Appeal from the United States District Court for the Eastern District of Wisconsin. No. 87-C-951--John W. Reynolds, Judge.
Flaum, Manion and Kanne, Circuit Judges.
Appellant Brian Grancorvitz petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claimed his Sixth Amendment right to an impartial jury and his Fifth Amendment privilege against self-incrimination were violated during his trial and conviction by the State of Wisconsin. The district court denied the petition. Grancorvitz appeals, raising the same two claims he presented to the district court. We affirm.
Appellant was charged with first degree murder. Prior to trial, he moved for a change of venue or a jury outside of Vernon County, Wisconsin, which was denied by the trial court. The court did grant appellant's motion in limine to prevent references to certain "other crimes" evidence. At trial, appellant admitted he stabbed the victim, but claimed self-defense. The jury convicted appellant of first degree murder, and the court sentenced him to life imprisonment. Appellant unsuccessfully moved for a new trial, partly on the ground that the trial court improperly denied his motion for a change of venue. Appellant then unsuccessfully appealed through the state courts, claiming a denial of his right to a fair and impartial jury; the court of appeals affirmed this conviction and the supreme court denied review. Appellant was also unsuccessful in his pursuit of state post-conviction relief, in which he alleged a violation of his privilege against self-incrimination from the prosecutor's repeated references to his post-arrest silence.
Appellant then filed his habeas corpus petition in district court. He first argued, as he does on appeal, that he did not have an impartial jury because of the publicity regarding his arrest, the type of community in which he was tried, and the type of defense he presented. The district court held that "the trial court's determination that the jury was impartial is fairly supported by the record." It reasoned that the nature and timing of the pre-trial publicity did not suggest juror impartiality, that the voir dire sufficiently ruled out impartiality, and that the trial court was justified in giving little weight to the results of a survey submitted by appellant (and the accompanying expert witness testimony) which suggested community prejudice against him. Appellant also argued and continues to argue that the seven references by the prosecutor to appellant's post-arrest failure to complain of injuries that would have occurred during his altercation with the victim and his attempts at self-defense, or to ask for medical treatment for those injuries, violated his right to remain silent invoked after receiving his Miranda warnings. The district court rejected this argument as well, holding that the prosecutor's comments were intended to show appellant's lack of physical injury, as relevant to appellant's asserted claim of self-defense, rather than as an inference of guilt. The court held that at any rate any error was harmless beyond a reasonable doubt.
TRIAL COURT'S DENIAL OF MOTION TO CHANGE VENUE
The Sixth Amendment guarantees criminal defendants the right to "an impartial jury of the State and district wherein the crime shall have been committed." Defendants can establish the existence of a partial jury either by showing that pre-trial publicity rendered the trial setting inherently prejudicial or by showing that the publicity created actual juror prejudice. Willard v. Pearson, 823 F.2d 1141, 1146 (7th Cir. 1986). Actual prejudice, which is the issue here, is established where a defendant shows "that a juror cannot lay aside any preconceived impression or opinion of the case and decide the case solely on the evidence." Id.; see also United States v. Reynolds, 821 F.2d 427, 432 (7th Cir. 1987). Jurors need not be totally ignorant of the facts and issues in a case to be impartial. Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961). The fact that jurors can recall hearing about the case and any unfavorable publicity does not establish unconstitutional partiality. "The relevant question is not whether the community remembered the case, but whether the jurors at [defendant's] trial had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025, 1035, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984) (citing Irvin, 366 U.S. at 723). Even a "preconceived notion as to the guilt or innocence of an accused" is insufficient to rebut the presumption of impartiality, if "the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin, 366 U.S. at 723. However, juror's assurances during voir dire that they can judge the case impartially "cannot be dispositive of the accused's rights," if the defendant demonstrates actual prejudice sufficient to raise the presumption of partiality. Murphy v. Florida, 421 U.S. 794, 800, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1975).
A federal habeas court's standard of review over a state court's determination that a jury was impartial has not yet been definitively established. Both parties here ultimately argue under both a manifest error standard and a presumption of correctness standard requiring fair support for the finding in the record. In Irvin, the Supreme Court held that the issue of jury impartiality was a mixed question of law and fact, that a federal habeas court had an independent duty to evaluate the voir dire testimony, and that a determination of juror impartiality should only be set aside if the error was manifest. 366 U.S. at 723-24. However, the Court has since held that whether an individual juror was impartial is a finding entitled to the presumption of correctness of 28 U.S.C. § 2254(d).*fn1 Patton, 467 U.S. at 1036. However, the Court failed to determine whether this presumption is applicable to the question of whether the whole jury was impartial in violation of the Sixth Amendment. Id. at 1031 n. 7.*fn2 In Patton, the Court noted that its decision in Irvin, which required a federal court to independently evaluate voir dire testimony and view the question of juror impartiality as a mixed question of law and fact, came before the enactment of § 2254(d). However, the Court did not resolve the issue of the appropriate standard, since it found that the § 2254(d) standard was not less stringent than the manifest error standard of Irvin, and since there were no grounds to grant habeas under the less deferential manifest error standard, there would be no basis for granting habeas under the § 2254(d) presumption of correctness standard. Id.*fn3
Under § 2254(d)'s presumption of correctness, a federal habeas court will reverse a state trial court determination only if it is not fairly supported by the record. Although a reviewing court's independent review into whether another court's decision was manifestly erroneous is also a deferential standard of review, we do not believe it involves the almost complete deference required under § 2254(d).
The Supreme Court itself has applied the two standards in a way that supports the argument that the standards involve differing levels of deference to state courts. The manifestly erroneous standard used by the Court in both Irvin and Patton regarding the issue of whole jury impartiality involved an independent examination and interpretation by the Court into the trial court record and voir dire testimony. Irvin, 366 U.S. at 725-28; Patton, 467 U.S. at 1032-35. The Court's analysis in Patton in applying a presumption of correctness to the issue of individual juror impartiality, on the other hand, deferred to the judge on the procedures and inquiry employed during voir dire, and to the judge's belief in the jurors' assurances of impartiality as primarily a credibility determination. Patton, 467 U.S. at 1038-40.
We believe that the slightly less deferential manifest error analysis should be applied in this case.*fn4 Although the Supreme Court's language in Patton clearly requires deference from reviewing courts on determinations of jury impartiality, the degree of deference required is not necessarily that of § 2254(d)'s presumption of correctness. Indeed, the Court itself in Patton analyzed the facts before it under the manifest error standard, and arguably that standard should apply until the Court states otherwise.*fn5 Moreover, the manifest error standard is sufficiently deferential to remain well within the realm of a federal habeas court reviewing state court determinations, and the burden remains on the petitioner to show manifest error. United States v. Smith, 748 F.2d 1091, 1094 (6th Cir. 1984). Finally, ...