Kirt D. Wainwright v. A. L. Lockhart
80 F.3d 1226
8th Cir.
1996
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*3 MAGILL, Before FAGG and Circuit HENLEY, Judges, Judge. Senior Circuit FAGG, Judge. Circuit Douglas Wainwright, Kirt an Arkansas inmate, appeals death row the district court’s partial petition. denial of his habeas cross-appeals affirm. The State Arkansas partial grant of habeas relief. re-We verse. killing was convicted of Bar- Smith, Stop

bara an attendant at the Best Prescott, convenience store in Arkansas. during robbery July Ms. Smith was shot murder, Although no one saw the witnesses saw run out of the robbery jump pink store after the into a later, police A time Cadillac. short saw the pink pulled it over. Cadillac Andrew driving Leep- Woods was the car and Dennis relief, cross-appeals partial and the front seat. State riding in the er was money Stop grant. with a Best the back seat gun. The bag containing cash and a State Erickson, Relying on Lewis capital murder. charged three men with all (8th Cir.1991), Wainwright first F.2d 1361 trial, presented At Hardamon Gam contends witness Octavia Wainwright went into Best evidence that partial recantation of her trial ble’s robbery committed the Stop alone and newly warranting evidence ha is discovered Leeper and waited murder while Woods relief beas Wainwright argued Leeper was the

the car. probably change the result on retrial. Dur evidence, hearing an triggerman. After trial, ing Wainwright’s Gamble testified she capi- jury convicted Arkansas Stop the Best near the time of the was inside *4 § 5-10- Ark.Code Ann. felony tal murder. Wainwright, and whom she had murder saw 1987). 101(a)(1) (Michie At the conclusion years, leave the store with known several penalty phase, the trial court submitted cross-examination, gun a in his hand. On jury. forms to the On these special verdict Wainwright’s attorneys accused Gamble of forms, unanimously ag- found three Wainwright sug having an affair with and time existed at the gravating circumstances spite gested she had reason to him because Wainwright previously of the murder: the af he had told Gamble’s husband about felony involving a threat another fair, committed any romantic rela but Gamble denied person, the murder of violence to another tionship Wainwright or reason to fabri with arrest, prevent or Nevertheless, was committed to avoid testimony. -her Sheila cate pecuniary committed for Butler, Gamble’s, and the murder was that a friend of testified unanimously found two gain. The also had romantic encounters with Wain Gamble Wainwright had mitigating circumstances: evidentiary hearing, wright. At the habeas murder of history of homicide before the no that romanti Gamble admitted she had been Smith, Wainwright not resist and did Ms. Wainwright and had lied cally involved with murdering her. The married, arrested for when newly em at trial because she was unanimously aggravating cir- then found barrassed, and ashamed. Gamble reaffirmed any mitigating cir- outweighed Stop cumstances Wainwright leave the Best that she saw justified a sentence of death. hand, cumstances and gun in however. See Wain with a III, wright F.Supp. 872 at 598-601. affirmed on Supreme The Arkansas Court view, State, untruth- Ark. In our evidence of Gamble’s Wainwright v. appeal. direct (1990) I), likely pro- (Wainwright fulness about the affair would 790 S.W.2d Lewis, retrial, 1123, 113 denied, acquittal an duce at the or a life sentence postconviction re at State L.Ed.2d State, hearing, reaf- phase. Gamble Wainwright At habeas lief was (1992) curiam) part of her trial testimo- firmed the material (per Ark. 823 S.W.2d Wainwright run of the Best II), ny: out Wainwright filed this she saw ('Wainwright trial Stop gun. a Butler’s Af with petition in federal district court. already contradicted Gamble’s conducting evidentiary hearings, the dis ter Wainwright. relationship her with Wainwright relief on all trict court denied tes- importantly, even without Gamble’s Most except claims: that the State one of his Wainwright inside the timony that saw Fourteenth she Wainwright’s First and violated Stop gun, substantial circumstan- Best with a rights by questioning him about Amendment Wainwright committed shows during tial evidence handbook” a “Blood Norris, robbery himself. See Wain- F.Supp. and murder Wainwright phase. III, 422; III). I, (E.D.Ark.1994) wright (Wainwright The F.Supp. Several witnesses a at 580-81. to conduct district court ordered place just the murder took after who arrived sentencing trial or to convert Wain new run out of they one black man testified saw imprisonment to life with wright’s sentence the man Stop. A testified the Best witness now parole. out Id. at 620. shorts, flowered wearing red and white claims for was appeals the denial of his other pink jumped into a after murder. See testified he sometime and another sped away. young A man who that at 585-86. The State’s bal- Cadillac family Wainwright through Lawrence, connections expert, Gary knew testified at listics Stop walking by the Best he was person get gunpowder testified trial that a could resi- of the murder and saw the time by filing weapon, her a on his or hands due young man the store. The run out of fired, handling weapon a that has been or man fleeing was Kirt sure the weapon a it is fired. Law- being near when he saw face. Moments vigorous activity or rence also testified that later, young pink man saw a Cadillac washing with water can remove residue. young man testified speed by him. he hearing, At the habeas Dr. Stone testified Wainwright in the back seat two saw get gunpowder likely the most that police people in the car. When other by firing on the back the hand is residue the mur- pink Cadillac soon after stopped unlikely handling gun weapon and it is that der, front, were in the Leeper Woods Thus, Dr. put residue there. Stone’s Wainwright was seat with in the back testimony cast on the State’s some doubt money gun. Ballis- Stop bag and the Best Nevertheless, theory. Dr. Stone confirmed have been gun revealed the could tics tests easily gunshot residue can be removed to kill the one used Ms. Smith. by washing rubbing, and stated even *5 wearing red white flowered shorts was activity may remove it within three normal apprehended the shorts were later when hours. the ones the witness had seen as identified running man from inside the Best on the To establish ineffective assistance trial Leeper was wear- Stop. Neither nor Woods counsel, Wainwright must show decision cir- Given this substantial ing red shorts. professionally not to call Dr. defi- Stone was Wainwright, against evidence cumstantial cient, probability and a that the reasonable say probably would have cannot guilt penalty phase phase or result a different conclusion either the reached Dr. have been different had Stone would phase testified guilt penalty or had Gamble Washington, 466 testified. Strickland relationship truthfully about her with Wain- 2052, 668, 687, 694, 2064, U.S. S.Ct. Thus, Wainwright is not entitled to wright. (1984). hearing, L.Ed.2d 674 At the habeas ground. this relief on Wainwright’s attorney trial testified he had Dr. before the but interviewed Stone his trial next asserts unnecessary was decided Stone’s failing to offer ineffective in counsel was it was consistent with Lawrence’s Stone, Dr. a Irwin ballistics testimony. The court concluded the district Wainwright, According Stone’s expert. attorney’s call Dr. Stone Leeper, decision not to testimony would have rather shown Wainwright, triggerman. professionally Evi deficient. was the than Nevertheless, killer at tidal showed Ms. Smith’s dis- dence at fired in his left when he gun hand court was not convinced a different re- trict hours after the guilt phase shot. About three penalty lethal in the or was reason- sult murder, per were gunpowder residue tests if ably probable Dr. had testified at Stone Wainwright, Leeper, and Woods. on light formed In agree. at trial. 586-87. We found on Woods gunpowder residue was No indicating circumstantial evidence Wain- Leeper, Wainwright, who is left-handed. or murderer, wright was the lone robber and gun positive for right-handed, tested who is 1229-30, supra not believe the we do hand, however, powder residue his left had Dr. have found otherwise Stone was more on the back of and there residue firing likely gun a was the most testified hand than front. Leeper get gunpowder residue on for sum, In our the back of his hand. confidence results, argued these the State explain To guilt penalty in the outcomes of the gunpowder resi- Wainwright had rubbed the any by error in phases is not undermined he shot Ms. hands sometime after due off his Dr. Smith, gun failing to call Stone. Leeper had handled eligible argues pen- class of murderers for the death Wainwright next the State’s alty. aggravating circumstance reliance on the committed the murder to avoid that he argues if also that even arrest, 6-4-604(5), §Ann. prevent Ark.Code aggravating circumstance is constitution Eighth and Fourteenth Amend

violates al, support the evidence is insufficient to it. Wainwright con for several reasons. ments aggravating committing circumstance of genuinely does not tends the circumstance applies avoid arrest the murder to when eligible persons the class of for narrow robber the cold-blooded calculation “makes by required death Lowenfield by annihilating thereby his victim he 654, 231, 244, 646, Phelps, 108 S.Ct. eyewitness eradicates an to his crime.” (1988). already 98 L.Ed.2d 568 State, Pickens v. 261 Ark. 551 S.W.2d rejected challenge death this to Arkansas’s (1977) (en denied, banc), Norris, 71 penalty scheme. Ruiz v. F.3d 909, 55 L.Ed.2d 500 (8th Lockhart, Cir.1995); Perry (1978). appeal, direct the Arkansas Su On Cir.), cert. preme the evidence Court found sufficient 107 L.Ed.2d support aggravating this circumstance. capital felony-murder Arkansas’s I, at 427. Ms. Smith sufficiently of mur statute narrows class top point once in the of the head at was shot by speci eligible derers death Further, range. Stop’s man blank the Best fying only subgroup capital of murders as ager testified knew Ms. Smith Ruiz, 1408; Ark.Code ones. see probably identify him name and could be §Ann. 5-10-101. rejected a check he had tried cause she had to cash on two occasions. We conclude the the cir also contends evidence was sufficient to convince reason the murder to cumstance that he committed juror beyond a able reasonable doubt that *6 vague is and over- prevent avoid or arrest to Wainwright murdered Ms. Smith avoid broad, facially applied and as in his both Armontrout, v. F.2d arrest. See Smith statutory language disagree. The case. We (8th Cir.1989). 530, 538 specific enough defining circumstance is the death arbitrary and next contends his guide jury the and avoid to penalty. Eighth violates the and Fourteenth imposition of the death sentence capricious Lockhart, jury’s Amendments because of the “inconsis v. 8 F.3d Whitmore Arizona, Cir.1993); findings” mitigating the circum tent see Walton v. U.S. 3047, 3056-57, arrested 639, 652-53, 111 stance that he did not resist when form, Clarke, (1990); special 40 for the murder. On one verdict v. L.Ed.2d Williams (8th Cir.1994), unanimously jury it had found cert. de the indicated F.3d 1537-38 - one nied, -, lack-of-resistance circumstance and 131 the S.Ct. (1995). Wainwright argues mitigating circumstance existed. On next other L.Ed.2d 247 form, jury indicated it had unani the the impermissibly circumstance elevates another the circum phase mously found the lack-of-resistance required penalty state at the mental According to jury not exist. Wain produced an inconsistent ver stance did and thus contrary the jury’s wright, statements show Wainwright, the these According dict. to the lack-of-resis jury confused about finding that in the course of com guilt-phase jury or not the tance circumstance. Whether mitting robbery, “cause[d] the arrest, the Wainwright did not resist any person under circumstances found death of one jury clearly the circumstance to the value considered manifesting extreme indifference Sargent, the other. penalty-phase its or Woodard human life” conflicts with Cf. (8th Cir.1986) (failure 153, 157-58 to finding aggravating the circumstance mitigating circumstance to applicable purposely to submit the murder was committed defendant). prejudiced findings incon for consideration These are not avoid arrest. specifically found the three requirement at The then Any higher intent sistent. outweigh[ed] be circumstances supports aggra “aggravating penalty phase simply mitigating all cir- yond a reasonable doubt vating and further narrows circumstance presence also cumstances,” one or asserts found whether security right his Because denied to mitigating circumstances. this actions of officers two arbitrary capricious, guilt phase, or there is no two or During a fair trial. is not Williams, directly police violation. See in chairs Constitutional three officers sat F.3d at 1537-38. the defense table. When behind during phase, the sheriff penalty testified Wainwright also asserts State’s accompanied Wainwright police officer aggravating circumstance of reliance stand, to him while witness next to the stood gain, pecuniary Ark. committed for murder testified, to then him back his he escorted 5-4-604(6), Eighth § violated the Ann. Code Supreme Court found chair. Arkansas Fourteenth Amendments. prejudice security these measures did repeats an element argues the circumstance I, 790 Wainwright. Wainwright S.W.2d underlying robbery thus fails agreed. Wainwright 427. The district court eligible class of murderers narrow the F.Supp. at 607-08. challenge this penalty. rejected We death Perry, scheme Arkansas’s death broad discre judges Wainwright asserts F.2d at 1392-93. security in state courthouses. tion to take measures recently Perry wrong. our decision is Warden, Hel lum duplication an element of reaffirmed (8th Cir.1994). on a To succeed claim ag robbery-murder by more capital one or security measures denied the that state-court render Ar does not gravating circumstances trial, petition right to a fair a federal habeas unconstitu scheme kansas’s death show the were either actu er must measures Ruiz, 71 at 1407-08. As we tional. F.3d inherently ally Holbrook prejudicial. Ruiz, panel no of this court can explained in 560, 572, Flynn, Perry decision. reconsider 1347,89 L.Ed.2d 525 seating asserts the next not shown Wainwright has actual family jury during near the of the victim’s security To prejudice. decide whether rights. Be process trial violated due prejudicial, inherently measures were courtroom, “ jury entered crime fore the ‘an they presented consider whether unac- with the office victims’ assistant impermissible ... ceptable risk factors row people in the front asked some seated play.'" coming into Id. at 106 S.Ct. at family could sit there. move so the victim’s Williams, 425 (quoting Estelle v. *7 objected stat the trial court The defense and 501, 505, 1691, 1693, L.Ed.2d 48 126 people tell prosecutor should ed the (1976)). family could sit and the where to sit victim’s Here, Although escorting the act of they could seats. officers’ find wherever Wainwright during the family in near witness stand the sat the front row the victim’s trial, may phase suggested he was jury during the victim’s entire someone, shout, likely but cry, cause a distur to flee or harm Wain family did not jury. bance, identify wright capital was a murderer at themselves to convicted point. The not obstruct the found was no evidence officers did The court there state jury’s Wainwright, of and were no people knew in the front view clos that the Wainwright during family members. er to than the victim’s row were I, during In rest of think at 425. this the trial. We presence view and presume must the officers’ proceeding, we 2254(d) ordinary § and normal concern for finding actions state is correct. 28 U.S.C. (1988). safety proceedings. finding, and order of the See light In of the sum, 571, In preju 106 at 1347. seating arrangement id. at S.Ct. cannot show the harmless, say to the presented cannot the scene any him. Because error was diced inherently pose prejudicial as to an relief on was “so Wainwright is not entitled to habeas Abrahamson, [Wainwright’s] right unacceptable threat 507 ground. this See Brecht v. 1722, 572, 1710, 106 123 to fair trial.” S.Ct. S.Ct. (no uniformed, (1993). armed prejudice where four L.Ed.2d tist, spectators’ religions. During in but had studied other troopers sat first row state defendants); cross-examination, prosecutor see showed behind six United section (8th Darden, Wainwright a booklet and asked him whether 1533-34 States it. Cir.1995) (no he had ever seen Id. at 612. prejudice being to defendants identified the booklet as Islamic material that extraordinarily criminal tried for violent en belonged prosecutor to him. The then terprise by of unarmed officers in court use asked, you this what refer to “[I]s [as] the courtroom, room, metal detectors outside Blood handbook?” Id. at 613. transportation by jury sequestration and “No, responded, that’s some [Moorish] Sci- marshals, street, along guards armed heli Temple ence of America ... [material] surveillance, snipers on court copter a book called 101.” The [from] State next roof); Hopkinson Shillinger, house asked, “What is the Bloods?” and Wain- Cir.1989) (no (10th prejudice F.2d said, wright “That means black. Blood guards magnetometer used to cheek where Dictionary Contempo- means black.” See courtroom, everyone entering (1990) rary Slang (defining “a “blood” as bulletproof bodyguards wore vests and visi by term of endearment or address used black guards audibly bly guns, carried cocked males, shortening males to fellow of ‘blood in guns lights went out courtroom dur when ”). brother’ The State then for ad- moved trial), ing booklet, mission of the defense ob- 3256, 111 L.Ed.2d 765 jected ground After a relevance. Wainwright also asserts discussion, record, apparently off the the tri- reject if each claimed error individu even we al court decided the booklet was not relevant deprived him a ally, their cumulative effect Wainwright’s religious since it did not reflect support error fair trial. In of the cumulative beliefs. at 613- doctrine, Wainwright cites Harris v. House (8th Cir.1982) (cumula wright, 697 F.2d 202 hearing Evidence at the habeas showed by trial tive effect of eleven mistakes counsel sought the booklet the State to admit is a performance). amounted to deficient Harris religious copy handwritten of an Islamic longer good light Supreme law in is no booklet, Questions “Koran for Moorish Chil- Washington, Court’s decision Strickland questions dren.” The text of 101 consists Lockhart, 942 F.2d however. Girtman v. faith. and answers about Islamic Be- Cir.1991); see United States v. questions cause of the and answers (8th Cir.1994). Stewart, (“Who Allah.”) phrased you? are made Errors that are not unconstitutional individu copied the booklet together ally cannot be added to create handwriting, prosecutor be- his own Stewart, 20 F.3d at constitutional violation. lieved the booklet contained cumulative effect of trial 917-18. Neither questions to the and thus re- own answers attorney er nor cumulative effect of errors Wainwright’s personal flected beliefs. Id.; grounds for habeas relief. rors are Wainwright’s copy of the booklet cover of *8 (8th Nix, v. 38 F.3d Wharton-El dagger drip- picture a of a hand-drawn — denied, -, Cir.1994), cert. U.S. puddle. a ping a dark substance into (1995); 1126, 130 L.Ed.2d 1088 Griffin large in letters next to “Blood” was written (8th Cir.1994), Delo, 33 F.3d (reproduction of dagger. the See id. at 621 — denied, ——, 115 S.Ct. cert. cover). mistakenly prosecutor The believed 131 L.Ed.2d 869 Wainwright to the Bloods the booklet tied appeal, the contends the prosecutor’s very In its cross gang, street based incorrectly text, concluded the interpretation district court of the strained booklet’s Wainwright personal cross-examination of State’s id. at as well as his belief see gang part a “Blood handbook” and “the Bloods” is of the Islamic about that the Bloods church, 616. At the habeas hear- rights his under the First and Four- see id. at violated III, Wainwright prosecutor ing, the district court asked the teenth Amendments. See the During the the booklet’s cover and State’s F.Supp. at 610-19. whether and Bap- questioning about the “Blood handbook” phase, Wainwright testified that he is a court, religious Like Wain- his the district jury led the to believe beliefs. “the Bloods” prosecutor’s questions “did we conclude the wright member of the Bloods street was a any proper purpose.” not serve rebuttal responded, “At the gang. prosecutor The Wainwright at 619. questioned Wainwright I Mr. about this time booklet, my he was a in heart I felt Nevertheless, the disagree with I that’s what was member the Bloods and of question conclusion that the district court’s trying get challenge to to out ing jury dealing the it with led to believe was and he was a Christian.” other evidence gang. on a street This conclusion is based Id. at 618. nothing speculation. than unfounded more prosecutor the The district court concluded prosecutor’s bigoted improper The views and community hysteria” in the “gang fed on questioning in the Wainwright motive about bought into himself. Id. the time it and jury. were not communicated to the booklet court held the State’s 619. The district pre Although jury some members had read any proper did not serve cross-examination newspaper articles about strongly and to link purpose rebuttal tended erroneously reported and some articles had generate gang a street and Bloods a member of the was jury. The district gangs fear of in the Id. gang, “gangs” were not mentioned street ques- prosecutor’s the jury court was convinced during voir or the trial. heard dire The “blood,” display tions of the booklet’s cover made prosecutor and the term the the use Wainwright appear dangerous more and led proper gang, questions, in name for a two jury part of gave responses was to believe but reasonable larger explained a local enterprise gangs criminal than conve- unrelated to another Further, meaning Id. district court nience store murder. The the term. the booklet admitted, in jury imposed sen- was never trial court decided the would have “[a]ny prej- disregard it should parole of absent these structed tence life without statements, argument, or remarks of attor Id. The district court udicial circumstances. having neys in the The improp- no basis evidence.” cross-examination was concluded the cover the word Wainwright’s saw the booklet’s with and Four- er and First violated “blood,” light Wainwright’s but in testimo rights. teenth Amendment meaning ny about the and the booklet Although prosecutor did not term, say we cannot would connect directly gang member about ask In gang. the booklet a notorious street ship, asking in word choice addition, referred the booklet neither side suggests prosecutor about the booklet closing argument, Wainwright in its tes stage to elicit setting tified he did to the beliefs not subscribe religion. prose than gangs rather context entire the booklet. In the hear as much at the habeas cutor admitted say proceeding, improper we cannot two membership in a ing. gang A defendant’s questions display of the booklet’s cover cannot as bad character evidence be raised phase fatally and ren infected capital proceeding of a penalty phase fundamentally it dered unfair. Anderson is relevant to the when the evidence (8th Goeke, Cir.1995). any specific mitigating rebuttal evidence. grant thus the district court’s reverse Delaware, 159, 165-69, Dawson v. petition 1098-99, 117 L.Ed.2d 309 112 S.Ct. issue, “Bloods” and affirm the court’s district Delo, (1992); O'Neal Wainwright’s petition. denial of the rest of — -, Cir.), *9 (1995). Here, gang 133 L.Ed.2d 78 HENLEY, Judge, Circuit Senior any membership not relevant to rebut was concurring dzibitante. mitigating any or for Wainwright’s evidence opinion I concur in the well-written credible, There no ad purpose. other was panel, although I have about one reservations that crime missible evidence aspect of our decision. related, Wainwright belonged gang panel’s handling any any membership agree fully I gang, gang with to by appellant Wainwright Wainwright’s testimony the issues raised impeach gave all of Judge Eisele Wain- appeal. thorough airing I very wright’s claims a rejecting not err in that he did

am satisfied

them. however, troubled, by to our decision

I am prosecutor’s on the one issue —the

reverse gang to mem-

attempts to link by any evidence—as

bership supported Judge granted habeas relief.

to which he

Eisele, very well-qualified experienced searching inquiry judge, conducted He Wainwright’s claims of error.

to all of opportunity testimony and had an

heard credibility first of the witnesses

evaluate the 96-page Judge Eisele then wrote

hand. reasoning for explaining in detail his

opinion granting

denying of the claims but most sentencing hearing

Wainwright a new be- improper refer-

cause of the gangs. determination that

ences to His is one

prosecutor’s questions tainted ordinarily respect. should

that I believe we

Moreover, prose- record is clear that the intentionally trying inject the

cutor was Judge and as both

gang into the case issue found, this was and this court have

Eisele I prosecutorial misbehavior

improper. Such accept.

am reluctant to concur, with

I have nonetheless decided

reservations, against the evidence say, great I cannot

Wainwright was

balance, sentencing proceeding was that the

fundamentally unfair.

Jerry HAYNES, Appellee, COMPANY;

BEE-LINE TRUCKING McCormick, Appellants.

Richard 95-1591.

No. Appeals, Court

United States

Eighth Circuit. 16, 1995. Nov.

Submitted April

Decided