Barrett v. Acevedo

• Decision Date: 09 March 1999
• Docket Number: 96-2702,Nos. 96-2699,s. 96-2699
• Citation: 169 F.3d 1155
• Parties: 51 Fed. R. Evid. Serv. 368 Bryan Kirby BARRETT, Appellee/Cross-Appellant, v. Gerardo ACEVEDO, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1155

169 F.3d 1155

51 Fed. R. Evid. Serv. 368

Bryan Kirby BARRETT, Appellee/Cross-Appellant, v. Gerardo ACEVEDO, Appellant/Cross-Appellee.

Nos. 96-2699, 96-2702.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 23, 1998.

Decided March 9, 1999.

Nicholas Critelli, Des Moines, IA, argued (Lylea D. Critelli, on the brief), for Appellee/Cross-Appellant.

Thomas D. McGrane, Assistant Attorney General, Des Moines, IA, argued (Thomas J. Miller, on the brief), for Appellant/Cross-Appellee.

Before BOWMAN, Chief Judge, McMILLIAN, RICHARD S. ARNOLD, JOHN R. GIBSON, FAGG, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, and KELLY, ¹ Circuit Judges.

BEAM, Circuit Judge.

Gerardo Acevedo, on behalf of the State of Iowa (the State), appeals the district court's grant of habeas corpus relief under 28 U.S.C. § 2254 to Bryan Kirby Barrett. We reverse.

I. BACKGROUND

Barrett has been twice tried for, and twice convicted of, the murders of two young women. The Iowa Supreme Court set aside his first conviction and granted him a new trial on the ground that certain evidence had been improperly admitted. See State v. Barrett, 401 N.W.2d 184, 189 (Iowa 1987) (Barrett I ). Barrett was again tried and convicted. His second conviction was affirmed by the Iowa Supreme Court. See State v. Barrett, 445 N.W.2d 749 (Iowa 1989) (Barrett II ). Barrett then sought a writ of habeas corpus under 28 U.S.C. § 2254. The district court granted the writ, finding that Barrett's First and Fifth Amendment rights had been violated by the trial court's admission of a journal and that Barrett's Sixth Amendment right to confront witnesses had been violated by the trial court's admission of hearsay testimony.

The State appealed to this court and Barrett cross-appealed, contending that the Iowa Supreme Court had improperly relied on the prior reversed conviction in making findings in his second appeal. A panel of this court reversed the district court on the First and Fifth Amendment issues but agreed with the district court that Barrett's Sixth Amendment Confrontation Clause right had been infringed. See Barrett v. Acevedo, 143 F.3d 449 (8th Cir.1998) (rehearing en banc granted, opinion vacated July 28, 1998). The State then sought a rehearing and the matter was reheard en banc. We now reverse the district court. ²

The evidence adduced at Barrett's second trial showed that the bodies of two young women, Cynthia Kay Walker and Carol Ann Willits, were found several miles apart in rural Iowa on the morning of February 23, 1979. Both had been shot with a .38 caliber weapon. Cynthia Walker had been shot three times and was found dead on a gravel road. Carol Ann Willits had been shot once through the temple and was found in the front seat of her car on a nearby blacktop road. She was blindfolded and was wearing men's work gloves. The gun was found in her lap.

Bryan Kirby Barrett had been acquainted with both women. Cynthia Walker was Barrett's girlfriend at the time of her death, and Carol Ann Willits may also have been dating him, although her friends testified that the two were only friends. A note in Carol Ann Willits's handwriting, torn from a spiral steno notebook, was found in the car near her body. The note was addressed to Barrett and stated in part, "I'm sorry I've caused you so much trouble," and "I hope you find your peace/I found mine." A torn-up rough draft of the note, also from a spiral steno notebook, was found in the trash at Carol Willits's apartment. Several crossed-out notations appear in the margins of the reconstructed rough draft. These include several misspellings of Carol's name, i.e., "Kayrol," "Caryl." Curiously, a post script added to the rough draft was also added to the final draft as a post script, not incorporated into the body of the letter. The remnant of yet another draft of the letter was also found in the car--a torn corner, still attached to the spiral notebook. The rest of that draft was never found.

Also found in the car was a three-page postmarked letter from Barrett to Willits. The letter informed her that he did not reciprocate her romantic feelings for him. The pages of the letter, however, had no cancellation impressions on them, as if they were put in the envelope after it had been mailed. A valentine card in an envelope addressed to Barrett from Cynthia Walker was also found in the car, as were strands of Walker's hair.

The defense theory was that Willits was romantically involved with Barrett and had caught him in a compromising situation with Walker. In a jealous rage, Willits was to have killed Walker and then committed suicide. The State's theory, on the other hand, was that Barrett had killed Walker to obtain life insurance proceeds from a policy he had purchased on Walker's life. The State further contended that Barrett had left false clues to give the impression of murder/suicide by Willits.

The evidence showed that Barrett had taken out a life insurance policy on Cynthia Walker shortly before her death. He was the beneficiary on the $50,000 policy, which had a double indemnity clause in the case of a nonnatural death. The State also produced evidence that Barrett had once forged his ex-wife's signature on an application for life insurance and had then plotted to kill her with money as his motive. This scheme was shown through a 143-page journal that was received into evidence at the second trial. ³ The journal, which had been written in 1977 had been inadvertently left by Barrett at a fast food restaurant and had been turned over to police. It described Barrett's feelings about a pending divorce and child custody dispute and discussed various schemes to harm or kill his wife and others.

The State also produced evidence that, although Willits had purchased the gun, she had done so at Barrett's behest and with his money. Significantly, the State showed that Willits had applied for a permit for the weapon before she had any motive to kill Cynthia Walker, that is, before she ostensibly found Barrett with Walker. ⁴ There was also evidence that the blindfold found on Willits was made from material matching a pillowcase found in Barrett's parents' home. In addition, there was evidence that two cars had been seen on the blacktop road on the night of the murders-one matching the description of Willits's car and one with rectangular taillights, similar to those on Barrett's parents' car.

The evidence also portrayed Carol Ann Willits as an unlikely murderer. On the night of the murder, she had prepared a spaghetti dinner for some former coworkers. The women testified that she was in a good mood, showed them family Christmas pictures and spoke excitedly of a trip to Ireland she was planning with friends. Her friends testified that she was a helpful, cheerful woman who regarded Barrett as a friend. Evidence showed that Willits had received a phone call from Barrett that night.

Expert testimony was presented on the issue of whether Willits's death was a suicide or a homicide. Dr. Vincent DiMaio, a physician and forensic pathologist, testified that, in his opinion, Willits had been murdered. He based his opinion on six factors: (1) the presence of a blindfold, which he found highly unusual in a suicide; (2) the knot on the blindfold was tied on the left by a right-handed person; (3) Willits was wearing large cotton work gloves, which would have made it difficult for her to tie the knot and which would have become bunched in the trigger of the gun; (4) Willits's hand was found in her lap with the gun on top of her hand when the recoil of the gun should have sent the hand and the gun to the right; (5) the path of the bullet was straight, when in most suicides the path of the bullet is at an angle; and (6) there was an intact paper bag on the seat which should have been flattened by the gun. He emphasized that each of these factors, standing alone, could be discredited, but that his opinion was based on the presence of all six factors.

On cross-examination, Dr. DiMaio conceded that he had formed his opinion on the first day he was contacted by authorities. This exchange followed:

Q. And you reached that judgment on the 29th day of November and you haven't changed it, have you?

A. Nothing has been presented to me since then to change the opinion.

Q. Then you're not about to. You're 99 percent right and you're not about to change your opinion, are you, Doc?

A. I change my opinions when you present material to me to show that I am wrong and then I'll change my opinion.

Trial Transcript at 617.

To counter the implication that Dr. DiMaio was "so inflexible or dogmatic that [he] would never change [his] opinion if presented with contrary evidence," Dr. DiMaio was asked, on redirect examination, whether it was common practice for forensic pathologists to discuss cases with colleagues when coming to a professional conclusion. Id. at 619. He answered in the affirmative, noting that such discussions helped avoid a "God complex." Id. Dr. DiMaio was then asked if any of his colleagues "[had] given [him] persuasive reason to disregard [DiMaio's] opinion." Id. at 622. Over Barrett's hearsay objection, Dr. DiMaio was allowed to answer and stated, "No, sir." ⁵ Id. at 622.

Three other expert witnesses testified that the death was a suicide. Each of these experts discredited the factors that Dr. DiMaio relied on in forming his opinion. Although each factor was discredited singly, there was no refutation of the factors in combination.

II. DISCUSSION

A. Applicability of the Antiterrorism and Effective Death Penalty Act

First, the parties dispute the applicability of a provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to Barrett's habeas petition. The State contends that the Act's amended standard for granting habeas relief applies here, see 28 U.S.C. § 2254(d)(1), while Barrett takes an opposing view. In the district court's order certifying probable cause...