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. Ark. 1995), aff’d, 107 F.3d 665 (8th Cir.), cert. denied,

118 S. Ct. 15 (1997).

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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, Pruett was released from a 23-year federal penitentiary sentence for

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

Program 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 with a hammer and burned with gasoline. Before authorities could gather

enough evidence against him, Pruett fled and embarked on a cross-country spree of

armed robberies, abductions, and murder. Among Pruett’s more brutal offenses were

the murder of Peggy Lowe, a savings and loan officer whom he abducted during a

robbery in Jackson, Mississippi, and later shot in the back of the head, and the murders

of James R. Balderson and Anthony Taitt, two store clerks whom he shot during

separate robberies on the same day in two Colorado cities.2
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On October 11, 1981, Pruett arrived in Fort Smith, Arkansas, and began scouting

the city for a place to commit yet another robbery. He looked for a bank or a store, but

since it was Sunday and most establishments were closed he decided to park his car in

a secluded, wooded area known as Horseshoe Bend. There, he injected himself with

cocaine and consumed whiskey for several hours. Sometime after midnight, Pruett

drove to 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 working there 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 area

where he had earlier parked, Pruett assured Ms. Robertson that if she cooperated she

would be released. When they reached 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. Robertson on the upper left thigh, fracturing her femur. As Ms. Robertson

struggled and tried to run away, she was struck by a bullet in the right shoulder and fell

to the ground. Pruett pulled his car around, got out, and walked over to her. He bent

down, pressed the muzzle of his revolver against the young woman’s left temple, and

fired the third and fatal shot. Pruett returned to his car and drove off with the

pocketbook and approximately $165.00 from the store. The next day, police

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 insured

3

savings and loan institution and with abducting Ms. Lowe in connection with that

incident, in violation of 18 U.S.C. § 2113(a), (d) & (e). Pruett pled guilty and received

consecutive sentences of 25 years and life.

Pruett’s conviction and sentence were affirmed by the Supreme Court of

4

Mississippi. See Pruett v. Mississippi, 431 So. 2d 1101, 1110 (Miss.) (en banc), cert.

denied, 464 U.S. 865 (1983). Pruett’s petition for writ of error coram nobis was

denied. See Pruett v. Thigpen, 444 So. 2d 819, 828 (Miss. 1984) (en banc).

Subsequently, a district court in Mississippi granted Pruett a new trial, holding that the

participation of an admittedly biased juror over the objections of both the defendant and

the state 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), cert. denied, 481

U.S. 1033 (1987). In February of 1988, Pruett was retried in Mississippi and once

again convicted of Ms. Lowe’s murder. Because the jury was unable to reach an

agreement during the penalty phase of trial, the court imposed a life sentence.

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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 he 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 he

provided a detailed confession to the murder of Bobbie Jean Robertson. A jury

convicted Pruett of Ms. Lowe’s murder and he was sentenced to death. Pruett was

4

then remanded to the custody of the United States and sent to Colorado to be tried for

the murders of Balderson and Taitt. Pruett pled guilty to those crimes and received

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 of

Sebastian County and pled not guilty. The public defender was appointed to assist
Pruett was convicted of murdering Carnuteson and sentenced to life

5

imprisonment. See New Mexico v. Pruett, 675 P.2d 418 (N.M. 1984). 

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Pruett, who asked to represent himself. After discussions with counsel, the court set

trial for August 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 of

venue. At a subsequent pre-trial hearing, the defense renewed its motion for

continuance. The court again denied the motion, 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, the 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 the

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 September 9, 1982, after a trial that featured Pruett himself delivering a closing

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 jury

sentenced Pruett to death by electrocution. The court entered judgment on the verdict

and sentence, and set Pruett’s execution for March 10, 1983. Pruett was then

remanded to New Mexico to face charges for the murder of his wife. Pruett was then 5

returned to Mississippi and placed in the custody of the Mississippi Department of

Correction.

Meanwhile, Pruett’s conviction and sentence for Ms. Robertson’s murder were

affirmed by the Supreme Court of Arkansas. See Pruett v. Arkansas, 669 S.W.2d 186,

191 (Ark.), cert. denied, 469 U.S. 963 (1984). The court denied his subsequent

petition for postconviction relief. See Pruett v. Arkansas, 697 S.W.2d 872, 879 (Ark.
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1985) (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 April 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.

Following proceedings that extended over a period of some nine years, the

district court granted Pruett’s habeas petition. See Pruett v. Norris, 959 F. Supp. 1066,

1092 (E.D. Ark. 1997). The court vacated Pruett’s conviction and sentence and

ordered the State to release him or retry him within 120 days. See id. Although

denying fourteen other asserted grounds for relief, as well as a challenge to the

constitutionality of Pruett’s extradition from Mississippi, the court held that: (1) Pruett

had been denied a fair trial because of pretrial publicity, see id. at 1070-81, and (2) the

admission of hypnotically refreshed testimony during the penalty phase of his trial

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 whether

circumstances mandate postconviction relief, a federal court’s review is limited to

determining whether the conviction or sentence was obtained in violation of the

Constitution, laws, or treaties of the United States. See Crump v. Caspari, 116 F.3d

326, 327 (8th Cir. 1997) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)); 28

U.S.C. § 2254(a). In making this assessment, we presume state court findings to be

correct unless it is apparent that there 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.
Although the substantive standard by which federal courts review state court

6

determinations of law under section 2254 was altered by the Antiterrorism and

Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1218-21

(April 24, 1996), the Supreme Court has held that those changes do not apply

retroactively to cases pending when the Act was signed into law. See Lindh v.

Murphy, 117 S. Ct. 2059, 2068 (1997); Henderson 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 its 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).

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§ 2254(d) (1994). The presumption of correctness applies to all factual determinations 6

made by state courts of competent jurisdiction, including trial courts and appellate

courts. See Sumner v. Mata, 449 U.S. 539, 546 (1981). We review the district court’s

factual findings for clear error and its legal conclusions 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

grant a continuance that presumably would have allowed Pruett to gather additional

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 the

belief of the jurors impaneled that they could ignore what they had read in newspapers,

seen on television and 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 in

sharp 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 well

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 in
When Pruett renewed his argument regarding pretrial publicity in his petition for 7

state postconviction relief, the Supreme Court of Arkansas reiterated: “As we said on

appeal, the trial court meticulously tried to select a fair and impartial jury. Petitioner’s

allegations of juror bias arising from pretrial publicity are not substantiated in this

petition and are but a reworking of arguments made at trial and on appeal.” Pruett, 697

S.W.2d at 878.

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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 of jury trial in state criminal prosecutions. See Duncan v. Louisiana,

391 U.S. 145, 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 from

pretrial publicity in a number of post-Irvin cases. See, e.g., Rideau v. Louisiana, 373

U.S. 723 (1963); Estes v. Texas, 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 extensive and corrupting that a reviewing court is required

to “presume unfairness of constitutional magnitude.” Dobbert v. Florida, 432 U.S. 282,

303 (1977); see also Snell v. Lockhart, 14 F.3d 1289, 1293 (8th Cir. 1994); United

States v. Faul, 748 F.2d 1204, 1211 (8th Cir. 1984). A petitioner must satisfy a high

threshold of proof in order to prove inherent prejudice. See Dobbert, 432 U.S. at 303

(quoting Murphy, 421 U.S. at 798) (prejudice from pretrial publicity will not be

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,
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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 Cir. 1987); Wood v. Lockhart, 809 F.2d 457,

460 (8th Cir. 1987); Johnson v. Nix, 763 F.2d 344, 347 (8th Cir. 1985). In determining

whether a defendant has met the standard of establishing presumed prejudice, “we

consider the circumstances preceding his trial.” Snell, 14 F.3d at 1294.

“One who is reasonably suspected of [murder] . . . cannot expect to remain

anonymous.” Dobbert, 432 U.S. at 303; see also Mu’Min, 500 U.S. at 429 (“Any killing

that ultimately results in a charge of capital murder will engender considerable media

coverage”). An individual’s expectations of privacy and media restraint are lessened

when he has resolved to invite the very attention and generate the very publicity 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 he

implicated himself in various crimes and boldly labeled himself a “mad-dog killer.” Not

surprisingly, Pruett’s pronouncements did not escape the attention of the Arkansas

media.

At an evidentiary hearing held in December of 1994, the district court received

testimony regarding the publicity surrounding Pruett’s 1982 trial. According to the

court’s findings, the bulk of publicity to which the populations of Sebastian and

Crawford Counties were exposed occurred in the weeks immediately following Ms.

Robertson’s murder, approximately ten months before Pruett’s trial. As might be

expected, interest in the case was rekindled as the trial drew near. The court found that

Pruett’s videotaped statement that he was a “mad-dog killer” was played several times

by virtually every local television station and numerous radio stations broadcasting in the

region, although no time frame is indicated for these references. Pruett, 959 F. Supp. at

1080 n.12. According to an expert witness retained on Pruett’s behalf, “It became

commonplace to talk about Pruett as a ‘self-confessed mad-dog killer.’” Id.
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Pruett’s witnesses made no attempt to characterize the impact of the media

coverage as particularly inflammatory 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 the

putative 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: Actually, I was disappointed it was not as extensive as I had been

afraid it would be. There were people who said, “Yeah, I’ve heard the

phrase ‘mad dog’ and I remember ‘mad dog killer’ but I’m not sure this is

the same thing.” There was evidence of—There were some people who

had 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 disappointed. I wasn’t

going to 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 of

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 motion 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 changed to Crawford

County what the emotional impact would have been on those jurors in

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.

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Q: Have you handled other death penalty cases where the publicity was

more pervasive?

A: Well, I had two cases where I felt the publicity was more extensive.

One was Swindler. That case was a trial on remand from the Arkansas

Supreme Court. And we had 120 jurors questioned and 79 excused for

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 horrendous and I thought the

impact on the jury would be substantial and I was surprised in the voir dire

in that case. And that was in the same courtroom. That was in Crawford

County in August of 1981. I was surprised that it wasn’t as substantial and

extensive as I had anticipated.8

Nothing suggests that the atmosphere surrounding Pruett’s trial was anything other

than calm, orderly, and uneventful. The trial had none of the “circus atmosphere” that

characterized the trials in Estes and Sheppard. Moreover, the trial was held eleven

months after the original crime, long enough for much of any initial shock and hostility

in the community to have dissipated. See Simmons v. Lockhart, 814 F.2d 504, 510 (8th

Cir. 1987) (recognizing benefits of cooling-off period of seven months). The record

indicates that media coverage was largely unexceptional, perhaps even less pervasive

and inflammatory than publicity generated in similar cases. Although Pruett’s decision

to inject his “mad-dog killer” self-assessment into the stream of media may well have

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 level 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 jurors (29 percent) acknowledged

during voir 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 allow

prejudice to be presumed. Snell, 14 F.3d at 1295 (constitutional error resulting from

pretrial prejudice could not be presumed where 18 of 49 potential jurors (37 percent)

expressed bias against defendant); see also Faul, 748 F.2d at 1213 (affirming denial of

relief on similar grounds where 39 of 78 potential jurors (50 percent) were excluded as

potentially partial); Murphy, 421 U.S. at 803 (fact that 20 of 78 potential jurors (26

percent) were prejudiced against defendant “by no means suggests a community with

sentiment so poisoned against petitioner as to impeach the indifference of jurors who

displayed no animus of their own”).

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including a change of venue from the county in which the crime occurred and a thorough,

individual voir dire of potential jurors. Accordingly, we conclude that the pretrial

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 (pretrial

publicity did not prejudice 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 argument that pretrial publicity denied petitioner fair

trial despite 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 presumed

prejudice, we turn to the second tier of analysis, which requires a petitioner to

demonstrate actual prejudice as a condition to receiving habeas relief. See Murphy, 421

U.S. at 800; Snell, 14 F.3d at 1294. In making this assessment, a court looks to

“indications in the totality of circumstances” to determine if any inference of juror
In order of selection, these eleven jurors were: Randy E. Rider, Dee Ann

10

Wilcox, Marilyn Richmond, J. C. Hodges, Mary Carter, Deloyd Burr, Therese Picco,

Carolyn Hailey, Lee Wright, Maureen LaRue, and Richard Allured.

The final decision to designate each of these individuals as satisfactory to the 11

defense was apparently made by Pruett himself, acting as co-counsel. 

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partiality rendered the trial fundamentally unfair. Murphy, 421 U.S. at 799. In

particular, when a petitioner alleges an improper denial 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 issues

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 that 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 opinion 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 historical

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 been

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 deference, 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 accepted by the defense; none 10

was challenged for cause or sought to be challenged peremptorily. A 11
The 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 of 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 at

1080. Richmond had seen television and newspaper reports about the incident and

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 had

been—been charged with it and that’s all—about all I’ve heard about it.” Id. at 1386-

87. Carter had heard of the incident and seen Pruett’s picture on television. She also

recognized the phrase “mad-dog killer,” although she did not see Pruett’s press

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supplemental panel of twelve potential jurors was then summoned, and eight members

of this panel were examined before a twelfth juror, Girlie Row, was seated. The defense

challenged Row for cause, which the court denied. The defense then stated that it likely

would have exercised a peremptory challenge 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 observations

regarding the jury selection process:

The number of jurors excused for cause by the trial court indicated that

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 court

utilized individually sequestered voir dire in the jury selection process.

This was another precaution which the trial court used to insure proper

selection of a jury. The court went so far as to allow the striking of jurors

who were already seated.

Pruett, 669 S.W.2d at 188-89. The district court disagreed with these observations,

finding that eleven of the twelve jurors had had prior exposure to the facts of Pruett’s

case.12
conference. Id. at 1397-1400. Burr said that he had read about the murder and

Pruett’s arrest and had seen a videotape of his being brought to the courthouse. Tr.

Vol. V. at 1530-32. 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 to

himself, evidently he was upset and he called himself a mad-dog killer, is what I

heard.” Id. at 1740. The trial court specifically questioned Pruett regarding this juror:

THE COURT: And having heard all of this, it’s still your desire that

she sit on the Jury?

MR. PRUETT: Yes, sir, it is.

Id. at 1756. Wright had not heard anything about the case. Tr. Vol. VI at 1819.

LaRue had heard about the crime and had seen Pruett “handcuffed” on television. Id.

at 1834-35. Allured had seen some television reports, but did not recall any details.

He was under the impression that Pruett had been convicted of “some other crimes of

violence.” Id. at 1973-74. As with Hailey, Pruett himself 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 the incident. She had seen, however, no television

or newspaper reports. Tr. Vol. VIII at 2306.

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The district court’s emphasis on the number of jurors who had been exposed to

some measure of information regarding Ms. Robertson’s murder or Pruett’s arrest begs

the 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 evidence

presented at trial, and nothing in the record suggests otherwise. See Perry, 871 F.2d at

1390 (“Perry points to nothing in the record that suggests that the jury was partial, as he

is required to do”).
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We conclude that the record does not support the district court’s finding that

prejudice from pretrial publicity 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 impartial 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 in

constitutional error.

III.

During the sentencing phase of his trial, the State called two witnesses to testify

regarding Pruett’s robbery of the Unifirst Federal Savings and Loan Association in

Jackson, Mississippi, and the abduction of Peggy Lowe. The State first called Betty

Sibley, who was working as a teller when the robbery occurred. Sibley testified, in

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 brains out and he looked around and he wanted to know who the

manager was and Miss Brown said that she was and he told her that he

wanted $100,000.00 out of the vault. 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
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money and he made Miss Lowe move over to the desk and sit on the inside

of the desk like 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 go wait on the drive-in window. The branch manager had the money

and about that time, he and Mrs. Lowe went to Mrs. 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

lunch with her. Then, he started walking like they were going out of the

office and he had the gun behind Mrs. Lowe’s back forcing her -- not

forcing her, making her go out of the office. Mrs. Lowe came around

behind the counter -- I left that out -- Miss Lowe came around behind the

counter 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.

Following 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 provided information that allowed police to recover her body. McAlphin also

testified that 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 convicted 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.

Stevens, a clinical psychologist, who testified to his opinion that Pruett was suffering

from the combined effects of cocaine and amphetamine psychosis to the point that he

was “not clearly in contact with reality” when he killed Ms. Robertson. Pruett chose not

to testify on his own behalf.

The jury found that Ms. Robertson’s murder was committed under two

aggravating circumstances: (1) that Pruett had previously committed another felony
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involving “the use or threat of violence to another person or creating a substantial risk

of death or serious physical injury to another person,” and (2) that he had committed the

murder of Ms. Robertson for pecuniary gain. Although it found that Pruett presented

some evidence that his mental capacity was impaired as the result of drug abuse, the jury

ultimately concluded that no mitigating circumstances existed at the time of the murder.

Agreeing that the aggravating circumstances outweighed 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 had

undergone hypnosis in connection with the FBI’s investigation of the Unifirst robbery.

 The district court found that the 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 harmless 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 in

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 confrontation 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 have

received a significantly different impression of a witness’s testimony or credibility had

the 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)). 

Assuming, without deciding, that Sibley’s testimony violated Pruett’s right of

confrontation, 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 substantial and injurious effect or influence in determining the

jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). 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 “was harmless beyond a reasonable

doubt.” Orndorff, 998 F.2d at 1430 (quoting Chapman v. California, 386 U.S. 18, 24

(1967)).

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Groose, 110 F.3d 1346, 1350 (8th Cir. 1997) (Confrontation Clause violations are

subject to harmless error inquiry). We review the district court’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

Confrontation Clause violation resulting from hypnotically enhanced testimony was

harmless:

We must first compare the pre- and post-hypnotic statements to determine

if any “significant differences” exist. If no significant differences are

found, the error is deemed to be harmless. If, however, significant

differences do exist, we must determine if the variations nevertheless are

harmless. To accomplish that task, 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

the jury was made aware of any changes in [the witness’s] story after the

hypnosis, as well as the possibility of “confabulation,” “suggestibility,” and

“memory-hardening” that is associated with hypnosis. After making these

assumptions, we must determine if we can still say that the error was

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
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the latter to have been “more detailed, more embellished.” Pruett, 959 F. Supp. at 1082.

First, the court was troubled by the fact that in her pre-hypnotic statement Sibley had

made no mention to police of the telephone call that Ms. Lowe received from her son

during the course of the robbery. The court observed that this added detail

“strengthened the prosecutor’s portrayal of Pruett as inhumane.” Id. at 1083. The court

also expressed concern that, prior to being hypnotized, Sibley had apparently made no

express reference to Pruett’s having held a gun to Ms. Lowe’s back during the

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.

Lowe 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

manner in which Pruett committed the Unifirst robbery. Ms. Sibley’s testimony that

Pruett had threatened to “blow our damn brains out,” coupled with Sergeant McAlphin’s

testimony that Ms. Lowe had died as a result of a gunshot wound to the back of her

head, established beyond any serious doubt the fact that Pruett had 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 that, having threatened to blow the employees’ brains out, Pruett in all

likelihood had brandished the weapon as he took Ms. Lowe from the building.) The

post-hypnotic reference to the phone call from Ms. Lowe’s son is of even less

significance. Accordingly, any error resulting from the post-hypnotic testimony was

harmless beyond a reasonable doubt.
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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 without a finding that

Pruett acted with “reckless indifference to human life.” See Tison v. Arizona, 481 U.S.

137, 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 instructed

that Pruett could not be found guilty of capital murder under Arkansas law unless the

State proved beyond a reasonable doubt that he “caused the death of Bobbie Robertson

under circumstances manifesting an extreme indifference to the value of human life.”

We agree with the district court that that instruction satisfies the constitutional

requirements set forth in Tison and that it required the jury to make the finding necessary

to support the imposition of the death penalty.

The cross-appeal is denied. The order granting Pruett’s habeas petition is

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.