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SWINDLER v. LOCKHART

August 12, 1988

JOHN EDWARD SWINDLER, PLAINTIFF,
v.
A. L. LOCKHART, Director, Arkansas Department of Correction, RESPONDENT



The opinion of the court was delivered by: WOODS

 HENRY WOODS, UNITED STATES DISTRICT JUDGE.

 Petitioner John Edward Swindler was convicted of the capital felony murder of Randy Basnett, a Ft. Smith police officer, and was sentenced to death by the Circuit Court of Sebastian County, Arkansas. The Supreme Court of Arkansas set aside that conviction and granted Swindler a new trial because the trial court had erroneously refused to grant the defense motion for a change of venue from Sebastian County, the situs of Officer Basnett's killing. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978).

 Swindler was retried in Scott County, Arkansas, which adjoins Sebastian County to the South. The Circuit Court of Scott County found Swindler guilty of capital felony murder and sentenced him to death. This second conviction and death sentence have been appealed and affirmed by the Supreme Court of Arkansas, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, Swindler v. Arkansas, 449 U.S. 1057, 66 L. Ed. 2d 511, 101 S. Ct. 630 (1980). Subsequently, Swindler filed for post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The petition 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, 70 L. Ed. 2d 239, 102 S. Ct. 430 (1981). Thus, post-conviction remedies available through the courts of the State of Arkansas have been exhausted.

  Petitioner seeks relief from the Scott County conviction and death sentence and has filed for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2242 and 2254. He asserts six (6) grounds for relief *fn1" : (1) a venireman was excluded after he voiced only general objections to the death penalty; (2) Ark.Stat.Ann. § 43-1507 *fn2" was unconstitutionally applied to him when he was denied a second change of venue; (3) jurors biased against the petitioner were selected after the defense had exhausted its peremptory challenges; (4) the trial court erred in refusing to grant a continuance in the penalty phase of his bifurcated trial so that the defense could present a witness to testify in his behalf; (5) Ark. Stat.Ann. § 41-1303(4) *fn3" was unconstitutionally applied to petitioner when an impermissible "aggravating circumstance" was considered by the jury in the penalty phase of his trial; and (6) petitioner was denied effective assistance of counsel at trial.

 I.

 Four veniremen were excused after voicing objection to the death penalty. The petitioner challenges the exclusion of one of the four, Murl Carmack, on grounds that Carmack expressed only general objections to the death penalty.

 Exclusion of a juror on the basis of objection to the death penalty is appropriate when that juror's views "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 100 S. Ct. 2521 (1980)).

 The trial court excused Mr. Carmack after a series of questions posed to Mr. Carmack by counsel and the court revealed opposition to the death penalty. Several of those questions indicate that Mr. Carmack was properly excused for cause:

 
Q. I understand you might not want to [impose the death penalty], 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.
 
. . . .
 
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.

 (Tr. 1447-48).

 In this case the trial court's findings must be sustained. Venireman Carmack plainly said that under no circumstances would he vote to impose the death penalty. Mr. Carmack was properly excused.

 II.

 The petitioner next argues that his sixth amendment right to be tried by an impartial jury was abridged when the trial court denied a motion for a change of venue. After Swindler's first conviction, the Supreme Court of Arkansas reversed and granted a new trial because the trial judge had refused to grant the defense motion for a change of venue from Sebastian County, where Swindler had shot and killed a Ft. Smith police officer. Swindler, supra. On remand, the trial was conducted in Scott County, which is adjacent to Sebastian County.

 Swindler contends that he was entitled to a change of venue in the second trial because prejudicial pre-trial publicity in Scott County was indistinguishable from that in Sebastian County. Swindler further contends that he was denied a change of venue from Scott County because of an unconstitutional Arkansas statute *fn4" which purports to limit a criminal defendant to one change of venue. The argument is without merit and is unsupported by the record.

 The question of whether to grant a change of venue rests squarely in the discretion of the trial court. Johnson v. Nix, 763 F.2d 344 (8th Cir. 1985). The trial judge had the opportunity to evaluate the tenor of the voir dire and to observe and assess each prospective juror's demeanor in conjunction with his or her answers to questions. Thus, the trial judge was uniquely qualified to determine whether a change of venue was required in order to assure that the defendant received a fair trial. It is settled law that the trial court's findings of impartiality can be overturned only for "manifest error." Patton v. Yount, 467 U.S. 1025, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984), quoting Irvin v. Dowd, 366 U.S. 717 at 723. In other words, this court must accord the state court findings of fact a "high measure of deference," Sumner v. Mata, 455 U.S. 591, 71 L. Ed. 2d 480, 102 S. Ct. 1303 (1982), and may not set them aside unless it is reasonable to conclude that those findings "lacked even 'fair support' in the record." Johnson, 763 F.2d 344 at 345, quoting Marshall v. Lonberger, 459 U.S. 422, 74 L. Ed. 2d 646, 103 S. Ct. 843 (1983).

 The question of prejudicial pre-trial publicity requires a two-prong inquiry: First, what was the nature and extent of the pre-trial publicity; and second, what was the effect of the pre-trial publicity on the venire panel from which the jury was selected, and on the jury itself. See Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987). Widespread or even adverse publicity is not, in and of itself, grounds for a venue change. Johnson, supra. This court must determine from the totality of the circumstances, whether the trial court committed manifest error in failing to hold that adverse pre-trial publicity had created such a presumption of prejudice in the community that jurors' claims that they can be impartial should be disbelieved. Yount, supra.

 The only evidence of the extent of pre-trial publicity in this case is the transcript of the voir dire of the prospective jurors. In a voir dire that lasted five days, 120 ...


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