Hill v. Roberts

788 F. Supp. 515, 1992 U.S. Dist. LEXIS 4119, 1992 WL 64618
CourtDistrict Court, D. Kansas
DecidedMarch 30, 1992
DocketNo. 89-3090-S
StatusPublished
Cited by1 cases

This text of 788 F. Supp. 515 (Hill v. Roberts) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill v. Roberts, 788 F. Supp. 515, 1992 U.S. Dist. LEXIS 4119, 1992 WL 64618 (D. Kan. 1992).

Opinion

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter is before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. In this action, the petitioner alleges his confinement violates his constitutional rights and further alleges (1) the trial court erred in denying his request for a change of venue; (2) the jury was prejudiced by the extensive [516]*516media coverage which surrounded the proceedings and its verdict is not supported by the evidence; and (3) his appointed counsel failed to provide effective assistance.

The Attorney General for the State of Kansas has filed an Answer and Return in this matter. Petitioner has filed no traverse.

Having examined the record and considered the arguments of the parties, the court makes the following findings and order.

Factual Background

Petitioner was convicted in July 1982 of first degree murder in Crawford County, Kansas, and was sentenced to imprisonment for life.

In March 1982, a body was discovered in Lightning Creek in Crawford County, Kansas. The discovery came after a local resident who was near the creek cutting wood heard a splash and, upon investigation, found the body of a woman among the debris in the creek. The witness reported seeing a truck similar to that driven by petitioner on the bridge over the creek, and authorities began an investigation which led to the arrest of petitioner.

During the trial, petitioner acknowledged the woman, Velma Collins, died in his residence and further acknowledged that he disposed of her body by throwing it into the creek. Petitioner maintained Collins died accidentally, and testified she tripped while carrying two cans of beer and fell on a coffee table in his home. Petitioner testified he did not notify authorities because, having been acquitted of a previous murder charge some five years earlier, he feared being suspected of causing Collins’ death.

The medical testimony at trial indicated that the victim suffered injuries before her death which were caused by a great deal of force, more than ordinarily involved in a household accident. One witness analogized the extent of force to that involved in a car accident, and a dentist testified that a blow to the victim’s left jaw removed a tooth on the right side of the mouth. The autopsy showed Collins' jaw was broken in two places with the left side completely broken free. This jaw injury was considered the cause of death, as the fracture resulted in an obstruction of the victim’s airway, causing suffocation.

Prior to trial, petitioner’s appointed counsel unsuccessfully sought a change of venue, arguing there was substantial prejudice against petitioner in the county due to his earlier trial on similar criminal charges, and due to local press and radio coverage which both summarized the testimony given at petitioner’s preliminary hearing on the charges regarding Collins’ death and set forth details concerning the rape and murder charges of which petitioner previously was acquitted. In addition, petitioner argued the local press coverage inaccurately stated the woodcutter who discovered the body had witnessed the actual disposal of the body and had seen a truck speeding from the area.

Discussion

Motion for Change of Venue

The decision regarding a change of venue lies within the sound discretion of the state trial court. Given the unique position occupied by the trial judge, who has an opportunity to consider the demean- or and responses of prospective jurors, the trial judge’s decision that jurors will be able to disregard any impressions based on pretrial publicity is entitled to deference. Patton v. Yount, 467 U.S. 1025, 1038-39, 104 S.Ct. 2885, 2892-93, 81 L.Ed.2d 847 (1984). This standard of review dictates that a state trial court’s findings regarding jury impartiality may be overturned by a federal habeas court only to correct manifest error. Mu’Min v. Virginia, — U.S. -, 111 S.Ct. 1899, 1907, 114 L.Ed.2d 493 (1991) (quoting Patton, 467 U.S. at 1031, 104 S.Ct. at 2888-89).

The right to a trial by jury guarantees criminal defendants “a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). However, the Constitution does not require that a defendant be tried by a panel of jurors with no previous knowledge of the incidents involved. Instead, “[i]t is sufficient if the [517]*517juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id. at 723, 81 S.Ct. at 1643.

In the instant case, the defendant’s motion for change of venue was supported by newspaper accounts and transcripts of radio broadcasts. Petitioner’s contention these accounts were factually inaccurate and thus inflammatory is not persuasive. Because he acknowledged disposing of the victim’s body, petitioner’s claim that broadcasts incorrectly reported a witness to the actual throwing of the body from a bridge is of no significance. Similarly, the significance of pretrial publicity regarding petitioner’s criminal history pales in light of petitioner’s subsequent testimony at trial that he did not notify police of the victim’s death due to his suspected involvement in the earlier murder.

The trial record shows that a panel of 37 prospective jurors was called and a jury of twelve, with one alternate, was impaneled by midday. The voir dire conducted was thorough and included discussion of the pretrial publicity. There were frequent reference to the earlier proceedings against petitioner, and the jurors selected uniformly professed their willingness to consider the evidence with an open mind. While such assurances by prospective jurors are not dispositive, it is the burden of the defendant to demonstrate “the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.” Irvin, 366 U.S. at 723, 81 S.Ct. at 1643. The court finds petitioner has failed to demonstrate either that the community was exposed to overwhelming, inflammatory pretrial publicity or that the jurors im-panelled were unable to impartially consider the evidence presented and concludes petitioner is entitled to no relief on this claim.

Sufficiency of the evidence

Petitioner next claims his conviction is not supported by sufficient evidence. In considering such a claim, the federal habe-as court’s inquiry is limited to a determination whether, viewing the evidence in the light most favorable to the prosecution, there is sufficient evidence upon which any rational trier of fact would find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); Cordoba v. Hanrahan, 910 F.2d 691 (10th Cir.), cert. denied, — U.S.-, 111 S.Ct. 585, 112 L.Ed.2d 590 (1990).

Having considered the entire record, the court finds sufficient evidence supports petitioner’s conviction of murder.

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788 F. Supp. 515, 1992 U.S. Dist. LEXIS 4119, 1992 WL 64618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-roberts-ksd-1992.