he accompanied a man whose hands were bound behind him. Then he brought out another man whose hands were tied and finally he brought out a woman. He drove away with the three individuals in the car.
The bodies of Mrs. Price, Tate, and Gentry were discovered by a farmer on Tuesday, and Mr. Price's body was found in a different place on Wednesday. Various witnesses placed Simmons at the Price's apartment complex, in the areas where the cars were later found, and at the parking lot where Mrs. Price parked her car. Other events occurred which implicated Simmons and led to his arrest and ultimately his conviction and sentence to death.
On January 8, 1981 Simmons was charged by information with four counts of capital murder. Charges were filed in both Sebastian and Crawford Counties. On April 17, 1981 Simmons' attorney moved for a change of venue contending extensive publicity concerning the crimes, the identity of the defendant, and pre-trial motions filed on defendant's behalf had created prejudice in the minds of the inhabitants of Sebastian and Crawford counties such that it would be impossible for the defendant to receive a fair and impartial trial in either county. Defendant asked that the trial be transferred to a county other than Sebastian and Crawford. A hearing was held on May 11, 1981 to consider this matter and other pre-trial motions; the motion for change of venue was denied.
Petitioner appealed his conviction to the Arkansas Supreme Court which affirmed the conviction and the sentence. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983) reh'g denied, (March 14, 1983). The United States Supreme Court declined to grant certiorari on October 3, 1983. Execution was scheduled for November 11, 1983, and on November 4, Simmons petitioned the Arkansas Supreme Court for a stay of execution and for additional time to request post-conviction relief pursuant to Arkansas Criminal Procedure Rule 37. The petition was denied on November 7, 1983.
On November 8, 1983 Simmons requested a stay of execution pending a federal habeas proceeding pursuant to 28 U.S.C. § 2254. This Court granted a stay until further order.
In his amended habeas petition, petitioner raises seven grounds for relief. He requested a hearing on one issue, whether his Sixth, Eighth and Fourteenth Amendment rights were violated when the trial court refused to grant a mistrial after it was discovered at trial that the identity of the individual who provided the police with information which led to the discovery of the body of Larry Price had been withheld from defendant. A hearing before this Court was held on September 3, 1985 at which evidence was presented on this issue. Petitioner and the State rely on arguments presented in briefs on the remaining six points and we will address each in turn.
Simmons was deprived of his right to a fair trial when the trial court refused to grant the motion for a change of venue.
In his first point, petitioner claims that pre-trial publicity was so prejudicial that it was impossible for him to receive a fair trial in the 12th judicial district consisting of Crawford and Sebastian Counties. (The trial was held in Crawford County.)
The federal habeas statute provides that factual findings made by a state court are entitled to a presumption of correctness unless one of seven enumerated conditions is found to exist or unless the court's determination is not "fairly supported by the record." This presumption may be overcome only by "convincing evidence that the factual determination by the state court was erroneous." 28 U.S.C. 2254(d).
The United States Supreme Court held in Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984) that the effect of pre-trial publicity on a jury is a factual issue. Therefore, the refusal of the trial court to order the venue changed is presumptively correct. The petitioner has failed to produce any evidence which convinces this Court that the ruling was erroneous.
The pre-trial publicity dispersed by the media consisted of newspaper accounts and radio and television broadcasts which occurred, for the most part, within the first week following the murders. These were primarily brief factual accounts of the events and many did not refer to the defendant in any manner. Defendant was arrested before the bodies of the four victims were discovered and most of the publicity focused on the search for the bodies. The relatively few items which appeared after January concerned defendant's return from a psychiatric examination, pre-trial motions, and hearings on those motions.
Voir dire of individual jurors took place seven months after the murders and the arrest of defendant, and the transcript reveals that only six of about sixty prospective jurors were excused because of their feelings about defendant's guilt. Each juror who was seated was pronounced "good for the defense" by Simmons' attorney. All had heard or read something about the case soon after the crimes were committed but a finding of impartiality does not require that each juror be ignorant of the facts involved in the case. Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961). "The relevant question is not whether the community remembered the case, but whether the jurors at . . . trial had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton, 467 U.S. at 1035 (1984) (quoting Irvin v. Dowd). Each juror stated he had no opinion as to the guilt or innocence of defendant and each stated he would follow the judge's instructions.
The pre-trial publicity evidenced in the record was not so inflammatory that a wave of public passion against the defendant existed so as to prejudice his right to a fair trial. The motion for change of venue was correctly denied.
The fact that the capital murder statute and the statute dealing with murder in the first degree have overlapping provisions deprives petitioner of due process.
Simmons claims in his second point that the overlapping of offenses in the capital murder statute, Ark. Stat. Ann. § 41-1501 (1) (a) (1977), and the statute regarding murder in the first degree, Ark. Stat. Ann. § 41-1502 (1) (a) (1977), renders those statutes unconstitutionally vague and therefore deprives him of due process. He maintains the overlapping permits arbitrariness in a jury's decision.
The relevant portion of Ark. Stat. Ann. § 41-1501 (1) (a) defines capital murder as murder committed in the course of one of seven felonies under "circumstances manifesting extreme indifference to the value of human life." Ark. Stat. Ann. § 41-1502 (1)(a) is phrased in the same terms but applies to a murder committed during the course of any felony. Capital murder is punishable by death or life imprisonment without parole while murder in the first degree is punishable by a sentence of imprisonment and/or a fine.
The Supreme Court of Arkansas has repeatedly upheld the constitutionality of these two statutes. See, e.g. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982); Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). See, also Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (statute is not rendered unconstitutional by jury's option to convict defendant of a lesser included offense). The United States Supreme Court, when faced with a challenge to the constitutionality of two state statutes which prohibited convicted felons from receiving firearms and provided for different penalties, upheld the statutes as constitutional. United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). The court noted that a "criminal statute is invalid if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." Id. at 123 (citations omitted). The court has stated that "void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed." United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 83 S. Ct. 594 (1963).
Both statutes under attack here clearly identify the conduct prohibited and unambiguously describe the applicable penalties thus providing adequate notice. Petitioner's argument is without merit.
Simmons' Sixth, Eighth and Fourteenth Amendment rights were violated when the court refused to excuse prospective jurors Watkins, Moore, and Billingsly for cause.
Petitioner next takes issue with the court's refusal to excuse for cause three individual jurors who, he contends, revealed bias toward him during voir dire. Simmons exercised three of his twelve peremptory challenges to eliminate those individuals from the jury.
The Supreme Court has stated that a trial judge's finding that an individual venireman was not biased and therefore was properly seated is a finding of fact subject to the presumption of correctness of § 2254(d). Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). This holding recognizes that the trial judge is in the position to assess the credibility and demeanor of potential jurors and that his determination concerning partiality is based on his observations as well as on answers to questions during voir dire. Wainwright v. Witt, 469 U.S. 412, 53 U.S.L.W. 4108, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985).
Because of the factual nature of the issue of a particular venireman's bias, the question becomes whether fair support exists in the record for the state court's conclusion that the jurors would be impartial. 28 U.S.C. § 2254(d)(8).
The voir dire of Buelah Watkins appears at pages 1654-1688 of the trial transcript, and a review of her testimony reveals absolutely no prejudice against the defendant. She heard factual accounts concerning the crime at some time before on television or radio but had heard nothing recently. She had no opinion about how the case should be decided and she testified she would follow the court's instructions. She stated and reiterated she would have to hear the evidence before deciding the guilt or innocence of defendant and before ...