Full opinion text
MEMORANDUM OPINION AND ORDER EISELE, District Judge. I. BACKGROUND On July 29, 1988, at approximately 8:15 p.m., Ms. Barbara Smith, an attendant at the Best Stop in Prescott, Arkansas, was fatally shot once in the top of the head. Nobody saw the actual shooting. Mr. Kirt Wainwright was charged with capital murder for the killing of Ms. Smith. At Mr. Wainwright’s trial, Ms. Lavon Jackson testified that she had stopped at the Best Stop at approximately the same time on the night in question. Before turning to put gas in her car she noticed a black man standing at the end of the counter inside the Best Stop. A little boy came out and told Ms. Jackson that there was a lady on the floor. Ms. Jackson went in, saw Ms. Smith on the floor, and called the police. Ms. Jackson did not recall any specific physical characteristics of the black man that she had seen at the counter. She did recall seeing Mr. Sam Gatlin, a black woman, a white woman, a white man, and the white boy who had first told her about the woman on the floor. Mr. Sam Gatlin testified that he had also been at the Best Stop at the relevant time. He had pulled up to the Best Stop and let his passenger, Pauline Henagan, out in front of the store. He noticed Octavia Hardamon pulling up at about the same time and then leaving. Mr. Gatlin then drove over to the air pump to get some air in his car tire. He heard someone running down the sidewalk as he filled his tire. He looked up and saw a black man with his hand behind him jump over the air hose, get into a pink Cadillac, and drive off. He could not tell if there were others in the car. Mr. Gatlin pulled around, got some gas, and entered the store with Ms. Jackson. There was a white male in the store who told Mr. Gatlin that there had been a murder, and there was a white boy with the man. Later that night, Mr. Gatlin went to Hope to identify a pink Cadillac as the same one that he had seen at the Best Stop. Ms. Pauline Henagan testified that she had gone to the Best Stop with Mr. Gatlin that evening. As she entered the store, a young, tall, slim black man was exiting the store. She testified that he was wearing red and white flowered shorts and a red top. He had something behind his back. She testified that when she went in the store, she saw Octavia Hardamon already inside, but that Octavia left at approximately the same time that Ms. Henegan entered the store. Besides herself, Mr. Gatlin, and Ms. Hardamon, Ms. Henegan testified that a white man, a white boy, and a white woman were at the Best Stop that evening. Ms. Henagan later identified a pair of shorts shown to her by the police as the same ones she had seen on the young black man she saw exiting the Best Stop as she entered. Mr. Donald Ray Geid testified that he and his son John, who at the time was about ten years old, stopped at the Best Stop that night. He saw Sam Gatlin and a woman by the gas pumps. He went inside with Mr. Gatlin and the woman and discovered Ms. Smith on the floor. He did not see any black males leaving the store before he entered. Ms. Octavia Hardamon testified that she stopped at the Best Stop that evening to get some candy. She heard a noise while she was looking at the candy, but didn’t see anyone. She looked up a few seconds later and saw Kirt Wainwright walking out the door with a black pistol in his hand. She panicked and left the store, passing Pauline Henagan on her way out. Ms. Hardamon returned to the Best Stop later that evening to find out that Ms. Smith had been shot. She then went to the Sheriffs office to give a statement. Ms. Hardamon testified that she had known Mr. Wainwright for a long time, but specifically denied ever having had a relationship or affair with him. Patrick Flenory, a fourteen-year-old boy, testified that he had been walking past the Best Stop on his way home when he saw Kirt Wainwright running out of the store wearing “clam diggers” of different colors. He knew Mr. Wainwright through family connections, and testified that he had seen Mr. Wainwright’s face. Moments later, a pink Cadillac sped past him and he saw Kirt Wainwright in the back seat. He saw two other people in the car. Mr. Flenory then went into the store, where he recalled seeing several people, both black and white, that he did not know. He specifically recalled seeing Mr. Gatlin. He further testified that it was dusk when these events happened. Ms. Elnora Hopson testified that Kirt Wainwright knocked on her door on the evening of July 29, 1988 as it was beginning to get dark, which she guessed put the time at about 8:30 p.m. Mr. Wainwright was a friend of her grandson’s, and he told her that he needed to get some clothes. He went into the bedroom, got his clothes, and left. She estimated that he had been in the house for less than a minute. When asked, “At any time, did you see him go in the bathroom, wash up or anything?”, she responded, “No. He got his clothes and went to the ear.” She described the car as a reddish old model Cadillac. Mr. Dwight Hopson testified that he stopped in the house where he lived with his grandmother, Elnora Hopson, on July 29, 1988 to change clothes. He noticed a check on the dresser, but didn’t think much about it. The next morning he found that there were actually seven or eight checks, and that they had Best Stop on them. He turned them in to the police. Officer Henry Parmer testified that at 8:23 on July 29, 1988, he was informed by dispatch that there had been an armed robbery at the Best Stop store and to look for a pink Cadillac with fender skirts. He saw the vehicle go by and pulled it over. Three black males were in the car. Andrew Woods was driving, Dennis Leeper was in the passenger seat, and Kirt Wainwright was in the back seat. The car was a two door, with bench seats that folded forward to allow someone to get in the backseat. He saw a money bag, later identified as being from the Best Stop, on the floorboard behind the driver’s seat. Several other officers testified. When apprehended, Mr. Wainwright was wearing the red flowered shorts identified by Ms. Hene-gan as those on the man she saw exiting the Best Stop. Mr. Woods was wearing a shirt and pants. Mr. Leeper was wearing a scrub shirt and cut-off blue jeans. When the money bag was removed from the car, a blue .22 Colt revolver fell out. The revolver contained one “spent” easing and was loaded and ready for firing. Although the state expert could not say for certain that the gun found in the car fired the shot that fatally wounded Ms. Smith, the expert testified that the shot was fired from a revolver like the one found in the Cadillac. Gunpowder residue tests were performed on the three car passengers. Mr. Wainwright and Mr. Woods were “negative.” Mr. Leeper showed a significant amount of gunpowder residue on his left hand. More residue was on the back of his hand than on the palm area. Mr. Leeper is right-handed. Mr. Wainwright is left-handed. It appears that Ms. Smith was shot by someone holding a gun in his left hand. The clothes Mr. Wainwright was wearing when stopped by the police were submitted for testing. No blood was found on the clothing. The clothing of Mr. Leeper and Mr. Woods was not submitted for testing. Mr. Wainwright, Mr. Woods, and Mr. Leeper were all charged with capital murder. The cases were severed and Wainwright was tried first. He was convicted of capital murder and sentenced to death. Mr. Woods was acquitted, and Mr. Leeper pleaded to a reduced charge of aggravated robbery and received a seventeen year sentence. Mr. Wainwright’s conviction and sentence were affirmed by the Arkansas Supreme Court on May 29, 1990. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990). The United States Supreme Court denied certiorari on March 4, 1991. Wainwright v. Arkansas, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991). Mr. Wainwright then sought state post-conviction relief under Ark. R.Crim.P. 37, which was denied without a hearing on January 13,1992. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Thus, Mr. Wainwright has exhausted his state remedies. Mr. Wainwright filed a petition for federal habeas relief pursuant to Title 28 U.S.C. § 2254 on April 7,1992. Hearings were held before this Court on February 24-26, 1993. Post-trial briefing was completed on April 30, 1993. The Court has now considered all of Mr. Wainwright’s arguments, and sets forth its analysis and conclusions below. For ease of reference, the Court has captioned its analysis of each issue by using the language employed by petitioner in his habe-as pleadings. II. GROUNDS FOR RELIEF A(l) THE STATE COURTS’ REFUSAL TO ALLOW ADEQUATE FUNDS FOR EXPERT PSYCHIATRIC TESTIMONY DENIED PETITIONER DUE PROCESS AND HIS RIGHT TO PRESENT A DEFENSE; ALTERNATIVELY PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BASED ON DEFENSE COUNSEL’S FAILURE TO PRESENT SUCH TESTIMONY AND CHALLENGE THE CONSTITUTIONALITY OF THE STATUTORY FEE CAP Petitioner alleges that the trial court committed error in denying additional funds for him to hire a psychiatric expert. Alternatively, he argues that the failure to challenge the constitutionality of the statutory fee cap constituted ineffective assistance of counsel. The state hospital evaluated petitioner, and found him to be competent, but suffering from cocaine abuse. Petitioner sought funds to enable him to present the expert testimony of Dr. Doug Stevens, a clinical psychologist, relating to petitioner’s cocaine addiction and psychosis. Initially, the Court indicated that it would only allow what it believed to be the statutory maximum of $300. Eventually, the Court authorized a total of $840 for Dr. Stevens’ assistance. Thus, petitioner cannot show prejudice as a result of failure of trial counsel to challenge the statutory fee cap as the trial court granted funds considerably in excess of the cap. Dr. Stevens did not testify at the guilt phase of the trial, and defense counsel argued at the close of the evidence at the guilt phase that the trial court’s refusal to award the funds needed at an earlier date prevented the defense from utilizing Dr. Stevens at the guilt phase to support a defense of incompetency to stand trial, insanity, or mental disease or defect. (T. 1817). Dr. Stevens did testify at the penalty phase. He testified as to petitioner’s attention deficit disorder. (T. 2041). He testified as to petitioner’s cocaine usage and common reactions to heavy usage. (T. 2044-45). He explained that he spent one hour and 40 minutes total with petitioner, but had also reviewed various records and tests in forming his opinions. (T. 2048). He testified that petitioner met the basic requirements of competency. (T. 2054-55). He testified that he thought petitioner was legally sane. (T. 2062). He further stated that had he been assured that he would be paid for the time spent, he would have done a number of things: Increased assessment as well as going more in depth in terms of getting information from other sources. Trying to contact people who knew him earlier in life, his family, perhaps teachers in the school system, and other neighbors or anyone who could give me good information on his behavior in previous times. Talking with Dr. Mobley with the Department of Corrections in order to get more information on any files they had and the psychological testing they would have done. And then, spending more time, of course, with the defendant himself, to elicit more of the history in terms of his drug abuse, and then attempting to either substantiate the bad history, or find that it was incorrect. And the testing that would have been done, would have been a full intellectual evaluation using the Wexler Intelligence Scale, and a neuro-psyehologieal evaluation, probably the Halstadt, the Nebraska battery, and some projected testings, such as the schematic apreception test, along with a full MMPI using a recorded rather than having him attempt to read it. * H: * * * * I don’t think there’s an issue as to his competency to stand trial. I do think there could have been an issue as to his mental state and the whole issue of temporary insanity in the legal sense at the time of the commission of the offense. (T. 2077-78). Dr. Stevens also acknowledged that he was not sure that his “testimony would have been relevant in the guilt-innoeence [phase] in any case.” (T. 2081). Petitioner presented this issue to the Arkansas Supreme Court on direct appeal, and it is thus properly preserved for habeas review. Wainwright v. State, 302 Ark. 371, 378, 790 S.W.2d 420 (1990). The state court noted that under its previous rulings, “the defendant’s right to an examination under Ake is adequately protected by the examination at the state hospital, an institution which has no part in the prosecution of criminals.” Id. The Arkansas Supreme Court summed up the record by noting that the appellant was provided with $840 to pay Dr. Stevens for his evaluation and testimony even though appellant has also been evaluated by the presumptively neutral state hospital. Id. at 379, 790 S.W.2d 420. Petitioner argues that although the Arkansas Supreme Court has held that a defendant’s rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), are normally adequately protected by a state hospital examination, in this particular case the state hospital examination was not adequate, citing Dr. Stevens’ testimony. Ake held as follows: [W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel, we leave to the State the decision on how to implement this right. 470 U.S. at 83, 105 S.Ct. at 1096. The Arkansas Supreme Court reiterated its position that a state hospital examination was adequate in Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). In that case, the state hospital relied upon a history provided by the defendant’s mother even though the defendant had left home at the age of 12 or 13. Id. at 486, 774 S.W.2d 426. The trial court allowed no funds for additional psychiatric evaluation. Id. Nevertheless, the Arkansas Supreme Court found that the state psychiatric examination sufficiently protected the defendant’s rights and that there was no error in the trial court’s refusal to allow additional funds for additional evaluation. In the case at bar, Dr. Stevens testified as to additional mitigation investigation that he would have performed and additional tests that he might have performed. He did not, however, testify that the state hospital’s evaluation was inadequate. The Arkansas Court found no error. This Court agrees. Ake specifically held that it was up to the state to implement the required access to psychiatric evaluation. The Arkansas Supreme Court has held that state hospital evaluations are sufficient. There is no merit to petitioner’s constitutional claims on this point. A(2) BALLISTICS AND FORENSIC EXPERT TESTIMONY Petitioner next contends that the state trial court denied him adequate funds to secure expert testimony and testing relative to the firearms, the bullets, and the spent casings that the State introduced at trial. The trial court indicated that it would only allow $500 for such an expert. Petitioner also requested funds for an expert to subject the autopsy findings and other forensic aspects of the case to meaningful adversarial testing. Alternatively, petitioner contends that if the issues were not properly presented, counsel’s failure to properly present them constitutes ineffective assistance of counsel. Respondent first asserts that this issue was not properly presented to the state courts and is thus procedurally barred. Petitioner made a specific motion for funds for a ballistics expert prior to trial. (T. 69-70). Prior to swearing the jury, petitioner moved for a continuance on the basis that the funds made available for hiring an expert for trace gun residue were insufficient to retain an expert’s services for purposes of evaluation and testimony at trial. (T. 1149). Petitioner moved for an additional $1000 to retain a ballistics expert. (T. 1150). Prior to instructions and argument, petitioner moved for a mistrial on numerous grounds. Among them, petitioner argued as follows: ... [W]e proffer the testimony of Dr. Irwin Stone, Dallas, Texas, as a ballistics, firearms expert. Had the court awarded fees at an earlier date, and in the amount requested by the defense, Dr. Stone would have testified on issues of ballistics and gunshot residue in the guilt-innocence phase. (T. 1817). The prosecutor responded: Funds, though discretionary, have been awarded. Certainly, meet the constitutional standards of Ake v. Oklahoma that says, as to Dr. Stone (sic). Of course, there’s been no showing that the ballistics reports available from the crime lab are in any way in dispute or questionable, and any testimony from Dr. Stone would show, would provide would be cumulative, and unnecessary. (T. 1818). The Court denied the motion for mistrial: ... [T]he Court approved ... $500.00 for an independent ballistics expert, which at that time was not known to the Court by name ... As to Irwin Stone, the Court to this date has approved a $500.00 amount to be paid to a ballistics expert, and at this time, has never been presented with the person’s name until this morning of Irwin Stone, or his charges for his testimony in Court. At the time the Court awarded the $500.00 fee, it was doing so as an advance, having no knowledge whatsoever as to the cost of a ballistics expert ... The Court cannot make a sum available without knowing the amount necessary. (T. 1818-19). On direct appeal, these portions of the record were included in the appendix. In Collins v. Lockhart, 754 F.2d 258 (8th Cir.1985), the Eighth Circuit addressed a similar situation. Noting that the issue alleged to be procedurally barred in that case had been raised during trial, although not argued in the brief on direct appeal and not specifically mentioned in the Arkansas Supreme Court opinion, the Eighth Circuit concluded that the Arkansas Supreme Court had followed its regular practice in capital cases of considering on their merits all points properly raised at trial, whether or not argued in the brief on appeal. Id. at 262. The Eighth Circuit thus concluded that the Arkansas State Supreme Court had actually passed on the merits of the federal question that the defendant sought to present on federal habe-as corpus, and the issue was not procedurally barred. Id. In this ease, the Arkansas Supreme Court concluded its opinion on direct appeal with the following: As required by Ark.Sup.Ct.R. 11(f), we have reviewed the entire record for other reversible error and find none. Therefore, we affirm the verdict and sentence of the jury- Wainwright, 302 Ark. at 388, 790 S.W.2d 420. Thus, as the issue of the denial of funds, and the context of counsel’s failure to fully inform the court in a timely manner of the necessity of further funds, were both discussed at trial and appended to the appeal, this Court concludes that the Arkansas Supreme Court passed on the merits of the claims and they are not procedurally barred. Accordingly, this Court will address the claim on its merits. In the instant case, it appears from Dr. Malak’s testimony that Ms. Smith was grabbed and restrained from behind and shot in the top of the head at a left to right angle, indicating that the triggerman was holding the gun in his left hand. Mr. Wainwright tested negative for gunpowder residue. His test was performed at approximately 10:00 or 10:15 p.m. on the night in question. (T. 1496). Mr. Leeper tested positive for gunpowder residue on his left hand, and there was more residue on the back of his hand than on the front. His test was performed at approximately 11:15 p.m. on the night in question. (T. 1494). The state ballistics expert, Mr. Gary Lawrence, testified that when a weapon is fired, a fine mist or vapor, almost as fine as cigarette smoke, lands on the individual’s hands who fired the weapon. (T. 1505). He stated that this mist leaves trace elements on the hands. There are three primary ways one can have this residue on their hands. One is either by firing the weapon themselves, two, handling a weapon which has recently been fired, and three, being in extremely close proximity to the weapon at the time it was fired. (T. 1507). He testified that vigorous activity or rubbing could remove the residue. (T. 1508). He stated that washing with water would remove it. (T. 1508). During the hearings before this Court, Dr. Irwin Stone testified via telephone. He testified that gunshot residue deposited by a firearm can be easily removed by washing the hands or even rubbing them vigorously. Even normal activity, within three hours, may remove the residue. He testified that he supposed that you could conceive of a way that the back of the hand could rub on the weapon or that the palm of the hand picking up a gun could then transfer it to the back of the other hand, but that “it’s a very unlikely scenario that residues would be put on the back of the hand simply from handling a gun.” He stated that the most likely way to acquire residue on the back of the hand was by firing a weapon. Dr. Stone further testified that when a person fires a gun, most of the residue will land on the back of the trigger-hand, especially in the web between the thumb and the forefinger. Additional residue would be likely to be on the palm of the hand. The state’s theory was that petitioner was the triggerman, that Mr. Leeper merely handled the recently fired gun, and that petitioner washed his hands at Ms. Hopson’s home. The state argued this theory in closing: Now, [defense counsel] has presented his defense that Dennis Leeper killed this woman ... Dennis Leeper had gunshot residue on his left hand. And if you will recall Mr. Lawrence’s testimony ... it’s evidence of firing or handling a recently fired gun. The evidence establishes that Dennis Leeper did one of two things. When Kirt Wainwright went in Big Momma’s house to leave the checks and get his other clothes, Dennis Leeper, right front of the ear, Kirt Wainwright left rear, reaches around, gets the gun and holds it while he’s in the house. Handling a recently discharged firearm. Leeper never had the opportunity to wash his hands or remove that residue. Or the other thing Leeper might have done. He may, either then or at some point in time after the shooting, and before they were apprehended, helped clean up the gun. Got the residue on his hands and removed fingerprints, blood, flesh particles or whatever from the gun ... (T. 1892-98). There is no direct evidence that petitioner washed his hands. Indeed, Ms. Hopson’s testimony indicated that he did not. The residue on Mr. Leeper’s left hand, according to Mr. Stone’s testimony, was much more likely to come from firing a gun than by being handed a gun. If Mr. Leeper had helped clean the gun, residue should have been present on both hands. Furthermore, Dr. Stone’s testimony indicates that residue can return to “normal” level within a few hours. Mr. Leeper was not tested until approximately three hours after the murder. If a light coating of residue from handling a recently fired gun were on his hands, it could well have worn off. Dr. Stone’s testimony casts some doubt on the state’s theory. Several witnesses saw petitioner leaving the store, and did not indicate that anyone else was with petitioner. However, all of the eyewitnesses appear to have arrived at approximately the same time — -just after the murder had taken place. There is no way of knowing what happened before the arrival of the eyewitnesses, or of who else may have been in the store. The evidence of petitioner’s guilt of capital murder, even if he was not the triggerman, is overwhelming. The evidence that he was the triggerman is more subject to doubt. While nontriggermen can be sentenced to death, a jury presented with evidence indicating that another party was the triggerperson may well have decided to spare petitioner’s life. The import of the testimony of a ballistics expert, such as Dr. Stone, is readily apparent, see supra, since it discounts certain explanations by the state’s expert and emphasizes that the most likely way for Mr. Leeper to have gotten such residue on his hand was by firing the weapon. It appears to the Court that the trial court attempted to be fair and reasonable in its awarding of fees and funds. The Court originally awarded $500.00 for a psychiatric expert, but eventually approved $890.00 in psychiatric expenditure. The Court indicated that had trial counsel submitted a proper and timely proffer of testimony, along with estimated costs, such funds may well have been granted. It was incumbent upon counsel to provide such information to the Court to secure such testimony. The failure to do so constitutes ineffective assistance of counsel under the standard set forth by the Eighth Circuit in Cheek v. United States, 858 F.2d 1330 (8th Cir.1988): A claim of ineffective assistance of counsel must be scrutinized under the two-part test of Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). Under Strickland, in order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must prove both that his counsel’s representation was deficient and that the deficient performance prejudiced the defendant’s case. The first part of this test is met when the defendant shows that counsel “failed to exercise the customary skills and diligence that a reasonably competent attorney would [have] exhibited] under similar circumstances.” The second part is met when the defendant shows that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 858 F.2d at 1336 (citations omitted). Accord Roberson v. United States, 901 F.2d 1475, 1478 (8th Cir.1990). A reviewing court is to apply a “strong presumption” that counsel was reasonably effective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Here, counsel’s failure to secure the necessary funds from an accommodating court and the corresponding failure to present very important testimony constitutes deficient performance. Had this testimony been presented, is there a reasonable probability that the result at the penalty phase would have been different? This is a close question. First, as set forth above, petitioner must prove deficient performance and prejudice to establish ineffective assistance of counsel. As this Court views the record, Mr. Wainwright is guilty of capital murder even if he was not the triggerperson. Thus, the failure to present ballistic evidence to the contrary did not prejudice the guilt phase of his trial. However, as stated above, a jury may well have decided not to impose the death penalty on Mr. Wainwright had it believed that another person was responsible for the fatal shot. Thus, if Mr. Wainwright is able to establish prejudice for the penalty phase of his trial, it is the penalty phase alone which must be overturned. However, the Court is not convinced that the result would probably have been different if petitioner’s attorney had been able to produce Dr. Irwin Stone as a witness and had he testified before the jury as he testified by telephone before this Court. Petitioner argues in the alternative that counsel was ineffective for failing to challenge the fee cap in existence at the time of the trial. As there was no reason to believe that the Arkansas Supreme Court was willing to review its earlier decisions upholding the fee cap, the failure to challenge the cap was not ineffective. Furthermore, the trial court in this case actually awarded fees in excess of those authorized by the statute, and thus petitioner cannot show prejudice for the failure to challenge the fee cap. This issue was presented to the Arkansas Supreme Court under Rule 37, and decided adversely to petitioner. Wainwright, 307 Ark. at 575, 823 S.W.2d 449. This Court agrees with the Arkansas Supreme Court’s analysis on this particular issue. A(3) EXPERT SOCIOLOGICAL TESTIMONY Petitioner also moved for funds for expert sociological testimony in the guilt and penalty phases of the trial. Petitioner states that had funds been allowed, Dr. Robert Sarver, now deceased, a professor of Law and Sociology at the University of Arkansas and former Warden for the Arkansas Department of Correction, would have testified about the death penalty and life in prison without parole and about the potential that an individual serving life without parole has for leading a useful and productive life in prison. Petitioner asserts that such testimony would have borne directly upon the following mitigating circumstances: 1) that if allowed to live the remainder of his life in prison without parole, Kirt Wainwright may nevertheless be able to make some meaningful contribution or be of some use to society; 2) that if properly confined and treated, Kirt Wainwright is adaptable and can adjust to a prison setting; and 3) that Kirt Wainwright has artistic, poetic, and other talents which could be furthered and possibly put to good use if allowed to remain in prison for the remainder of his life. Respondent’s contention that this issue is proeedurally barred is incorrect for the same reasons cited in this Court’s discussion of the procedural bar issue in point A.II, supra. The issue was raised at trial and appended on appeal and the Arkansas Supreme Court is presumed to have addressed it on its merits. Petitioner fails to establish a violation of due process on this issue. Dr. Stevens testified to the same mitigating factors listed above. Much of the same sort of testimony was elicited from petitioner’s pastor, Reverend Butler. There is no evidence that further testimony from a different expert would have substantially affected the outcome of this case. Similarly, petitioner cannot establish the requisite prejudice for ineffective assistance of counsel on this issue. Petitioner has failed to establish that, had counsel secured such funds and corresponding testimony, there was a reasonable probability that the outcome would have been different. Petitioner’s arguments on this issue are without merit. B. PETITIONER WAS DENIED DUE PROCESS AND A FAIR TRIAL BY THE STATE COURT’S DENIAL OF HIS MOTION FOR A CHANGE OF VENUE Petitioner contends that the publicity surrounding his trial was such that he could not and did not receive an impartial jury as required by the Fifth, Sixth and Fourteenth Amendments. Approximately four months prior to trial, Wainwright filed an Application for Change of Venue. He supported this motion with three affidavits. At the pretrial hearing, he called Lucille Rogers, circulation manager of the Hope Star and John Ragsdale, publisher of the Nevada County Picayune, for the purpose of establishing the circulation figures for their publications. Of the fifty-two panelists questioned during individual voir dire, six were not questioned as to exposure to pretrial publicity. Of the remaining forty-six, thirty-one indicated some pretrial exposure to publicity. Nine of the jurors actually seated had been exposed to pretrial publicity. The Arkansas Supreme Court has addressed this issue in this case: Appellant offered three witnesses in support of his request for a new venue. Two witnesses were associated with area newspapers, and they related the various articles published regarding Smith’s murder. However, both witnesses opined that the appellant could obtain a fair trial in Nevada County. It was also shown that most of the publicity surrounding this murder ended about two months prior to the date of trial. While the third witness expressed doubts that the appellant could receive a fair trial in the county, she indicated she could be fair if she was selected as a juror. Most of the jurors admitted to some exposure to pretrial publicity, but on voir dire they all announced they could give the appellant a fair trial. Appellant had the burden of showing that a fair trial is not likely to be had in the county and the trial court’s decision on the issue will be upheld unless it is shown the court abused its discretion. Gardner v. State, 296 Ark. 41 [754 S.W.2d 518] (1988). Again, appellant failed to meet his burden, and the trial court’s ruling must stand. Wainwright, 302 Ark. at 378, 790 S.W.2d 420. It is well settled that the Fifth, Sixth, and Fourteenth Amendments guarantee a criminal defendant the right to an impartial jury. An impartial jury consists of jurors who will conscientiously apply the law as instructed and find the facts. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The relevant inquiry is whether petitioner can show that the jury had such fixed opinions or preconceived notions or were biased such that they could not judge impartially the guilt or the innocence of the petitioner. Hobbs v. Lockhart, 791 F.2d 125 (8th Cir.1986). The defendant is not entitled to a trial before a jury that is composed of people completely ignorant of the crime; in many cases, that would be a virtual impossibility. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). All of the jurors seated stated that they could give petitioner a fair trial. While that is not dispositive, and should not be blindly accepted, this Court’s review of the voir dire in this case fails to demonstrate any evidence that the jurors’ statements are not worthy of belief. Petitioner is required to show that the jury was partial. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). The trial court has a duty to determine whether a juror is actually biased and is given broad discretion on its rulings on challenges for cause. Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950). This Court agrees with the Arkansas Supreme Court that petitioner has failed to meet his burden on this issue. . C. PETITIONER WAS DENIED DUE PROCESS AND A FAIR TRIAL BY THE INTRODUCTION INTO EVIDENCE OF FOUR ALLEGED STATEMENTS WHICH WERE EITHER COERCED, OBTAINED IN VIOLATION OF MIRANDA, AND/OR UNDISCLOSED BY THE STATE Petitioner gave four formal statements to the police between July 29,1988 when he was arrested and July 31, 1988. The appellant was read his rights upon his arrest and before giving his first statement. He initialed and signed a rights form at about 10:08 p.m. on the night of the crime, July 29, 1988. This first statement was essentially non-incriminatory, was not introduced at trial, and is not at issue here. At approximately 1:00 a.m. on July 30, 1988, after being shown the previously executed rights form, petitioner gave a second statement. His third statement was given at approximately 5:45 p.m. on July 31, 1988, after executing a second rights form. It was not introduced at trial. The fourth statement was given at approximately 8:45 p.m. on July 31, 1988. The second and fourth statements will be addressed below. At trial, three other statements made by petitioner were introduced into evidence. These statements were made by petitioner in the absence of interrogation. Petitioner challenges two of these statements on the ground that the State failed to disclose them prior to trial, and one of the statements on Miranda and voluntariness grounds. These statements will be addressed separately from the formal statements. 1. Statement of July 30, 1988 (The Second Statement) 2. Statement of July 31, 1988 (The Fourth Statement) In the second statement, given at approximately 1:07 a.m. on July 30, petitioner admitted being with Mr. Leeper and Mr. Woods, but denied any knowledge about the murder. It is challenged on Miranda and voluntariness grounds! Petitioner contends that he should have been provided with a new waiver of rights form before the taking of this statement, given some three hours after the execution of the first waiver of rights form. He further contends that this statement was given after being physically abused or beaten by the police during the evening of July 29, 1988. The fourth statement was by far the most incriminating. It was given at 8:45 p.m. on July 31, 1988, approximately three hours after executing a second waiver of rights form. Petitioner had been in custody for approximately 48 hours at the time of this statement. He states that the failure to provide him with another waiver of rights form, coupled with the alleged physical abuse he had suffered earlier, renders this statement inadmissible. A pretrial hearing was held on the issue of voluntariness of the four statements given to the police (T. 125-242) and the trial court ruled that all four formal statements were admissible. Petitioner did not testify at the suppression hearing, nor did he testify at the guilt phase of his trial. At the penalty phase, he testified that he was physically abused prior to his statements. The Arkansas Supreme Court was presented with these same arguments and found them to be without merit: The appellant was read his rights upon his arrest, and before giving his first statement, he initialed and signed the rights form at about 10:08 p.m. on July 29, 1988. On July 30, 1988, at 1:00 a.m., he was shown the previously executed rights form again when he gave his second nonincrimi-nating statement, which read much like his first. Appellant’s third statement was more detailed but still was nonincriminat-ing like his first two. Before giving this statement, he executed a second rights form at 5:45 p.m. on July 31, 1988. At 8:45 p.m. on July 31, he volunteered his fourth statement, which was the incriminating one. While the appellant did not execute a new rights form, an officer asked him if he remembered what his rights were, and the appellant said yes. Our court, in Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987), held there is no requirement that the Miranda warnings, when properly given, must be repeated each time the defendant is questioned. Here, the record indicates the appellant was properly advised of his constitutional rights and that his statements were given after a relatively short period of detention and without undue or prolonged questioning. Furthermore, on the voluntariness issue, the record shows the appellant was twenty-two years old, had a tenth grade education, and could read and write. According to the police officers’ testimony, the appellant appeared to be sober and coherent at the questioning sessions. The police officers testified that he was not coerced or threatened and that each time the appellant spoke he did so voluntarily, without asking for a lawyer. The appellant, himself, initiated the fourth statement. He asked to speak to Lt. Duvall and voluntarily gave his statement. The appellant was allowed to review his statements, and he crossed out several lines in the fourth statement. Although he did speak to the officers four times, there is no indication that these sessions lasted for a long time. Accordingly, we hold the trial court should be sustained on this issue. Wainwright, 302 Ark. at 380, 790 S.W.2d 420. Factual findings concerning the events surrounding these statements are presumed to be correct, and such factual findings by a state court are binding on a federal habeas court unless the federal court determines that the state court findings lack fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). Respondent correctly points out that the determination of whether the police beat these two statements out of petitioner was a matter for the trial court to decide at the suppression hearing and the trial court resolved the matter adversely to petitioner. This credibility determination by the state court cannot be attacked in a federal habeas corpus proceeding. Pittman v. Black, 764 F.2d 545 (8th Cir.1985). Even thought the ultimate legal question of whether a confession was voluntary is a due process question and not subject to a presumption of correctness, the factual findings underlying the legal determination of voluntariness are presumptively correct. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). The evidence shows that petitioner was given his Miranda warnings and executed a written waiver on two separate occasions, both times within approximately three hours of the statements under attack. Nothing corroborates Mr. Wainwright’s belated assertion of physical abuse. This Court, granting deference to the state court factual findings, comes to the legal conclusion that the statements did not violate the dictates of Miranda and were given voluntarily. Petitioner is not entitled to relief for the admission of these statements. 3. AUGUST 8, 1988 ORAL STATEMENT Petitioner also challenges another statement he gave as violative of Miranda. On August 8, 1988, the jailers were conducting a weapons search of petitioner’s cell with the assistance of inmate trustees. Petitioner was injured during the ensuing altercation. During that scuffle, petitioner said to Officer Tommy Birdsong that “Hell, yes, I killed that white honky woman, but I wish it had been your wife.” This statement was admitted in the penalty phase. Petitioner argues that the very form of the statement indicates that it was responsive to a taunting question of some sort from the officers. The trial court held that no Miranda warnings were required because the statement was spontaneous. The Arkansas Supreme Court addressed this issue as well: ... [A]ppellant challenges the trial court’s admission into evidence another statement attributed to him by Johnson, the jail trustee, and Chief Deputy Tom Birdsong. During the penalty phase of trial, appellant testified that he had never said that he had killed the victim. On rebuttal, Johnson and Birdsong related that appellant got angry because his jail cell had been searched, and he had to be restrained. During the scuffle or altercation, appellant said, “I killed the white honky woman and I wish it had been your mother [wife].” Appellant argues appellant’s purported remarks were involuntary and should have been excluded because he had not recently been given Miranda warnings. As previously discussed, appellant had been properly given his rights on prior occasions, and as stated in Cope, those rights need not be given repeatedly ... Nonetheless, the trial court here concluded the appellant’s statements were spontaneous and not the result of interrogation. In this respect we have held that spontaneous, voluntary and unsolicited statements, made when an accused although in custody, is not being interrogated, are admissible ... Thus, we hold the trial court was correct in permitting Johnson’s and Birdsong’s testimony regarding the spontaneous remarks made by appellant. Wainwright, 302 Ark. at 385, 790 S.W.2d 420 (citations omitted). Petitioner testified at the penalty phase that he had never said that he killed the victim. Johnson and Birdsong testified in rebuttal. Neither respondent nor the Arkansas Supreme Court raise Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), which stands for the proposition that non-Mirandized, voluntary statements are fully admissible for impeachment purposes. This Court agrees that the statement appears to be spontaneous. Even if it were not, under Harris there would be no error in admitting the statement in rebuttal. This Court does not credit the claim that the statement was involuntary. Petitioner’s argument on this issue is without merit. 4. UNDISCLOSED STATEMENTS Petitioner also claims that he was denied due process by the State’s use of two statements which were not disclosed in discovery. The first of these was introduced through Officer Duvall, who testified that as he was conducting a gunpowder residue test on Wainwright’s hands, Wainwright stated that Duvall “would not get anything off [my] hands.” (T. 1699). At trial, defense counsel claimed that this statement was not disclosed prior to trial. The trial court made a credibility determination that defense counsel knew about the statement prior to trial. This determination was upheld by the Arkansas Supreme Court on direct appeal: It is the trial court’s function to resolve such conflicts, and the court determined that the state disclosed the statement as soon as the prosecutor learned about it. We hold the trial court did not abuse its discretion by denying the appellant’s motion for mistrial. Furthermore, appellant showed no prejudice since appellant’s statement that Duvall would not find anything by the test could also mean the appellant knew he was innocent. Wainwright, 302 Ark. at 383, 790 S.W.2d 420. This was a matter of credibility for the state courts to decide and cannot be attacked in a federal habeas corpus action. Pittman v. Black, 764 F.2d 545 (8th Cir.1985). State court findings of credibility may only be set aside when the findings lack fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). This Court concludes that the state court findings are fairly supported by the record, and relief may not be granted on this issue. The second statement that petitioner attacks on nondisclosure grounds was made to Robert Johnson, a trustee at the Nevada County Jail, prior to Wainwright’s incriminating statement of July 31, 1988. At the penalty phase, in rebuttal, Mr. Johnson testified that he was sitting beside a crying Dennis Leeper when petitioner was brought past them on his way to make his fourth statement. Mr. Johnson testified that petitioner looked Mr. Leeper in the eye and told him, “I’m fixin to send you home. Don’t worry, I’m fixin to send you home.” (T. 2135). Petitioner contends that this was not true rebuttal testimony. Furthermore, he contends that Johnson was acting as an agent of the state in this ease, and therefore any of Johnson’s knowledge is imputed to the State, implicating a duty to disclose. The Arkansas Supreme Court held on this issue: The second oral statement was offered by the state during the punishment phase of the trial. The state asserted it learned of this statement only after the appellant testified. Robert Johnson, a trustee at the county jail on a work-release program, approached the prosecutor and told him the appellant had lied when he claimed he signed the statement, implicating himself of the murder, only after he was beaten by the police. Johnson told the prosecutor that he had been posted to guard Leeper, an alleged accomplice, and Johnson claimed that, when appellant was taken to give his final [fourth], statement, incriminating statement, appellant looked Leeper in the eyes and said, “Don’t worry I’m fixing to send you home.” After learning of Johnson’s story, the prosecutor offered Johnson as a rebuttal witness. The trial court allowed Johnson to testify stating the prosecutor could not have known what the appellant was going to say during his testimony and that the state’s proof was proper rebuttal testimony. The trial court was correct. Wainwright, 302 Ark. at 383-84, 790 S.W.2d 420. For the same reasons discussed supra concerning federal court deference to state court findings of fact where fairly supported by the record, this Court concludes that petitioner is not entitled to habeas relief on this issue. D. PETITIONER WAS DENIED A FAIR AND IMPARTIAL JURY AND A FAIR TRIAL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS BASED ON THE STATE COURT’S REFUSAL TO EXCUSE JUROR GILLEYLEN FOR CAUSE AND IMPROPER EX-CUSAS OF PROSPECTIVE JURORS STEED AND JOHNSON IN VIOLATION OF WITHERSPOON V. ILLINOIS 1. JUROR GILLEYLEN Petitioner alleges that he was denied a fair and impartial jury due to the trial court’s refusal to excuse Juror Larry Gilleylen for cause after petitioner had exhausted his peremptory strikes. The Court notes portions of Mr. Gilleylen’s voir dire: DEFENSE COUNSEL: In a case, a capital murder case where particularly like this one where there is a robbery-murder connected, do you feel that if that case was proven to you beyond a reasonable doubt, that life without parole would be an appropriate punishment for your consideration, depending on what the circumstances were? MR. GILLEYLEN: Well, I believe if the evidence was to the point that there was no, I mean that it was definitely truth, I believe I wouldn’t believe life without parole. DEFENSE COUNSEL: OK, you are saying it would not be severe enough? The punishment? MR. GILLEYLEN: No, not if sufficient evidence, I mean, you know. I believe in whatever evidence it was, but I think it would just, if no question of doubt that a person done something, then I believe he should pay for his crime. DEFENSE COUNSEL: OK. Do you feel that life without parole is an appropriate punishment to be considered in a capital murder case depending on the circumstances? MR. GILLEYLEN: In certain circumstances. DEFENSE COUNSEL: So you can visualize a capital murder where life without parole would be appropriate, would be justice, and you can visualize on the other end of the scale a capital murder where the death penalty would be appropriate? MR. GILLEYLEN: Yes, that’s right. DEFENSE COUNSEL: Both, you would consider both penalties and wait for the facts to tell you which one? MR. GILLEYLEN: Yes. DEFENSE COUNSEL: Do you feel that you could listen to the evidence and hold the state to its burden that the death penalty will not be invoked unless they have proved to you beyond a reasonable doubt that the aggravating factors far outweigh the mitigating factors? MR. GILLEYLEN: Yes. * * H* * * * DEFENSE COUNSEL: If it was shown to you, without anything more, that there was a murder and a robbery, do you feel you would automatically fall toward the death penalty side? MR. GILLEYLEN: No, it would depend on the evidence. DEFENSE COUNSEL: On the facts of the case? MR. GILLEYLEN: Right. (T. 978-981). A criminal defendant is constitutionally guaranteed a fair and impartial jury. U.S. Const, amend. VI. Actual bias is when a juror’s state of mind demonstrates that he could not try the case impartially. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). When the juror can decide the case based upon the evidence presented and the instructions of the judge, there is no violation of the Sixth Amendment right to a fair jury. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). The trial court has a duty to determine whether a juror is actually biased and is given a broad discretion on its rulings on challenges for cause. Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950). With respect to this issue, the Arkansas Supreme Court held: Here, the trial court found Gilleylen could reach a fair verdict based upon the evidence, and we are unable to say the trial court erred in doing so. Wainwright v. State, 302 Ark. at 381, 790 S.W.2d 420. This Court agrees. During the extensive voir dire by counsel for Wainwright, Juror Gilleylen indicated that he could render both verdict and sentence based upon the evidence in court. Petitioner has failed to demonstrate constitutional error based upon the trial court’s refusal to excuse Juror Gilleylen for cause. 2. PROSPECTIVE JURORS STEED AND JOHNSON Petitioner also alleges that the Court’s excusal of prospective jurors Steed and Johnson violated his right to a fair and impartial jury. The Court has reviewed the voir dire of both of these prospective jurors. Mr. Steed indicated numerous times that if a defendant took a life, “and if it was proved that they did, well, their life should be tooken (sic), too.” (T. 886). Other examples include: DEFENSE COUNSEL: OK. Then what you are telling me is, that if the state proves their case, or if there was any ease proven, and a life has been taken, you would not consider life without parole? MR. STEED: Probably, not. THE COURT: ... I am not trying to change your mind or convince you of anything. If you just believe you can [consider life without parole], and that’s as far as you can consider it, then we all need to know. MR. STEED: I don’t really know how to answer. (T. 887-890). At this point, the trial court excused Mr. Steed for cause. Ms. Johnson expressed similar reservations about the death penalty: DEFENSE COUNSEL: ... Now, do you, also, understand that there is an alternative punishment to capital murder, which is life without parole. Do you feel that that is an appropriate punishment for consideration on a capital murder? MRS. JOHNSON: I am not sure. * * * * * * DEFENSE COUNSEL: OK, so what I am asking you, is if a capital murder is proven without regard to the facts, murder during a robbery, do you feel automatically, because a life has been taken during a robbery, that a death sentence should be imposed? MRS. JOHNSON: Yes. DEFENSE COUNSEL: OK, so that means that you would be unwilling to consider life without parole? MRS. JOHNSON: Yes. (T. 907-908). Both Mr. Steed and Ms. Johnson wavered somewhat during their answers, but left the distinct impression that, at best, they had a very strong leaning toward the death penalty if the underlying crime was proven. The trial court excused both jurors for cause on its own motion. For obvious reasons, trial counsel did not object to the excusal of either juror. As a general proposition, a juror may not be challenged for cause based on his views about the death penalty, unless those views would prevent, or substantially impair, the performance of his duties as a juror in accordance with his instructions and his oath. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). It is the trial court which must determine whether the juror’s views would prevent or substantially impair the performance of his or her duties, and great deference is given to the trial court in making that determination. Waiwwright v. State, 307 Ark. 569, 576, 823 S.W.2d 449 (1992). Having reviewed the voir dire of both Mr. Steed and Ms. Johnson, this Court cannot say that the trial court erred in excusing either juror for cause. Furthermore, it is difficult for the Court to see how their excu-sáis could have prejudiced petitioner. Had these same jurors not been excused for cause, petitioner would undoubtedly invoke the same argument that he used for the trial court’s refusal to excuse Juror Gilleylen. This Court concludes that there is no merit to this argument. E. PETITIONER WAS DENIED EQUAL PROTECTION AND A FAIR TRIAL BY THE STATE’S USE OF A PEREMPTORY CHALLENGE TO EXCUSE PROSPECTIVE BLACK JUROR GLADYS BLAKELY FROM THE JURY PANEL WITHOUT GIVING A RACIALLY NEUTRAL EXPLANATION RELATED TO THE CASE AT HAND Petitioner alleges that the state’s use of a peremptory challenge against Gladys Blakely, a black woman, was done in a racially discriminatory manner, contrary to the dictates of Batson v. Kentucky, 476 U.S. 79, 90-96, 106 S.Ct. 1712, 1719-23, 90 L.Ed.2d 69 (1986). Prior to Ms. Blakely, all but one of the black panelists had been excused for cause. Of the nine black panelists individually voir dired, seven were excluded for cause for their views about the death penalty. One black panelist was selected for the jury. Ms. Blakely, the ninth of the black panelists individually voir dired, was excused by the state after an extensive colloquy concerning her views on the death penalty. The Court notes numerous statements by Ms. Blakely which indicate that she had a great deal of difficulty with the death penalty: I’m a Christian, and my Bible always taught me thou shall not kill. I realize anybody do wrong they should be punished, but I don’t believe in capital punishment. H* 'f* H* «Js I am willing to apply the law as far as when someone do wrong I know they are supposed to be punished, but as far as the death penalty, I am not sure. * * * * * * I feel like it’s wrong for anybody to kill somebody, but really, I feel like when you give the death penalty, you are not really punishing them. I feel like they should be punished for it. (T. 842-845). Ms. Blakely went on to say that she thought there was a possibility that she could impose the death penalty in some cases. The state submitted Ms. Blakely to the Court for cause because of her views on the death penalty. (T. 850). The Court denied the motion. (T. 852). The state then submitted Ms. Blakely to the Court for cause because she had stated that she might have difficulty in viewing and fully considering graphic evidence. (T. 852). That motion was also denied. (T. 852). The state then excused Ms. Blakely, using one of its peremptory challenges. (T. 853). Defense counsel’s response, in full was “Your Honor, I would have the record show Mrs. Blakely is a black woman.” (T. 853). The Equal Protection Clause forbids a prosecutor from using peremptory challenges to exclude otherwise qualified persons from the petit jury solely on account of their race. Batson, 476 U.S. 79, 106 S.Ct. 1712. In order to establish an equal protection violation, “a defendant must first establish a prima facie case of purposeful discrimination in selection of the jury panel.” Unit ed States v. Battle, 836 F.2d 1084, 1085 (8th Cir.1987). To establish a prima facie case of purposeful discrimination, the defendant must first show that the prosecutor exercised peremptory challenges to remove members of a cognizable racial group from the venire. Batson, 476 U.S. at 96, 106 S.Ct. at 1722. The defendant must also show that “these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Id. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant factors. Id. For example, a “pattern” of strikes against black jurors on the panel might give rise to an inference of discrimination. Id. “... (I)t is important to observe that a prima facie case may be made where relevant circumstances indicate an inference of purposeful discrimination no matter that one or more black persons may remain on the jury.” Battle, 836 F.2d at 1086. “(U)nder Batson, the striking of a single black juror for racial reasons violates the equal protection clause, even though other black jurors are seated, and even when there are valid reasons for the striking of some black jurors.” Id. After a defendant establishes a pri-ma facie ease, the burden shifts to the government to “articulate a neutral explanation related to the particular case to be tried.” Batson, 476 U.S. at 98, 106 S.Ct. at 1724. The mere articulation of a non-discriminatory reason is not always sufficient for establishing a lack of purposeful discrimination. The court should look at all relevant circumstances to determine if the articulated reason is pretextual. For instance, in this circuit “it is well established that the government may not justify peremptory challenges to venire members of one race unless venire members of another race with comparable or similar characteristics, are also challenged.” Reynolds v. Benefield, 931 F.2d 506, 512 (8th Cir.1991). The court must make a final determination of whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1723. In this case, counsel for Mr. Wainwright failed to