Barrett v. Acevedo
| Decision Date | 28 July 1998 |
| Docket Number | 96-2702,Nos. 96-2699,s. 96-2699 |
| Citation | 143 F.3d 449 |
| Parties | 49 Fed. R. Evid. Serv. 557 Bryan Kirby BARRETT, Appellee/Cross-Appellant, v. Gerardo ACEVEDO, Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas D. McGrane, Des Moines, IA, argued (Thomas J. Miller, on the brief), for Appellant/Cross-Appellee.
Nicholas Critelli, Des Moines, IA, argued (Lylea D. Critelli, on the brief), for Appellee/Cross-Appellant.
Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
Bryan Kirby Barrett has been twice tried for and convicted of two counts of murder, and the Supreme Court of Iowa has twice heard his appeals. After Barrett's first conviction, the court granted him a new trial. See State v. Barrett, 401 N.W.2d 184, 189 (Iowa 1987). At the second trial, Barrett was again convicted, and this time his conviction was affirmed by the Supreme Court of Iowa. See State v. Barrett, 445 N.W.2d 749, 754 (Iowa 1989). Barrett then sought a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1994), from the federal district court, which granted the writ on the ground that the trial court erroneously admitted evidence in violation of Barrett's constitutional rights. The Attorney General of Iowa now appeals the granting of the writ and asserts that the evidence at issue was properly admitted. Barrett cross-appeals and contends that the Supreme Court of Iowa improperly relied on his reversed prior conviction in his second appeal.
We hold that the district court: (a) properly granted the writ of habeas corpus based on violation of Barrett's Sixth Amendment right of confrontation with respect to the hearsay testimony of the State's expert witness; (b) erroneously held that admitting Barrett's journal into evidence violated his rights under both the First Amendment and the Fifth Amendment; (c) properly ruled that The Antiterrorism and Effective Death Penalty Act of 1996 is inapplicable to this pending case; and (d) erroneously held that Barrett failed to exhaust his state remedies regarding his claim that the state court's reliance on his reversed prior conviction was improper, but hold that the issue is now moot.
On February 23, 1979, the bodies of two young women, Cynthia Kay Walker and Carol Ann Willits, were found several miles apart in rural Iowa. 401 N.W.2d at 185. Walker was Barrett's girlfriend at the time of her death, and Barrett had previously had a romantic relationship with Willits. Walker had been shot three times and was found lying in the middle of a gravel road. Willits had been shot once through the right temple and was found seated behind the wheel of a car on a blacktop road. A note in Willits' handwriting 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." Id. There was also a three-page postmarked letter in the car addressed to Willits from Barrett informing her that he did not reciprocate her romantic feelings for him. A valentine card in an envelope addressed to Barrett from Walker was also found in the car, in addition to strands of Walker's hair. Id.
According to Barrett, his former lover Willits had caught him in flagrante delicto with Walker. He surmised that Willits killed Walker and then committed suicide after discovering Barrett and Walker together.
The State did not charge Barrett with murder until 1984. The State alleged that Barrett murdered Walker to obtain life insurance proceeds from a policy for which he was the insured and he was the beneficiary. The State contended that Barrett also killed Willits and left false clues to give the impression that Willits murdered Walker and then committed suicide. Id.
Two journals written by Barrett were received into evidence at his first trial. One journal was undated, was thirteen or fourteen pages, and described, among other things, a scheme to kidnap and murder a newspaper carrier. Id. at 186. The other journal covered April through July 1977, was 143 pages, and described Barrett's feelings about a pending divorce and child custody dispute. It also discussed various schemes to harm or kill his wife and others. Id. at 185-86. At one point, the journal suggested that a reason for Barrett to kill his wife was for money. Although the journal did not mention life insurance, the State offered evidence at trial that Barrett had forged his wife's signature on an application for life insurance and obtained a policy for which he was the beneficiary two months before the first dated journal entry. Id. at 186. Barrett had not met either Walker or Willits when he wrote this journal, and they are not mentioned in the journal.
At Barrett's first trial, the jury found him guilty of two counts of first degree murder for the deaths of Willits and Walker. On appeal, the Supreme Court of Iowa held that the trial court erroneously admitted the shorter journal because it was used for the improper purpose of establishing Barrett's alleged propensity to commit the crimes. The court reversed and remanded for a new trial. Id. at 189.
At Barrett's second trial, Vincent DiMaio, a physician and forensic pathologist, testified for the prosecution that Willits did not commit suicide but instead was murdered. 445 N.W.2d at 751. On redirect examination, Dr. DiMaio testified that it was common practice for forensic pathologists to discuss cases with colleagues when coming to a professional conclusion. He was then asked whether he "found any of your colleagues who has given you persuasive reason to disregard your opinion that this is a homicide as opposed to a suicide in the death of Carol Willits?" Id. Over Barrett's hearsay objection, DiMaio was allowed to respond and stated "No, sir."
Barrett was again convicted of the double murders, and the Supreme Court of Iowa affirmed the conviction. Barrett then sought a writ of habeas corpus from the federal district court and asserted that the state court erred in admitting the second longer journal, allowing DiMaio's hearsay testimony, refusing a change of venue, and relying on Barrett's overturned prior conviction. The district court granted the writ and held that the trial court erroneously admitted Barrett's journal and DiMaio's hearsay testimony. The State appeals the granting of the writ, and Barrett cross-appeals the issue of whether the Supreme Court of Iowa properly relied on his overturned prior conviction.
The Supreme Court of Iowa disapproved DiMaio's testimony about his colleagues' views on Willits's death, but nevertheless upheld Barrett's conviction because it found that the testimony did not affect the jury's finding of guilt. Id. at 754. 1 The federal district court, in considering Barrett's petition for a writ of habeas corpus, however, ruled that such testimony violated Barrett's Sixth Amendment right to confront his accusers and his Fourteenth Amendment right to due process. 2 The State now argues that Barrett's Sixth Amendment challenge was procedurally defaulted and, on the merits, that DiMaio's testimony did not violate the confrontation clause of the Sixth Amendment.
We apply a de novo standard of review to the issue of whether Barrett has exhausted his state remedies. See Tower v. Phillips, 7 F.3d 206, 210 (11th Cir.1993); Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir.1991). As to the exhaustion requirement, it is well-settled that:
If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.
Duncan v. Henry, 513 U.S. 364, 365-67, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam); see also Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Accordingly, "[a] habeas petitioner is required to pursue all available avenues of relief in the state courts before the federal courts will consider a claim." Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir.1995), cert. denied, 516 U.S. 1056, 116 S.Ct. 728, 133 L.Ed.2d 679 (1996). "If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is a procedural default." Id.
The petitioner must "fairly present" both the facts and the legal theory to the state court to satisfy the exhaustion requirement. "In this circuit, to satisfy the 'fairly presented' requirement, [petitioner] was required to 'refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent constitutional issue' in the ... state court." Abdullah v. Groose, 75 F.3d 408, 411-12 (8th Cir.) (quoting Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir.1993)), cert. denied, 517 U.S. 1215, 116 S.Ct. 1838, 134 L.Ed.2d 941 (1996).
In examining Barrett's briefing and the opinions of the state court, we must bear in mind that "[a]lthough the constitutional substance of a claim must be apparent, it is not necessary to cite 'book and verse on the federal constitution.' " Wyldes v. Hundley, 69 F.3d 247, 251 (8th Cir.1995) (quoting Satter v. Leapley, 977 F.2d 1259, 1262 (8th Cir.1992)), cert. denied, 517 U.S. 1172, 116 S.Ct. 1578, 134 L.Ed.2d 676 (1996). It is the "substance" of his federal claim that must be fairly presented to the state court. See Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam). In Barrett's state appellate brief, he...
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