Eugene Kevin Wells v. Edward Murray, Director, Virginia Department of Corrections, Defendant

831 F.2d 468, 1987 U.S. App. LEXIS 13709

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 13, 1987
• Docket: 86-7683
• Status: Published

Opinions

ERVIN, Circuit Judge.

This is an appeal from the dismissal of Eugene Kevin Wells’s federal habeas corpus petition. Wells shot and killed a teenager who had vandalized his car. At trial in Virginia state court, there was conflicting evidence as to whether this shooting was accidental or not. The jury convicted Wells of first degree murder and use of a firearm in the commission of a felony. After his appeal to the Virginia Supreme Court was dismissed, Wells petitioned for habeas corpus relief in federal district court. His petition was denied.

On appeal, Wells claims several procedural errors of a constitutional magnitude. He attacks the trial court’s refusal to allow defense counsel to ask certain questions during voir dire, the trial court’s exclusion of expert testimony concerning the propensity of his weapon for self-firing, and the propriety of jury instructions on self-defense. In our view, none of these alleged errors warrant reversal. Accordingly, we affirm the denial of Wells’s habeas corpus petition.

I.

At the time of the shooting incident, Wells lived in a remote area of Culpeper County, Virginia. On the weekend of September 3, 1983, a group of teenagers went camping near Wells’s home. Wells discovered some of the teenagers vandalizing his car. One of the youths, eighteen year-old Joe Maybury, had smashed a rear window of the car. When Wells confronted the teenagers, they fled. Wells then returned to his home and considered the situation while drinking several beers.

Later that afternoon, Wells went to a lake where the teenagers were swimming. He took his shotgun with him. As he came upon the youths, Wells fired a warning shot into the air. He recocked his weapon and advanced upon the boys. There was conflicting testimony at trial as to the ensuing events. According to the prosecution’s witnesses, Wells pointed the shotgun at Maybury and prodded him with it; May-bury was shot when he tried to push the shotgun away. Wells testified that May-bury attempted to grab the shotgun, that there was a struggle over possession of the weapon, and that the weapon accidentally discharged during the struggle. Maybury was shot in the abdomen. He subsequently died as a result of his gunshot wounds.

Wells was tried before a jury in the Circuit Court of Culpeper County in December, 1983. He was convicted of first degree murder and use of a firearm in the commission of a felony. Wells was sentenced to life imprisonment for the murder charge and a term of two years for the firearms charge. He unsuccessfully appealed to the Virginia Supreme Court. He then petitioned for habeas corpus relief in federal district court, but his petition was denied. Wells now appeals the denial of his federal habeas corpus petition.

II.

A. Voir Dire

Wells first claims that he was denied a fair trial, in violation of the sixth amendment and the due process clause of the fourteenth amendment of the United States Constitution, because the trial judge failed to inquire adequately into juror prejudice on voir dire. Wells’s claim arises from the publicity surrounding an earlier Culpeper County trial.

Less than a week before Wells’s trial, several of the jurors who were in his jury pool sat on another criminal case involving embezzlement charges, Commonwealth v. Richards, (Criminal Court File No. 2516, Nov. 30, 1983). In Richards, the jury returned a verdict of not guilty. The presiding judge, who was not the judge in Wells’s trial, criticized the jurors upon hearing their verdict. He stated that, by their verdict, the jurors were “telling the ’citizens and people of Culpeper County that it’s all right for an employee to [embezzle].” He called their verdict a “gross miscarriage of justice.” The judge asserted that he would have found the defendant guilty in about two minutes. He then discharged the jurors, admonishing them to return by December 6, 1983, the opening day of Wells’s trial. The judge's criticism attracted the attention of a local newspaper, which printed a front-page story on the incident.¹

At the start of Wells’s trial, defense counsel proposed several voir dire questions based on the jurors’ prior participation in the Richards case. Counsel wished to inquire whether the jurors were more inclined to convict Wells after being chastised for their leniency by the judge in Richards. The trial judge did not permit those questions to be asked. Instead, the judge asked more general questions, such as whether any of the prospective jurors had a personal interest in the outcome of Wells’s case, and whether any of them had prior knowledge of Wells’s case. When the prospective jurors indicated such prior knowledge, the judge questioned them individually, asking them what they had learned and how their knowledge would affect their views of the case. All of the veniremen questioned stated that their knowledge of the case would not influence their decision.²

Wells claims that these questions were insufficient, and that the trial court committed reversible error by failing to inquire into the effect of the public castigation which the Richards jurors experienced. His claim raises the much-litigated issue of pretrial publicity. It is firmly established that a defendant such as Wells is entitled to a fair trial, free from publicity that prejudices jurors against the defendant at its outset. See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (“the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors”); see also United States v. Sawyers, 423 F.2d 1335, 1344 (4th Cir.1970). Jurors, however, are presumed to be impartial, absent indications to the contrary. The existence of a juror’s preconceived notion as to the guilt of the accused will not by itself destroy the presumption of impartiality. See Irvin, 366 U.S. at 723, 81 S.Ct. at 1642-43. Only in extreme circumstances may prejudice to a defendant’s right to a fair trial be presumed from the existence of pretrial publicity itself. See United States v. Haldeman, 559 F.2d 31, 60, (D.C. Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).³

In other, less extreme situations, when external events such as pretrial publicity raise a strong possibility of jury bias,⁴ the court has a duty to determine whether the accused may have a fair trial. Inquiry into jury bias typically entails an evaluation of “the pre-trial publicity complained of and its impact, if any, on the jury, as developed through adequate voir dire examination of the jurors____” Wansley v. Slayton, 487 F.2d 90, 92-93 (4th Cir.1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773 (1974).

It is the defendant’s responsibility to demonstrate a strong possibility of jury bias. He must show, through adequate voir dire, that he was denied his right to a fair trial before a panel of unbiased jurors. See Haldeman, 559 F.2d at 60. The assertion that voir dire was inadequate, by itself, does not prove that the jury was not impartial. As noted in Wansley, “ ‘it is not sufficient to simply allege adverse publicity without a showing that the jurors were biased thereby.’ ” Id. at 92 n. 8 (quoting Ignacio v. Guam, 413 F.2d 513, 518 (9th Cir.1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970)).⁵

In this case, Wells has not shown that he was, in all likelihood, denied his right to a fair trial. The publicity which Wells complains of — publicity surrounding the verdict in the Richards case — simply does not raise a strong possibility of jury bias. The trial court, then, acted within its discretion in refusing, during voir dire, to inquire into the effects of that publicity on the Richards jurors.

We reach this conclusion after much thought and consideration. A comparison of this case with leading decisions concerning the effects of pretrial publicity on the extent of voir dire is instructive. Wells urges us to analogize his case to the Supreme Court’s decision in Irvin.6 The analogy is not an appropriate one. In Irvin, the defendant was indicted on murder charges in one Indiana county, where press releases stated that the defendant had confessed to the murder. The defendant was granted a change of venue to a nearby county that had also received the press releases. He was denied a second change of venue to a more remote county, and was subsequently convicted. The Supreme Court held that the defendant was denied his due process rights under the fourteenth amendment because his trial in state court was not impartial.

The situation in Irvin must be distinguished from the instant situation. In Irvin, the unfavorable publicity concerned the defendant himself, and it was disseminated throughout the community in which he was tried. By contrast, in this case, the publicity of which Wells complains did not concern Wells and the shooting incident. Instead, the media reported the castigation of several of Wells’s veniremen by a different judge, in a different ease, involving different issues. Wells asserts that this castigation made the Richards jurors reluctant to acquit a defendant in a later case. His assertion is too weak to warrant a reversal, especially in light of the Irvin Court’s cautionary note:

It is not required ... that the jurors be totally ignorant of the facts and issues involved____ To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

366 U.S. at 722-23, 81 S.Ct. at 1642-43.

Like Irvin, later Supreme Court decisions have stressed that the kind of adverse publicity that warrants reversal of a criminal conviction is publicity that concerns the defendant himself. See, e.g., Sheppard v. Maxwell, 384 U.S. at 363, 86 S.Ct. at 1522 (reversal of murder conviction required when defendant’s alleged crime was subject of heavy media coverage before and during the trial, and trial judge failed to shield defendant from publicity). Additionally, every case we have examined that discusses the trial court’s duty, during voir dire, to inquire into the effects of pretrial publicity, focuses on publicity about the defendant. See, e.g., Jordan v. Lippman, 763 F.2d at 1265-67 (trial court’s failure to conduct voir dire on inflammatory publicity in murder trial of black inmate violated defendant’s constitutional rights); United States v. Davis, 583 F.2d 190, 196 (5th Cir.1978) (inadequate voir dire required reversal of defendant’s conviction where defendant participated in widely-publicized jailbreak).

This distinction between publicity about the defendant and other types of publicity is strengthened by our decision in Wansley v. Slayton. In Wansley, we held that the denial of a defendant’s motion for a change of venue based upon adverse pretrial publicity was not a violation of due process. Significantly, we noted that:

The most strongly pressed complaint of the petitioner on publicity ... deals with comments published from time to time, not about the petitioner, but about one of his counsel---- It is doubtful, however, that any pre-trial reference in the press to an accused’s attorney in the absence of any prejudicial or unfair comment on the accused himself or the merits of his offense, can justify a finding that the accused’s right to a fair trial has been so prejudiced that due process is violated.

Wansley, 487 F.2d at 95 (emphasis in the original).⁷

The distinction we draw between unfavorable pretrial publicity about a defendant, which often warrants a voir dire inquiry, and publicity about other matters, which may not warrant such an inquiry, seems to us a reasonable one. The trial court’s duty to inquire into the effects of any adverse publicity on jurors’ views is not absolute; this duty is prompted only by a “constitutionally significant likelihood that, absent questioning[,] ... jurors would not be indifferent____” Turner, 106 S.Ct. at 1686. As Irvin and its progeny indicate, the likelihood of juror bias is strongest when the adverse publicity concerns the defendant himself and creates a hostile atmosphere in the community that permeates the jury box. The possibility of juror bias is much more remote when the publicity neither affects the defendant, nor gives the jury any concrete reason to doubt the defendant’s innocence. This was the case in Wansley, in which the publicity of which the defendant complained involved defense counsel, rather than the defendant. It is also the case here, because the publicity at issue concerned the jurors’ participation in an earlier trial, rather than the defendant.

Our conclusion is also supported by decisions discussing the effect that a trial judge’s remarks about a jury’s verdict have on the jurors. Generally, reviewing courts have not treated such remarks harshly; a trial judge’s comments do not warrant reversal unless they are so prejudicial as to constitute the denial of a fair trial. See United States v. Preston, 608 F.2d 626, 636 (5th Cir.1979). Courts have applied this principle to a judge’s remarks about a verdict, as well as a judge’s comments during trial. See United States v. Benson, 495 F.2d 475 (5th Cir.), cert. denied, 419 U.S. 1035, 95 S.Ct. 519, 42 L.Ed.2d 310 (1974); United States v. Salazar, 480 F.2d 144 (5th Cir.1973); Chavez-Martinez v. United States, 407 F.2d 535 (9th Cir.), cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969).

Salazar is especially instructive, since it involves a factual situation similar to our own. In Salazar, the defendant was prosecuted for possession of marijuana with the intent to distribute. His venire included twelve individuals who had sat on a similar criminal case involving a different defendant. In that earlier case, the jury had acquitted the defendant. The trial judge, like the Richards judge, had expressed his disagreement with the jury’s decision. Significantly, the Salazar court found that the judge’s public disapproval of the verdict in the earlier case was not dispositive: “The mere fact that a judge informs a jury, after the verdict, that he probably would have reached a different conclusion does not disqualify that jury for further service.” Salazar, 480 F.2d at 145.

The Benson court relied on this language in finding no prejudice to the defendant, although his venire included several jurors who had been praised by the same judge for returning a guilty verdict in an earlier case. See Benson, 495 F.2d at 482. The government had argued that defense counsel had made several procedural mistakes, such as failing to exercise any peremptory challenges, which should have precluded defendant’s claim of prejudice. The court stressed that, regardless of whether or not these alleged mistakes occurred, the defendant was not denied his right to an impartial jury. The court relied upon Salazar’s ruling that the judge’s comments disapproving the jury’s verdict did not bar jurors from further service; it extended that ruling to the judge’s comments approving the jury’s verdict. Benson suggests that the principle articulated in Salazar may be applied to a number of situations in which the trial court comments upon the jury’s verdict, including the situation presented in Wells’s case.

Chavez-Martinez, which was decided pri- or to Salazar and Benson, also found no prejudice resulting from a judge’s post-verdict comments. In that case, the defendant was convicted of drug smuggling charges. The defendant claimed that the trial judge erred in not asking potential jurors, on voir dire, whether they would be influenced by the judge’s criticism of a jury’s verdict in another case. The court of appeals held that the defendant was not prejudiced by the trial judge’s omission. The court found that the trial judge’s questions to the jury had eliminated any possible prejudice to the defendant.

The few decisions which adopt a more restrictive tone, see, e.g., United States v. Bland, 697 F.2d 262 (8th Cir.1983); Everitt v. United States, 281 F.2d 429 (5th Cir. 1960), and indicate that the trial judge’s post-verdict comments may hamper jurors from serving on further juries, are distinguishable from Wells’s case. In Bland, the defendant was convicted in federal district court for violations of gun control laws. After the jury returned its verdict, the trial judge remarked that criminal cases tried in federal court are generally more thoroughly investigated than those tried in state court. The judge also observed that successful defenses are less frequent in federal court than in state court and that most federal defendants are guilty of the crimes with which they are charged. The court of appeals held that the trial judge’s post-verdict remarks were not prejudicial to the defendant. Yet, the court also observed that the judge’s remarks would be prejudicial to other criminal defendants tried in federal court, because several of the jurors were likely to sit on additional federal criminal cases. See Bland, 697 F.2d at 266.

The general nature of the trial court’s statement in Bland distinguishes that case from the present situation. The observations made by the Bland judge about the differences between federal and state trials, and the culpability of most federal criminal defendants, had broad applicability. These statements could have influenced the jurors’ decisions in future criminal cases they might sit on. It was the broad nature of the trial judge’s statements which the Bland court focused upon in indicating that those statements were prejudicial. By contrast, in the present case, the statements by the Richards judge of which Wells complains were narrowly tailored to fit the case at hand. The trial judge in Richards simply criticized the jurors for acquitting the defendant of embezzlement charges. His remarks, unlike the remarks of the trial judge in Bland, may not have influenced the jurors in future cases. We cannot say that the statements of the judge in Richards prejudiced the jurors, who considered a wholly different set of facts and charges in Wells’s case.

Like Bland, Everitt is distinguishable from Wells’s case. The Everitt court examined the impact on the defendant, Glenn, of an earlier trial involving his codefendant, Everitt. The court held that it was reversible error to allow several jurors to sit on Glenn’s jury after they had returned a guilty verdict in Everitt’s case and had been praised by the trial judge for their speedy decision.

Clearly, the two cases on which the jurors sat were more closely related in Everitt than in the present situation. In Everitt, the two cases involved codefendants; the jurors were likely to have received unfavorable information about Glenn when they sat on Everitt’s jury. The trial judge was the same in the two cases; the jurors might have felt compelled to present the judge with another guilty verdict after he had praised them for their decision in Everitt’s case. Neither of these considerations applies in the present situation. Wells’s case was unconnected to the Richards case, and the trial judge in Wells’s case was not the same judge who presided over the Richards trial.

We conclude that the trial judge did not commit reversible error in failing to question the prospective jurors about the impact which the Richards case had on them. We hasten to add, however, that we do not condone the behavior of the trial judge in Wells’s case. The better practice would have been for the trial judge to prevent the Richards jurors from sitting in Wells’s trial. The judge could have easily discovered which of the veniremen sat on the Richards jury, and removed them from the jury selection process. In this manner, the judge would have forestalled the complaint that Wells now makes. Yet, because Wells’s complaint raises no substantial likelihood of prejudice, the trial judge’s actions do not warrant a reversal.

B. Refusal to Admit Evidence that the Gun Fired Accidentally

Wells’s primary theory of defense at trial was that the gun which killed Maybury discharged accidentally during the struggle between Wells and Maybury. A state expert examined the gun and determined that it could be made to fire without pulling the trigger. Wells sought to introduce evidence to that effect at trial, and the judge held an evidentiary hearing after excusing the jury. In the course of the evidentiary hearing, the expert testified that he had caused the gun to fire by hitting it with a mallet.⁸ The expert also testified that the gun could have fired accidentally during a struggle, but only if it was struck against a solid object. The court refused to admit the expert testimony that the gun would discharge if hit with a mallet or struck with a solid object, basing its ruling on the fact that there was no evidence that the gun had received such a blow during the struggle.

Evaluation of the admissibility of evidence is normally the province of the trial judge. See Moore v. Illinois, 408 U.S. 786, 799, 92 S.Ct. 2562, 2570, 33 L.Ed.2d 706 (1972); Savage v. Nute, 180 Va. 394, 23 S.E.2d 133, 137 (1942). However, exclusion of evidence so significant that the defendant is denied due process constitutes reversible error. See, e.g., United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (prosecution’s failure to disclose exculpatory evidence); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (right to confront witnesses). At a minimum, for the exclusion of evidence to constitute a denial of due process, the defendant must show that the excluded evidence would have been material to his defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).

Wells makes no such showing. He asserted during oral argument that the failure to allow the introduction of the expert testimony adversely affected the jury’s perception of his credibility, since he testified that the gun had discharged accidentally. That argument is not persuasive. Wells would not have appeared any more credible in light of evidence that the gun could, in theory, discharge accidentally. The testimony which he sought to introduce would have shown that the gun could discharge accidentally only in circumstances other than those which he testified existed, i.e., upon a blow from a solid object.

C. Jury Instructions

Wells claims that the trial judge erred in instructing the jury on self-defense. Wells requested a jury instruction on pure self-defense, which the judge declined to give.⁹ Instead, the judge gave an instruction pertaining to self-defense after withdrawal from aggression. On appeal, Wells attacks both the trial judge’s failure to give his instruction and the propriety of the instruction that the judge did give.

Wells’ contention that the trial judge should have instructed the jury on pure self-defense can be quickly answered. A defendant is only entitled to a charge for which there is a foundation in the evidence. See United States v. Parker, 742 F.2d 127, 129 (4th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 575, 83 L.Ed.2d 514 (1984); 2 C. Wright, Federal Practice & Procedure § 485, at 710 (1982). It was simply not open to Wells to claim pure self-defense when he had initiated the altercation by approaching the unarmed victim and pointing a loaded shotgun at him.

Wells’s second claim is that the self-defense instruction which was tendered — as to withdrawal after aggression — was misleading and confusing. We reject Wells’s claim that the charge might have led the jury to conclude that self-defense was not a defense available to him. The withdrawal instruction read as follows:

The court further instructs the jury that where the plea of self defense is relied upon in a trial for murder, the law is that a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty. If you believe that the defendant was with some fault in provoking or bringing on the scuffle, and if you further believe that when attacked he retreated as far as he could safely, as he safely could under the circumstances in a good faith attempt to abandon the fight and made known his desire for peace by word or act and that he reasonably feared under the circumstances as they appeared to him that he was in danger of being killed or was, or he was in danger of great bodily harm, then the killing was in self defense and you shall find the defendant not guilty.

In reviewing this jury instruction, we must read the instruction as a whole. See Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Gore v. Leeke, 605 F.2d 741, 742-43 (4th Cir.1979), cert. denied, 444 U.S. 1087, 100 S.Ct. 1048, 62 L.Ed.2d 774 (1980). Surely, the jury would not have thought that the first sentence of the charge (“a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty”) mooted the effect of the following sentences which addressed self-defense after aggression and withdrawal.

Apart from the merits of the claim that the instruction was confusing, the government argues that Wells cannot now raise the issue, because he failed to enter a contemporaneous objection at trial. A federal habeas petitioner who has failed to comply with the contemporaneous objection rule at trial must show cause for the procedural default and some resulting prejudice in order to obtain review of his constitutional claim. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2678, 91 L.Ed.2d 397 (1986) (Brennan, J., dissenting) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Wells can show neither cause nor prejudice. Thus, his claim of prejudice from the misleading jury instruction must fail for the additional reason of procedural default.

In conclusion, we uphold the decision of the district court denying Wells’s habeas corpus petition. We find no merit in Wells’s attacks on the exclusion of expert testimony and the jury instruction on self defense. The voir dire issue is more difficult to. resolve. We are, however, unwilling to upset the trial court’s refusal to question the jurors about the Richards case, when Wells has not shown that the court’s action created a substantial likelihood of prejudice.

The judgment of the district court denying the petition for habeas corpus is

AFFIRMED.

1 . See Hoffman, "Judge Raps Jury for Setting Richards Free,” Culpeper Star Exponent, Dec. 1, 1983, at 1-2, cols. 1-3.

2 . Such affirmations are not universal guarantees of prospective jurors’ impartiality. See, e.g. Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975): "In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question.” The veniremen’s avowals of impartiality, however, are most suspect where the jury is comprised of individuals from a community deeply hostile to the accused. See id.

The situation described in Murphy is not present in this case. Wells does not claim that such a hostile atmosphere existed in Culpeper County. In Wells’s case, we think that the trial judge’s questions concerning prior knowledge of the shooting incident, and the veniremen’s responses, are factors in determining the adequacy of voir dire. See) e.g., United States v. Gullion, 575 F.2d 26, 30-31 (1st Cir.1978) (when trial judge polled veniremen for bias resulting from pretrial publicity, conduct of voir dire did not give rise to a sixth amendment violation).

3 . The Haldeman court ruled that the extensive news coverage surrounding the Watergate affair, standing alone, did not raise a presumption of prejudice to the defendants' constitutional rights. The court stressed that cases creating such a presumption were rare; the Supreme Court had found only one instance where this presumption applied. See Rideau v. Louisiana 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). Haldeman, 559 F.2d at 60-61.

In Rideau, the defendant’s confession to bank robbery, kidnapping, and murder was filmed and subsequently televised to tens of thousands of people in Calcasieu Parish, which had a total population of only 150,000. The court held that this publicity, which was tantamount to Rideau’s confession to a large segment of the community, prejudiced his right to a fair trial.

Wells's case is clearly distinguishable from the Rideau situation. In contrast to Rideau, Wells strenuously argues his innocence, maintaining that Maybury’s shooting was accidental. Moreover, as developed further in the text of this opinion, Wells does not even complain of publicity which involved him, but only of publicity involving several of the jurors.

4 . This strong possibility of jury bias has been characterized as a “reasonable likelihood,” Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), a "constitutionally significant likelihood," Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 1686, 90 L.Ed.2d 27 (1986), or a "significant possibility," Jordan v. Lippman, 763 F.2d 1265, 1267 (11th Cir.1985).

5 . In Ignacio, defense counsel failed to question the veniremen about the effect of the alleged pretrial publicity, although the trial judge gave counsel ample opportunity to do so. Despite the trial judge’s less compromising position in the present case, we think the principle articulated in Ignacio is applicable since Wells’s claim of bias is quite attenuated.

6 . Wells also asks us to draw a parallel between his case and the Supreme Court’s decisions stressing the necessity of an adequate voir dire when racial prejudice is a factor. In his brief, Wells relies upon a number of decisions in which the Court considered a trial court’s refusal to ask prospective jurors about their racial biases upon the request of a black defendant. See Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973).

In Ham, the Court held that the inquiry into racial prejudice was of "constitutional stature.” Ham, 409 U.S. at 528, 93 S.Ct. at 851. Yet, subsequent decisions limited the scope of Ham. For instance, in Ristaino, the Court cautioned that “[b]y its terms Ham did not announce a requirement of universal applicability. Rather, it reflected an assessment of whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be [indifferent]____" Ristaino, 424 U.S. at 596, 96 S.Ct. at 1021.

More importantly, we think that the cases treating racial bias are not applicable to the present situation. Those cases are premised on the notion that racial bias may pose a constitutionally significant threat to the jurors’ impartiality. Such a powerful threat is absent in Wells’s case. Indeed, the Ham decision itself makes a distinction between inquiries into racial prejudice and other forms of prejudice. For example, the Court held that the trial court’s refusal to question prospective jurors about their prejudices against bearded men, when the defendant was bearded, did not amount to a constitutional violation. See Ham, 409 U.S. at 528, 93 S.Ct. at 851.

7 . Our decisions in a related field also support the distinction between publicity unfavorable to a defendant and other types of publicity. See Donovan v. Davis, 558 F.2d 201 (4th Cir.1977); Wall v. Superintendent, Virginia State Penitentiary, 553 F.2d 359 (4th Cir.1977). In both of these cases, we found that the defendant was denied his right to a fair trial because several of the jurors had previously sat on a jury which had received unfavorable information about the defendant. We stressed that it was the receipt of information about the defendant himself which potentially prejudiced the jurors and denied the defendant the right to a fair trial. See Donovan, 558 F.2d at 204.

8 . The expert also stated that he had performed a “push-puH" test, reenacting with defense counsel the kind of struggle Wells testified had taken place. The gun did not discharge during the push-pull test. In the course of the hearing the expert unsuccessfully attempted to make the gun fire by hitting it painfully hard with his hand.

9 . The instruction that Wells requested read:

If you believe that the defendant was without fault in provoking or bringing on the scuffle and if you further believe that the defendant reasonably feared, under the circumstances as they appeared to him, and he was in danger of being killed or that he was in danger of great bodily harm, then the killing was in self-defense and you shall find the defendant not guilty.