APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 79-0640
Before Gibbons and Rosenn, Circuit Judges, and Hannum, District Judge.*fn*
Aubran Wayne Martin appeals from the dismissal of his petition for a writ of habeas corpus. In his petition, Martin mounts several constitutional attacks on his conviction in Pennsylvania courts on three counts of first degree murder. The petition was referred to a United States Magistrate who, after a thoughtful analysis of Martin's claims and of the state record, concluded that the claims were without merit. The district court adopted the magistrate's recommendation and dismissed the petition. This appeal followed pursuant to 28 U.S.C. § 1291 (1976). We affirm.
On November 12, 1971, Martin was convicted by a Washington County, Pennsylvania, jury of the triple slaying of Joseph "Jock" Yablonski, his wife Margaret, and their 25-year-old daughter Charlotte. The Yablonskis had been shot to death while at home in the early morning hours of December 31, 1969, approximately three weeks after Joseph Yablonski had concluded a vigorous, bitter, and ultimately unsuccessful campaign for the presidency of the United Mine Workers of America. His campaign brought him national prominence. After the discovery of his and his wife's and daughter's bodies on January 5, 1970, the media carried the story of the sensational murders nationwide. The story continued to attract substantial media attention throughout the course of the criminal investigation.
Martin, Claude Edward Vealey, and Paul Eugene Gilly, all of Cleveland, Ohio, were charged with the Yablonski murders on or about January 22, 1970. Martin was at the time confined in a Warrensville, Ohio, correctional center on charges of disorderly conduct and resisting arrest. After a prolonged extradition fight, he was finally turned over to Pennsylvania authorities on June 9, 1971.
On June 23, 1971, Claude Vealey confessed to his part in the murders, naming Martin as the primary triggerman and Paul Gilly as the operation's mastermind. Gilly, Vealey stated, had been hired to kill Yablonski in the summer of 1969, and had enlisted Vealey and another acquaintance, James Phillips, to aid him in accomplishing his objective. The three men, in addition to "stalking" Yablonski on the United Mine Workers' campaign trail, made several trips to his Clarksville, Pennsylvania, home during the late summer and autumn of 1969. Sometime prior to November 1969, Phillips withdrew from the conspiracy. Vealey and Gilly continued their trips to Clarksville; at one time posing as unemployed miners, they even talked with Yablonski on his front steps. After yet another abortive effort on Christmas Day 1969, Gilly brought Martin into the plan. Martin was informed that the price on Yablonski's head was $5,200 to be divided equally among the three. On December 30, 1969, the new triumvirate made a final trip to the Yablonski home, where they ultimately carried out the murders.
According to Vealey's account, the three men arrived in Clarksville in the evening of December 30, 1969. Once there, they parked their car on a hill overlooking the Yablonski home and waited for the holiday activities at the house to break up and the guests to depart. Then, Vealey stated, the trio drove to the house, cut the telephone lines, disabled the Yablonski cars, and entered the Yablonski home. After checking the lower floor for occupants, the three made their way upstairs to the bedrooms.
In his confession, and again as the Commonwealth's principal witness at Martin's trial, Vealey claimed that when the trio reached the top of the stairs, he (Vealey) was carrying a semi-automatic carbine rifle and Martin held a .38 caliber pistol. The plan, as described by Vealey, called for Martin to enter Charlotte Yablonski's bedroom while Vealey stood in the doorway of her parents' bedroom. Both men were to fire simultaneously. The carbine, however, malfunctioned and Jock and Margaret Yablonski were awakened by the sound of gunshots coming from their daughter's room. Martin exited that room, observed Vealey and Gilly struggling with the carbine, and fired his remaining four shots at Jock and Mrs. Yablonski. Vealey then took the pistol from Martin, reloaded it, and fired repeatedly into the bodies of the couple. As the trio left the house, Vealey claimed that Martin grabbed a money clip from the dresser containing $240 which they later divided. The three returned to Cleveland, disposing of their weapons and other paraphernalia along the way. By noon of December 31 they had "cashed in" on their contract and had gone their separate ways.
As might be expected, Martin's version of the events surrounding the Yablonski murders differs significantly from Vealey's. Martin, who testified in his own defense, claimed that he entered into a scheme with Gilly and Vealey to steal a coin collection worth $50,000 in Tennessee. He agreed to go along, he said, because Gilly guaranteed him $2,000. He asserted that it was not until the three men were en route on December 30 that he learned they were going to Pennsylvania and not Tennessee. Even then, he claimed, Gilly told him the change in destination became necessary because the coin collection had been moved. Neither murder nor "Yablonski" was ever mentioned, Martin testified.
Martin stated that he never entered the Yablonski home. He said he served only as a lookout and a getaway driver. Martin also testified that he did not learn of the murders until he heard radio news reports after the bodies were found.
The jury convicted Martin on three counts of first degree murder and recommended the death penalty. Martin was sentenced to death in 1973. He appealed to the Pennsylvania Supreme Court, which affirmed the convictions but vacated the sentence in light of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975). On remand, the court sentenced Martin to imprisonment for three consecutive life terms.
Martin structured his habeas corpus petition on essentially four points. First, he claimed that the pretrial publicity of the murders and his prosecution was so pervasive, sustained, and inflammatory as to prevent him from receiving a fair trial in Washington County. The trial court's denial of his motion for a change of venue, he claims, therefore amounted to constitutional error. Second, Martin charged that the trial court impermissibly limited the scope of voir dire questioning, and thereby failed in its duty to ensure that Martin's guilt would be judged by a fair and impartial jury. Third, Martin claimed that the court's instructions to the jury on the felony-murder doctrine were tantamount to a directed verdict, thus depriving Martin of his right to trial by jury. Finally, Martin alleged that he was not afforded the assistance of competent counsel. The district court carefully considered the first three claims and rejected them. As to the fourth, the ineffective assistance of counsel claim, the district court held that Martin had not exhausted his state remedies. We now review each of the claims.
II. Pretrial Publicity and Change of Venue
Martin's claim that he was denied his sixth amendment right to a fair trial because the trial court denied his motion for a change of venue consists of two related arguments. First, Martin argues that the pretrial publicity was so sustained, pervasive, and inflammatory as to raise a presumption of prejudice within the venire and to require a change of venue even without proof of a nexus between the publicity and actual jury prejudice. Second, Martin argues that even if the scope of the publicity did not in itself require a change of venue, such a change was mandated because voir dire examination revealed widespread partiality or prejudice among the venire.
Extensive publicity of the Yablonski's murders began with the discovery of their bodies on January 5, 1970. On April 29, 1970, the trial court issued an order severely curtailing the flow of pretrial information to the press.*fn1 Although no violation of the order is demonstrated by the record, the volume of publicity attending developments in the case remained high. The state court record contains a sheaf of over 150 newspaper clippings that were filed in support of Claude Vealey's motion for a change of venue in March 1971.*fn2 These clippings range widely in their coverage of the case, detailing for instance the circumstances under which the victims' bodies were found, and reporting as well on testimony given by one of Yablonski's sons before a Senate subcommittee investigating mine safety.
In August 1971 Martin moved the court for funds to conduct a public opinion survey in Washington County. Such a survey was necessary, he alleged, "to conclusively demonstrate to (the court) the biased and prejudicial attitude of the prospective jurors" in the case. The trial court denied the motion in mid-October 1971, specifically mentioning that the results of the requested survey would presumably be used to support a change of venue motion. The court noted in its opinion denying the motion the similarity between the publicity surrounding Vealey and the publicity surrounding Martin. The court, stating that Martin was certainly entitled to make his own attempt at obtaining a change of venue, also observed that it had been earlier decided in the disposition of Vealey's motion that the media coverage had "not been legally offensive in tone nor viciously slanted." The motion for funds was denied for lack of legal authority and because relevant law indicated that, in most instances, voir dire of prospective jurors was the most reliable method of ascertaining whether a change of venue was warranted.
On October 28, 1971, four days before the scheduled start of his trial on November 1, Martin filed a motion for a change of venue urging that the massive and inflammatory publicity in Washington County precluded the possibility of a fair trial there. The court denied the motion as untimely*fn3 but agreed to conduct a hearing on the motion limited to publicity since noon October 21, 1971, the deadline for filing a timely change of venue motion. The state record contains twenty-five newspaper clippings in support of Martin's change of venue motion. Ten ...