Ruiz v. Norris

MEMORANDUM OPINION AND ORDER

EISELE, District Judge.

BACKGROUND

While this habeas proceeding has now been pending for five years, the underlying case is much older. As noted by the Arkansas Supreme Court in its last decision, “this capital murder case has followed a long and torturous path.”

Early in 1977, petitioners Ruiz and Denton were imprisoned in the Oklahoma State Prison in McAlister — Ruiz for armed robbery and Denton for murder. On June 23, 1977, they disappeared from a work crew.' They were seen near the town of Magazine in Logan County, Arkansas on the morning of June 29, in a car with Louisiana license plates. The Arkansas Supreme Court described what happened next:

When the marshall of Magazine, Marvin Ritchie, and two employees of the Corp of Engineers, David Small and Opal James, who were working in Logan County, were found to be missing, a search party was organized and that afternoon two were found handcuffed together in the trunk of Ritchie’s car. Marvin Ritchie was dead and David Small was critically wounded. Ritchie had been shot in the back of the head and Small through the chest. Small survived to provide essential testimony against the appellants at all three trials. Two days later, the body of Opal James was found in a remote section of Montgomery County.

On August 25, 1977, felony informations were filed in the Circuit Court of Logan

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County, Arkansas, charging Ruiz and Denton with the capital murders of Marvin Ritchie and Opal James. Their trial in Logan County started on April 27, 1978. They were convicted and sentenced to death by electrocution. On appeal to the Arkansas Supreme Court, these convictions were reversed upon a holding that the trial court

erred

in denying a motion for a change of venue because of pervasive pre-trial publicity.

Ruiz and Den-ton v. State,

265 Ark. 875 , 582 S.W.2d 915 (1979).

After a change of venue to Conway County, Arkansas, the appellants were again tried by a jury, convicted and sentenced to death by electrocution. This sentence, imposed on October 3, 1979, was affirmed by the Arkansas Supreme Court and certiorari was denied by the U.S. Supreme Court.

Ruiz and Denton v. State,

273 Ark. 94 , 617 S.W.2d 6 ,

cert. denied

454 U.S. 1093 , 102 S.Ct. 659 , 70 L.Ed.2d 631 (1981). State postconviction remedies were pursued and exhausted.

Ruiz and Denton v. State,

275 Ark. 410 , 630 S.W.2d 44 (1982),

cert. denied

459 U.S. 882 , 103 S.Ct. 181 , 74 L.Ed.2d 148 (1982).

After exhausting their remedies in state court, Ruiz and Denton filed a petition for federal habeas corpus relief in the U.S. District Court for the Eastern District of Arkansas. That petition was denied. Petitioners then appealed to the U.S. Court of Appeals for the Eighth Circuit where the judgment of the district court was reversed on the basis of that court’s decision in

Grigsby v. Mabry,

758 F.2d 226 (8th Cir.1985) which held that “death qualified” juries are unconstitutional.

Ruiz v. Lockhart

754 F.2d 254 (8th Cir.1985). The state then appealed to the U.S. Supreme Court which granted certiorári and vacated the decision of the Eighth Circuit on the basis of

Lockhart v. McCree,

476 U.S. 162 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986), which upheld the constitutionality of “death qualified juries.” The case was remanded to the Eighth Circuit for reconsideration. The Eighth Circuit reconsidered and again reversed the U.S. District Court, this time upon the ground of “double counting” under

Collins v. Lockhart,

754 F.2d 258 (8th Cir.). The “double counting” issue had been reserved by petitioners but not dealt with earlier by the Eighth Circuit in view of its reversal on the

Grigsby

issue. The Eighth Circuit upheld the validity of petitioners’ convictions but vacated their death sentences because of the use of pecuniary gain as an aggravating circumstance where robbery was an element of the underlying capital crime. The state concedes that its failure to appeal this decision to the Eighth Circuit was attributable to a miscalculation of the time permitted for such appeal.

1

The state was given a reasonable time to either retry the issue of punishment or reduce petitioners’ sentences to life without parole. After remand, on March 5, 1987, the U.S. District Court for the Eastern District of Arkansas entered such a judgment.

On August 17, 1987, petitioners’ new trial of the penalty phase of their capital murder convictions commenced.

2

The jury found in favor of the death penalty and on August 26, 1987, Ruiz and Denton were again sentenced to death. Petitioners appealed their convictions to the Arkansas Supreme Court asserting some nineteen errors. The Arkansas Supreme Court found no merit in those argu

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ments and affirmed the death penalties imposed.

On July 20,1989, Paul Ruiz filed a petition under 28 U.S.C. § 2254 for writ of habeas corpus. By letter dated July 14, 1989, Mr. Earl Van Denton joined in, and adopted, the petition filed by Mr. Ruiz. Thus began this habeas proceeding.

On August 17, 1989, petitioners Paul Ruiz and Earl Van Denton filed their “First Amended Petition for a Writ of Habeas Corpus on Behalf of Persons in State Custody, 28 U.S.C. § 2254 and Brief in Support Thereof.” This 112 page pleading was filed by attorney Mark S. Cambiano on behalf of Mr. Ruiz and by attorney Ray Hartenstein on behalf of Mr. Earl Van Denton. The amended Petition raises twenty-one separate issues.

On July 23, 1990, after filing various related pleadings, the parties agreed to stipulate as to the factual issues and submit the legal issues by briefs. The original briefing continued into late 1991. On September 23, 1991, the petitioners filed a “motion for appointment of investigator.”

Mr. Mark Cambiano represented Mr. Ruiz and Mr. Robert S. Irwin represented Mr. Denton in the state trial court and for the state appeals. After the Arkansas Supreme Court affirmed those sentences it allowed Mr. Irwin to withdraw as Mr. Denton’s attorney.

When Mr. Ruiz filed his habeas petition he requested that Mr. Cambiano be appointed to represent him in connection with that matter. No objection was filed by the state or Mr. Denton. Mr. Denton then wrote asking to adopt the petition filed by Mr. Ruiz and specifically requested that the court appoint Mr. Ray Hartenstein to represent him in the habeas proceeding. The court granted the request of both Mr. Ruiz and Mr. Denton and, as a consequence, Mr. Cambiano and Mr. Hartenstein represented petitioners in this habeas proceeding until March, 1994.

On March 10, 1994, the Court had a telephone conference with the attorneys for the petitioners and the respondent. It noted that Mr. Denton’s attorney, Mr. Hartenstein, had not represented him during the state court proceeding. However, it also noted that Mr. Ruiz continued in this habeas proceeding with the same attorney, Mr. Cambiano, who had represented him throughout the state court proceedings. And the Court further pointed out that one of the issues argued by both petitioners was the “ineffective assistance of counsel.” Although the state had not raised the issue, the Court, after discussing the matter with all three attorneys (Mr. Cambiano, Mr. Hartenstein and Mr. Clint Miller of the Arkansas Attorney General’s Office) concluded that it would be best if Mr. Cambiano were relieved and a new attorney appointed to represent Mr. Ruiz in this habeas proceeding. Mr. Cambiano readily agreed.

On March 11, 1994, Mr. Herbert Rule was appointed to represent Mr. Ruiz. A new briefing schedule was ordered. After several extensions of time at the separate requests of petitioners and the respondent, the Court set July 22,1994 as the final date for the parties to submit additional briefing and argument.

No additional filings or briefing were filed by the July 22, 1994 deadline, or thereafter. Therefore, all issues are ready for final disposition.

The captions found below for the points argued by petitioners are, for the most part, taken verbatim from their petition and briefs. We use their language so that any reviewing court may correlate this Court’s discussion and analysis with petitioners’ own summary of the issue or issues raised and also with the most recent opinion of the Arkansas Supreme Court.

The Court will attempt to make its discussion of most of the issues as “self-contained” as possible. This will result in a great deal of repetition but will avoid to some extent the necessity for “back-referencing” in order to understand or follow the separate discussions.

I.

THE RESENTENCING TRIAL OF THE PETITIONERS VIOLATED THE EX POST FACTO PROVISIONS OF THE UNITED STATES AND ARKANSAS CONSTITUTIONS AND DENIED PETITIONERS DUE PROCESS AND EQUAL PROTECTION OF THE LAWS

Petitioners contend that the resentencing statute, codified at Ark.Stat.Ann.

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§ 5-4-616, which limits the retrial of cases remanded solely for sentencing phase error to a retrial of the penalty phase only, was unconstitutionally applied to petitioners. Enacted in 1983, the statute in question specifically states that it is to apply retroactively to any defendant sentenced to death after January 1, 1974. Prior to the enactment of this statute, upon a finding of reversible error at the sentencing phase, petitioners would have been retried on both guilt and penalty issues. Petitioners contend that the retroactive application of the 1983 statute violates the

ex post facto

clause of the Constitution by depriving them of a remedy available under the law in effect at the time the criminal act was committed.

In Petitioner’s Supplement to Brief in Support of Petition for Writ of Habeas Corpus, filed in 1989, Petitioners cite the Court to the case of

Youngblood v. Lynaugh,

882 F.2d 956 (5th Cir.1989), which they contend is on point. In

Youngblood ,

the petitioner had been convicted of aggravated sexual abuse. The jury sentenced him to life imprisonment and a fine of $10,000. The fine was not authorized by the applicable statute, and relying upon a Texas Court of Criminal Appeals decision which stated that a jury verdict which included a punishment unauthorized by law was void at its inception and must be set aside, petitioner sought a new trial. While that petition was pending, Texas passed a new statute, to apply retroactively to June 11, 1985, which allows an appellate court to reform an improper verdict assessing a punishment not authorized by law. The Fifth Circuit found that this retroactive application violated the

ex post facto

clause.

This Court agrees that the

Youngblood

case is on point. However, the Fifth Circuit opinion was reversed by the Supreme Court in 1990.

Collins v. Youngblood,

497 U.S. 37 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990). After the Supreme Court’s reversal, petitioners attempt to distinguish

Youngblood.

This Court, however, finds that the

Youngblood

decision is controlling, and thus the statute in question here cannot be found to violate the ex post facto clause.

See also Pickens v. Lockhart,

802 F.Supp. 208 (E.D.Ark.1992) (applying

Collins v. Youngblood

to Ark.Stat. Ann. § 5-4-616).

II.

THE FAILURE TO GRANT PETITIONERS A SEVERANCE OF THEIR CAPITAL MURDER RESENTENCING TRIALS VIOLATED THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENT

Under this caption the defendants raise not only a severance issue and a

Bat-son-type

issue but they also question the failure of the trial court to grant additional peremptory challenges.

It is clear that both defendants advised the trial court that they did

not

want the cases against them severed for separate trials. At page 105-106 of the transcript we find the following colloquy:

MR. IRWIN: Your Honor, there’s a few more little things in the way of mechanics of the trial that we need to mention. First of all, there was some discussion about the possibility of a severance in the trial of these two defendants. I would like for the Court to note on the record and in the presence of Mr. Earl Van Denton that he and I have discussed this case in the past so far as the possibility of a severance is concerned, and it’s our position at this time — my position based on my competency (sic) with my client that we do not want a severance. If the Court desires to get some indication from Mr. Ruiz, I suggest that he simply affirm it by nodding his head or whatever direction the Court may want.

BY THE COURT: Well, there has been no motion for a severance, so there is nothing to act on there.

MR. IRWIN: Well, there was' some discussion and we just want the record clear that we have discussed this with our clients, and I, particularly with Mr. Ruiz, and at this time he doesn’t desire any severance.

BY THE COURT: What about your client, Mr. Cambiano?

MR. CAMBIANO: Your Honor, I prepared a Motion for Severance and dis

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cussed it with my client. He wishes not to sever the trials either.

BY THE COURT: Both clients are, of course, present and if that is not correct they should so indicate, and so far neither has so indicated.

(T.Tr. 105-106). However, the defendants argue that at a later date they were somehow misled on the severance question by the trial court in an on the record discussion of a request for additional peremptory challenges. That discussion was as follows:

BY THE COURT: Any other motions? MR. CAMBIANO: No, your Honor, I have no other motions at this time.

Oh, I have one other motion, yes. I was going to wait and take this up in voir dire, but I might as well take it up now since we have some time. The defendants would ask for twelve (12) peremptory challenges for each defendant since this case is being tried jointly and we waived the severance. Had we severed the trials it would have been a great expense to the county and the State. Since we are saving the State some time, we do believe that we should have twelve (12) peremptory challenges each, since I may think a juror is good and Doc may think that it is not so good, and we may have a conflict there. In the event— BY THE COURT: If we do, we will have to sever them.

MR. CAMBIANO: Sever the case?

BY THE COURT: Your motion is denied. MR. CAMBIANO: My understanding of the Court’s ruling then is if we do have a conflict we will sever the trials?

BY THE COURT: That’s the law. Any other motions?

MR. CAMBIANO: No, your Honor; not at this time.

(T.Tr. 303-304).

The petitioners interpret the court’s language as “ruling that severance would be automatic if any conflicts develop,” Petitioners’ Trial Brief, p. 13. It is their view that the court’s ruling is tantamount “to an oral motion which was granted.”

The issue concerning limits on the number of peremptory challenges was discussed during the voir dire of a prospective juror by the name of Karen Strickland. After questioning Ms. Strickland, a black person, the State indicated that the juror was good for it and the following colloquy occurred:

BY THE COURT: Your Honor, the juror is good for the state.

BY THE COURT: What says the defendant?

MR. CAMBIANO: Just a moment, your Honor.

BY THE COURT: Okay, go ahead; I’m not trying to rush you. I’m just asking. MR. CAMBIANO: Yes.

MR. IRWIN: Your Honor, may we approach just a moment?

BY THE COURT: You may.

(Defense counsel approached the bench.)

MR. IRWIN: I don’t want to get too close, since there are no jurors. We’ve got a little conflict here, one wants and one don’t want.

BY THE COURT: Well, somebody is going to have to say something.

MR. CAMBIANO: Well, she’s good for the State — I mean she’s good for the State and also good for Ruiz.

MR. IRWIN: But I don’t like her, I don’t like the juror. What can we do now? BY THE COURT: That’s something the defense will have to resolve.

MR. CAMBIANO: As far as I’m concerned, your Honor, she’s good for the defendant, Ruiz.

MR. IRWIN: We’ll see, my problem is— MR. CAMBIANO: Your Honor, could we have a short break? We might be able to resolve this.

BY THE COURT: You may, yes.

* * * * * *

(Defense counsel was given time to confer with their clients before proceeding.)

BY THE COURT: What does the defendant say?

MR. IRWIN: The defendant Earl Van Denton wishes to strike Juror Karen Strickland.

MR. CAMBIANO: Juror Paul Ruiz wishes to accept Juror Strickland.

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BY THE COURT: “Ark.Stat. 43-1929, challenged by several defendants. When several defendants are tried together the challenge of any one of the defendants shall be the challenge of all.” That’s the extent of the statute, but I don’t know what it means. It’s easy to read, to apply is something else. I don’t know if that means if one challenges then the other one has to accept that challenge. I’m looking for the other side of the coin, if one accepts does the other have to accept? I don’t see the other side of the coin. The only annotation under it says, “When several defendants are being tried together, they are entitled to only eight (8) peremptory challenges.” Of course, that was not a capital case. In this case that would mean they are entitled to a total of twelve (12) peremptory challenges, which we have already determined. I believe that’s what it means. That puts us back to where we started. An obvious alternative is a severance, I mean one solution; the only one that I feel at this time, anyway, as I feel now, would solve the problem. There may be another solution. But I understand the defendants do not want a severance, am I correct?

MR. CAMBIANO: Your Honor, it is my understanding that the defendants prefer not to sever the case, but if it comes down to it, they would. That’s my understanding, I haven’t really talked to them on that specific point.

BY THE COURT: Well, I think maybe you should.

MR. IRWIN: The next question—

BY THE COURT: Go ahead if you have got something to say, Doe. What?

MR. IRWIN: In the event of a severance, which gets to be tried first?

BY THE COURT: Well, that problem would be easy to solve. At this point it is academic, but it wouldn’t be difficult of a solution. Now, that’s what I’ve been able to find out. Has the prosecution done anything? Maybe the Prosecutor Coordinator’s Office might help you, Bill; might help us.

MR. BULLOCK: It might help to determine the question.

BY THE COURT: Yes.

MR. KIRK: I might see what I can find out, your Honor.

BY THE COURT: Why don’t you do that. Off the record.

(At this time there was a recess, after which time proceedings were as follows:)

BY THE COURT: Are we ready to proceed?

MR. CAMBIANO: I think so, your Honor. BY THE COURT: Did you find anything, Mark?

MR. CAMBIANO: Your honor, all I found is what is Rule 22.3B3. It used to be 3B2 before they amended the rules last month. It says if during a trial upon consent of the defendant to be severed it is deemed necessary to achieve a fair determination of the guilt or innocence of one or more defendants that should — the Court should grant severance.

BY THE COURT: What do we do when guilt or innocence has already been determined?

MR. CAMBIANO: I saw that in there too. I don’t believe the people that prepared these rules foresaw that. I believe it means in sentencing also.

BY THE COURT: Well—

MR. CAMBIANO: A fair determination one way or another.

To be honest, I don’t know Judge.

BY THE COURT: To say I don’t know is to be honest many times. Arkansas Rules of Criminal Procedure 22, does give the trial Court discretion to grant or deny a severance. That has not always been the law, but it is now and has been since the adoption of the rules. I found Ark.Stat. 43-1929, which I read a while ago, and which is not really as clear as it should be. It’s an old statute seldom interrupted, (sic), never questioned in the light in which we have it. I found McDaniel and Gookin, G-O-O-K-I-N, versus State 278-Ark. 631, a 1983 case, which talks about severance. Citing — well, I’m reading from page 638, the third full paragraph. “The issue of severance is to be determined on a case by case basis, considering the totality of the

*1484

circumstances with the following factors favoring severance: 1. Where defenses are antagonistic.” We don’t have that. “2. Where it is difficult to segregate the evidence. 3. Where there is a lack of substantial evidence implicating one defendant, except for the accusation of the other defendant. 4. Where one defendant could have deprived the other of all peremptory challenges. 5. Where if one defendant chooses to testify, the other is compelled to do so. 6. Where one defendant has no prior criminal record and the other has. 7. Where circumstantial evidence against one defendant appears stronger depriving the other of all peremptory challenges, that might give rise to a different situation, but we don’t have that.

MR. CAMBIANO: Your Honor, if I could make just a short record on that.

BY THE COURT: You may.

MR. CAMBIANO: Defendant Ruiz feels that if this juror is struck that it will deprive him his 6th, 8th and 14th Amendment Rights under the United States Constitution, in that he will not have a full twelve (12) strikes as others similarly situated would; therefore he would also be denied equal protection under the law. We feel that she would make a good juror. My client is non-white, in the minority, and this person, although that’s not the reason, it is one of the reasons, she is a non-white. We feel that she would be a good juror, and for those reasons we would object to the Court’s ruling.

BY THE COURT: I need another book. MR. KIRK: Your Honor, there has been no request for a severance, is that correct? BY THE COURT: That’s correct.

MR. KIRK: The defendant have not— okay.

BY THE COURT: Off the record.

(At this time there was a recess, after which time proceedings were as follows:)

BY THE COURT: I have this one thing to say with reference to Mr. Cambiano’s constitutional argument a while ago. There is no absolute right to peremptory challenges under the constitution and I cite the case of Clines, C-L-I-N-E-S, versus State, 280 Ark. 77 , a 1983 ease. Peremptory challenges vary greatly from state to state, some states even have the same amount on each side. Arkansas is different, as many states are in that respect. We grant more to the defendants than we do to the State. All right, what have you decided?

MR. CAMBIANO: Your Honor, I want to make things clear first. As far as Rule 22.3B3 and Ark.Stat. 43-1929, the Court is not going to grant severance, although we would consent to a severance. I want to let the Court know that we would consent to a severance under 43-1929 and 22.3B3. It is my understanding that the Court is not going to grant severance?

BY THE COURT: No. No, huh-uh.

MR. CAMBIANO: Okay. In that case— BY THE COURT: None has been asked for.

MR. CAMBIANO: Well, in that ease defendant Ruiz would request a severance, since it appears that there is going to be numerous conflicts in this trial. We have been seeing it coming for a little while and trying to stave it off, but I just don’t see any way around it. We would ask for a severance at this time.

BY THE COURT: Under the guidelines given in the ease I read from a while ago, McDaniels, I see no grounds for a severance at this time.

MR. IRWIN: I’m compelled to make the same motion, your Honor.

BY THE COURT: I make the same ruling.

MR. IRWIN: Very well.

BY THE COURT: As I stated a while ago, before this rule came into effect, Arkansas Rules of Criminal Procedure, 22, the defendants in a capital case had the absolute right to a severance. They do not now.

MR. IRWIN: In the sentencing phase, is that what you mean?

BY THE COURT: Do you still want to challenge the juror, that is, the last one we questioned, Karen Strickland.

MR. IRWIN: Yes, sir; your Honor.

BY THE COURT: You do?

MR. IRWIN: Yes, sir.

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BY THE COURT: All right.

MR. BULLOCK: I didn’t understand Mr. Irwin, your Honor.

MR. IRWIN: I said, Yes sir; we wish to strike the juror.

******

(Mr. Cambiano left the courtroom briefly.)

MR. IRWIN: Your Honor, with respect to that last juror____ In order to avoid that the defendants, both of them, in view of the Court’s ruling, had to exercise a peremptory challenge.

BY THE COURT: You say both sides had to?

MR. IRWIN: Yes, sir; because the Court has ruled that the challenge of one defendant is the challenge of both.

BY THE COURT: That’s the law.

MR. IRWIN: Yes, sir.

BY THE COURT: I have to follow the law.

MR. IRWIN: I understand that, but we were getting to that — so long getting to that point, that’s the purpose of my motion, that the Court excuse her on its own instead of charging a peremptory.

BY THE COURT: The motion is denied. I see no prejudice there, I see no possibility of prejudice.

MR. IRWIN: Except that it looses [sic] a peremptory challenge.

BY THE COURT: Sir?

MR. IRWIN: The effect of that is to cause the loss of a peremptory challenge.

BY THE COURT: Any time you make one, you loose [sic] one.

MR. IRWIN: As to the other defendant. BY THE COURT: And you made that challenge before any of this came up. MR. IRWIN: Yes, sir.

(T.Tr. 572-582).

Later during jury selection identical situations occurred concerning prospective black jurors Athelene Hill (Trial Tr. 776-777) and Rita Abrams (Trial Tr. 849-850), with the same result. The peremptory challenge of Abrams by Denton was the final peremptory challenge allowed, the petitioners having exercised their cumulative total of twelve such challenges. The rulings of the state trial court on these three prospective jurors form the predicate for the

Batson

issue.

Petitioners argue that individualized sentencing is required if the state seeks the death penalty. It is their view that this requirement cannot be met in a joint sentencing trial. Petitioners also argue that it is difficult for a juror to separate the evidence relating to one defendant from that relating to the other defendant.

The Court disagrees. A joint sentencing trial does not,

per se,

deprive any defendant of the right to individualized sentencing. Where the evidence relating to the separate defendants is readily identifiable, as here, and the jury is properly instructed, there is no problem. From voir dire through the instructions given to the jury at the end of the trial, the court emphasized the need for the jury to consider the evidence for or against Ruiz and Denton separately and that it was to render its verdict just as if Ruiz and Denton had been tried separately. At page 1476 of the Trial Transcript we find the court instructed the jury as follows:

Although Paul Ruiz and Earl Van Denton are being tried jointly, you shall consider the evidence for or against each of them separately and render your verdicts as if each were being tried separately.

And at page 1479:

The instructions that I will now give apply to each of the defendants individually. You will be given a complete set of forms for each defendant. Your verdict may or may not be the same for each defendant, but you must consider the case of each one separately. As to each defendant there are three forms for you to use in reaching your decision, and a verdict form for you to use when your verdict has been reached.

The Arkansas Supreme Court dealt with the severance and the peremptory challenge issues as follows:

We do not interpret the record in quite the same way. It is clear that appellants waived their motion for severance and no condition was tied to the waiver. Counsel for Paul Ruiz then argued that because the state would benefit by one trial rather than

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two, the defendants should each be allowed twelve peremptory challenges, rather than twelve between them, since they might disagree on which jurors would be good for the defense. That proposal was rejected, prompting defense counsel to ask if a conflict developed would a severance be granted. The trial court’s response was, “that’s the law.”

We do not regard that exchange as a binding commitment by the trial judge to order a severance merely upon a purported disagreement between defense counsel over whether to strike or accept a prospective juror. We believe he was simply alluding generally to the law as reflected in A.R.Cr.P. Rule 22.3(b(iii) and in the guidelines set out in

McDaniel and Gookin v. State,

278 Ark. 631 , 648 S.W.2d 57 (1983), indicating that the trial court should continue to be sensitive to the advisability of a severance as the trial evolves. Severances are to be determined by the trial court on a case by ease basis in the light of all attendant circumstances. It is an exercise of judicial discretion.

Spillers v. State,

268 Ark. 217 , 595 S.W.2d 650 (1980). A.R.Cr.P. Rule 22.3. We have held that when more than one defendant is being tried for capital murder, the number of peremptory challenges allotted to a side remains at twelve.

Wilkins v. State,

292 Ark. 596 , 731 S.W.2d 775 (1987). Thus there was no error in refusing to enlarge the number of peremptory challenges nor any abuse of discretion in denying severance on that ground.

Hallman and Martin v. State,

264 Ark. 900 , [575] S.W.2d 688 (1979).

This Court agrees. It has carefully reviewed the arguments of the petitioners and the record herein, and finds nothing to support an argument that the failure of the trial court to grant the petitioner’s oral motion for severance rendered the jointly conducted sentencing trial fundamentally unfair. As stated by Judge Henry Woods in

Omdorffv. Lockhart,

707 F.Supp. 1062 (E.D.Ark.1988):

The petitioners take the position that the trial court’s denial of their motions for separate trials was an abuse of discretion which resulted in a “smear effect” among them ... In as much as this argument turns on alleged violations of Arkansas procedural rules it does not state a claim for

habeas

relief. Rather, the petitioners must show that the trial court’s failure to grant their motions for severance rendered the joint proceeding fundamentally unfair so as to violate due process.

Johnson v. Dugger,

817 F.2d 726 (11th Cir.1987);

Manning v. Warden, Louisiana State Penitentiary,

786 F.2d 710 (5th Cir.1986); Cf.

Robinson v. Wyrick,

735 F.2d 1091 (8th Cir.),

cert. denied,

469 U.S. 983 , 105 S.Ct. 390 , 83 L.Ed.2d 324 (1984) (to obtain federal

habeas

relief for failure to sever offenses, the joinder must render the trial fundamentally unfair). Upon review of the record the court finds that the petitioners have failed to meet their burden of proof. At

voir dire

each of the jurors stated under oath that he or she could consider each defendant separately and they were instructed at the close of trial that they must so consider each defendant, rendering separate verdicts as if each had been tried separately.

Id.

at 1070-71.

There is no constitutional right to peremptory challenges. A defendant is entitled to be tried by a fair and impartial jury. The Arkansas rules and procedures dealing with this issue meet the rational standard test. As stated by Judge Woods:

The trial court limited the petitioners to a total of twelve peremptory challenges pursuant to Ark.Stat.Ann. § 43-1929 (Repl. 1977) (now codified at Ark.Code Ann. § 15-33-307 (1987)), which provides that when several defendants are tried jointly a challenge by one shall be the challenge by all. The petitioners argue that, had they been tried separately, each would have been entitled to twelve peremptory challenges, and that because they were limited to a total of twelve in the joint proceeding they have been denied equal protection of the laws under the Fourteenth Amendment. This argument is without merit. First, there is no constitutional right to peremptory challenge.

[Stilson] v. United States,

250 U.S. [583], 40 S.Ct. 28 , 63 L.Ed. 1154 (1919). All that is guaranteed by the

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constitution is the right to an impartial jury.

Id.;

U.S. const, amend. VI. This the petitioners received. Second since ... there is not at issue a fundamental right guaranteed by the constitution, this court must analyze the petitioners’ claim under the rational basis standard of review.

Harris v. [McRae],

448 U.S. 297, 322 , 100 S.Ct. 2671, 2691 , 65 L.Ed.2d 784 (1980) (quoting

McGowan v. Maryland,

366 U.S. 420 at 425 , 81 S.Ct. 1101 at 1104 , 6 L.Ed.2d 393 (1961)). Under that standard the petitioners’ claim fails because the state’s legitimate interest in expediting trials, thereby conserving judicial resources, is rationally related to the procedural rule enacted. For the same reason the petitioners argument that the state rule is arbitrary and irrational in violation of the due process clause of the Fourteenth Amendment must also fail.

Id.

at 1072.

The

Batson

argument is made primarily by the petitioner Ruiz, who is Hispanic. He claims that three non-white jurors who had been accepted by the state and also by him were nevertheless excused when petitioner Denton used three of their “joint” peremptory challenges to remove them. Ruiz argues that the state trial court, by permitting these peremptory challenges, violated Ruiz’s Sixth Amendment rights as explained in

Batson.

Ruiz recognizes that

Batson

involved the exercise of peremptory challenges

by the State

and not by a co-defendant. But he contends that the effect upon him is the same and that

Batson

has been, or should be, extended to this situation. He argues that the trial court’s denial of a severance allowed the petitioner Denton to exclude minority jurors — an act which the state itself could not do under

Batson.

The respondent answers by first pointing out that neither petitioner raised the

Batson

argument in support of their motions for severance and that they also failed to raise this argument on direct appeal to the Arkansas Supreme Court. Under Arkansas law such issues are not preserved for appellate review unless raised in the trial court by means of a specific contemporaneous objection. And, issues not raised on direct appeal are considered abandoned. So, absent a showing of cause and prejudice the petitioners would be procedurally barred. Respondent also argues that the Baisow/severanee issue would be barred in any event — even if meritorious — because same would amount to a “new rule” and could not therefore be applied retroactively to them.

Sawyer v. Smith,

497 U.S. 227 , 110 S.Ct. 2822, 2827 , 111 L.Ed.2d 193 (1990). In this connection the state notes that petitioners’ death sentence became “final” sixty days after the Arkansas Supreme Court’s affirmance of their death sentence on direct appeal.

Walton v. Caspari,

916 F.2d 1352 (8th Cir.1990). The Arkansas Supreme Court’s decision came down on June 12, 1989, and became final on June 29, 1989, after the expiration of the 17 day period during which petitioners could request a rehearing. So, since the U.S. Supreme Court had not by that time extended the rationale of

Batson

to prohibit co-defendants from using race-based peremptory strikes, (in the context of this case), the State contends that such claim is barred by the “new rule” holding in

Sawyer .

The Court agrees.

During the voir dire discussion of the peremptory challenges made by the defendant Denton to prospective jurors Strickland, Hill and Abrams,

Batson

was not mentioned. And neither Ruiz’s attorney, nor the State’s attorney, nor the court, called upon Denton’s attorney to give some neutral, non-discriminatory, reason or reasons for such strikes.

What is the current status of the law on this issue? In

Georgia v. McCollum,

— U.S. -, 112 S.Ct. 2348 , 120 L.Ed.2d 33 (1992), the U.S. Supreme Court was called upon to decide whether the Constitution prohibits criminal defendants from exercising racially discriminatory peremptory challenges. Before dealing with that issue, Justice Blackmun reviewed the issue historically:

Over the last century, in an almost unbroken chain of decisions, this Court gradually has abolished race as a consideration for jury service.

* * * * * *

In

Swain v. Alabama,

380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), the Court was confronted with the question whether

*1488

an African-American defendant was denied equal protection by the State’s exercise of peremptory challenges to exclude members of his race from the petit jury.

Id.,

at 209-210 , 85 S.Ct., at 830 . Although the Court rejected the defendant’s attempt to establish an equal protection claim premised solely on the pattern of jury strikes in his own case, it acknowledged that proof of systematic exclusion of African-Americans through the use of peremptories over a period of time might establish such a violation.

Id.,

at 224-228 , 85 S.Ct., at 838-840 .

In

Batson v. Kentucky,

476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the Court discarded

Swain’s

evidentiary formulation. The

Batson

Court held that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury based solely on the prosecutor’s exercise of peremptory challenges at the defendant’s trial.

Id.,

[476 U.S.] at 87,106 S.Ct. at 1718. “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.”

Id.,

at 97, 106 S.Ct., at 1723.

Last Term this Court applied the

Batson

framework in two other contexts. In

Powers v. Ohio,

499 U.S. [400], 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991), it held that in the trial of a white criminal defendant, a prosecutor is prohibited from excluding African-American jurors on the basis of race. In

[Edmonson] v. Leesville Concrete Co.,

500 U.S. [614], 111 S.Ct. 2077 , 114 L.Ed.2d 660 (1991), the Court decided that in a civil case, private litigants cannot exercise then-peremptory strikes in a racially discriminatory manner.

Id.

— U.S. at---, 112 S.Ct. at 2352-2353 .

The Court then identified four questions that it had to answer in order to resolve the issue:

In deciding whether the Constitution prohibits criminal defendants from exercising racially discriminatory peremptory challenges, we must answer four questions. First, whether a criminal defendant’s exercise of peremptory challenges in a racially discriminatory manner inflicts the harms addressed by

Batson .

Second, whether the exercise of peremptory challenges by a criminal defendant constitutes state action. Third, whether prosecutors have standing to raise this constitutional challenge. And fourth, whether the constitutional rights of a criminal defendant nonetheless preclude the extension of our precedents to this case.

Id.

— U.S. at-, 112 S.Ct. at 2353 .

The court answered “yes” to the first three questions and “no” to the fourth. After a full discussion it stated its holding as follows:

We

hold that the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges. Accordingly, if the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges. The judgment of the Supreme Court of Georgia is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Id.

— U.S. at p.-, 112 S.Ct. at p. 2359 .

The

Ruiz-Denton

case is one step removed from the

McCollum

case. The

McCollum

standard, had it been in effect at the time, would have authorized the State to object to Denton’s use of three peremptory challenges to strike blacks during voir dire. The State, however, did not object. Would

McCollum

also give standing to a co-defendant, such as Ruiz here, to object to the three strikes on

Batson

grounds? The answer should be, and probably is, “yes.” The same reasoning employed by Justice Black-mun in

McCollum

would even more forcefully support a holding that a co-defendant would have standing to raise the issue. But the problem here is twofold: First, Ruiz did not specifically ask the Court to require Den-ton’s attorney to state, if he could, a neutral, non-discriminatory, reason for each of the three strikes. Mr. Ruiz’s attorney simply objected and emphasized his severance argument, to-wit: if the two defendants had been given separate trials the problem simply would not have arisen since the State did not use its peremptory challenges to strike any

*1489

of these three black prospective jurors. Second, even if Ruiz survived all other hurdles, the “new rule” doctrine would prevent him from raising this

Batson

argument at this time.

In

Williams v. Chrans,

945 F.2d 926 (7th Cir.1991), the Seventh Circuit dealt with the issue of the retroactive application of

Batson

and the “new rule” principle:

The purpose of federal habeas corpus is “to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.”

Sawyer v. Smith,

[497] U.S. [227], [234], 110 S.Ct. 2822, 2827 , 111 L.Ed.2d 193 (1990). Accordingly, the Supreme Court has held “that in both capital and non-capital cases, ‘new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions.’”

jfs ‡ H: ‡ #

Under the first exception, “a new rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’”

Teague [v. Lane],

489 U.S. [288] at 307, 109 S.Ct. [1060] at 1073, [ 103 L.Ed.2d 334 ] [(1989)] ...

Under the second exception, a rule may be applied retroactively “if it requires the observance of ‘those procedures that ... are “implicit in the concept of ordered liberty.” ’ ”

Teague,

489 U.S. at 307 , 109 S.Ct. at 1073 .

******

We must now determine whether the holding of the Supreme Court in

Batson

constitutes a “new rule” for purposes of habeas review. If it does, we must proceed to determine whether the exceptions to the “new rule” principle apply.

The question of whether

Batson

established a “new rule” is susceptible of rather straightforward resolution. As the district court held, the Supreme Court’s

pre-Teague

holding in

Allen v. Hardy,

478 U.S. 255, 258 , 106 S.Ct. 2878, 2880 , 92 L.Ed.2d 199 (1986) controls on this issue. In

Allen ,

the Court refused retroactive application of

Batson

to proceedings on collateral review. It reasoned that such retroactive application was inappropriate because

Batson

was “an explicit and substantial break with pri- or precedent” and because

Batson

served constitutional interests beyond the truth-finding function. On the basis of

Allen ,

we believe it is now settled that

Batson

announced a “new rule” within the meaning of

Teague

and the cases that have followed it. We recognize that

Allen

was not a capital case. However, like our colleague in the district court, we can discern nothing in the reasoning of

Allen

to suggest that it is limited to non-capital juries.

We now examine whether either of the two exceptions of the “new rule” principle are applicable here. As we already have noted, the first exception is clearly inapplicable.

Batson

hardly places capital murder beyond the power of the criminal lawmaking authority to proscribe.

The second exception requires far more analysis. The Supreme Court has not ruled definitively on the question of whether the

Batson

holding is a “watershed rule[] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”

Saffle [v. Parks]

[494 U.S. [484] 493-94], 110 S.Ct. [1257] at 1263, [ 108 L.Ed.2d 415 ] [(1990)]. Here, we must determine that issue in the special context of the capital sentencing procedure.

This is an

intermediate

appellate court and its judges are bound to give respectful deference to the opinions of the Supreme Court. As we have noted already, the scope of review of federal habeas corpus proceedings has been a matter of great attention by the Court and its opinions delineate important considerations that must be weighed in our determination as to whether application of

Batson

in capital sentencing hearings falls within an exception to the “new rule” principle

Teague.

At the outset, we must remember that, in

Allen ,

the Court refused to give

Batson

retroactive application. Although

Allen

*1490

did not utilize the retroactivity test adopted by the Supreme Court in

Teague,

the

Teague

test is (almost indisputably) more restrictive. As our colleagues in the Fifth Circuit have recognized, the Court’s characterization of

Batson’s

significance makes its retroactive application unlikely under that analytical framework of

Teague

— even in a capital case. In

Allen ,

the Court held that

Batson

did not go “to the heart of the truthfinding function.” 478 U.S. at 259 , 106 S.Ct. at 2880 (quoting

Solem v. Stumes,

465 U.S. 638, 645 , 104 S.Ct. 1338, 1343 , 79 L.Ed.2d 579 (1984)). The Court recognized that “the rule in

Batson

may have some bearing on the truthfinding function of a criminal trial ... [But] we cannot say that the new rule has such a fundamental impact on the integrity of factfinding as to compel retroactive application.”

Id.

(emphasis supplied). The Supreme Court noted that “the new rule joins other procedures that protect a defendant’s interest in a neutral factfinder. Those other mechanisms existed prior to ...

Batson ,

creating a high probability that the individual jurors seated in a particular ease were free from bias.”

Id.

(footnote omitted). Therefore, the Court clearly did not believe that

Batson

implicated the fundamental fairness and accuracy of criminal proceedings in

Allen. As we

have noted already, sentencing in a capital case is an especially delicate task to entrust to jurors. Yet, as the Fifth Circuit pointed out, the same procedural devices available to ferret out or control passion and prejudice in an adjudication of guilt— voir dire and jury instructions — are available in the capital sentencing situation.

See Prejean v. Smith,

889 F.2d 1391, 1397 (5th Cir.1989),

cert. denied

[494] U.S. [1090], 110 S.Ct. 1836 , 108 L.Ed.2d 964 (1990).

More fundamentally,

Batson

does not appear, in the parlance of

Teague,

to alter an understanding of a “bedrock procedural element.”

See Teague,

489 U.S. at 311-15 , 109 S.Ct. at 1075-78 .

Batson

undoubtedly implicates important considerations; but it is not analytically the equivalent of the Court’s proffered example of a “bedrock principle” — the right to be represented by an attorney in all criminal trials for serious offenses (recognized in

Gideon v. Wain-might,

372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963)). Although it created a significant break with prior precedent by easing the evidentiary burden of a defendant who contested the state’s use of peremptory challenges,

Batson

did not create the underlying constitutional principle that blacks may not be systematically excluded from jury service. This distinction goes to

Strauder v. West Virginia,

100 U.S. 303 , 25 L.Ed. 664 (1879), and

Swain v. Alabama,

380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965).

While the precise question before us has yet to be decided by the Supreme Court, we believe the existing ease law requires us to hold the rule in

Batson

may not be applied retroactively. At this point in the development of the case law, if a deviation from the course we have discerned is to come, it must come from the Supreme Court.

Williams v. Chrans,

945 F.2d at pp. 942-946.

So we know how

Batson

itself is treated. But how about

McCollum?

Does it constitute a “new rule” for purposes of habeas review? Using the same analysis as that set out in

Williams v. Chrans,

supra, the Court concludes that

McCollum

was “an explicit and substantial break with prior precedent” and it is also clear that

McCollum

serves constitutional interests “beyond the truth-finding function.” So

McCollum

announced a “new rule” within the meaning of

Teague.

And the Court further concludes that neither of the two exceptions to the “new rule” principle is applicable here. So

McCollum ,

like

Batson ,

may not be applied retroactively.

The defendants did not properly raise and preserve their Batson type issue. And, assuming

McCollum

establishes the probable merit of Batson challenges on this record, those challenges involve a new rule which may not be applied retroactively. That rule, although extremely important, did not deprive petitioners of a fair trial because it does not go to the heart of the truthfinding process.

*1491

The Court,

sua sponte,

raises and discusses another issue which the petitioners do not directly rely upon, although they make a passing reference to it in their brief. They mention that the final juror selected was one Elmer Guinn. They then state:

At the conclusion of Mr. Guinn’s voir dire, both petitioners requested an additional peremptory challenge to strike this juror. Having no peremptory challenges left, the juror was seated on the petit jury that heard the ease and rendered the death sentence. (Tr.T. 945). As the record will reflect, Mr. Guinn’s father had served on the jury that had previously tried this case and rendered a death sentence. (Tr.T. 941).

This Court reviewed the record to determine why no challenge for cause was made to the juror, Elmer Guinn. The Court quotes the pertinent portions of the voir dire of Mr. Guinn:

Q. Are you acquainted with the defense attorneys, Mark Cambiano and Doc Irwin, sitting here?

A. I am Mark.

Q. How are you acquainted with him?

A. He’s done some work for me three or four years ago.

Q. Is he representing you now on anything?

A. No.

Q. Would the fact that he has represented you before have any bearing on your decision in this case?

A. No.

Q. Is he currently representing any members of your family?

A. Yes, sir.

Q. Who it that?

A. My brother.

Q. What’s his name?

A. Joe Guinn.

Q. Okay. And what court is he — is that in the Conway County Circuit Court in Conway County?

A. It’s in Van Burén, I reckon.

MR. CAMBIANO: Yeah, it’s Van Burén County, your Honor.

BY MR. KIRK: (Cont.)

Q. What is your brother’s name?

A. Joe Guinn.

Q. Okay. I believe he does have cases pending in Conway County too, doesn’t he?

MR. CAMBIANO: Yes, he does; I’d forgotten about that.

MR. KIRK: Conway County Circuit.

MR. CAMBIANO: Yeah.

MR. KIRK: A criminal ease?

MR. CAMBIANO: Yes, he does. He’s got two cases, one in Van Burén and one in Conway County.

MR. KIRK: Your Honor, I believe that would excuse this witness for cause. Mr. Cambiano is representing him in a felony case in Conway County.

MR. IRWIN: His brother, his brother.

MR. KIRK: He’s representing his brother, I’m sorry.

BY THE COURT: Is that Wendell Joe?

MR. GUINN: Yes, sir.

BY THE COURT: He does have a case pending in this court and was arraigned April 8th. I think I will excuse you.

MR. IRWIN: Your Honor, we’re going to object to that, if the Court please.

BY THE COURT: You may question him.

MR. IRWIN: Okay. Are you through?

MR. KIRK: Well—

BY THE COURT: Finish your questioning if you’re not through.

MR. KIRK: Okay, I thought he was going to ask him questions on this motion.

BY THE COURT: I’ll withdraw my ruling.

MR. IRWIN: Okay, go ahead.

MR. KIRK: Okay.

BY MR. KIRK: (Cont.)

* * :H * * *

Q. Have you heard of this case before?

A. Uh-huh.

Q. What all have you heard about it?

A. I guess just about like everybody else, through the newspaper the last time it was here. And, uh—

*1492

Q. You’ve heard a little bit on the newspaper and a little bit on the radio and T.V.?

A. Yeah. And I think, I don’t know for sure, but I think the last time they was here my daddy sat on the jury, it seems like.

Q. That’s right. Your father was on the jury that found them guilty the first time.

A. Uh-huh, I believe so.

Q. I forgot about that. Will that have any bearing on how you would decide this case?

A. No.

Q. Do you believe you could listen to all the evidence and the instructions from the Court and render — make a decision based just on what you hear in this courtroom?

A. Yes, sir; I do.

Q. You are saying then that anything you might have heard about this case before has not made you lean one way or another toward the sentence?

A. No.

Q. Thank you.

BY THE COURT: You may inquire. EXAMINATION ON BEHALF OF THE DEFENDANTS

BY MR. CAMBIANO:

Q. Quinton, do you recall — your dad has talked to you about this case, I’m sure, about the last time when he was on the jury, after he was on the jury?

A. It’s been too long ago, Mark.

Q. It’s been quite a long time ago. Do you recall anything in particular that he said about this case?

A. No, not really; I don’t.

Q. Do you know what they were convicted of?

A. Yeah, I do know that.

Q. What were they convicted of?

A. Capital Murder.

Q. Okay. Do you know what the sentence was when your father was on the jury?

A. Uh-huh.

Q. If you were to be of a different mind, if you sat on this jury, and your decision was that you thought in your own mind that it should be life without parole, would you have any problems going back and facing your daddy about that?

A. Not a bit. No sir.

Q. Okay. You wouldn’t let him influence you in anyway then?

A. Huh-uh.

*

sjí * * *

MR. BULLOCK: Your Honor, the State will withdraw its motion for cause.

BY THE COURT: Let me ask you step outside the courtroom.

(Prospective juror left the courtroom.)

BY THE COURT: What says the State?

MR. BULLOCK: Good for the State.

BY THE COURT: The defense has no other strikes and I hear no motion to strike for cause.

MR. IRWIN: Your Honor, may I proffer into the record that if the defendant, Van Denton, had a pre-emptory challenge left, and if he had twelve, as the statutes provides, he would at this time exercise a pre-emptory challenge on this juror, and request permission to do so.

BY THE COURT: Your record is made.

MR. IRWIN: Denied?

BY THE COURT: Yes.

MR. IRWIN: Note my objection.

BY THE COURT: Correct.

MR. CAMBIANO: Your Honor, I would make the same record. After I got into talking, I saw I stepped into something I shouldn’t have. If I’d had my other three strikes that I feel I’m entitled to, I think I would have struck this individual also.

BY THE COURT: All right, for what reason. Let’s state some reasons.

MR. CAMBIANO: Well, I don’t have any reason. I don’t think that I should state them to the Court since my client probably would not let me do so. But I feel like I had three extra strikes since I’ve only exercised, myself, nine (9) strikes. Of course, the Court has imputed three of those strikes to me.

*1493

BY THE COURT: Well, let’s be specific now. There has been a motion now, as I understand it, by the defendant to excuse for cause?

MR. IRWIN: No, no.

MR. CAMBIANO: Your Honor, no. That’s not correct.

BY THE COURT: There hasn’t?

MR. CAMBIANO: That’s not correct.

BY THE COURT: All right, I just wanted to be sure we understood that. All right.

MR. IRWIN: We think, your Honor, we ought to be entitled to twelve (12) each, and we are just making a record on that—

BY THE COURT: I understand.

MR. IRWIN: —and making that request.

BY THE COURT: I’ve got it.

MR. IRWIN: All right, sir. Thank you.

BY THE COURT: We are going to draw two alternates, choose two alternates. We need a little recess before get into that.

MR. IRWIN: All right, sir.

(At this time a recess was taken, during which time the following record was made out of the presence of any prospective juror.)

BY THE COURT: The last juror chosen was Elmer Guinn. I just want to be sure our record is clear on this. Mr. Guinn’s father was on a jury that once tried and convicted the defendants, is that correct?

MR. BULLOCK: I believe that’s correct, your Honor.

BY THE COURT: Mr. Guinn’s brother is represented by Mr. Cambiano at this time in two cases. Is that correct, Mr. Cambiano?

MR. CAMBIANO: Yes, your Honor; that’s correct.

BY THE COURT: They are both criminal cases?

MR. CAMBIANO: Yes, your Honor.

BY THE COURT: What about the fact that his father once convicted these defendants, does that cause you any problems?

MR. CAMBIANO: That part doesn’t cause me any problems, your Honor.

BY THE COURT: Mr. Irwin? (No response.)

BY THE COURT: What I’m getting at is this, I don’t want complications to arise later on this point.

MR. CAMBIANO: Let me talk with my client, confer to make sure.

(Defense counsel conferred inaudibly with their clients.)

MR. IRWIN: Your Honor, on the surface it would appear that would be considerable problem, but I think the voir dire examination, plus whatever pre-trial and subsequent investigation we could do, we’re willing to take the juror.

BY THE COURT: All right, it is settled. (Tr. 988-947)

Of course, every criminal defendant has the right to be tried by a fair and impartial jury. In order to ensure that juries are fair and impartial the law gives to the State and to each defendant the right to strike any prospective juror for good cause. Here there clearly was good cause. And, at one point, the court did excuse Mr. Guinn upon the motion of the State. It then reversed that ruling and permitted further voir dire. The voir dire revealed that one of the defense attorneys, Mr. Cambiano, had done some work for Mr. Guinn three or four years earlier and was clearly representing Mr. Guinn’s brother in criminal proceedings then pending in both Van Burén County and Conway County. The voir dire also revealed that Mr. Guinn’s father had sat on the jury that had found these very defendants, Mr. Ruiz and Mr. Denton, guilty of capital murder the first time they were tried and had fixed the penalty of death for each.

From the Court’s point of view this is a strange record. Each of the defendants’ attorneys, attempting to make a further record on the court’s denial of additional peremptory challenges, stated on that record that if they had an additional peremptory challenge they would exercise it against Mr. Guinn. This is a patently ridiculous position. The trial judge was clearly inviting the state or either defendant to challenge Mr. Guinn for

*1494

cause. Nevertheless, the state found Mr. Guinn “good for it” and each of the defendants’ attorneys, after conferring with their clients (according to a note entered by the court reporter) decided that they would not challenge Mr. Guinn for cause. Mr. Guinn therefore sat on the jury which subsequently imposed the death penalty against both petitioners.

The state and both defendants apparently believed that Mr. Guinn would be a “good juror” for their respective sides of the case. The close relationship between one of the defense attorneys and Mr. Guinn and his family may have been one of the reasons for the defense not to challenge him. And the state may have felt that it had some leverage on Mr. Guinn by virtue of the pending criminal charges against his brother. Whatever, the appearances, at least, are not good.

It is often said that only the Court wants a fair and impartial jury. Under our adversarial system the attorneys’ first objective will be to seek jurors that are partial to their clients.

The Court is unaware of any state statute or rule which would have prevented the trial court from

sua sponte

excusing Mr. Guinn for cause. On the other hand, the Court is unaware of any constitutional challenge that either defendant could make on the basis of this record. The cloud over the impartiality of the jury was not the fault of Mr. Guinn or the trial judge. That cloud hangs over the jury because of the informed decisions made by the state and the two defendants.

It is this Court’s view that society, in addition to the parties, has an interest in seeing to it that criminal trials are conducted before fair and impartial juries. Therefore, when, during the course of voir dire, it appears clear that good cause exists for excusing a prospective juror, the judge should on his or her own strike that juror even in the absence of a challenge by one or more of the parties. There appears, however, to be no law or constitutional provision that requires Arkansas trial judges to exercise their admitted discretion to strike prospective jurors for cause absent a challenge or motion by one or more of the parties. The Court concludes that the failure of the trial court to strike Mr. Guinn does not create any basis for habeas relief.

III.

ARKANSAS STATUTE ANNOTATED § 41-1301, ET SEQ. AND ARKANSAS STATUTE ANNOTATED § 41-1501 (1977 REPL.) ARE UNCONSTITUTIONAL BOTH ON THEIR FACE AND AS APPLIED TO THE FACTS OF THIS CASE

Petitioners challenge the constitutional validity of both Arkansas Code Ann. § 5-10-101 et seq. and § 5-4-602, the provisions under which they were charged and tried, contending that the statutes are unconstitutionally ambiguous, overbroad and vague, both facially and as applied.

Petitioners argue that (1) the death penalty statutes fail to adequately guide the jury in determining aggravating and migrating factors, which permits the arbitrary imposition of the death penalty; (2) the discretion afforded prosecuting attorneys to waive the death penalty if they so choose permits the arbitrary and capricious imposition of the death penalty and violates equal protection; (3) the statute fails to properly distinguish first degree murder and capital murder and the overlap between the two crimes is unconstitutional; and (4) the imposition of the death penalty violates the equal protection clause.

The Court finds the consideration and rejection of these arguments by the Arkansas Supreme Court in

Ruiz v. State,

299 Ark. 144, 152-53 , 772 S.W.2d 297 (1989) to be sound. Accordingly, the Court will not elaborate further on the Petitioners’ constitutional challenge to Arkansas’ death penalty statutes. With respect to the Petitioners’ argument that Arkansas’ capital felony murder and first degree felony murder statutes unconstitutionally overlap, the Court does note, however, the case of

Simmons v. Lockhart,

709 F.Supp. 1457, 1461-63 (E.D.Ark.1989), wherein the court stated that “[i]f any issue has ever been put to rest by the Arkansas Supreme Court, it is the overlap issue” and “[the overlap issue] has been rejected outright at least 17 times by the Supreme Court

*1495

of Arkansas, and by two U.S. District Judges, and ha[s] been inferentially rejected by the Supreme Court of the United States.”

Id.

at 1463 .

IV.

THIS THIRD TRIAL OF PETITIONERS, DUE SOLELY TO PROSECUTORIAL MISCONDUCT AND ERROR, VIOLATES FUNDAMENTAL FAIRNESS AND DUE PROCESS, AND IS IN DIRECT CONTRAVENTION OF BOTH THE SPIRIT AND APPLICATION OF THE FIFTH AMENDMENT’S PROHIBITION AGAINST DOUBLE JEOPARDY

Petitioners’ fourth argument for reversal asserts that their previous success in reversing their convictions and sentences bars the state from resentencing them to death for a third time pursuant to the former jeopardy clause of the Fifth and Fourteenth Amendment. Petitioners allege that the third trial, which was limited to punishment, was occasioned solely by prosecutorial misconduct and error. Petitioners conclude that the punishment trial violates fundamental fairness, due process, and double jeopardy.

The Supreme Court has long held that a successful appeal by a defendant, in most instances, is not a bar to retrial under the double jeopardy clause.

See Burks v. United States,

437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978). Exceptions include reversals based upon insufficiency of the evidence and situations involving prosecutorial misconduct.

See Burks, supra; United States v. Dinitz,

424 U.S. 600 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976). There is no applicable exception in this ease. The previous reversals in petitioners’ trials have not involved insufficiency of the evidence. Petitioners’ bald assertion of prosecutorial misconduct in the earlier trials is not supported by any evidence in the record. Under such circumstances, petitioners’ retrial on punishment did not violate fundamental fairness, due process, or double jeopardy.

After petitioners’ first trial was reversed for improper venue, petitioners were tried again. During the punishment phase of the second trial, the jury found the following aggravating factors for each petitioner:

1. At the time of the capital murder, [petitioner] was unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction.

2. [Petitioner] previously committed another felony, an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person.

3. In the commission of the capital murder, [petitioner] knowingly created a great risk of death to a person other than the victim.

4. The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody.

5. The capital murder was committed for pecuniary gain.

After performing the statutorily required balancing of aggravating and mitigating factors, the jury sentenced both petitioners to death.

The Eighth Circuit’s reversal of petitioners’ second sentencing phase trial was based upon a violation of the then existing law in this Circuit which prohibited the use of an aggravating circumstance (murder for pecuniary gain) which merely repeated an element of the underlying crime (murder in the course of a robbery).

Ruiz v. Lockhart,

806 F.2d 158 (8th Cir.1986) (applying

Collins v. Lockhart,

754 F.2d 258 (8th Cir.1985)). Petitioners therefore received a new sentencing trial, at which the pecuniary gain aggravating circumstance was not charged.

Petitioners’ Supplemental Brief argues that “had the pecuniary gain aggravator been excluded at the [second] punishment trial, the introduction of other aggravators would have been placed in doubt and the course of the punishment trial would have been different.” It seems that petitioners are asserting that the Eighth Circuit’s reversal of their conviction for including an impermissible (at the time) aggravator should have precluded a resentencing hearing and resulted in a sentence of life without the possibility of parole. This argument is not supported by the law in this Circuit or by holdings by the United

*1496

States Supreme Court. Because Arkansas statutory law does require a balancing of aggravating and mitigating factors, when one aggravating factor is declared invalid (even if other aggravating circumstances remain), the sentence of death is automatically reduced to life imprisonment unless the state chooses to retry the question of punishment.

Williams v. State,

274 Ark. 9, 12 , 621 S.W.2d 686 ,

cert. denied,

459 U.S. 1042 , 103 S.Ct. 460 , 74 L.Ed.2d 611 (1981). Thus, unlike the statutory scheme analyzed in

Zant v. Stephens,

462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983), Arkansas balancing requirement prohibits harmless-error review. Moreover,

Collins

itself provides for retrial.

Collins,

754 F.2d at 268 .

Petitioner directs the Court’s attention to the case of

Satter v. Leapley,

977 F.2d 1259 (8th Cir.1992). Properly analyzed, that case supports the Court’s finding that petitioners’ argument on this point is meritless. Essentially, petitioners’ second sentencing was set aside for admitting inadmissible evidence. No reviewing court has found that there was insufficient evidence to support the death sentence. Indeed, with the jury’s findings of four additional aggravating factors, any of which could independently support a sentence of death, no court could so find.

The Court concludes that the holding of Petitioners’ third sentencing trial did not violate fundamental fairness, due process, or the double jeopardy clause.

V.

THE JURY INSTRUCTIONS ON THE STATUTORY AGGRAVATING CIRCUMSTANCES SUBMITTED IN THIS CASE WERE CONSTITUTIONALLY AMBIGUOUS, VAGUE AND OVERBROAD, AND VIOLATED PETITIONERS’ FIFTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS

For each petitioner, the same three statutory aggravating circumstances were submitted to the jury for consideration

3

:

1) that the capital murder was committed by the [petitioner] while unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction;

2) that the [petitioner] previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person;

3) that the capital murder was committed for the purpose of avoiding or preventing an arrest.

4

The jury unanimously found that all three aggravating factors existed as to petitioner Denton, and that the first and third aggravating factors existed as to petitioner Ruiz.

Petitioners submit several arguments regarding the aggravating factors submitted to the jury. First, they argue that the aggravating circumstances submitted to the jury in this case were unconstitutionally vague and overbroad. This argument has been considered and rejected on numerous occasions, and this Court finds it to be without merit.

Second, petitioners argue that there was insufficient evidence as a matter of law to submit these aggravating circumstances to the jury. This Court concludes that the testimony of David Small and the circumstances of the crime provided an adequate basis for submitting to the jury the aggravating circumstance that the murders were committed to avoid arrest. The evidence of a prior felony conviction for murder for Mr. Denton and armed robbery for Mr. Ruiz provided an adequate basis for submitting the aggravating circumstance of a previous felony involving the use or threat of violence. Finally, the Court finds that the evidence was sufficient to sustain the submission of the aggravating factor that the petitioners were unlawfully at liberty after being sentenced to im

*1497

prisonment as a result of a conviction for a felony.

Petitioners’ third argument is considerably more complicated. They allege that the submission of an aggravating factor of murder for the purpose of avoiding or preventing arrest impermissibly overlaps with the underlying conviction for committing the murder in the commission of a robbery and/or kidnapping

or in the immediate flight therefrom.

Petitioners contend that murder in flight from robbery and/or kidnapping, in this case, was the same as murder to avoid arrest and that the use of the murder to avoid arrest aggravator created a “double counting” situation which did not sufficiently narrow the class of murderers subject to the death penalty.

Under Arkansas law at the time of Petitioners’ second trial, robbery was defined as follows:

“A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to employ physical force upon another.”

Ark.Stat.Ann. § 41-2103 (1977 Repl.) (emphasis added).

Thus, it appears that the underlying crime of murder in the course of a robbery could encompass the “resisting arrest” aggravating factor and therefore constitute double counting. It is, however, far from clear that such double counting occurred in this case. The jury was not instructed that robbery included the use of force to resist apprehension. The robbery instruction read as follows:

“To prove robbery, the State must prove beyond a reasonable doubt that, with the purpose of committing a theft, Paul Ruiz and Earl Van Denton employed or threatened to employ physical force upon another.”

Thus, although the actual legal definition of robbery could have included the use of physical force to resist apprehension, the jury was not told that robbery included the use of physical force to resist apprehension. There is nothing in the record before the Court that would indicate that the jury had anything before it which would have allowed it to make such a finding. This Court is not prepared to assume that the jury made findings according to anything other than the instructions presented to it.

Based upon the instructions given to the jury in this case, the Court does not find that the conviction for murder in the course of a robbery and/or kidnapping or in the immediate flight therefrom overlaps with the aggravating factor of murder for the purpose of avoiding arrest. The “in the immediate flight therefrom” component of the conviction for murder in the course of a robbery and/or kidnapping or in the immediate flight therefrom is a temporal element. It proscribes the time frame during which the murder must have taken place in order to associate it with the felony in order to constitute felony murder. There is no purpose or intent element to “in the immediate flight therefrom.” For example, a person could be charged with murder in the course of a robbery or the immediate flight therefrom if, fleeing the scene of a robbery in an automobile, he accidently struck and killed a passing pedestrian.

The aggravating factor of murder for the purpose of avoiding or preventing arrest, on the other hand, has a purpose or intent element. It is something beyond a killing during the course of a proscribed felony under circumstances manifesting extreme indifference to the value of human life. And because it does add an intent factor to the general felony murder, it does suffice to narrow the class of robber-murderers eligible for the death penalty. Thus this Court concludes that a conviction for murder in the course of a robbery and/or kidnapping, augmented by an aggravating factor of murder for the purpose of avoiding or preventing an arrest, does not constitute “double-counting.”

Even if the Court did find that the two factors impermissibly overlapped, it would be foreclosed from granting relief on this basis.

In

Collins v. Lockhart,

754 F.2d 258 (8th Cir.),

cert. denied,

474 U.S. 1013 , 106 S.Ct. 546 , 88 L.Ed.2d 475 (1985), the Eighth Circuit held that the aggravating factor of murder for pecuniary gain was, by definition, duplicitive of murder in the course of a rob

*1498

bery and thus failed to perform the aggravating factor function of narrowing the class of murderers eligible for the death penalty. The decision was based upon the Arkansas statutory scheme, which allows a conviction for capital murder where the defendant committed murder during the course of a robbery or the immediate flight therefrom under circumstances manifesting extreme indifference to the value of human life.

Id.

Subsequent to the

Collins

decision, the United States Supreme Court issued the decision of

Lowenfield v. Phelps,

484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988). The Court analyzed a Louisiana statute which defined first degree murder as, among other things, the lulling of a human being “[w]hen the offender has specific intent to kill or to inflict great bodily harm upon more than one person.”

Id.

484 U.S. at 242 , 108 S.Ct. at 553 (emphasis added) (citations omitted). One of the statutory aggravating factors in the Louisiana scheme, and the only one found by the jury in

Lowenfield ,

was that “the offender knowingly created a risk of death or great bodily harm to more than one person.”

Id.

484 U.S. at 243 , 108 S.Ct. at 554 (citations omitted). The petitioner alleged that the parallel nature of these provisions required that his sentences be set aside.

The Court went through an extensive analysis of the role of aggravating circumstances. Reiterating the fact that, to pass constitutional muster, a capital sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder,” the Court found that the Louisiana capital sentencing scheme sufficiently narrowed the class of murderers at the guilt phase, by requiring specific intent to kill.

Id.

484 U.S. at 243-47 , 108 S.Ct. at 554-555 . The Court found that the narrowing of the class of murderers eligible for the death penalty required by the Constitution need not occur through aggravating circumstances if the jury finding of guilt responds to this concern.

Id.

484 U.S. at 245 — 47, 108 S.Ct. at 555 .

“The fact that the sentencing jury is alias required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally inform. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more.”

Id.

The Court clearly and explicitly relied upon the heightened intent standard in the Louisiana statutory scheme’s definition of first degree murder in making its decision.

After

Lowenfield

was decided, the Eighth Circuit re-examined its holding in Collins

5

:

“Collins

construed a state sentencing system indistinguishable in any significant detail from Louisiana’s. Like Louisiana, Arkansas has defined a specific group of crimes as capital murder eligible for the death penalty ... A comparison of Arkansas’s definition of capital murder and Louisiana’s definition of first degree murder reveals that despite some variations they both perform the function of defining or limiting those crimes eligible for the death penalty. That the Louisiana statute requires the felony murder to be intentional, whereas the Arkansas statute requires only that the murder be the result of extreme indifference to human life, does not significantly distinguish the Arkansas statute from Louisiana’s under the

Lowenfield

analysis, because both serve to narrow the class of death eligible murderers from all murderers.”

Perry v. Lockhart,

871 F.2d 1384 (8th Cir. 1989). To date, the United States Supreme Court has not examined the double counting issue in a state statutory scheme which does not require intent to kill as a prerequisite for capital murder. In

Lockhart v. Fretwell,

— U.S. -, 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993), the respondent urged the Court to decide whether

Collins

was still good law in spite of

Lowenfield

as a threshold question.

*1499

Id.

— U.S. at-, 113 S.Ct. at 843 . Because the premise that the overruling of

Collins

by

Perry

was proper was presumed by the question presented and in the granting of certiorari, the Court declined the invitation to address the belated argument.

Id.

at 1392 n. 4.

The Court did indicate that it was inclined to examine the issue when it granted certiorari in

Tennessee v. Middlebrooks,

— U.S. -, 113 S.Ct. 1840 , 123 L.Ed.2d 466 (1993). The Tennessee Supreme Court reversed a conviction of a defendant found guilty of murder in the course of a robbery under circumstances manifesting indifference to human life and sentenced to death after the jury found an aggravating factor of murder for pecuniary gain.

State v. Middlebrooks,

840 S.W.2d 317 (Tenn.1992). The State court distinguished

Lowenfield

due to the failure of the Tennessee statute, which is virtually identical to the Akansas statute, to narrow the class of death eligible offenders at the guilt stage.

Id.

After granting certiorari, the Court dismissed the case, stating only that certiorari had been “improvidently granted.”

Tennessee v. Middlebrooks,

— U.S. -, 114 S.Ct. 651 , 126 L.Ed.2d 555 (1993). The United States Supreme Court thus allowed the Tennessee Supreme Court decision to stand.

This Court is inclined to agree with the Tennessee Supreme Court. It believes that this issue should be re-examined either by the Eighth Circuit or the United States Supreme Court. However, this Court is bound by the holdings of the Eighth Circuit, and, at this time,

Perry ,

and not

Collins,

is the law in this Circuit. Thus, even if this Court had found that there was an overlap in the crime of conviction and one of the aggravating factors, it would be bound by the

Perry

decision.

Multiplicitous Charging:

There is another issue, discovered in the preparation of issue V, that deserves attention. A the Court was under the impression that Petitioners had been convicted for the murder of two individuals during the same criminal episode, as well as of murder in the course of a robbery and/or kidnapping, and that the aggravating circumstance of murder with the purpose of avoiding or preventing arrest could operate for that crime separately and distinctly from a conviction for murder in the commission of a robbery and/or kidnapping or in the immediate flight therefrom, the Court failed to see prejudice. To be sure that the Court accurately understood the underlying conviction, it wrote the parties in March of this year to request certain information from the earlier trials. Among other things, it asked for the criminal Information, the jury instructions, and the verdict forms for the prior guilVinnocence proceedings. This material was submitted on July 15, 1994.

The Court was informed that the State went to trial on an Information which was last amended on November 18, 1977, in contrast to the August 24, 1977 amended Information cited in the trial transcript for this ease. (T.Tr. 164). The November 18, 1977 Amended Information reads in pertinent part as follows:

“The said Paul Ruiz and Earl Van Denton in the County and State aforesaid on or about the 29th and 30th day of June, 1977, did unlawfully and willfully and with the premeditated and deliberated purpose of causing the death of a person, more specifically Magazine Marshall Marvin Ritchie, cause his death by means of a deadly weapon, and while in the course of the same criminal episode did thereafter cause the death of Opal James, all in violation of Akansas Statute 41-1501 AND OR while acting together did commit the crimes of robbery AND OR kidnapping, and in the course of said felony or felonies or in the immediate flight therefrom, cause the death of a person OR persons namely, Marvin Ritchie and Opal James under circumstances manifesting extreme indifference to the value of human life, in violation of Akansas Statute 41-1501(l)(a) AND OR with the premeditated and deliberate purpose of causing the death of a law enforcement officer acting in the line of duty, they did cause the death of a person namely, Marvin Ritchie, City Marshall, Magazine, Akansas, in violation of Akan

*1500

sas Statute 41 — 1501(l)(b) against the peace and dignity of the State of Arkansas ...”

6

(Emphasis added). The Court’s instructions to the jury read in pertinent part as follows:

“Paul Ruiz and Earl Van Denton are charged with the offense of capital murder. To sustain this charge, the State must prove the following things beyond a reasonable doubt: Count one, first. That Paul Ruiz and Earl Van Denton committed or attempted to commit the crimes of robbery OR kidnapping OR both. Two, that in the course of it and in fervor (sic) of that crime OR crimes or an (sic) immediate flight therefrom Paul Ruiz and Earl Van Denton caused the death of Marvin Richie (sic) OR Opel (sic) James under circumstances manifesting an extreme indifference to the value of human life OR count two, first, that with the premeditated and deliberate purpose of causing the death of any person, Paul Ruiz and Earl Van Den-ton caused the death of Marvin Richie (sic) and Opel (sic) James. Second, that those deaths were caused in the course of the same criminal episode.

* * * * * *

... As a part of count one of the charge of capital murder, the State contends that the death of Marvin Richie (sic) and Opel (sic) James occurred during the commission of or attempted commission of the crimes of robbery, kidnapping, OR both by Paul Ruiz and Earl Van Denton, or in immediate flight from the commission of EITHER ONE OR BOTH of these crimes.

To prove robbery, the State must prove beyond a reasonable doubt that, with the purpose of committing a theft, Paul Ruiz and Earl Van Denton employed or threatened to employ physical force upon another.

And physical force means any bodily impact, restraint, or confinement. Purpose, a person acts with purpose with respect to his conduct when it is his conscious object (sic) to engage in the conduct. To prove kidnapping the State must prove beyond a reasonable doubt first, that Paul Ruiz and Earl Van Denton did without consent of Marvin Richie (sic), Opel (sic) James, and David Small or any of them restrained all or any of them so as to interfere substantially with his liberty. And second, that Paul Ruiz and Earl Van Denton restrained Marvin Richie (sic) and Opel (sic) James and David Small or any of them with the purpose of A., using either of them as a shield or hostage; B., facilitating the commission of robbery or flight therefrom— thereafter; C., inflicting physical injury on any of them; D., terrorizing any of them.”

(Emphasis added).

After retiring and deliberating, the jury came back with the following verdicts:

“We the jury find Paul Ruiz guilty of capital murder.”

and

“We the jury find Earl Van Denton guilty of capital murder.”

Reading the Amended Information and the Jury Instructions together, it appears that the jury could have found either petitioner guilty of capital murder on any of at least five theories:

1. Double murder of Marvin Ritchie and Opal James during the same criminal episode; and/or

2. Murder of Marvin Ritchie in the course of a robbery or immediate flight therefrom; and/or

3. Murder of Marvin Ritchie in the course of a kidnapping or immediate flight therefrom; and/or

4. Murder of Opal James in the course of a robbery or immediate flight therefrom; and/or

5. Murder of Opal James in the course of a kidnapping or immediate flight therefrom.

With the generalized verdict returned, there is no way to determine which, if any, of these theories garnered the required unanimous support. In other words, four jurors could have determined that the killings, 12 to 14 hours apart and in two different counties, did not occur during the same criminal epi

*1501

sode.- They may have felt that there was not enough evidence to determine that petitioners murdered Opal James, but still found that Mr. Ritchie was murdered in the course of a robbery. Four different jurors could have determined that the murders were not really in the course of a robbery or immediate flight therefrom, but were simply separate crimes against the same victims; this is rendered a very real possibility with regard to Mr. James, who was not murdered until at least twelve hours after the taking of the wallet. These four jurors may have found instead that the murders were committed during the same overall criminal episode. Still four more jurors may have determined that they were not sure about the “same criminal episode” and that they were not sure about the link between the robbery and the murders, but still found that at least one murder was committed in the course of kidnapping. This is just one possible scenario, demonstrating that the jury could have returned a verdict of guilty of Capital Murder with no unanimity as to the actual crime.

The United States Supreme Court has addressed this issue in a similar case. In

Schad v. Arizona,

501 U.S. 624 , 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991), the Court was faced with a petitioner convicted of the single crime of first degree murder based upon alternative theories of premeditated murder or murder in the perpetration of a robbery. The state’s evidence included proof that approximately one month after the discovery of the victim’s body, Petitioner Schad was found driving the victim’s car, which still contained personal belongings of the victim.

Id.

501 U.S. at 627-29 , 111 S.Ct. at 2495. Furthermore, Petitioner’s wallet contained two of the victim’s credit cards, which Petitioner had begun using the day after the victim was strangled to death.

Id.

The jury was instructed that “[f]irst degree murder is murder which is the result of premeditation ... Murder which is committed in the attempt to commit robbery is also first degree murder ... All 12 of you must agree on a verdict. All 12 of you must agree whether the verdict is guilty or not guilty.”

Id.

501 U.S. at 629 , 111 S.Ct. at 2495. Petitioner argued that his conviction under instructions that did not require the jury to agree on one of the alternative theories of premeditated and felony murder did not comport with the Constitutional requirements of a unanimous jury verdict.

Id.

501 U.S. at 629-31 , 111 S.Ct. at 2496. Justice Souter, joined by Chief Justice Renquist, Justice O’Connor and Justice Kennedy, wrote the plurality opinion, holding that the jury was unanimous in reaching the verdict, and that if a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, the federal courts are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.

Id.

501 U.S.. at 635-37, 111 S.Ct. at 2499. Approving the Arizona court’s holding that attempt to commit robbery is “the legal equivalent of ... deliberation, premeditation, and design”, the plurality accepted the state law determination that under state law, premeditation and the commission of a felony are not independent elements of the crime, but rather are mere means of satisfying a single

mens rea

element.

Id.

501 U.S. at 635-39 , 111 S.Ct. at 2499-2500. Justice Souter focused extensively on the moral equivalence of murder by deliberation and felony murder in its discussion.

See id.

501 U.S. at 637-46 , 111 S.Ct. at 2500-2504. He noted that the equating of the two mental states “as species of the blameworthy state of mind required to prove a single offense of first-degree murder finds substantial historical and contemporary echoes.”

Id.

501 U.S. at 640 , 111 S.Ct. at 2501.

Justice Scalia concurred in the judgment on this issue.

Id.

501 U.S. at 646-48 , 111 S.Ct. at 2505. Focusing almost exclusively on the historical underpinnings allowing alternative theories, he noted that if he did not find historical support, he “might well be with the dissenters in this case”:

“Certainly the plurality provides no satis- ' factory explanation of why (apart from the endorsement of history) it is permissible to combine in one count killing in the course of robbery and killing by premeditation. The only point it makes is that the depravity of mind required for the two may be considered morally equivalent ... But the

*1502

petitioner here does not complain about lack of moral equivalence: he complains that, as far as we know, only six jurors

believed

he was participating in a robbery, and only six

believed

he intended to kill. Perhaps moral equivalence is a

necessary

condition for allowing such a verdict to stand, but surely the plurality does not pretend that it is

sufficient.

(We would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the “moral equivalence” of those two acts.)”

Id.

501 U.S. at 650-52 , 111 S.Ct. at 2507 (emphasis in original).

Other courts have had the opportunity to analyze the

Schad

opinion. In

United States v. Holley,

942 F.2d 916 (5th Cir.1991), the Fifth Circuit reversed a conviction for perjury which was submitted to the jury as two separate counts, each of which alleged numerous false statements. The Court held that the refusal of the trial court to instruct the jury that it must agree unanimously as to at least one statement in each count of the indictment in order to find Holley guilty was reversible error. The Court specifically distinguished

Holley

from

Schad :

“Holley’s case, however, is somewhat different from

Schad .

In

Schad ,

there was a single killing of one individual, and Justice Souter, stressing that under Arizona law first degree murder was “a single crime,” concluded that there was no more need for jury unanimity as to alternative mental states each satisfying the mens rea element of the offense than there was for the jurors to all agree on the precise means employed to cause death ... This differs, however, from the situation where a single count as submitted to the jury embraces two or more separate offenses, though each be a violation of the same statute.”

Id.

at 927 (citations omitted).

The Fifth Circuit more recently summed up the question of jury unanimity as follows:

“In sum, juror disagreement as to the critical facts of the offense might reflect a ‘reasonable doubt’ that the defendant actually engaged in criminal activity. The duty of the court is to determine which *faet[s] [are] necessary to constitute the crime,’ and to require consensus on these ‘facts.’ Essentially, the inquiry is how much disagreement between individual jurors as to the factual predicate for an offense can be tolerated without undermining the integrity of the guilty verdict.”

United States v. Correa-Ventura,

6 F.3d 1070 (5th Cir.1993). The Court also noted that the plurality decision in

Schad

advocated “a distillate of the concept of due process with its demands for fundamental fairness ... and for the rationality that is an essential component of that fairness.”

Schad,

501 U.S. at 637 , 111 S.Ct. at 2500 . The Court determined that a ease-by-case analysis, emphasizing history and general practice in determining whether the demands of fundamental fairness are met, was the only appropriate method of ensuring that the jury “not be permitted to evaluate separate and distinct offenses about which they may disagree in rendering a patchwork guilty verdict.”

Correa-Ventura,

6 F.3d at 1081 .

Had there only been one victim in this ease, the

Schad

opinion would clearly be controlling. However, there were two victims in this case, and the jury was instructed in an “and/or” manner with regard to the victims, as well as to the theory of capital murder. This is distressingly similar to Justice Scalia’s statement that “[w]e would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the ‘moral equivalence’ of those two acts.”

Schad,

501 U.S. at 651 , 111 S.Ct. at 2507 (Scalia, J., concurring). Petitioners in this case could have been found guilty of either killing Marvin Ritchie in the course of a robbery on the morning of June 29, 1977 or of lolling Opal James in the course of a kidnapping on the evening of June 29, 1977. As far as this Court is aware, historically the jury is required to agree on an alleged victim of a crime. It does seem to this Court that the failure to instruct the jury to reach a unanimous verdict, at least with respect to the victim,

in this case,

was error. However, as set forth below, the Court believes that it is foreclosed from reaching this issue, because the issue is either procedurally barred

*1503

for failure to timely raise the issue, or, if the issue is deemed to have been raised, it has already been decided adversely to petitioners in a previous habeas by a higher court.

The November 18, 1977 Amended Information was used in both the first and second trial, and the jury was instructed in substantially the same manner. In addressing the verdict after the first trial, the Arkansas Supreme Court held as follows:

“We fail to understand why appellants would seriously ask us to declare that the evidence in this case was insufficient to support the verdict rendered by the jury. The fact that Marvin Ritchie was killed on the morning of June 29, 1977, and that Opal James was killed 12 to 14 hours later, in Montgomery County or Scott County, does no prove that these two men were not killed in the same criminal episode. Even if we were to consider the two homicides as separate crimes, it would not change the results as each was involved in both.

We; must consider all of the circumstances and in so doing we cannot say that there was not evidence to show this was a part of one continuing criminal episode. The fact that the victims were robbed during the time they were held captive does not prove that robbery was not the motive for the entire episode. This fact is a matter that is clearly within the domain of the jury when considering all the evidence. The information itself stated that Paul Ruiz and Earl Van Denton were charged with the premeditated and deliberated murder of Marvin Ritchie and Opal James and with the crimes of robbery and kidnapping. From the beginning the state contended this was one continuing episode. We must consider the matter in the light most favorable to the state and we hold that all of the evidence objected to was properly admitted.”

Ruiz v. State,

265 Ark. 875 , 582 S.W.2d 915, 925-926 (1979). There was no discussion of the fact that one verdict could represent a conglomerate of at least five theories in this case. The issue was not further addressed by the courts, because the Arkansas Supreme Court reversed the matter on other grounds and the petitioners were afforded a new trial.

The same Amended Information was used for the second trial. The instructions are quoted above. Again, the State proceeded to trial with numerous theories of capital murder. The State explicitly told the jury that they need not agree to one theory of the crime during its closing argument:

“As the Court read to you, Paul Ruiz and Earl Van Denton are charged with the offense of capital murder. To sustain this charge, the State must prove the following things beyond a reasonable doubt: First, that Paul Ruiz and Earl Van Denton committed or attempted to commit the crime of robbery or kidnapping or both. Second, that in the course and furtherance of that crime or crimes or in immediate flight therefrom, Paul Ruiz and Earl Van Denton caused the death of Marvin Richie (sic) or Opel (sic) James under circumstances manifesting extreme indifference to the value of human life.

* * * * * *

In addition, did they not only commit' robbery, but they committed kidnapping.

ij: ‡ ‡ ‡ ‡

Now then, the Court has gave you another instruction titled it as Count Two. First, with the premeditated deliberated purpose of causing the death of any person, Paul Ruiz and Earl Van Denton caused the death of Marvin Richie (sic) and Opel (sic) James. Second, that those deaths were caused in the course of the same criminal episode ...

$ ‡ ‡ ‡ ‡ H*

I submit to you that it is the same criminal episode. Be that as it may, the State of Arkansas only has to prove one of these counts that I have read to you for you to find these defendants guilty of capital felony murder. I submit to you they’re guilty of both counts.

sb ?b >b ?b

The jury verdict form only requires you to find them guilty of capital murder regardless of which one of these you use or both.”

*1504

Again the issue was presented to the Arkansas Supreme Court.

“Appellants first argue that the offenses should have been severed. They were charged under Ark.Stat.Ann. § 41-1501(l)(a) and 41-1501(l)(c) (Repl.1977) with the deaths of two persons while committing robbery and kidnapping; they contend that therp is insufficient evidence that these offenses occurred during the same criminal episode. They concede a similar point was raised in the first appeal but they submit the issue was presented differently then, i.e., whether the evidence was sufficient to support the contention that both murders occurred during the course of a single criminal episode. Whereas, the issue raised now is whether the offenses should have been severed for purposes of trial, there being no common plan or scheme. Grafted, the new wording is altered slightly,! and if the issue is no presented in a different context, it leaves the substance of the argument essentially unchanged. In ¡either case, if the evidence supports a determination that both homicides occurred as a part of the same criminal episode, or were parts of a series of connected acts, then it was not incumbent on the trial court to grant a severance, and certainly not mandatory. The trial court had that disci etion and its discretion was not abused.”

Ruiz and Van Denton v. State,

273 Ark. 94, 97-98 , 617 S.W.2d 6 (1981). The Court went on to hold that the Arkansas Rules of Criminal Procedure allow the joinder of offenses in the same Information if they are part of the same criminal episode.

Id.

at 99 , 617 S.W.2d 6 . The issue of joining offenses for one verdict was not discussed.

Petitioner’s state habeas did not address this issue.

See, Ruiz & Denton v. State,

275 Ark. 410 , 630 S.W.2d 44 (1982). The first time the Eighth Circuit reviewed this second trial, it reversed on

Grigsby

grounds, and in a footnote stated that it did not reach the other legal challenges asserted by Ruiz and Van Denton and expressed no view on the merits of these points.

Ruiz v. Lockhart,

754 F.2d 254 , 256 n. 1 (8th Cir.1985). On remand from the United States Supreme Court, the Eighth Circuit stated that in the fulfillment of its duty to examine the other arguments Ruiz and Denton make against their conviction and sentence which were not addressed on the prior appeal, it had concluded that “all of the arguments urged as invalidating the convictions themselves are without merit.”

Ruiz v. Lockhart,

806 F.2d 158, 159 (8th Cir.1986). It appears from the record that petitioners did raise the severance of the offenses issue before the district court, although it is unclear whether the issue was raised before the Eighth Circuit. The issue was not framed precisely as a duplicitive charge issue.

It appears that this issue is proeedurally barred if it was not presented during the appeals from and collateral attack upon the second trial. If it was presented, it appears that the Eighth Circuit has rejected the argument. Thus, this Court may not grant relief on the basis of this issue.

VI.

THE TRIAL COURT’S FAILURE TO LIMIT PREJUDICIAL PRETRIAL PUBLICITY AND SUBSEQUENT FAILURE TO SEQUESTER THE JURY VIOLATED THE PETITIONER’S SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS AND DENIED THEM DUE PROCESS OF LAW

On July 28, 1987, petitioner Ruiz filed a “motion to control pre-trial prejudicial publicity.” In that motion he cited “massive pre-trial publicity” including T.V. and radio broadcasts and newspaper articles. He alleged that the sheriff and the chief deputy prosecuting attorney had given interviews concerning the case and commented on issues which the jury would have to decide. In order to ensure his right to a trial by an impartial jury he asked the court to either exclude the media or alternatively, to enter a “gag” order directing all attorneys, witnesses, court officials and law enforcement personnel to refrain from “extra-judicially releasing any information concerning this matter.” Additionally, Mr. Ruiz requested that the jurors, once selected, be sequestered during the trial to insulate them from adverse publicity.

*1505

A hearing on pre-trial motions was held on August 3, 1987. The first motion which was discussed was petitioner Ruiz’s motion of July 28. In support of the motion, his attorney introduced Defendants’ Exhibit 1 which contains a file with photo copies of newspaper articles concerning the case and also circulation figures for the various publications involved. The petitioner also played a video tape of a T.V. news report. Tr. 121-126. There were statements in the reports that the petitioners “had escaped or had tried to escape from just about every place they had ever been.” One witness stated that “she wouldn’t rest until they [petitioners] got what they deserved — execution.” There was an erroneous report that the petitioners had been convicted of the deaths of seven people in three states. In an interview the deputy prosecuting attorney stated that the purpose of the trial was to “go over aggravating circumstances and whatever mitigating circumstances the defense was going to invent.” During the hearing, the prosecutor, responded to these descriptions of pretrial publicity as follows:

This case is different from an ordinary criminal trial in that we are not going to have to have a jury panel that knows nothing about the case so that they in — have it in their minds that these defendants are innocent when we start. We are going to start this trial, the defendants are already going to be guilty of capital murder. So, basically all we need is a jury panel who will be able to consider any aggravating and mitigating circumstances and weigh them, and basically death qualifying the jury. I think everything that has been said that is in the news reports is a matter of common knowledge. This case has been around for ten years.”

With respect to the “inventing mitigating circumstances” statement, the prosecutor said, “it was simply what the defense said in the last hearing with the Post Incarceration Stress Syndrome. It’s never been acknowledged by any court of law or by any psychiatric association, and they have invented it for this trial.”

The court reserved action on the petitioners’ motion. It noted that it had never “put a gag on the 1st Amendment.” The court stated that, ‘We will see how voir dire goes and we will be able to see more about it at that time.” He urged everyone to use common sense in the matter. When pressed for a ruling, the court stated that it was denying the petitioners’ motion “to gag the press, lawyers, court officials and law enforcement.”

During voir dire, the petitioners introduced additional newspaper reports of the trial, Defendants’ Exhibits 3 and 4, Tr. 602-606. The court commented:

BY THE COURT: At this point I see no prejudice in the matter that you mentioned. If at any time it appears there possibly would be, I could change that, but at this point I will not sequester the jurors.

At one point, the voir dire was interrupted and the petitioners put Mr. Gene Stewart, a news reporter for RARE television channel 4, on the stand. Mr. Stewart was conducting “the man on the street” interviews “to get some of the public opinion about what is going on in regard to the trial.” Tr. 779. Apparently a couple of the people interviewed said that they believed that the death penalty should be imposed. Mr. Stewart’s plan was to run the interview on the 6 p.m. evening news broadcast. This testimony was preceded by another motion by petitioners to sequester the jury. During the trial the petitioners secured a copy of the T.V. video news cast and introduced it along with two additional newspaper articles in support of their motion for sequestration. Def.Ex. 5 and 6, Tr. 1109.

During the trial additional newspaper articles were introduced. See Def.Ex. 36 and 37. Tr. 1372. Near the end of the trial petitioners introduced three more newspaper articles.

See

Def.Ex. 38, 39 and 40; Tr. 1452-1460. Immediately after this the court observed, “I want to state, though, that I have asked the jury if they have seen any articles and specifically the ■ Democrat-Gazette and the Headlight today, and all stated they have not.” Tr. 1452.

So, the court never sequestered the jury or entered a gag order. What the trial judge did do, however, was to repeatedly admonish the jury not to discuss the case and not to read any newspaper or view any television

*1506

reports about the case. For instance, at page 634 of the Transcript we find the following:

BY THE COURT: We are going to recess for the day, until 9:00 o’clock tomorrow morning. I’m repeating this because of it’s [sic] importance. The fact that I do repeat it, I hope doesn’t make it lose it’s importance. You know, you hear something over and over, you get to where you don’t pay any attention. Well, this is right the opposite, we say it over and over; one, we are required to by law; two, it’s very important. Do not discuss the case, do not read about it, do not watch television accounts of it, do not let anyone discuss it in your presence. Simply dismiss it from your minds until 9:00 o’clock tomorrow morning. With that we will bid you a good evening. When you come tomorrow go right on into the jury room. All right. I might add, some of you I asked four questions while ago. It’s very possible I will ask those again about what I just told you. Have you watched the news accounts, have you read, et cetera, or have you talked about it. All right, good night.

See also

the court’s remarks at pages 811-812, and at Tr. 813-815:

BY THE COURT: I have these questions I mentioned to you yesterday. Did you happen to inadvertently see or hear any newspaper, television or radio accounts of this case yesterday, any of you?

(No hands were raised.)

BY THE COURT: Did you watch the newscast at 5:30, 5:00 or 10:00 p.m., and if so, what channel and what did you inadvertently see concerning the case?

I see no hands?

Did you read the Gazette or Democrat this morning?

PROSPECTIVE JUROR: I read the Gazette, but I didn’t read anything about the case.

BY THE COURT: All right, sir. That’s what I wanted to know if you did read anything about the case. There is nothing wrong with reading the newspaper, we just kind of want to stay away from the case is all. That’s all right. Has anyone inadvertently discussed or attempted to discuss with you either this case or your selection as a juror in this case?

(No hands were raised.)

BY THE COURT: All right. What we are trying to do is maintain the integrity of the trial. You are officers of the court, the same as I am and the lawyers, and we all have an obligation to do just that. You know, we are under restraints too. We can’t go around talking about certain aspects of the case. In fact, I can’t talk about any aspects of it with anybody expect the lawyers. The lawyers can’t talk about certain aspects of the ease with anybody except each other and me and their clients. You are under the same restraints, I say “restraints” for lack of a better word. It’s simply a matter of fulfilling our obligation to maintain the integrity of the trial, that’s all it is. We all, as officers of the court, have that obligation and duty. You know, as jurors you are taking an active part in the administration of State Government. You are no longer an innocent bystander or a tax payer. I started to say “just” a tax payer, that wouldn’t be exactly the right terminology either, but you are an active member in the State government. It is the States obligation to administer the courts and justice, and that’s what you are doing.

And see the court’s remarks at Tr. 1032-1033, Tr. 1106-1107 and Tr. 1300. After the jury was empaneled and sworn the petitioners again moved the court to sequester the jury. This motion was denied, the Court explaining as follows:

BY THE COURT: This series of trials, I guess you could call it, perhaps are the most publicized in the history of the State, but what has been publicized in the past would have nothing to do with sequestering the jury at this time. We would be concerned now only with publicity from here on out. I don’t see that it’s receiving all that much publicity. Yes, it’s in the news. I am impressed with jurors willingness to follow the admonitions, requests of the Court in not watching news accounts of it, or talking about the case, or listening to

*1507

radio broadcasts, or reading newspaper accounts of it. I have questioned them closely about it and they have not given me any answers, or they have not in any way indicated that they have somehow been influenced by the present publicity. Now, that’s my ruling, and that’s the extent of it.

The Supreme Court of Arkansas disposed of this issue as follows:

Appellants maintain as a sixth point of error that the trial court should have granted a motion by the appellants to impose a gag order on the news media, attorneys, court officials and law officers and also, should have granted a request that the jury be sequestered during the trial. These are matters which are necessarily left to the sound discretion of the trial court.

Henderson v. State,

279 Ark. 414 , 652 S.W.2d 26 (1988). That decision will not be disturbed on appeal in the absence of a clear showing of prejudice.

Perry v. State,

277 Ark. 357 , [642] S.W.2d 865 (1982).

Undoubtedly, few trials have generated the interest of the public and news media to equal this one. That fact was amply illustrated by the reversal of the first trial by a unanimous court due to a pervasive climate which prevented a fair trial. But undoubtedly that environment has been altered by the lapse of twelve years and the removal of the trial to a locale well away from the county where the offenses occurred. We need not examine every item in weighing for or against sequestering the jury or for imposing a gag order; suffice it to say the evidence appellants point to gives little, if any, support for their motion and they have not demonstrated either prejudice or an abuse of the trial court’s discretion.

This Court has carefully reviewed all of the voir dire, the proof, information, and arguments of the parties with respect to this issue and finds itself in agreement with the Arkansas Supreme Court. The publicity before and during this sentencing trial, although significant, was nothing like it had been at the first trial years before. Nor is there anything to suggest that any of the individual jurors was affected by it or that they failed to follow the persistent and repeated instructions and directions of the trial court. Petitioners have not shown that they were prejudiced by the publicity. Nor have they shown that the trial court abused its discretion by failing to enter a “gag” or other orders, or by failing to sequester the jury. See

United States v. Kimberlin,

805 F.2d 210, 224 (7th Cir., 1986). This is not to condone certain of the statements made by the prosecutors to the media as described above. However, nothing in the circumstance described rendered the sentencing proceeding fundamentally unfair so as to violate petitioners’ due process rights.

VII.

THE TRIAL COURT ERRED IN ITS SUA SPONTE EXCUSAL OF ALMOST ONE HALF OF THE PETIT JURY PANEL AND ITS SUBSEQUENT FAILURE TO PROVIDE INDIGENT DEFENDANTS WITH FUNDS TO INVESTIGATE THE QUASHING OF SAID PANEL

The Petitioners’ seventh ground for habeas corpus relief is that the trial court erred in its

sua sponte

dismissal pursuant to Ark.Code Ann. § 16-31-103 (1987) of almost one half of the petit jury panel prior to trial. Apparently, a panel of four hundred and three (403) venire persons was drawn for the resentencing trial of the petitioners. Prior to trial, the trial court excused one hundred and ninety eight (198) of these potential jurors for various reasons as permitted by Ark.Code Ann. § 16-31-103.

7

Petitioners

*1508

moved to quash the panel and requested that the trial court provide them with funds to investigate the panel for “potential unconstitutional composition.” The trial court refused this request. Petitioners also challenge this refusal to provide investigatory funds, arguing that as indigents without funds to determine whether potential jurors were systematically excluded, they were denied due process and equal protection. For the reasons stated below, the Court rejects the petitioners’ arguments.

On August 17, 1987, when the sentencing trial of the petitioners began, a number of the jurors who were not excused simply failed to show up. Other jurors were excused by the trial judge. After these adjustments were made, a panel of approximately 90 potential jurors were present to begin voir dire. At the petitioners’ request, the Court agreed to attempt to contact overnight all the potential jurors who failed to show up and attempt to bring them in the following morning. Thereafter, the petitioners withdrew their request to delay voir dire until the missing individuals could be contacted, and voir dire began.

Under the Sixth Amendment, which applies to the states via the Fourteenth Amendment, criminal defendants have a right to be tried “by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const., amend. VI. This requirement has been interpreted to mean that a criminal defendant has a right to a petit jury selected from a fair cross section of the community.

Taylor v. Louisiana,

419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975). To prevail on their fair cross section challenge to the jury panel, petitioners must make a prima facie case of discrimination in the selection of the jury panel by showing;

(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri,

439 U.S. 357, 364 , 99 S.Ct. 664, 668 , 58 L.Ed.2d 579 (1979).

Petitioners have not alleged that any distinct or specific group in the community was excluded or that any systematic exclusion of a given group occurred. Petitioners attempt to justify this insufficiency by arguing that since the trial court denied their request for funds, they were prevented from making the requisite showing. For the reasons explained below, the trial court acted within its lawful discretion in refusing to give the petitioners investigatory funds. Further, Petitioners argue that the “excusal of such a large percentage of prospective jurors constitutes a prima facie showing that abuse existed and that they should have been given the funds to investigate same.” Pet.Br. at p. 55. The Court disagrees. The Court finds itself

*1509

in agreement with the Arkansas Supreme Court that the record regarding the composition of the pool of jurors is unremarkable. It is not extraordinary that 198 of the 403 persons selected for the jury panel either fell into one of the ten categories of persons that the Arkansas statute excludes from jury service upon request or had health problems or other conflicts that precluded them from serving. Based on the foregoing, petitioners’ challenge to the jury panel as not representing a fair cross section of the community must be rejected.

Petitioners are also attempting to raise an equal protection argument, but this too must fail. To make out a prima facie case of discrimination under the equal protection clause, “the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.”

Castaneda v. Partida,

430 U.S. 482, 494 , 97 S.Ct. 1272, 1280 , 51 L.Ed.2d 498 (1977). Petitioners have failed to make this requisite showing.

Petitioners’ argument that the trial court should have granted their request for funds to investigate the jury panel is based on

Ake v. Oklahoma,

470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985). The due process clause of the Fourteenth Amendment mandates that a state must take certain steps to ensure that an indigent criminal defendant has a fair opportunity to prepare a defense. In

Ake ,

the Court considered whether a state acted constitutionally when it refused to provide a court-appointed psychiatrist to an indigent criminal defendant. The Court stated that “when an indigent defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.”

Id.,

470 U.S. at 74 , 105 S.Ct. at 1091-92 . In this case, petitioners did not begin to make the requisite showing that the jury panel’s composition or selection raised any significant issue. In the absence of any allegation or evidence that any attempt was made to influence the composition of the jury panel, in the absence of any proof or assertion that any distinct group was excluded, and in the absence of any proof of systematic exclusion, Petitioners’ conjecture and bare assertions will not suffice to create a “significant issue.” Accordingly, the trial court did not err in refusing to provide the petitioners with funds to investigate the composition of the jury panel.

Petitioners make the additional argument that the trial court erred in applying Ark.Code Ann. § 16-31-103 (1987) to exclude prospective jurors. Petitioners state that a court’s power to excuse jurors “can only be exercised for good cause shown.” Pet.Br. at p. 56. This declaration misstates the law. The statute vests in the trial judge the discretion to excuse any juror “when, for any reason, his own interests or those of the public will, in the opinion of the Court, be materially injured by his attendance.” Ark. Code Ann. § 16-31-103 (a) (1987).

See Collins v. State,

271 Ark. 825 , 611 S.W.2d 182 (1981),

cert. denied,

452 U.S. 973 , 101 S.Ct. 3127 , 69 L.Ed.2d 984 (1981). The record is completely devoid of any indication that the trial judge abused his discretion in this case to excuse potential jurors from the panel. Accordingly, this argument must fail.

VIII.

THE TRIAL COURT’S FAILURE TO GRANT PETITIONERS’ REPEATED REQUESTS FOR MISTRIALS BASED ON THE PROSECUTOR’S INADMISSIBLE AND PREJUDICIAL REMARKS THROUGHOUT TRIAL DENIED PETITIONERS THEIR EIGHTH AND FOURTEENTH AMENDMENT RIGHTS

In considering this issue it must be remembered that the state jury in this case did not deal with the guilt or the innocence of the defendants. Both defendants had already been found guilty of capital murder and those convictions had withstood a full state appeal and a full federal habeas corpus review. The only issue presented to the jury was whether the defendant should be sentenced to life without parole or to death.

The aggravating circumstances alleged by the State were:

*1510

1) The murders were committed by the defendant while they were unlawfully at liberty after having been sentenced and imprisoned for felony convictions;

2) Each of the defendants had previously committed other felonies, an element of which was the use of, or threat of, violence to other persons, or creating a substantial risk of death or serious physical injury to another person, and,

3) The murders were committed for the purpose of avoiding or preventing an arrest or for the purpose of effecting an escape.

8

The petitioners argued from the beginning that evidence of the facts and circumstances of the murders would be irrelevant at the sentencing trial. Their position was that the jury should be advised that the defendants stood convicted of capital murder and the state should then be limited to putting on evidence of the alleged statutory aggravating circumstances. The defendants would then be permitted to put on evidence of mitigating circumstances. Finally, the state could attempt to rebut such evidence.

The prosecutor took the position that the state should be ¡permitted to put on some evidence outlining the circumstances of the capital murders both as general background and because suojh evidence, to some extent, supported the state’s position with respect to one or more of the three aggravating circumstances alleged. The state pointed out that under the usual procedures for the trial of capital murder cases, the same jury would try both the issue of guilt and, if convicted, the penalty issue. Because of its procedural history, this particular case is an exception to that general rale. In 1983, the state of Arkansas passed a statute (now codified as Ark.Stat.Ann. § 5^1-616) which permitted trials limited to jthe penalty issue under just such circumstances as we find here. Prior to the enactment of that statute, a complete new trial would have been required under the law even if the only reversible error arose out of the penalty phase.

See

discussion under Point I above.

It is important to identify the petitioners’ principal contentions here. They point to statements and remarks made by the prosecutors and certain of the state’s witnesses in the presence of the jury which they contend were “highly prejudicial and totally irrelevant.” The petitioners rely not only on the individualized effect of the separate statements and remarks but also upon the cumulative effect of such comments.

Petitioners start by challenging certain remarks made by the prosecutor during his opening statement to the jury. The prosecutor noted that the defendants had escaped from the Oklahoma State Penitentiary at McAlister. He then stated: “At that point the nightmare in this case began and continues through this day.” Tr. 1066. When petitioners objected, the trial court directed the prosecutor to “stay away from anything that would appear to be inflammatory or argumentative.” Next, the prosecutor made a statement of the facts of the case leading up to the two murders. The petitioners continually objected that all of this was irrelevant at the sentencing phase. Towards the end of this factual recital, the prosecutor stated:

It’s been ten years since these deaths, or since this — yes, since these murders occurred. The State has been battling constantly since that time to have this case disposed of. Hopefully, this will be the last go-around.

Tr. 1073. Upon objection by petitioners, the trial court observed:

“that is a gratuitous statement. I would stick to a statement of what you intend for the proof to be.”

Tr. 1074. At this point, the prosecutor identified the aggravating circumstances the State would attempt to prove as follows:

The State will prove, or make an effort to prove, that the capital murders of Opal James and Marvin Ritchie were committed by the defendants, who were unlawfully at liberty after being sentenced to imprisonment as a result of felony convictions. We

*1511

are going to try to prove to you that these two defendants had been convicted of, one, that Denton had been convicted of murder, was serving a life sentence for murder, and that Ruiz had been convicted of armed robbery and was serving a life sentence for armed robbery at the time they escaped from the Oklahoma Penitentiary.

We are going to try to prove, two, this aggravating circumstance; that the defendants had previously committed other felonies, an element of which was the use or threat of violence to other persons, or creating a substantial risk of death or serious physical injury to another person. The same thing, the murder and the robbery, that we spoke of.

And three, that the capital murders of Opal James and Marvin Ritchie were committed for the purpose of avoiding or preventing an arrest, or effecting an escape from custody.

Tr. 1074-1075.

The argument that it was error to permit the State to put on some evidence concerning the circumstances of the murders is dealt with in great detail under point IX below. At this point, suffice it to say that this evidence was not error under the circumstances of this case.

The Court also agrees with the Arkansas Supreme Court that the trial court did not abuse its discretion in denying a mistrial on the basis of the prosecutor’s comments during the State’s opening statement.

The petitioners complain that during the cross-examination of Dr. Stevens and Mr. Frank King, the prosecutors brought out the fact that the petitioners were on “death row.” Petitioners argue that that unconstitutionally lessened the jury’s sense of responsibility in deciding petitioners’ fate. The state trial court saw no harm since “it would be hard to envision a member of the jury that doesn’t know that already.” With respect to this issue the Arkansas Supreme Court stated:

Appellants also complain of a reference to both appellants being on “death row” which should, they maintain, have prompted a mistrial. There is no merit to this argument. The reference to death row by the prosecutor was an off-hand reference in a question to a witness, and the intimations were not entirely clear. But in any case, there was no objection when the reference was made and the defense in fact then examined the same witness, and twice made the same death row reference in its own examination. It was only when defense counsel was through examining the witness that an objection to the prosecutor’s reference was made. By failing to object at the first opportunity, and joining in the same alleged error, appellants waived any objection.

*1512

We do not believe that the admission of evidence regarding petitioner’s prior death sentence affirmatively misled the jury regarding its role in the sentencing process so as to diminish its sense of responsibility.

*1511

Ruiz v. State,

299 Ark. 144, 158 , 772 S.W.2d 297 (1989).

Additionally, it is difficult to understand how the petitioners can ^omplain of the “death row” (or prior sentence) reference when they accepted during voir dire the juror Mr. Elmer Quinn, the sen of a juror who had sat in judgment of the petitioners at the previous trial in which petitioners were also sentenced to death. Mr. Quinn admitted on voir dire that he knew of the sentence imposed.

See

discussion under Point II,

supra.

Since the petitioners faded to challenge Mr. Quinn for cause, they made it quite certain that the jurors would inevitably come to know that petitioners had previously been sentenced to death. In any 'event, this Court agrees with the state trial court and the Arkansas Supreme Court on this particular point. Moreover, the recent case of

Romano v. Oklahoma,

— U.S.-, 114 S.Ct. 2004 , 129 L.Ed.2d 1 (1994), seriously undercuts petitioners’ argument. The

Romano

court was faced with a petitioner who had previously been convicted of capital murder and sentenced to death in a different case.

Id.

The evidence of his previously existing death sentence was admitted during his second capital murder case.

Id.

Subsequently, the petitioner’s first death sentence was overturned on appeal.

Id.

The petitioner contended that “the evidence of his death sentence in the [first] ease impermissibly reduced the [second] sentencing jury’s sense of responsibility for its decision :.. ”

Id.

- U.S. at-, 114 S.Ct. at 2008. The Court stated:

*1512

* * * * * *

Petitioner’s argument, pared down, seems to be a request that we fashion general evidentiary rules, under the guise of interpreting the Eighth Amendment, which would govern the admissibility of evidence at capital sentencing proceedings. We have not done so in the past, however, and we will not do so today. The Eighth Amendment does not establish a federal code of evidence to supersede state evidentiary rules in capital sentencing proceedings.

Id.

— U.S. at-, 114 S.Ct. at 2011 (citations omitted).

It is true that

Romano

dealt with the admission of a prior death sentence in a different case, while the instant case deals with the admission of a prior death sentence under the same factual scenario. The language employed in

Romano ,

in this Court’s opinion, makes the distinction insignificant. Again, this Court agrees with the Arkansas Supreme Court on this issue, and thus finds that there is no merit in petitioners’ argument on this point.

A more serious issue is raised by the petitioners’ attack on the prosecutors’ comments made during closing arguments. The Arkansas Supreme Court’s opinion did not refer to, or deal with, the specific statements, challenged by petitioners, which were made by the prosecutors during their closing arguments. The petitioners’ claim that the following statements separately, or in their cumulative effect, unconstitutionally permitted the jury to consider non-statutory aggravating circumstances which were not alleged, unconstitutionally diverted the jurors’ attention from the true issues, lessened the jury’s sense of responsibility, and inflamed the passions and prejudices of the jury, thereby depriving them of the individualized, discretionary sentencing to which they were, and are, entitled, to-wit:

MR. BULLOCK: This is a really important case. It’s the longest case that I’ve ever been through in my twenty-five years of practicing law. But the reason that it’s taken so long is because of it’s extreme importance.

One, that these men need to be punished for one reason. They have committed cold blooded murder of two people, and. for that they need to be punished. You have heard the testimony of Dr. Moneypenny that says the punishment that these men have received does no good. That type of punishment does no good for these people. The second reason is that their execution, or sentence to death will be a true deterrent to other criminals who — •

* * * * * *

One, is that it is a deterrent to other criminals who are predisposed to murder people. They think a lot about what the penalties are that they are likely to receive if they are caught, and this is a real deterrent.

* * si? * * *

The third, and most important reason that I have to give here is this, that it’s going to prevent these defendants from further crimes of the magnitude in which they have carried out against Opal James and Marvin Ritchie. In other words, ladies and gentlemen, it’s going to keep them from killing and murdering other people. I do believe that that is the only thing, the only sentence that is going to keep them from doing that.

tfc

%

:Js

He says that he strikes first and asks questions later, that he is extremely dangerous when he is cornered. And did you know, ladies and gentlemen, that he’s cornered all the time in prison. Do you know, ladies and gentlemen, that if he breaks out of that prison that he’s going to get cornered again. Do you know what is going to happen when he gets cornered again, he is going to kill again.

ijs

ifc

*1513

Now, I want to take you through their history since the murders of Opal James and Marvin Ritchie. Well, let’s see, in 1978, I believe, September — yes, September the 16th of 1978, Earl Denton took some kind of wire pliers and opened his cell door in the maximum security unit of Cummings prison and then opened the door to the prison unit, climbed over the fence and got within a half mile of Gould, Arkansas before the dogs caught him and he gave up. Can you imagine what would have happened had he reached somebody, or ran across some person or gotten to Gould, Arkansas maybe and broke in on a young family? I can imagine it, because something similar to that happened when he got hold of Marvin Ritchie and Opal James, their lives nothing to him at all— nothing at all.

* * * * * *

Dr. Moneypenny told you that these men are extremely dangerous and will always be that way. They will be a threat to society as long as they live. If you put these people back in the general prison population, which is where they are going to go—

MR. IRWIN: Now, your Honor, I’m going to have to object to that particular thing. There is no testimony about where they are going to go. That’s highly speculative. BY THE COURT: Overruled, go ahead. MR. IRWIN: All right.

BY MR. BULLOCK: (Cont.) They are going to be permitted to work, they are going to be permitted to get out when everybody else gets out—

MR. CAMBIANO: Your Honor, that is absolutely not true. I’ve been sitting here—

MR. IRWIN: Now, we—

MR. CAMBIANO: This is arguing things that are not—

MR. IRVIN: It’s not in the record.

MR. CAMBIANO: —in the record, and they are not even true, let alone being in the record. He’s been—

BY THE COURT: The first statement, perhaps, is supportable by the record. I wouldn’t go any further into that.

MR. BULLOCK: All right. I’m not going any further into it your Honor. I’ll withdraw it.

BY THE COURT: It could be conjecture. The objection is sustained at this point.

MR. BULLOCK: Okay.

BY MR. BULLOCK: (Cont.) But if you look at the history of these men, two escapes; Denton has escaped twice, attempted again and Ruiz has escaped once, and attempted again. You can mark it down in writing that they will escape and they will kill.

MR. CAMBIANO: Your Honor, I’m going to object again. This is not in evidence. He is arguing things that he has no basis and [sic] fact. He is just trying to inflame the jury and this is against the 8th Amendment rights, requirement that they should be individually sentenced. He’s just inflaming the jury.

BY THE COURT: Again, counsel can argue anything from which. we have evidence, and anything to be reasonably inferred therefrom. It’s up to the jury as to whether or not actually there is any evidence on that particular point, and if their memory differs from counsel, they will rely upon their own memories. I wouldn’t stray too far from that, Mr. Bullock.

MR. BULLOCK: Thank you, your Honor. I’m relying upon the testimony of Dr. Moneypenny, as well as the testimony of Dr. Stevens. But at any rate I will let that go.

‡ ‡ ‡ ‡ *

(Out of the hearing of the jury).

MR. BULLOCK: All right. My third reason is to ask this jury to impose the death penalty for the prevention of these defendants committing further crimes.

MR. KIRK: Your Honor, the Supreme Court has held that appeals to the jury for enforcement of the law is permissible in most criminal cases.

MR. CAMBIANO: Your Honor, Brooks v. Kemp it is not. We would object to it. Number one, it is—

*1514

BY THE COURT: Well, I would stay away from it. You can ask them to invoke the death penalty.

MR. BULLOCK: AH right.

BY THE COURT: You can do that, but I would let it go at that.

MR. BULLOCK: All right, your Honor. I’ve got three more words to say. (Proceedings returned to the hearing of the jury.)

BY MR. BULLOCK: The third reason that Pm asking you to impose the death penalty is to prevent these defendants from doing any similar acts as to what they did to Opal James and Marvin Ritchie. Thank you, ladies and gentlemen.

* * * * *

*

BY MR. KIRK: ... Ladies and gentlemen, I would just tell you that I think there is one aggravating circumstance without anything else. If they had five hundred mitigating circumstances on the other side it wouldn’t make any difference, because that one aggravating circumstance is far more powerful than anything else that could be come up with, and that is that they were already serving life sentences in prison and they escaped, they came over here to Arkansas and they killed again. They killed Marvin Ritchie— MR. CAMBIANO: Your Honor, I’m going to object at this time. The murders themselves are not aggravating circumstances.

%

iji # sK s|s *

BY THE COURT: I think the jury understands it.

$ ífc ‡

They both said that Paul Ruiz was poetic and he was very artistic. They both showed you some of his artwork. I would just state to you that the most telling thing about Paul Ruiz, and this is about Earl Van Denton as well, as far as their handiwork goes, is to look at the pictures of the crime scene, the pictures of the body of Marvin Ritchie that was left in that car. MR. CAMBIANO: Your honor, I’m going to object at this point. That is purely victim impact, it has nothing to do with this case. That is only to go to the guilt or innocence and it is getting away from the 8th Amendment right to have these two individuals, requirement of individual discretionary punishment. I think it’s highly improper for him to try to inflame the jury like this. Again, we would ask for a mistrial, or at least ask that this be struck, this testimony; disregard it.

MR. KIRK: I think Mr. Cambiano in his argument has already brought up similar issues as far as making references to sympathy for the victims. He even brought up the statement of victim impact. I’m not getting into that, I’m simply stating, referring or commenting on a photograph that is in evidence.

MR. CAMBIANO: Your Honor, it has nothing to do with the sentencing phase.

BY THE COURT: Counsel may refer to anything in evidence and make any arguments about that or the law that we have gone over in the instructions, or any inferences to be drawn from it.

MR. KIRK: Thank you, your Honor.

#****#

I would like to just give you a couple of my selections, I’m able to read to. From the Ten Commandments is, “Thou shalt not kill.” Now, does that mean that no one should, like someone on a jury. Well, no, of course not, because in the next chapter we find that, “he that smiteth a man so that he die, he surely shall be put to death.” There was one more, and I’ll go on. From Genesis the 9th Chapter, the Sixth Verse, “whosoever shedeth mans blood, by man shall his blood be shed.” Now, as Mr. Cambiano mentioned and as I would like to mention too, we are not after revenge, we are after justice. Now, you can talk about mercy and compassion all you want to. I like to think that I’m as compassionate as the next person, but there comes a time when you have to stand up for what’s right and send a message to people like Paul Ruiz and Earl Van Den-ton, and others like them that we come in—

*1515

MR. CAMBIANO: Your Honor, I’m going to object again. This has nothing to do with these two individuals, what people on the outside are going to do. It violates the 8th Amendments requirement of individualized, discretionary sentencing under Brooks v. Kent. I would ask for a mistrial, or at least ask the prosecutor to stop using this type of inflammatory material.

MR. KIRK: Your Honor, if I may — ?

BY THE COURT: Go ahead.

MR. KIRK: I am entitled under the law to argue the enforcement of the law to the jury-

BY THE COURT: A portion of the law?

MR. KIRK: Enforcement of the law.

BY THE COURT: Go ahead.

MR. KIRK: Thank you.

MR. IRWIN: Please direct the prosecutor, your Honor, to stick to rebuttal arguments.

BY THE COURT: That objection will be sustained. I would stick to rebutting any argument made by the defendants.

MR. KIRK: Thank you, your Honor, I’m almost finished. As we said, I would like to ask you send a message to these defendants and to others like them that these types of murders are no longer going to be tolerated. I would like for you to send a message to other people that if you come in here and murder our citizens, you are going — better be ready to pay for it, because that’s what you are going to do. I think then, and only then, are we going to have respect for ourselves and for our community, and respect for our state that we are entitled to have.

Thank you very much.

(T.Tr. at 1496-1549).

The above quotations from the two prosecutors’ closing arguments identifies the precise language as to which petitioners object, or examples thereof (since some of the remarks were repeated several times).

Immediately after the jury retired, Mr. Cambiano summed up his objections to the prosecutors’ closing arguments as follows:

MR. CAMBIANO: Your Honor, I have got some motions for a mistrial I would like to read into the record.

BY THE COURT: All right.

MR. CAMBIANO: Your Honor, the State’s argument has just been replete with improper arguments that have no basis and (sic) fact and it should not be argued. One of them, they are misleading the jury without regard to the law under

Caldwell v. Mississippi

BY THE COURT: You have already made those, and if you haven’t, it’s too late to make them.

MR. CAMBIANO: Your Honor, it isn’t. In the Federal Courts I’ve got — I made individual objections and asked for a mistrial and now I make a collective objection, and a collective motion for a mistrial for the entire case, not just for specific parts. If I may go ahead, it will not take too long, but I do need to make my record.

BY THE COURT: Any motions not already made, would be untimely, but go ahead and make them for the record. MR. CAMBIANO: Thank you. Also, your Honor, they are inflaming the impassions (sic) and prejudice of the jury under

Viereck v. United States,

318 US 236 [ 63 S.Ct. 561 , 87 L.Ed. 734 ] (1943). They constantly were arguing facts not in evidence, which is in contravention of

Donnelly v. DeChristoforo,

416 U.S. 637 [ 94 S.Ct. 1868 , 40 L.Ed.2d 431 ] (1974), a Supreme Court case. They are expressing personal opinions, and that is specifically precluded under the Code of Professional Responsibility, and also

United States v. Young.

They were arguing matters not in issue. That is a violation of the Code of Professional Responsibility, and also

United States v. Williams.

This part is very important. They have diminished the jury’s perception of its role as to the sentencing of these two individuals. Instead of sentencing, the people are to send a message out to other people in the community. Also, they were arguing the prosecutor’s expertise in deciding when to seek the death penalty. They were saying how important this was, and we are doing all we can do on this case. Also,

*1516

they are asserting — having the jury asserting — indicating they should assert a duty to give the death penalty, which violates the 8th Amendment’s requirements of individualized, discretionary sentencing.

The victim impact, we have already alluded to under

McGautha v. California.

That is clearly improper. Last, and most important, is the “send a message to the community argument,” which has been specifically prohibited by the Arkansas Supreme Court. For these reasons we feel like a mistrial should be had.

BY THE COURT: It was discussed very recently.

MR. IRWIN: It certainly was. Mr. Den-ton joins in the motion for the same reason on the same grounds.

BY THE COURT: Denied.

(T.Tr. at 1550-1552).

At a subsequent hearing on a Motion for a New Trial, the following dialogue took place:

MR. CAMBIANO: Your Honor, my next one would be arguing facts not in evidence. There’s just one particular point that I put in the brief, or the motion, such as imposing the death penalty to prevent the defendants from killing again. I don’t think that that is proper, because that is not what we are here for. That is not in evidence, there was no evidence to the fact that our clients would kill someone in the future. That is arguing facts outside the evidence, and we would ask for a motion for a new trial on that particular point, also.

* Hi * * * *

MR. BULLOCK: Okay, sir. We did not argue those facts, however, that they would kill in the future. We just simply said that there, of course, was a possibility, pointed out what the psychologists had said about them in their testimony.

BY THE COURT: Counsel may argue in closing anything that is in evidence and any reasonable inferences to be inferred from the evidence. I see no infraction of that rule and would not grant a new trial on the basis of that argument.

It is important to categorize the statements and arguments of the prosecutors made during their closing arguments as to which petitioners complain. In sum they relate to:

1) Victim impact (e.g. the photograph of the body of one of the victims);

2) Future dangerousness (e.g. if not executed petitioners “will escape and will kill again”);

See

discussion Point XII,

infra.

3) Facts not in evidence (e.g. the conditions under which petitioners would be restrained and the effectiveness of prison security);

4) Non-legal standards for imposing the death penalty (e.g. the quotations from the Bible and that petitioners should be executed “to send a message to others”); and

5) Statements intended to inflame the passions of the jurors (e.g: the description of the murders and the use of the photographs of the deceased victim).

What standard must we apply in evaluating petitioners’ attacks on the prosecutors’ closing arguments? As stated by the Eighth Circuit in

Newlon v. Armontrout:

In analyzing the prosecutor’s closing remarks, we must apply the standard articulated by this court in

Hamilton v. Nix,

809 F.2d 463 (8th Cir.) (en bane),

cert. denied,

483 U.S. 1023 , 107 S.Ct. 3270 , 97 L.Ed.2d 768 (1987). As this court has recognized, in a section 2254 habeas corpus proceeding, a federal court’s review of alleged due process violations stemming from a state court conviction is narrow.

Id.

at 470. Not every trial error that might result in reversal of a federal conviction on direct appeal would mandate the same result in a section 2254 review of a state court conviction, where we may consider only errors of constitutional magnitude.

See Darden v. Wainwright,

477 U.S. 168, 182-83 , [106] S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986). The petitioner must show that the alleged improprieties were “so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair.”

Moore v. Wyrick,

760 F.2d 884, 886 (8th Cir.1985). Under this standard, a petitioner must show that there is a “reasonable probability that the error complained of affected the outcome of the trial-i.e.,

*1517

that absent the alleged impropriety, the verdict probably would have been different.”

Hamilton,

809 F.2d at 470 ;

see Tucker v. Kemp,

802 F.2d 1293, 1295-96 (11th Cir.1986),

cert. denied,

480 U.S. 911 , 107 S.Ct. 1359 , 94 L.Ed.2d 529 (1987).

We cannot agree with the State’s argument that the district court’s use of both eighth amendment and fourteenth amendment analysis somehow renders its decision improper. Rather, we find that the eighth amendment analysis bolstered the district court’ finding of a due process violation. As the Tenth Circuit has stated, “[a] decision on the propriety of a closing argument must look to the Eighth Amendment’s command that a death sentence be based on a complete assessment of the defendant’s individual circumstances,

see Brooks v. Kemp,

762 F.2d 1383, 1406 (11th Cir.19850 (en banc),

vacated on other grounds,

478 U.S. 1016 , 106 S.Ct. 3325 , 92 L.Ed.2d 732 (1986), and the Fourteenth Amendment’s guarantee that no one be deprived of life without due process of law,

see Darden,

[477] U.S. [at 182-83], 106 S.Ct. at 2472.”

Coleman v. Brown,

802 F.2d 1227, 1239 (10th Cir.1986),

cert. denied,

482 U.S. 909 , 107 S.Ct. 2491 , 96 L.Ed.2d 383 (1987).

885 F.2d 1328, 1336 (8th Cir.1989).

It is probably true that most lay persons, being unfamiliar with our “death penalty” jurisprudence, would not find the prosecutors’ arguments out of line. In fact, they might find them restrained and mild given the circumstances of the capital murders involved. But prosecutors in capital cases must be acutely aware of the circumstances and conditions under which, according to Supreme Court precedent, the death penalty may be imposed. Without detailing the history of the development of that jurisprudence, it can be stated that the Arkansas Capital Murder Statute was drafted in an effort to comply with the limitations and restrictions imposed by the United States Supreme Court.

The case of

Brooks v. Kemp,

762 F.2d 1383 (1985), probably has the most elaborate discussion to be found on the scope of permissible prosecutorial argument at the sentencing phase. It is important here because it contrasts what is permitted under the Georgia statutes with that which is permitted in those states having “balancing” statutes like the Arkansas statute.

In Georgia, the sentencing jury in the penalty phase is

not

required to limit its consideration to statutorjj aggravating circumstances. On the contrary, once the jury has found at least one statutory aggravating circumstance, “the case enters the area of the fact-finders’ discretion m which

all

the facts and circumstances” are taken into consideration.

Zant v. Stephens,

250 Ga. 97 , 297 S.E.2d 1, 4 (1982) (emphasis added). The U.S. Supreme Court, in

Zant v. Stephens,

462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983), approved this procedure. Thus, Georgia law does not limit prosecutors to arguments relating to the specific statutory aggravating circumstances. , This is pointed out in a footnote in

Brooks v. Kemp,

wherein the Eleventh Circuit Court of Appeals goes on to compare the Georgia practice with that in Florida:

Cf.

Barclay v. Florida,

463 [U.S.] 939, [951-53] 103 S.Ct. 3418, 3426 [ 77 L.Ed.2d 1134 ] (1983) (“unlike the Georgia statute, however, Florida law requires the senteneer to balance statutory aggravating circumstances against all mitigating circumstances and does not permit non-statutory aggravating circumstances to enter into this weighing process.)

Brooks v. Kemp,

762 F.2d 1383 , 1405 n. 35 (11th Cir.1985). Section 5-4-602(4) of the Arkansas statute states in pertinent part as follows:

*1518

§ 5-4-603 of the Arkansas statutes in effect at the time of petitioners’ sentencing phase trial read as follows:

*1517

(4) In determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in § 5-4-604 of any mitigating circumstances ... The state and the defendant or his counsel shall be permitted to present argument respecting sentencing.

9

*1518

§ 5-4-603. Findings required for death sentence — Unanimity.

(a) The jury shall impose a sentence of death if it unanimously returns written findings that:

(1) Aggravating circumstances exist beyond a reasonable doubt; and

(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and

(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.

(b) The jury shall impose a sentence of life imprisonment without parole if it finds that:

(1) Aggravating circumstances do not exist beyond a reasonable doubt; or

(2) Aggravating circumstances do not outweigh beyond a reasonable doubt all mitigating circumstances found to exist; or

(3) Aggravating circumstances do not justify a sentence of death beyond a reasonable doubt.

(e) If the jury does not make all findings required by subsection (a), the court shall impose a sentence of life imprisonment without parole.

Consequently, it appears that, under the Arkansas scheme in effect at the time of petitioners’ penalty phase trial, only evidence “relating to the aggravating circumstances enumerated in § 5-4-604,” and “any mitigating circumstances” could properly be presented to the jury for the purpose of determining the sentence. Indeed, it would be error under Arkansas law to receive evidence of non-statutory aggravating circumstances.

Ford v. State,

276 Ark. 98 , 633 S.W.2d 3 (1982);

Williams v. State,

274 Ark. 9 , 621 S.W.2d 686 (1981).

Arkansas Code Annotated Section 5-4-604 sets out the aggravating circumstances as follows:

Aggravating circumstances shall be limited to the following:

(1) The capital murder was committed by a person imprisoned as a result of a felony conviction;

(2) The capital murder was committed by a person unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction;

(3) The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person;

(4) The person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim;

(5) The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody;

(6) The capital murder was committed for pecuniary gain; or

(7) The capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any governmental or political function.

(8) The capital murder was committed in an especially heinous, atrocious, or cruel manner.

It must be noted that aggravating circumstances under the Arkansas statute “shall be limited to” those set forth in Section 5-4-604.

*1519

The three aggravating circumstances relied upon by the prosecutor in petitioners’ sentencing phase trial were those set forth in subparagraph (2), (3), and (5). Contrast this to the Georgia scheme which permits the jury to “consider reliable aggravating evidence even though it is not relevant to any statutory aggravating circumstances.”

Brooks v. Kemp,

762 F.2d at 1406 . Also, under the Georgia scheme the jury was permitted to consider the future dangerousness of a particular defendant.

Brooks v. Kemp,

762 F.2d at 1406 ;

Jurek v. Texas,

428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976);

California v. Ramos,

463 U.S. 992 , 1002 n. 16, 103 S.Ct. 3446 , 3454 n. 16, 77 L.Ed.2d 1171 (1983). But the Arkansas statute in effect at the time of petitioners’ sentencing phase trial made no reference to “future dangerousness.” Furthermore, the Arkansas statute then in effect did not permit evidence of “victim impact”, although the present Arkansas statute specifically permits such evidence.

To deal adequately with the issue, we will look first at the Arkansas law and then at the federal “habeas” law.

In the ease of

Lovell v. State of Arkansas,

1989 WL 151122 , 1989 Ark.App. LEXIS 627 (1989), the Arkansas court of Appeals discussed the appropriate limits under Arkansas law on closing arguments by prosecutors:

Closing arguments of counsel must be confined to the questions in issue, the evidence introduced at trial, and all reasonable inferences and deductions which can be drawn therefrom.

Conti v. State,

10 Ark.App. 352 , 664 S.W.2d 502 (1984). The trial judge has wide discretion in the control of arguments to the jury, but there is a limit to the discretion.

Williams v. State,

294 Ark. 345 , 742 S.W.2d 932 (1988). The supreme court has said it will always reverse a case where counsel goes beyond the record and states facts that are prejudicial to the opposing party unless the trial court by its action has removed such prejudice.

Williams v. State, supra.

The prosecuting attorney acts in a quasi-judicial capacity and it is his duty to use all fair, honorable, reasonable, and lawful means to secure a conviction of the guilty in a fair and impartial trial, but the desire to obtain a conviction is never a proper inducement to include in closing arguments anything except the evidence in the case and legitimately dedueible conclusions from the applicable law.

Mays v. State,

264 Ark. 353 , 571 S.W.2d 429 (1978). One consideration for the trial court is whether the jury may have been misled.

Peters v. State,

248 Ark. 134 , 450 S.W.2d 276 (1970). Improper closing statements are considered on a case by case basis.

See Williams v. State,

294 Ark. at 351 [ 742 S.W.2d 932 .]

Id.

The latest Arkansas Supreme Court case to address this issue,

Davis v. State,

314 Ark. 257 , 863 S.W.2d 259 (1993), discusses the issue as follows:

This final issue arises from comments that the prosecuting attorney made to the jury during his closing arguments in the penalty phase of the trial:

I would suggest to you that the murder, the crime that the Defendant did in this case — his actions represent one of civilized society’s worst nightmares, a situation in which in broad light of day, in the middle of the day, in a peaceful neighborhood here in Northwest Arkansas, with a housewife/grandmother coming home to fix her lunch, feeling totally safe in the sanctuary of home that she instead was faced with an armed and bold, calculating and ruthless criminal who saw her cross the street and decided this was a chance for some quick easy money and grabbed up his gun and drove over there and went in specifically looking for her. This wasn’t one of those deals where they were trying to burglarize a house and accidentally stumbled upon somebody that’s in there, or even that they came home, which is another reason to consider the seriousness of the burglary of Mike and Sharon [Haley]. What if Sharon had come home? What then?

The trial judge’s control of such remarks during closing arguments is discretionary and will not be reversed in the absence of an abuse of discretion. For example, in

*1520

Wilson v. State,

295 Ark. 682 , 751 S.W.2d 734 (1988), the prosecutor asked the jurors to impose the death penalty and to “tell Ron Wilson he will never commit another murder.”

Wilson,

295 Ark. at 690 , 751 S.W.2d at 739 . The trial court refused to do anything about the remark, and this court agreed with its decision explaining that “The Court’s ruling ... about the remark was discretionary, and in the absence of an abuse of discretion, will not be reversed.”

Id.

We found no abuse of discretion, having determined that the request was made in the context of urging the jurors to “act as a group in imposing the sentence. In context, it did not suggest that there was evidence from which it could be determined that Wilson would kill again.”

Wilson,

295 Ark. at 690 , 751 S.W.2d at 739 . This analysis applies to the facts at hand, for the prosecutor’s remarks about Davis are similar to the prosecutor’s statements in

Wilson .

Other jurisdictions have held that, in the penalty phase of a capital murder case, both parties should be given wide latitude in arguing the matter of punishment.

State v. Feltrop,

803 S.W.2d 1 (Mo. banc 1991);

State v. McDonald,

661 S.W.2d 497 (Mo. banc 1983). Although this court has never specifically adopted this rule, we have held that counsel should be allowed some leeway with respect to opening and closing remarks.

Abraham v. State,

274 .Ark. 506, 625 S.W.2

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