## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2004

___________ Marion Albert Pruett, * * Appellee, * *
v. * * Larry Norris, * * Appellant. *

___________ Appeals from the United States District Court for the No. 97-2236 Eastern District of Arkansas.

___________ Marion Albert Pruett, * * Appellant, * *
v. * * Larry Norris, * * Appellee. *

___________ Submitted: February 11, 1998

Filed: August 7, 1998

___________The HONORABLE ANDREW W. BOGUE, United States District Judge for 1 the District of South Dakota, sitting by designation. For a summary of Pruett’s record of criminal violence, see Perry v. Norris , 879 2 F. Supp. 1503, 1538-40 (E.D. Ar k. 1995), aff’d , 107 F.3d 665 (8th Cir.), cert. denied , 118 S. Ct. 15 (1997).
-2- Before WOLLMAN and LOKEN, Circuit Judges, and BOGUE, District Judge. 1

___________ WOLLMAN, Circuit Judge. Larry Norris, Director of the Arkansas Department of Correction (the State) , appeals from the district

court’s judgment granting Marion Albert Pruett’s petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We reverse.

I.

In 1979, P ruett was released from a 23-year federal penitentiary sentence fo r bank robbery, apparently in exchange for his testimony against an underworld figure with whom he was serving time. Pruett was placed in the Federal Witness Protection Prog ram in New Mexico, where he lived under an assumed identity with his wife , Pamela Sue Carnuteson. In April of 1981, Carnuteson was found murdered, her body beaten w ith a hammer and burned with gasoline. Before authorities could gathe r enough evid ence against him, Pruett fled and embarked on a cross-country spree o f armed robberies, abductions, and murder. Among Pruett’s more brutal offenses were the murd er of Peggy Lowe, a savings and loan officer whom he abducted during a robbery in Jackson, Mississippi, and later shot in the bac k of the head, and the murders of James R. Balderson and Anthony Taitt, two store clerks whom he shot durin g separate robberies on the same day in two Colorado cities. 2-3-

On October 11, 1981, Pruett arrived in Fort Smith, Arkansas, and began scouting the city for a place to commit yet another robbery. He look ed for a bank or a store, but since it was Sunday and most establishme nts were closed he decided to park his car in a seclud ed, wooded area known as Horseshoe Bend. There, he injected himself with cocaine an d consumed whiskey for several hours. Sometime after midnight, Pruet t drove t o a nearby Convenience Corner grocery mart he had observed on his previous trip to town. Through the window, he could see that Bobbie Jean Robertson, the young
woman who worked the 11:00 p.m. to 7:00 a.m. shift, was alone. As Pruett recalled during his confession: “I pulled in and was going to get gas and I seen that there was a girl workingthere by herself and I said well hell, I think I’ll just rob her and kill her so that’s what I done.”

Pruett entered the store armed with a .38 caliber revolver and instructed Ms

. Robertson to place the money from the cash register in a paper bag. He told her to get her pocketbook and then ordered her into his car. As he drove to the secluded are a where he had earlier parked, Pruett assured Ms. Robertson that if she cooperated she would be released. When they reache d Horseshoe Bend, he instructed Ms. Robertson to get out of the car. She began walking away, then turned and asked if she could have her purse. Still in the car, Pruett raised his revolver and fired. The first bullet struck Ms. Robert son on the upper left thigh, fracturing her femur. As Ms. Robertso n struggled and tried to run away, she was struck by a bul let in the right shoulder and fell to the ground . Pruett pulled his car around, got out, and walked over to her. He bent down, presse d the muzzle of his revolver against the young woman’s left temple, and fired the t hird and fatal shot. Pruett returned to his car and drove off with th e pocke tbook

and approximately $165.00 from the store. The next day, polic e discovered Ms. Robertson’s body in a thicket of weeds and small brush just a few feet from the dirt road where she had been murdered.Pruett was charged in federal court with the robbery of a federally insure d 3 saving s and loan institution and with abducting Ms. Lowe in connection with tha t incident, in violation of 18 U.S.C. § 2113(a), (d) & ( e). Pruett pled guilty and received consecutive sentences of 25 years and life. Prue tt’s conviction and sentence were affirmed by the Supreme Court o f 4 Mississippi. See Pruett v. Mi ssissippi , 431 So. 2d 1101, 1110 (Miss.) (en banc), cert. denied , 464 U.S. 865 (1983). Pruett’s petition for writ of error coram nobis wa s denied. See Pruett v. Thigpen , 444 So. 2d 819, 828 (Miss. 1984) (en banc)

. Subsequently, a district court in Mississ ippi granted Pruett a new trial, holding that the participation of an admittedly biased juror over the objections of both th e defendant and the st ate entitled him to habeas corpus relief. See Pruett v. Thigpen , 665 F. Supp

. 1254, 1266 (N.D. Miss.), aff’d , 805 F.2d 1032 (5th Cir. 1986) (table), c ert. denied , 481 U.S

. 1033 (1987). In February of 1988, Pruett was retried in Mississippi and onc e again convict ed of Ms. Lowe’s murder. Because the jury was unable to reach a n agreement during the penalty phase of trial, the court imposed a life sentence.
-4- Five days later, Pruett was stopped for speeding in Texas. The officer saw the holster containing Pruett’s .38 caliber revolver protruding from beneath the front seat of Pruett’s automobile and arrested him.
Pruett was returned to Mississippi, where h e was charged in state court with the murder of Peggy Lowe. While awaiting trial in Mississippi, Pruett was interviewed 3 by Detective Larry Hammond of the Fort Smith Police Department, to whom h e provided a detailed confession to the murder of Bobbie Jean Robertson. A jur y convi cted Pruett of Ms. Lowe’s murder and he was sentenced to death. Pruett wa s 4 then remanded to the custody of the United States and sent to Colorado to be tried for the mu rders of Balderson and Taitt. Pruett pled guilty to those crimes and receive d consecutive life sentences.

Pruett was returned to Arkansas to face charges in Ms. Robertson’s death. He
was arraigned on a capital murder charge on June 12, 1982, in the circuit court o f Sebastian County and pled not guilty. The public defender was appointed to assistPruet t was convicted of murdering Carnuteson and sentenced to lif e 5 imprisonment. See New Mexico v. Pruett , 675 P.2d 418 (N.M. 1984). -5- Pruett, wh o asked to represent himself. After discussions with counsel, the court set trial for Au gust 30, 1982. In late July, the defense filed a motion for a continuance , which the court denied. In early August, the defense filed a motion for change o f
venue. A t a subsequent pre-trial hearing, the defense renewed its motion fo r continuance. The court again denied the mo tion, but informed the public defender that it would grant a continuance in all other cases set for trial in which he was involved. Three days later, th e court granted the motion for change of venue and transferred the trial to Van Buren in Crawford County, which is adjacent to Sebastian County and in the same judicial district.

On August 30, voir dire began as scheduled. The defense moved to have th e jury panel quashed, for continuance, and for a second change of venue. These motions were denied. After voir dire was completed, the defense renewed its motions to quash the jury panel and for a second change of venue. Once again, the motions were denied. On Se ptember 9, 1982, after a trial that featured Pruett himself delivering a closin g argument in which he admitted to having killed Ms. Robertson, the jury found Pruett guilty of capital murder. At the conclusion of the penalty phase of the trial, the jur y sentenced Pruett to death by electrocution. The court entered judgment on the verdict and s entence, and set Pruett’s execution for March 10, 1983. Pruett was the n remanded to New Mexico to face charg es for the murder of his wife. Pruett was then 5 returned to Mississippi and placed in the custody of the Mississippi Department o f Correction.
Meanwhile, Pruett’s conv iction and sentence for Ms. Robertson’s murder were affirmed by the Supreme Court of Arkansas. See Pr uett v. Arkansas , 669 S.W.2d 186, 191 (Ark .), cert. denied , 469 U.S. 963 (1984). The court denied his subsequen t petition for postconvict

ion relief. See Pruett v. Arkansas , 697 S.W.2d 872, 879 (Ark.-6-

19 85) (per curiam). In June of 1987, Governor Clinton filed a demand that Pruett be returned to Arkansas to face execution for Robertson’s murder. In March of 1988 , Pruett was extradited from Mississippi to Arkansas and remanded to the Department of Correction to await execution of sentence. Execution was set for Apr il 7, 1988. The district court granted Pruett a stay of execution on April 4, 1988, pending a ruling on his petition for writ of habeas corpus filed that day pursuant to 28 U.S.C. § 2254.

Followi ng proceedings that extended over a period of some nine years, th e district court granted Pruett’s habeas petition. See Pruet t v. Norris , 959 F. Supp. 1066, 1092 (E.D . Ark. 1997). The court vacated Pruett’s conviction and sentence an d ordered t he State to release him or retry him within 120 days. See id. Althoug h denying fourteen other asserted grounds for relief, as well as a challenge to th e constitutionality of Pruett’s extra dition from Mississippi, the court held that: (1) Pruett had been denied a fair trial because of pretri al publicity, see id. at 1070-81, and (2) the admission of hypnotically refreshed testimony during the penalty phase of his tria l violated Pruett’s right of

confrontation. See id. at 1081-83. The district court denied the State’s motion to stay its order granting habeas relief. After the State filed its notice of appeal, we stayed the district court’s order pending this appeal.

II.

When considering a state prisoner’s habeas petition to determine whethe r circum stances mandate postconviction relief, a federal court’s review is limited t o determinin g whether the conviction or sentence was obtained in violation of th e Constitution, laws, or treaties of the United States. See Crump v. Caspari , 116 F.3d 326, 32 7 (8th Cir. 1997) (citing Estelle v. McGuire , 502 U.S. 62, 67-68 (1991)); 2 8 U.S .C. § 2254(a). In making this assessment, we presume state court findings to b e correct unless it is apparent that t here was some deficiency in the fact-finding process. See Amrine v. Bowersox , 128 F.3d 1222, 1228 (8th Cir. 1997) (en banc); 28 U.S.C.Althoug h the substantive standard by which federal courts review state cour t 6 determin ations of law under section 2254 was altered by the Antiterrorism an d Effec tive Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1218-2 1 (April 2 4, 1996), the Supreme Court has held that those changes do not appl y retroacti vely to cases pending when the Act was signed into law. See Lindh v

. Murphy , 117 S. Ct. 2059, 2068 (1997); Hender son v. Norris , 118 F.3d 1283, 1288 n.2 (8th Cir. 1997), cert. denied , 118 S. Ct. 1081 (1998). Because Pruett’s petition was filed long before the date of i ts enactment, the Act’s heightened evidentiary burden on a habeas petitioner’s challenge to a state court’s factual findings does not apply in this case. See 28 U.S.C. § 2254(e)(1) (1998).
-7- § 2254(d) (1994). The presumption o f correctness applies to all factual determinations 6 mad e by state courts of competent jurisdiction, including trial courts and appellat e courts. See Sumner v. Mata , 4 49 U.S. 539, 546 (1981). We review the district court’s factual findings for clear error and its legal con clusions de novo. See Hadley v. Groose , 97 F.3d 1131, 1134 (8th Cir. 1996).
The State first challenges the district court ’s determination that Pruett was denied
a fair trial because of pretrial publicity. Specifically, the district court faulted the trial court’s refusal to grant Pruett’s motion for a second change of venue and its refusal to gra nt a continuance that presumably would have allowed Pruett to gather additiona l evidence to support such a motion. See Pruett , 959 F. Supp. at 1077. Additionally, the district court stated that “[t]he trial judge further erred in accepting at face value th e belief of the jurors impa

neled that they could ignore what they had read in newspapers, seen on television an d heard and give Marion Albert Pruett the fair trial that was and is his right.” Id. These findings, entered some fifteen years after Pruett’s trial, stand i n
s h arp contrast to those of the state trial court. On direct appeal, the Supreme Court of Arkansas, while acknowledging that “publicity was great in Crawford County as wel l as Sebastian County,” Pruett , 669 S.W .2d at 188, concluded that because the trial court correctly determined that Pruett could receive a fair and impartial trial inWhen Pruett renewed his argument regarding pretrial publicity i n his petition for 7 state postconvic tion relief, the Supreme Court of Arkansas reiterated: “As we said on appeal, the trial court meticulously trie d to select a fair and impartial jury. Petitioner’s allegations of juror bias arising from pretrial publicity are not substantiated in thi s petition and are but a reworking of arguments made at trial and on appeal.” Pruett , 697 S.W.2d at 878. -8- Crawford County, it did not abuse its discretion in denying a second change of venue or in failing to grant a continuance. See id. at 188-89. 7

A.

The Due Process Clause of the Fourteenth Amendment guarantees the Sixth Amendment right o f jury trial in state criminal prosecutions. See Duncan v. Louisiana , 391 U.S. 1 45, 149 (1968)). This right includes the right to trial by an impartial jury

. See, e.g. , Irvin v. Dowd , 366 U.S. 717, 722 (1961).

The Supreme Court has discussed claims of constitutional error resulting fro m pretria lpublicity in a number of post- Irvincases. See, e.g. , Rideau v. Louisiana , 37 3 U.S. 723 (1963); Estes v. Tex as , 381 U.S. 532 (1965); Sheppard v. Maxwell , 384 U.S. 333 (1966); Murphy v. Florida , 421 U.S. 794 (1975); Patton v. Yount , 467 U.S. 1025 (1984); Mu’Min v. Virginia , 500 U.S. 415 (1991). A petitioner may attempt to prove that pretrial publicity was so e xtensive and corrupting that a reviewing court is required to “presume unfairness of constitutional m agnitude.” Dobbert v. Florida , 432 U.S. 282, 303 (1977); see also Snell v. Lockhart , 14 F.3d 1289, 1293 (8th Cir. 1994); Unite d States v. Faul , 748 F.2d 1204, 1211 (8th Cir. 1984). A petitioner must satisfy a hig h thresholdof proof in order to prove inherent prejudice. See Dobbert , 432 U.S. at 303 (qu oting Murphy , 421 U.S. at 798) (prejudice from pretrial publicity will not b e presumed in absence of “trial atmosphere . . . utterly corrupted by press coverage”). We have held that the presumption of inherent prejudice resulting from pretrial publicity is a principle “rarely applicable, being reserved for extreme situations.” Snell ,-9-

14 F.3d at 1293; see also Perry v. Lockhart , 871 F.2d 1384, 1390-91 (8th Cir. 1989) ; Clark v. Wood , 823 F.2d 1241, 1244 (8th Ci r. 1987); Wood v. Lockhart , 809 F.2d 457, 460 (8th Cir. 1987); Johnson v. Nix , 76 3 F.2d 344, 347 (8th Cir. 1985). In determining whether a defendant has met the standard of establishing presumed prejudice, “w e consider the circumstances preceding his trial.” Snell , 14 F.3d at 1294.

“One who is reasonably suspected of [murder] . . . cannot expect to remai n anonymous.” Dobbert , 432 U.S. at 303; see also Mu’Min , 500 U.S. at 429 (“A ny killing that ultima tely results in a charge of capital murder will engender considerable medi a
co verage”). An individual’s expectations of privacy and media restraint are lessene d when he has resolved to invite the very attention and generate the very pub licity of which he later complains. While he was awaiting trial in Mississippi for Lowe’s murder, Pruett elected to make several statements to newspaper and television reporters in which h e implicated himself in various crimes and boldly lab eled himself a “mad-dog killer.” Not
sur prisingly, Pruett’s pronouncements did not escape the attention of the Arkansa s media.

At an evidentiary hearing held in December of 1994, the district court receive d test imony regarding the publicity surrounding Pruett’s 1982 trial. According to th e court ’s findings, the bulk of publicity to which the populations of Sebastian an d Crawford Counties were exposed occurred in the weeks immediately following Ms

. Robertso n’s murder, approximately ten months before Pruett’s trial. As might b e expected, interest in the case was r ekindled as the trial drew near. The court found that Pruett’s videot aped statement that he was a “mad-dog killer” was played several times by virtually every local television station and numerous radio stat ions broadcasting in the region, although no time frame is ind icated for these references. Pruett , 959 F. Supp. at 1080 n.12. According to an expert witness retained on Pruett’s behalf, “It becam e commonplace to talk about Pruett as a ‘self-confessed mad-dog killer.’” Id.-10-

Pruett ’s witnesses made no attempt to characterize the impact of the medi a coverage as particularly in flammatory or prejudicial, but were largely content to simply document the quantum of its existence. See Dobbert , 432 U.S. at 303 (citing Murphy , 421 U.S. at 798) (“extensive knowledge in the community of either the crimes or th e putativ e criminal is not sufficient by itself to render a trial constitutionally unfair”)

. Moreover, a more balanced portrait of the extent and intensity of pretrial publicity in this case emerges when one reviews the testimony of Pruett’s trial attorney:
Q: Did you form any opinions about how the publicity affected the jury?
A: Actu ally, I was disappointed it was not as extensive as I had bee n afraid it would be. There were people who said, “Yeah, I’ve heard th e phrase ‘mad dog’ and I re member ‘mad dog killer’ but I’m not sure this is the s ame thing.” There was evidence of—There were some people wh o ha d some substantial information. There were people who had a little bit of recollection as to the phrase ‘mad dog killer’ or ‘mad dog,’ because that was a phrase that kept being run through the media. Q: Okay.
A: But it was not as—As I say, I was somewhat disappo inted. I wasn’t going t o let the venue issue die. You know, one of the things that Mr

. Pruett and I had talked about when we were talking about the change o f venue from Sebastian County to Crawford County was that I didn’t intend to just let it

die, but if there was anything over in Crawford County, I was going to make a motion for continuance. I was going to ask for the chance to develop the moti on for change of venue. And there was enough for me to make that motion, but I— Q: But not as much as you would have thought?
A: Not as much as I really had anticipated.Defense counsel also gave the following testimony: 8 Q: Okay. Did you consider when the venue was change d to Crawford Coun ty what the emotional impact would have been on those jurors i n Crawford County? . . . Of the crime, the emotional impact of the crime.
A: I didn’t feel that the impact would be nearly as direct. It wasn’t in Van Buren. . . . The crime was not committed in Van Buren.
-11- Q: Have you handled other death penalty cases wh ere the publicity was more pervasive?
A: Well, I had two cases where I felt the publicity was more extensive. On e was Swindler. That case was a trial on remand from the Arkansa s Sup reme Court. And we had 120 jurors questioned and 79 excused fo r cause, so maybe I was spoiled by that case. But Simmons, I thought there would be an extensive— I thought publicity would be horrendous and I thought the jury— I thought the publicity was hor rendous and I thought the impact on the jury would be substantial and I was surprised in the voir dire in that c ase. And that was in the same courtroom. That was in Crawford County in August of 1981. I was surprised that it wa sn’t as substantial and extensive as I had anticipated. 8
Nothing suggests that the atmosphere surrounding Pruett’s trial was anyth ing other than calm, orderly, and uneventful. The trial had none of the “circus atmosphere” that char acterized the trials in Estes and Sheppard . Moreover, the trial was held eleve n months afte

r the original crime, long enough for much of any initial shock and hostility in the community to have dissipated. See Simmo ns v. Lockhart , 814 F.2d 504, 510 (8th Cir. 1987 ) (recognizing benefits of cooling-off period of seven months). The recor d indic ates that media coverage was largely unexceptional, perhaps even less pervasiv e and inflammatory th an publicity generated in similar cases. Although Pruett’s decision to inject his “mad-dog killer” self-assessment into the stream of media may well hav e had a negative effect upon public opinion, such influences can normally be effectively neutralized by the curative procedural safeguards employed in this case,Contrary to the district court’s apparent conclusion, this is not a case in which 9 scrutiny of the venire reveals a le vel of widespread corruption resulting from exposure to pretrial publicity so pervasive and unrelenting as to constitutes inherent prejudice. According to the district court, 22 of the 77 potential jur ors (29 percent) acknowledged during vo ir dire that they likely could not be impartial or accord Pruett a presumption of innocence. See Pruett , 959 F. Supp. at 1075. In our view, such a figure does not evince a “pattern of deep and bitter prejudice” against Pruett that would allo w prejudice to be presumed. Snell , 14 F.3d at 1295 (constitutional error resulting from pretri al prejudice could not be presumed where 18 of 49 potential jurors (37 percent) expressed bias against defendant); se e also Faul , 748 F.2d at 1213 (affirming denial of relief on similar grounds where 39 of 78 potentia l jurors (50 percent) were excluded as pote ntially partial); Murphy , 421 U.S. at 803 (fact that 20 of 78 potential jurors (2 6 percent) wereprejudiced against defendant “by no means suggests a community with sen timent so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own”).
-12- including a change of venue from the county in which the crime occurred an d a thorough, indiv idual voir dire of potential jurors. Accordingly, we conclude that the pretria l publicity in this case fell short of the showing that must be made before prejudice of a constitutional dimension will be presumed. See, e.g. , Snell , 14 F.3d at 1293 (pretria l publicity did not pre

judice jury despite expert testimony that it was “as great or greater than the publicity in virtually any other trial they had seen”) ; Orsini v. Wallace , 913 F.2d 474, 482 (8th Cir. 1990) (rejecting arg ument that pretrial publicity denied petitioner fair trial des pite finding that case was “more highly publicized than any other criminal trial in recent Arkansas history”). 9

B.
Having concluded that the record does not support a finding of presume d pre judice, we turn to the second tier of analysis, which requires a petitioner t o demonstrate actual prejudice as a condition to receivin g habeas relief. See Murphy , 421 U.S. at 800; Snell , 14 F.3d at 1294. In making this assessment, a court looks t o “indications in the totality of circumstances” to determine if any inference of jurorInorder of selection, these eleven jurors were: Randy E. Rider, Dee An n 10 Wilcox, Marilyn

Richmond, J. C. Hodges, Mary Carter, Deloyd Burr, Therese Picco, Carolyn Hailey, Lee Wright, Maureen LaRue, and Richard Allured. The fin al decision to designate each of these individuals as satisfactory to the 11 defense was apparently made by Pruett himself, acting as co-counsel. -13- parti ality rendered the trial fundamentally unfair. Murphy , 421 U.S. at 799. I n particular, when a petitioner alleges an improper den ial of a motion to change venue, we conduct an independent evaluation of the voir dire testimony of the impaneled jurors

. See Hill v. Lockhart , 28 F.3d 832, 847-48 (8th Cir. 1994).

The Constitution does not require jurors to be ignorant of the facts and issue s involved in a case. See Irvin , 366 U.S. at 722; Cox v. Norris , 133 F.3d 565, 570 (8th Cir. 1997). Instead, the relevant question is whether the jurors actually seated “had such fixed opinions tha

t they could not judge impartially the guilt of the defendant.” Patton , 467 U.S. at 1035; see also Mu’Min , 500 U.S. at 430. “It is sufficient if the juror can lay aside his impression or opinio n and render a verdict based on the evidence presented in court.” Irvin , 366 U.S. at

723; see also Cox , 133 F.3d at 570; Perry , 871 F.2d at 1390.

The question whether a jury was actually impartial is “plainly one of historica l fact: did a juror

swear that he could set aside any opinion he might hold and decide the
case on the evidence, and should the juror’s protestation of impartiality have bee n believed.” Patton , 467 U.S. at 1036. Because a determination of this kind “ is essentially one of credibility, and therefore largely one of demeanor,” the trial court’s resolution of the question is entitled to special deferen ce, id. at 1038, and may be overturned only for “manifest error.” Id. at 1031-32; see also Hill , 28 F.3d at 847-48.
The first eleven jurors in Pruett’s trial were selected from an original panel of 65 residents of Crawford County. Each of these jurors was a ccepted by the defense; none 10 was challenged for cause or sought to be challenged peremptorily. A 11The

district court’s analysis omitted two jurors while including two members 12 of the venire (James Hughes and Nellie Shelly) who were excused before selection was completed. See Pruett , 959 F. Supp. 1078-80. Our review o f the voir dire proceedings reveals the following: Rider reported having read and heard about Ms. Robertson’ s murder, but did not know the details of any alleged involvement by Pruett. See Tr. Vol. III at 917-18. Wilcox

“[v]aguely” recalled having heard of the case. Tr. Vol. IV a t 1080. Richmond

had seen television and newspaper reports about the incident an d knew that Pruett had been arrested as a suspect. Id. at 1093-96. Hodges had not seen any television reports, but had read about the murder and knew that “a man ha d been—been charged with it and that’s all—about all I’ve heard about it.” Id. at 1386- 87. Carter

had heard of th e incident and seen Pruett’s picture on television. She also recog nizedthe phrase “mad-dog killer,” although she did not see Pruett’s pres s -14- suppl emental panel of twelve potential jurors was then summoned, and eight members of this panel were examined before a twelfth juror, Girlie Row, wa s seated. The defense challenged Row for cause, which the court denied. The defense then stated that it likely would have exercised a peremptory c hallenge against Row had it not already exhausted its allotted twelve. The defense made no motion or request for additional challenges.
On direct appeal, the Supreme Court of Arkansas made the following obser vations regarding the jury selection process:

The numb er of jurors excused for cause by the trial court indicated tha t much publicity surrounded this case and that the court meticulously tried to select a fair and impartial jury. Of the 12 members who served on the jury only three had prior knowledge of the facts of the case. The cour t utilized individually sequestered voir dire in the jury selection process

. This w as another precaution which the trial court used to insure prope r selection of a jury. The court went so far as to allow the striking of jurors who were already seated.

Prue tt , 669 S.W.2d at 188-89. The district court disagreed with these observations , find ing that eleven of the twelve jurors had had prior exposure to the facts of Pruett’ s
case. 12conference. Id. at 1397-1400. Burr said that he had read about the murder an d Pruett’s arrest and had seen a videotape of his being brought to the courthouse. Tr

. Vol. V. at 1 530-32. Picco stated that she had heard Pruett was accused of the crime. Id. at 1690 -91. Hailey was familiar with the incident and “how [Pruett] referred t o himself , evidently he was upset and he called himself a mad-dog killer, is what I heard.” Id. at 1740. The trial cour t specifically questioned Pruett regarding this juror:
THE COURT: An d having heard all of this, it’s still your desire tha t she sit on the Jury?
MR. PRUETT: Yes, sir, it is.
Id. at 1756. W

right had not heard anything about the case. Tr. Vol. VI at 1819

. LaRue had heard abou t the crime and had seen Pruett “handcuffed” on television. Id. at 18 34-35. Allured

had seen some television reports, but did not recall any details

. He was under the i mpression that Pruett had been convicted of “some other crimes of violence.” Id. at 1973-74. As with Hailey, Pruett himsel f expressly affirmed his desire that Allured serve on the jury after a colloquy with the court. Id. at 1990-91. Lastly, Row indicated she had heard that somebody had been murdered and Pruett’s name had been mentioned in connection with t he incident. She had seen, however, no television or newspaper reports. Tr. Vol. VIII at 2306. -15- The district court’s emphasis on the number of jurors who had been exposed to some measure of informatio n regarding Ms. Robertson’s murder or Pruett’s arrest begs t he point of the proper inquiry to be made. “The accused is not entitled to an ignorant jury, just a fair one.” Simmons , 814 F.2d at 510. Here, each juror expressly affirmed that he or she could be impartial and render a verdict based solely on the evidenc e presented at trial, a

nd nothing in the record suggests otherwise. See Perry , 871 F.2d at 1390 (“Perry points to nothing in the record th at suggests that the jury was partial, as he is required to do”).-16-

We concl ude that the record does not support the district court’s finding tha t prejudice from pretrial pu

blicity prevented Pruett from receiving a fair trial. Moreover, nothing in the record leads us to believe that the trial court’s factual determination that the jury could be impartia

l was manifestly erroneous. As a result, we conclude that the refusal to grant a second change of venue and the refusal to postpone the trial in order to allow the defense to gather evidence to support such a motion did not result i n constitutional error.

III.
During th e sentencing phase of his trial, the State called two witnesses to testify
re garding Pruett’s robbery of the Unifirst Federal Savings and Loan Association i n Jackson, Mis sissippi, and the abduction of Peggy Lowe. The State first called Bett y Sible y, who was working as a teller when the robbery occurred. Sibley testified, i n pertinent part:
Q: . . . and what were the circumstances of that robbery?
A: . . . [A] man came

in and got all of our attention and said, hey, you know, this is a hold-up. He said if we set off an alarm, he would blow our damn bra ins out and he looked around and he wanted to know who th e man ager was and Miss Brown said that she was and he told her that h e wanted $100,000.00 out of the va ult. She said, we don’t have that kind of money in the vault and he said, how much money do you have. She told him $10,000.00 and he said , get that. Then he looked around and he said, and I’m taking her as hostage and he pointed to me and he told me to get my keys to my car.

. . . . A: At that point, a customer came in the other side of the building and went to the other teller for them to wait. That left Peggy Lowe and Pruett in the lobby. At that point, he had sent the branch manager to get the-17-

money and he made Miss Lowe move over to the desk and sit on the inside of the desk l ike she was waiting on him. He was sitting on the outside

. Then someone come [sic] to the drive-in window and he motioned for me to g o wait on the drive-in window. The branch manager had the mone y and about that time, he and Mrs. Lowe went to M rs. Lowe’s office and her phone rang and he let her answer her phone and he was making her get her keys to her car and it was her son on the phone wanting to come and have lunc h with her. Then, he started walking like they were going out of th e office and he had the gun behind Mrs. Lowe’s back forcing her -- no t forcing her, making her go out of the office. Mrs. Lowe came aroun d behin d the counter -- I left that out -- Miss Lowe came around behind the count er and got the money from the branch manager and then put it in a sack that Pruett had given her and then they went out of the office.

Follo wing Sibley’s testimony, the State called Sergeant O. T. McAlphin, a Jackson police officer, who testified that Pruett had confessed to shooting Ms. Lowe and had pro vided information that allowed police to recover her body. McAlphin als o te stifiedthat Ms. Lowe had died from “a gunshot wound to the back of the head. ” Lastly, the State introduced documents proving that, as a result of the aforementioned events, Pruett had been convi cted on federal charges of armed robbery and kidnapping, pursuant to his guilty plea.
By way of mitigation, the

defense called Detective Hammond, who related some minor details regarding his investigation of Ms. Robertson’s death, and Dr. Douglas A. St evens, a clinical psychologist, who testified to his opinion that Pruett was sufferin g fromth e combined effects of cocaine and amphetamine psychosis to the point that h e was “not clearly in contact with reality” when he killed Ms. Robertson. Pruett chose not to testify on his own behalf.

The ju ry found that Ms. Robertson’s murder was committed under tw o aggravating circumstances: (1) that Pruett had previously committed another felony-18-

involving “the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another per son,” and (2) that he had committed the murder of

Ms. Robertson for pecuniary gain. Although it found that Pruett presente d some evidence that his mental capacity was impaired as the result of drug abuse, the jury ultimately concluded that no miti gating circumstances existed at the time of the murder. Agreeing that the aggravating circumstances outweigh ed beyond a reasonable doubt any mitigating circumstances, the jury unanimously sentenced Pruett to death.

In 1988, Pruett’s attorneys learned that in September of 1981, Sibley ha d undergone hypnosis in connection with the FBI’s investigation of the Unifirst robbery. The district court found that t he State was unaware of this fact when it called Sibley as a witness at the sentencing phase of Pruett’s Arkansas trial. The district court then found that the admission of Sibley’s testimony violated Pruett’s Sixth and Fourteenth Amendment

right to confrontation. See Pruett , 959 F. Supp. at 1081. Concluding that the violation did not constitute harml ess error, the court granted Pruett’s petition on this ground. See Pruett , 959 F. Supp. at 1082-83.

The admission of hypnotically refreshed testimony does not invariably result i n constitutional error. See Boykin v. Leapley , 28 F.3d 788, 793-94 (8th Cir. 1994); White v. Ieyoub , 25 F.3d 245, 247 (5th Cir. 1994) (neither due process nor confro ntation clause require per se bar to admission of post-hypnotic testimony). A defendant states a Confrontation Clause violation by demonstrating that a reasonable jury might hav e received a significantly different impression of a witness’s testimony or credibility had th e defense been permitted the opportunity to pursue its proposed line of questioning

. See Harrington v. Iowa , 109 F.3d 1275, 1277 (8th Cir. 1997) (citing Delaware v. Van Arsdall , 475 U.S. 673, 680 (1986)).

Assumi ng, without deciding, that Sibley’s testimony violated Pruett’s right o f confronta tion, we proceed to the issue of whether that error was harmless. See Gee v.In most federal habeas actions, a harmless error inquiry consists of assessing 13 “whether the error ‘had substa ntial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrah amson , 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States , 328 U.S. 750, 776 (194 6)). When a state court has not conducted its own harmless error analysis on a constitutional issue, however, we apply the Chapman standard, requiring the State to prove that the error “w as harmless beyond a reasonable doubt.” Orndorff

, 998 F.2d at 1430 (quoting Chapman v. California , 386 U.S. 18, 24 (1967)). -19- Groose , 110 F.3d 1346, 1350 (8th Cir. 1997) (Confrontation Clause violations ar e subject to harmless error inquiry). We review the district c ourt’s harmless error analysis de novo. See Orndorff v. Lockhart , 998 F.2d 1426, 1432 (8th Cir. 1993). 13

In Orndorff

, we set forth the following procedure for determining whether a Conf rontation Clause violation resulting from hypnotically enhanced testimony wa s harmless: We must first compare the p re- and post-hypnotic statements to determine if any “significant differences” exist. If no significant differences ar e found , the error is deemed to be harmless. If, however, significan t differences do exist, we must determine if the variations nevertheless are harmless. To accomplish that tas k, we assume that [the witness] had been cross-examined about the hypnosis, and we also assume that the damaging potential of that cross- examination was fully realized. That is, we assume t he jury was made aware of any changes in [the witness’s] story after the hypnosis, as well as the possibility of “confabulation,” “su ggestibility,” and “memory-hardening” that is assoc iated with hypnosis. After making these assumptions , we must determine if we can still say that the error wa s harmless beyond a reasonable doubt.
998 F.2d at 1431-32 (internal citation and footnote omitted).
In conducting its Orndorff

analysis , the district court determined that “significant differences” existed between Sibley’s pre- and post-hypnotic statements, pronouncing-20-

the latter to have been “more detailed, more embellished.” Pruett , 959 F. Supp. at 1082. First, the c ourt was troubled by the fact that in her pre-hypnotic statement Sibley ha d mad e no mention to police of the telephone call that Ms. Lowe received from her so n during th e course of the robbery. The court observed that this added detai l “strengthened the prosecutor’s portrayal of Pruett as inhumane.” Id. at 1083. The court also ex pressed concern that, prior to being hypnotized, Sibley had apparently made no expres s reference to Pruett’s having held a gun to Ms. Lowe’s back during th e commission of the robbery. See id. at 1082.

With all due respect to the district court’s analysis, we conclude that Sibley’ s post-hypnotic references to Pruett’s use of a gun and to the extraneous detail that Ms. Lo we received a phone call from her son during the robbery do not constitute material
or significant differences between her pre- and post-hypnotic statements regarding the
mann er in which Pruett committed the Unifirst robbery. Ms. Sibley’s testimony tha t Pruett had threatened to “blow our damn brains out,” coupled wit h Sergeant McAlphin’s testi mony that Ms. Lowe had died as a result of a gunshot wound to the back of he r head, established beyond any serious doubt the fact that Pruett h ad used a gun during the robbery

. The post-hypnotic reference to the fact that Pruett had held the gun at Ms

. Lowe’s back as he took her out of the building pales into insignificance in the light of the overall circumstances of the robbery. (Indeed, it would be a unusual jury that would not assume t hat, having threatened to blow the employees’ brains out, Pruett in al l likelihood had brandished the weapon as he took Ms. Lowe from the building.) Th e post -hypnotic reference to the phone call from Ms. Lowe’s son is of even les s significance. Accordingly, any error resulting from the post-hypnotic testimony wa s harmless beyond a reasonable doubt.-21- IV.
Pruett cross-appeals from the district court’s denial of relief on the ground that the jury was not instructed that the death penalty could not be imposed wit hout a finding that Pruett acted with “reckless indifferenc e to human life.” See Tison v. Arizona , 481 U.S. 13 7, 157 (1987) (holding that reckless disregard for human life is sufficiently culpable mental state to support death penalty in felony murder case). The jury was instructe d that Pruett could not be found guilty of capital murder under Arkansas law unless th e State proved beyond a reasonable do ubt that he “caused the death of Bobbie Robertson under c ircumstances manifesting an extreme indifference to the value of human life. ” We ag ree with the district court that that instruction satisfies the constitutiona l requirements set forth in Tison and that it required the jury to mak e the finding necessary to support the imposition of the death penalty.

The cross- appeal is denied. The order granting Pruett’s habeas petition i s reversed, and the case is remanded for entry of judgment dismissing the petition.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.