Full opinion text
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 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. 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. 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 arguments 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. § 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 discussed 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. 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 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. 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 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 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 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 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 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. 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— 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. 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 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