United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 97-1280

___________ Johnie Cox, *
* Appellant, *
* On an Application for a Certificat e

v. * of A ppealability from an Order o f the
* United States District Court for th e Larry Norris, * Easter n District of Arkansas.
*

Appellee. *

___________ Submitted: September 17, 1997 Filed: December 29, 1997

___________ Before McMILLIAN, FLOYD R. GIBSON, and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge.

Arkansa s death-row inmate Johnie Cox seeks a certificate o f appealability of his 28 U.S.C. § 2254 habeas corpus action. Cox has been sentenced to death fo r the 1989 murders of Marie Sullens, Margaret Brown, and William Brown. We deny the application.

I. BACKGROUND

On Nove mber 1, 1989, Cox went to Marie Sullens's apartment to kil l her. He had chosen that date, All Saints Day, because he thought she woul d go to heaven if she

## The Honorable George Howa rd, Jr., held a hearing on June 10, 1994, at which 1 

## Cox's counsel and others testified. The case was later transferred to the Honorabl e William R. Wilson, Jr. Because issues of credibility were involved, Judge Wilson held a second hearing involving the same witnesses on November 18, 1996.
-2- died on that day. Sullens was married to Cox's grandfather. He later tol d police that he had killed Sullens because he sus pected that she was trying to kill his grandfather. When he arrived at her apartment, he found that Margaret and William Brown were there, too . Shortly after he arrived, Cox threatened William Brown with a .22 pistol and ordered him to bind Sullens and Margaret Brown with duct tape. Cox then tied up William and bound all three together at the neck. He first tried to sedate the three victims with sleepin g medication. Because the drug took too long to t ake effect, he stabbed the victims and also attempted to shoot Margaret Brown. Later, unhappy with the delayed effect of the stabbing, Cox attempted to strangle the thre e victims and then set fire to the house. All three individuals died as a result of stab wounds and injuries from the fire. Margaret Brown die d befor e the fire as a result of fourteen stab wounds and strangulation

. WilliamBrown had wires around his neck and two stab wounds, but died in the fire. Sullens had six stab wounds, some penetrating her lungs, bu t also died in the fire.

Cox was arrested and confessed in detail, in writing and o n videotape, to the murders. He was tried and sentenced to death in a bifurcate d proceeding. After trial, he filed a motion for a new trial , alleg ing that his trial counsel was ineffective. After a hearing, th e trial cou rt denied the motion. He appealed both his conviction and th e denia l of his motion for a new trial to the Arkansas Supreme Court. H e raised essentially the same issues in state court that he raises here. Th e Arkansas Supreme Court denied relief. Cox v. State , 853 S.W.2d 26 6 (Ark.1993).
He then filed a petition for habeas corpus relief in federal di strict court. Af ter two hearings, the district court denied the petition. Cox 1 v. Norris , No. PB-C-93-625,

## The AEDPA made no substantive changes in the standards by whic h 2 

## applications for certificates of appealability (formerly known as "certificates o f probable cause to appeal") are governed. See Tiedeman v. Benson , 122 F.3d 518, 521 (8th Cir. 1997). Thus, the Act is applicable to this action, even though Cox's habeas corpus petition was filed before the enactment of the AEDPA. See id.
-3- Transcript of Motions Hearing (E.D. Ark. October 22, 1996); Transcript of Evidentiary Hearing at (E.D. Ark. Nov. 18, 1996); Order (E.D. Ark. Nov. 22 , 1996).

II. DISCUSSION

This matter is before us on an application for a certificate o f appealability pursuant to the Antiterrorism and Effective Death Penalty Ac t of 1996 ("AEDPA") which became effective on April 24, 1996. Cox firs t 2 appli ed to the district court for the certificate. The district cour t denied Cox's applicat ion under the assumption that it lacked authority to consider such motions. Cox v. Norris , No. PB-C-93-625, Order (E.D. Ark. January 23, 1997). However, district courts, as well as appeals courts, have the authority to issue certificates of appe alability under the AEDPA. See Tiedeman v. Benson , 122 F.3d 518, 522 (8th Cir. 1997). Having reviewe d the entire record, we see no reason to go through the unnecessary step of remanding to the district court and we will treat Cox's notice of appeal

as an a pplication for a certificate of appealability addressed to th e judges of this Court. See id. at 522.

To grant a certificate of appealability, we must find a substantial showing of the denial of a federal constitutional right. See id. A substantial showing is a showing that issues are debatable among reasonabl e juri sts, a court could resolve the issues differently, or the issue s deserve further proceedings. See Flieger v. Delo , 16 F.3d 878, 882-83 (8t h Cir. 1994). With tho se standards in mind, we find that Cox's application for a certificate of appealability should be denied.

## -4-

A. Continuance

Cox's first claims that he was denied his right to due process an d his Sixth Amendment right to a fair jury as a re sult of the trial court's refusal to grant his request for a continuance because of excessiv e publicity about the death penalty. The first person to be executed i n Arkans as since 1964 had been put to death a week before Cox's trial

. Another death row inmate was executed on the evening of the first day of Cox's trial. Both executions received considera ble coverage in the media. Cox contends that the publicity about the death penalty in connection with the executions made it impossible for the court to assemble a fair an d impartial jury. Although the trial court denied the motion to continue,

one hundred extra people were included in the jury pool to ensure tha t the re would be enough potential jurors who were not tainted by th e publicity.

Both the Arkansas Supreme Court and the federal district court found that there was consid erable publicity concerning the death penalty at the time of the executions. The determinative inquiry, however, is not th e
amou nt of publicity, but the effect of the publicity on prospectiv e juror s. See Orsini v. Wallace , 913 F.2d 474, 482 (8th Cir. 1990). Th e jurors need not be totally ignorant of the facts and issues involved; it is sufficient if a juror can lay aside his or her impression or opinion an d render a verdict based on the evidence presented in court. See Perry v. Lockhart , 871 F.2d 1384, 1390 (8th Cir. 1989).

As a federal court conducting habeas corpus review, we must defer to the state trial court 's determination that the jury was not prejudiced by pretrial publicity. See Swindler v. Lockhart , 885 F.2d 1342, 1347 (8t h Cir. 1 989). This determination is essentially a factual conclusio n entitled to a presumption of correctness unless the state court hearing wa s proced urally defective or unless the federal court, on considering th e record as a whole concludes that the factual determination is not fairly supported. See

## In the related context of a habeas petitioner alleging improper d enial of a motion 3 

## to change venue, "it is the 'duty of the Appeals Court to independently evaluate the voir dire testimony of the empaneled jurors.'" See Hill , 28 F.3d at 847 (quoting Irvin v

. Dowd , 366 U.S. 717, 723 (1961)) . The district court conducted such a review, as has this Court.
-5- Perry , 87 1 F.2d at 1390. Thus, the determination can only be overturne d for "manifest error." Swindler , 885 F.2d at 1347; see also Hill v

. Lockha rt , 28 F.3d 832, 848 (8th Cir. 1994) (noting little practica l dif ference between "manifest error" and "fairly supported by the record " standards).

Our review of the record shows that the state court's determination is fairly supported and thus we can find no manifest error. Both the tria l 3 court and counsel carefully questioned potential jurors abou t the publicity at individual, sequestered voir d ire. Extra jurors had been assembled, as indicated. We have reviewed the record and find that the vo ir dire assured that t he jurors were not affected by the publicity. In addition, we find that the publicity surrounding the executions could cut both ways; that is, a potential juror could be equall y swayed against the death penalty as for the death penalty by the publicity.

B. Constitutionality of Statute

Cox's next contentionis that the Arkansas capital murder statute is unconstitutional. He first argues that it impermissibly fails to narro w the class of persons who are death eligible. We rejected this argumen t with regar d to the Arkansas capital murder statute in Perry v. Lockhart , 871 F.2d at 1392-93. In Perry , we applied the standards enunciated i n Lowenfield v. Phelps , 484 U.S. 231 (1988), to the Arkansas s tatute. Perry , 871 F.3d at 1392-93. A capital punishment scheme must genui nely narrow the class of persons eligible for the death penalty and must justify th e imposition of a more severe sentence on the defendant compared to other s found guilty

## -6-

of murd er. See id. 871 F.2d at 1392. This requirement may be satisfie d in two ways--either a state legislature may explicitly restrict th e definition of capital murder, or a jury may perform the narrowing function durin g the penalty phase by ascertaining whether any aggravatin g circumstances exist. See id.

The Arkansas scheme s atisfies these requirements. Cox was convicted under a broad definition of a capital offense--"[w]ith the p remeditated and delibe rated purpose of causing the death of another person, he causes the death of any person"--that differ s from the first-degree murder offense in that it requires premeditated and deliberated purpose as opposed to " a purpose of causing the death" or "knowingly caus[ing] the de ath of a person

un der the age of fourteen. Compare Ark. Code Ann. § 5-10-101(a)(4 ) (capital murder) with Ark. Code Ann. § 5-10-102(a)(2)and (3) (first degree murder). Moreover, the class is narrowed by the applicationof aggravating circumsta nces by the jury. Ark. Code Ann. § 5-4-604(1)-(9); Perry , 87 1 F.2d a t 1393. Arkansas also requires that the jury find that th e aggrav ating circumstance or circumstances outweigh any mitigating factors and ju stify a sentence of death beyond a reasonable doubt. See Ark. Code Ann. § 5-4-603(1)-(3); Perry , 871 F.2d at 1393. Accordingly, we find that the Arkansas statute satisfies constitutional requirements.

Cox also asserts that the Arkansas capital murder statute violates th e Eighth Amendment because it does not give the jury the option of mercy

. The st atute contains the mandatory language that the jury "shall impose a senten ce of death" if it finds beyond a reasonable doubt that aggravating fac tors exist and outweigh all mitigating circumstances found to exist

. Ark. Co de Ann. § 5-4-603(a). Death penalty statutes having som e "manda tory" aspects have been upheld as constitutional. See, e.g. , Jurek

v. Texas , 428 U.S. 262 (1976) (finding constitutional death penalt y statutes that contained mandatory language but that allowed the jury t o consider mitigating factors); Blystone v. Pennsylvania , 494 U.S. 299 (1990) (same); and Boyde v. California , 494

## -7-

U.S. 370 (1990) (same). We appro ved of the "shall impose" language in the Arkansas s tatute in Singleton v. Lockhart , 962 F.2d 1315, 1323 (8th Cir

. 1992).

Here, the jury was given room for mercy. It was instructed that it could return a sentence of death only if it unanimously foun d three things: 1) tha t one or more aggravating factors existed; 2) that such aggravating ci rcumstances outweighed, beyond a reasonable doubt, any mitigatin g cir cumstances found to exist; and 3) that the aggravating circumstanc e justified beyond a reasonable doubt, the sentence of death. Defens e counsel's closing argument emphasized the fact that the jury had the option of a senten ce of life without parole. In addition, at the hearing i n district court, counsel conceded that the jury had actually been instructed with use of the word "may." Under the circumstances, we find n o constitutional error.

Next, Cox claims that the jury used an improper aggravator to sentenc e him to death. One of the statutory aggravators used was that "the person in the commission of the capital murder knowingly created a great risk of death t o a person other than the victim." Ark. Code Ann. § 5-4-604 (4)

. Cox argues that use of each homic ide as an aggravating circumstance of the oth er fails to satisfy the narrowing function and constitutes "doubl e counting." As noted above, the Arkansas scheme sufficiently narrows th e death eligible class. We approved use of this aggravator in Perry , 87 1 F.2d at 1392. Cox's double count ing argument is also foreclosed by Perry , 871 F.2 d at 1393. Duplication of an element of a capital offense by on e
or more aggravating circumstances does not render the Arkansas deat h penalty scheme unconstitutional. See Wainwright v. Lockhart , 80 F.3d 1226, 1232 (8th Cir.), cert. denied , 117 S. Ct. 395 (1996).

C. Jury Issues

## -8- Cox also asserts that his Sixth Amendment right to an impartial jury was violated in the trial court's actions in empaneling the jury regarding three incidents. First, the court excused Bertha Thacker for cause, over

a defens e objection, when it was shown that the State's attorney ha d prosecuted her son and that the s heriff's department was investigating her husban d. The trial court admitted extrinsic evidence when it allowed the sheriff, w ho was already present in the courthouse, to testify about th e invest igation of her husband. Cox contends Thacker would have bee n favorable to the defense. Next, the trial court refused to excuse Ten a Hod ges for cause on a defense motion. Cox's attorney had represente d Hodges 's former husband in her divorce nine years earlier. Hodges stated at vo ir dire that she had no hard feelings and could be impartial. I n respon se to the question, "Would you say your philosophy in regard to the death pen alty makes you favor the death penalty a little bit?," Hodge s answered, "Maybe." When the trial court denied Cox's motion to excus e Hodges f or cause, Cox was compelled to use a peremptory challenge o n Hodges. Finally, the trial court refused to excuse Grover Davis for cause

or t o allow extrinsic evidence showing his partiality. Because Cox ha d used u p his twelve peremptory challenges, Davis sat on the jury. Co x conten ds that juror Davis was hostile to Cox and to the defense attorney.

First, we reject Cox's claim with respect to Thacker. There was ampl e reason to have excused her for cause. It was clear that she was acquainted with, and had reason to have animosity toward, the prosecution. Although the taking of extrinsic evidence on the matter of the sheriff' s investigation may have been unorthodox, we cannot say it was prejudicia l

error. The sheriff was nearby in the courthouse and was merely aske d whether he was investigating Thacker's husband.

Next, Cox's claim with respect to juror Hodges i s without merit. Any Sixth Amendment claim must focus exclusively on jurors who actually sat

. See Sl oan v. Delo , 54 F.3d 1371, 1387 n.16 (8th Cir. 1995), cert. denied , 116 S. Ct. 728 (1996). Peremptory challenges are not of constitutiona l dimension--loss of a peremptory

## -9-

challenge does not constitute a violation of the constitutional right t o a fair jury. See Ross v. Oklahoma , 487 U.S. 81, 88 (1988). As long as the jury that s its is impartial, the fact that the defendant had to use a peremp tory challenge to achieve that result does not mean the Sixt h Amendment was violated. See id.

The inquiry thus narr ows to juror Davis. The Arkansas Supreme Court found no abuse of discretion in t he trial court's handling of juror Davis. See Cox , 853 S.W.2d at 271. The trial court stated, "[t]he Court sense d that dur ing the voir dire of that prospective juror that the defens e counsel was somewhat antagonistic toward the juror, but the juror continued to st ate under oath that he could try this case based upon the law an d evidence, and that he had no hard feelings toward the defendant nor hi s att orney, and the defense has not established actual bias." Tria l Tran script at 1124-25. The district court held two hearings to resolv e credibil ity issues involving the alleged hostility of juror Davis. Th e district court conceded that it might have excused Davis hadit been trying the ca se but found "on the record as a whole, giving due deference to the trial court and the state court, as a matter of fact, there was no habeastype error here." Evidentiary Hearing at 81 (E.D. Ark. Nov. 18, 1996).

We agree with the district court. We have reviewed the record an d find that the trial court properly declined to excuse Davis for cause

. Although Davis stated that he fav ored the death penalty for kidnapping and stated tha t it has a deterrent effect, he also stated that he could b e even-hand ed and did not philosophically lean to the death penalty. I t appears that Cox's counsel may have tried to provoke Davis into a confronta tion in an effort to have him excused for cause since he lacke d peremptor y challenges. At any rate, Davis stated that he had "nothin g against [ Cox's counsel] whatsoever." Trial Transcript at 1035. Co x alleges that juror Davis winked a t the prosecution at one point. There is no all egation that the "wink" was observed by the other jurors. We defer to the trial court's superior ability to assess the demeanor of

## -10-

Davi s and the attorneys. Moreover, we are convinced that any animosit y that might have existed was harmless.

Because the Arkansas Supreme Court found no error, it did not conduc t a harmless error review. When a state court has not conducted a harmless

error review, we must use the strict standard found in Chapman v

. Califo rnia , 386 U.S. 18 (1967), in conducting harmless error review. See Joubert v. Hopkins , 75 F.3d 1232, 1245 (8th Cir.), cert. den ied , 116 S. Ct. 25 74 (1996). Under Chapman , we must determine whether any error i s harmless beyond a reasonable doubt. See Chapman , 386 U.S. at 24.

We have reviewed the record and find, in light of the overwhelmin g eviden ce of Cox's guilt, including his dispassionate confession, that any

error invo lving juror Davis was harmless beyond a reasonable doubt. Co x confessed in detail to the murders. Law enforcement officers first too k a verbal statement and later videotaped Cox's confession. T he jurors heard and viewed this evidence. In the confessions, Cox recounts his efforts to kill his three victims and describes several trips to the kitchen to ea t chips and drink Coke while his vi ctims suffered. He describes his efforts to kill Margaret Brown:

I yan ked [her coat] up because she started making noises an d stuff like that, and so I muffled it the best I could until I could get in a position. I tried stabbing her and couldn't kil l her , so I just [ ] shot her and couldn't kill her, so I jus t took an electrical cord and wrapped it around her neck and held it with one of my feet and took my h ands and pulled it up until I choked her to death, but she was even breathing after that.

Tri al Transcript at 1224. He tells of setting the fire with "greenis h looking foam and some plastic to make the smoke toxic so it would take the air out, take the oxygen out." Id. at 1225. There are no c ontentions, and indeed no evidence to suggest, that the

## -11-

confession was anything but voluntary. There was also subst antial evidence in the penalty phase of the trial to support a sentence of d eath. In light of this e vidence, we find any error that might have occurred is harmles s beyond a reasonable doubt.

D. Ineffectiveness of Counsel

Finally, Cox contends his counsel was ineffective in thre e par ticulars: 1) not requesting a change of venue because of pretria l publicity; 2) not investigating t he possibility that others were guilty of the crimes ; and 3) provoking and alienating juror Davis. A petitioner' s claim that counsel's assistance w as so defective as to require reversal of

a c onviction or death sentence has two components. See Strickland v

. Washington , 466 U.S. 668, 687 (1984). First, the petitioner must show that counsel's performance was deficie nt. See id. Second, the petitioner must show that the deficient performance prejudiced the defense. See id. With respect to attorney performance, we must determine whether, in light of all the circumstances, the lawyer's performance was outside the range o f pro fessionally competent assistance. See id. at 690. Reasonabl e performance includes an adequate investigation of the facts, consideration of viable theories, and developme nt of evidence to support those theories. See Hill , 28 F.3d at 837.

In order to show prejudice, the petitioner must show that, but fo r counsel's deficient performance, there is a reasonable proba bility that the result of the proceeding would have been different. See Strickland , 46 6 U.S

. at 694. A reasonable probability is a probability sufficient t o undermine confidence in the outcome. Id.

None of Cox's contentions of ineffective assistance regarding pretria l publicity meets these standards. Cox's counsel testified at the hearin g in district court that he did not want to change venue because he believed other counties were prone to hars her sentences. That tactical decision is not outside the range of professional competence.

## -12-

Again, in light of overwhelming evidence, Cox cannot show prejudice fro m that action. The allegation concerning failure to investigate other perpetrators involves Cox's sister and her boy friend, Sue Cox and Milo Healey. Sue Cox and Milo Healey had been suspects in the murder and had been questioned by poli ce. Before the trial, Milo Healey had appeared at Cox's attorney' s office and implicated himself in the murder. Cox's attorney immediatel y reported this to the police and to the prosecution, who discounted it a s
con trary to Healey's earlier sworn statement. There was no direct o r circumstantial evidence linking either Healey or Sue Cox to the murders

.

The record shows that Cox's attorney actively pu rsued the theory that Milo a nd Sue were involved in the murders. At trial, defense counse l questioned numerous witnesses about hostility and confrontations betwee n Milo and Sue and the victims. Ma rgaret Brown's father testified, in fact, that Sue Cox had broken Marie Sul lens's arm and tried to strangle her with

a coat hanger two weeks before the murders. Three hours before th e murder s, Milo and Sue had threatened to burn Sullens's house down. Cox's attorney t estified in district court that he made a tactical decision a t trial to imply that Milo Healey and Sue Cox were involved in the murders, but not to call them to testify b ecause he feared their stories would fall apart on cross-examination. That tactical decision is not outside th e range of professional competence. The jury heard evidence and argument on the theory and chose to reject it. Further, Cox can show no prejudic e be cause even if the others were implicated, Cox would not have bee n exonerated--he had confessed to the murders.

We a re bound by the trial court's factual finding that if cox' s attorney had attempted to provoke juror Davis, it had not affected Davis's ability to be fair and impartial. Assuming, however, that s uch provocation

was outs ide the realm of professional competence, we find no prejudice

. As noted above, the evidence against Cox was overwhelming.

## -13-

III. CONCLUSION

Our review of the record convinces us that Cox r eceived a fair trial. We find t hat the issues raised in his Cox's motion for a certificate o f app ealability are not debatable among reasonable jurists, no court coul d

res olve the issues differently and the issues deserve no furthe r pro ceedings. Accordingly, the motion for a certificate of appealabilit y is denied.

McMILLIAN, Circuit Judge, concurring.

I concur specially; however, I reject the notionthat district courts have the power to grant certificates of appealability.

A true copy.

ATTEST:

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