Blue Thunder v. Joseph Class ( 1996 )

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No. 95-3910
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Leonard L. Blue Thunder, *
also known as Leo Blue Thunder, *
*
Plaintiff-Appellant, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Joseph Class, Warden, South * [UNPUBLISHED]
Dakota State Penitentiary; Mark *
W. Barnett, Attorney General, *
State of South Dakota, *
*
Defendants-Appellees. *
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Submitted: June 14, 1996
Filed: June 24, 1996
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Before LOKEN, ROSS, and HANSEN, Circuit Judges.
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PER CURIAM.
Leonard L. Blue Thunder appeals the district court's1 denial of his
28 U.S.C. § 2254 petition for a writ of habeas corpus. He contends that
the district court erred by determining that the admission of his
involuntary statements was constitutionally harmless. He also contends
that the district court erred by determining that no constitutional error
resulted from the jury selection process. We affirm.
1
The Honorable Charles B. Kornmann, United States District
Judge for the District of South Dakota.
Blue Thunder was convicted in South Dakota on state charges of first
degree murder, first degree burglary, and aggravated assault. During
trial, the trial court admitted into evidence certain statements made by
Blue Thunder immediately after the incident giving rise to the charges, at
a time when Blue Thunder was intoxicated and attempted to invoke his right
to counsel. Also, in impanelling the jury, the trial court refused to
strike four jurors who had close ties to law enforcement officials and whom
Blue Thunder challenged for cause. Blue Thunder had to exercise his
peremptory strikes to remove them from the panel. The Supreme Court of
South Dakota affirmed Blue Thunder's convictions. See State v. Blue
Thunder, 466 N.W.2d 613, 621 (S.D. 1991). Specifically, the state supreme
court held that the trial court erred by admitting Blue Thunder's
statements but that the error was harmless beyond a reasonable doubt,
because overwhelming testimony and physical evidence supported all of the
convictions, and the statements were relevant to only one of the three
charges. Id. at 619. Additionally, the state supreme court found that
Blue Thunder failed to demonstrate any actual prejudice resulting from the
trial court's refusal to strike the four jurors he challenged for cause.
Id. at 620.
Blue Thunder sought habeas corpus relief from the district court
pursuant to 28 U.S.C. § 2254 on the same grounds. The district court
agreed with the state supreme court, concluding that Blue Thunder's
statements should have been excluded from trial because they were not
voluntary but that the error was harmless beyond a reasonable doubt.
Further, the district court concluded that the challenges for cause should
have been allowed. Nevertheless, Blue Thunder's Sixth Amendment right to
an impartial jury was not violated, because he did not exercise all of his
available peremptory challenges, and Blue Thunder made no showing that his
jury was not impartial. Thus, the district court denied Blue Thunder's
petition for a writ of habeas corpus.
2
Where harmless error review has first been applied by the state
supreme court, our review is governed by the standard enunciated in Brecht
v. Abrahamson, 507 U.S. 619, 623 (1993). See Maurer v. Minnesota Dep't
of Corrections, 32 F.3d 1286, 1291 n.4 (8th Cir. 1994) (citing Starr v.
Lockhart, 23 F.3d 1280, 1292 (8th Cir.), cert. denied, 115 S. Ct. 499
(1994)). To determine whether habeas corpus relief should be granted
because of the erroneously admitted statements, we must determine whether
the "error `had substantial and injurious effect or influence in
determining the jury's verdict.'" Brecht, 507 U.S. at 623 (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Given the strength
of the state's evidence in this case, we conclude that the statements
erroneously admitted by the trial court did not have a substantial and
injurious effect or influence on the jury's decision.
Furthermore, while the trial court should have removed the four
jurors that Blue Thunder challenged for cause, this error does not
constitute a constitutional violation. The Supreme Court has "long
recognized that peremptory challenges are not of constitutional dimension."
Ross v. Oklahoma, 487 U.S. 81, 88 (1988). In Ross, the Court squarely
"reject[ed] the notion that the loss of a peremptory challenge constitutes
a violation of the constitutional right to an impartial jury. . . . So long
as the jury that sits is impartial, the fact that the defendant had to use
a peremptory challenge to achieve that result does not mean the Sixth
Amendment was violated." 487 U.S. at 88, quoted in Feltrop v. Delo, 46
F.3d 766, 774 (8th Cir. 1995). See also Sloan v. Delo, 54 F.3d 1371, 1387
n.16 (8th Cir. 1995) ("Any sixth amendment claim must focus exclusively on
the jurors who actually sat . . ."), cert. denied, 116 S. Ct. 728 (1996).
Blue Thunder made no showing that the actual jury that heard his case was
not impartial.
Accordingly, we affirm the judgment of the district court.
3
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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