Henderson v. Norris

• Decision Date: 09 July 1997
• Docket Number: No. 96-2709,96-2709
• Citation: 118 F.3d 1283
• Parties: Wilburn L. HENDERSON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1283

118 F.3d 1283

Wilburn L. HENDERSON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 96-2709.

United States Court of Appeals,

Eighth Circuit.

Submitted April 16, 1997.

Decided July 9, 1997.

John Wesley Hall, Jr., Little Rock, AR, argued, for appellant.

Teena Lynn White, Little Rock, AR, argued, for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge and BEAM, Circuit Judge.

BEAM, Circuit Judge.

Wilburn Henderson appeals the district court's ¹ denial of his petition for a writ of habeas corpus. We affirm.

I. BACKGROUND

Three times Wilburn Henderson has been tried for the murder of Willa Dean O'Neal and three times he has been convicted and sentenced to death. The first conviction was voided as a result of juror exposure to pretrial publicity. The second conviction was invalidated when this court affirmed the district court's grant of habeas corpus relief. Henderson v. Sargent, 926 F.2d 706 (8th Cir.1991), modified, 939 F.2d 586 (8th Cir.1991). The third conviction is the subject of this appeal.

In November 1980, Ms. O'Neal was found shot to death behind the counter of the family furniture store in Fort Smith, Arkansas. She was murdered between approximately 1:40 and 2:00 p.m. The cash register was found open and empty. Suspicion fell on Henderson when a folded sheet of yellow paper with two telephone numbers, the name of a real estate agent, and a description of a lake cabin was found on the floor. Police contacted the real estate agent who explained that Henderson had failed to keep an appointment to discuss the cabin. Further investigation revealed that Henderson had taken a .22 caliber pistol out of pawn a few days before the murder, and had returned it after the murder. Ballistic testing showed that Ms. O'Neal was killed by a .22 caliber pistol, but could not conclusively match the bullet to Henderson's gun. Aware he was a suspect, Henderson fled to Houston where he was later arrested despite attempts to alter his appearance. Arkansas police questioned Henderson in Houston. Henderson admitted that he was at the murder scene but claimed he had only witnessed the murder. He later recanted the statement, claiming it was involuntary.

At his first two trials, Henderson's defense was that he had been in Springdale, Arkansas, at 12:00 noon the day of the murder and could not possibly have driven to Fort Smith in time to commit the crime. Both juries convicted Henderson of capital murder.

After his second conviction, Henderson filed a section 2254 petition contending that his trial counsel had failed to investigate and present evidence implicating the victim's husband, Bob O'Neal, as the killer. That evidence included Bob O'Neal's history of violence and marital infidelity, Willa O'Neal's desire for a divorce, and Bob O'Neal's suspicious behavior on the day of the murder. For example, on this particular day, contrary to usual routine, Mr. O'Neal insisted that his daughter Glenda work with him rather than with her mother at the store. They returned to the store around noon that day, and left at about 1:40 p.m. As they were leaving, Mr. O'Neal told Glenda and her husband to stay in the truck while he went back into the store for a few minutes. The three then left, but as soon as they reached their destination Mr. O'Neal sent Glenda back to the store, first to get soda and then (when she bought the drink elsewhere) to get electrical tape. Glenda returned to the store and discovered her mother's body. When Glenda arrived with the police, Mr. O'Neal exclaimed without being told what happened: "Someone has robbed and killed my--murdered my wife!"

The district court held an extensive evidentiary hearing, which included the testimony of Clarence Wilson, a part-time employee of the O'Neals. The court then issued a writ of habeas corpus. We affirmed, finding that Henderson's counsel had been constitutionally defective in the second trial by failing to develop this evidence and bring it before the jury. Henderson v. Sargent, 926 F.2d at 712.

Henderson was assigned new counsel and was tried again. This time, the defense further explored the evidence implicating Mr. O'Neal, including all of the facts recited above. After the defense's presentation, the government called Wilson as a rebuttal witness. Wilson testified that he checked with Ms. O'Neal between 10:00 and 11:00 a.m. on the day of the murder, to see if she had work for him. He further testified that he returned to the store around 1:00 p.m. and that Ms. O'Neal told him that her family had stopped for lunch but had left. Wilson testified he then left the store and did not return until after the murder.

Wilson's testimony that he had seen Ms. O'Neal alive after her husband left the store essentially eviscerated defense contentions that Mr. O'Neal was the killer. On cross-examination, defense counsel asked why Wilson had only mentioned being at the store twice and not three times at the habeas hearing two years before. Wilson responded that it must have "slipped [his] mind." Trial Tr. at 1565. On redirect examination, the state referred to a statement Wilson made to police shortly after the murder, that detailed all three trips to the store. Over defense objection, the trial court received the evidence. The jury convicted Henderson again.

After exhausting his state remedies, see Henderson v. Arkansas, 311 Ark. 398, 844 S.W.2d 360 (1993) and Henderson v. Arkansas, No. CR 93-849, 1994 WL 91313 (Ark. Mar.14, 1994), Henderson filed this section 2254 petition. The district court denied relief; Henderson appeals.

II. DISCUSSION

A. Wilson's Testimony

Henderson argues that Wilson's testimony denied him due process and rendered his third trial fundamentally unfair, meriting habeas corpus relief. Specifically, Henderson complains that the trial court: (1) improperly allowed the state to present Wilson's testimony in rebuttal; and (2) erred in allowing reference to Wilson's police statement.

On habeas review, evidentiary errors are only relevant to the extent that the presentation or admission of particular proof infringed on "a specific constitutional protection or was so prejudicial as to deny due process." Hobbs v. Lockhart, 791 F.2d 125, 127 (8th Cir.1986) (quotation omitted). Only evidentiary errors that are so grossly prejudicial that they fatally infect the entire trial, preventing it from being fundamentally fair, will justify habeas corpus relief. Rainer v. Department of Corrections, 914 F.2d 1067, 1072 (8th Cir.1990). To make this determination, we "review the totality of the facts in the case and analyze the fairness of the particular trial under consideration." Hobbs, 791 F.2d at 128.

Henderson alleges that he was denied a fair trial and due process when the state presented Wilson's testimony in rebuttal rather than in its case-in-chief. We agree with the district court that the timing of Wilson's testimony at trial was not fundamentally unfair. Under Arkansas procedural rules, the only significant difference between testimony in the state's case-in-chief and rebuttal is that rebuttal witnesses need not be disclosed to the defense prior to trial. Ark. R.Crim. P. 17.1(a)(i). The Arkansas courts have reversed convictions procured with testimony by witnesses about which the defense was not notified on the grounds that they were not true rebuttal witnesses. E.g., Birchett v. Arkansas, 289 Ark. 16, 708 S.W.2d 625, 626 (1986). However, here, Wilson's identity was hardly unknown to the defense. Not only had Wilson testified at Henderson's first habeas corpus hearing, he had been subpoenaed by the defense for the third trial. Henderson was not subject to unfair surprise by the state's presentation of Wilson in rebuttal, and was therefore not denied due process by the timing of his testimony.

Likewise, we see no fundamental unfairness in the prosecution's reference on redirect to Wilson's police statement. The trial court overruled defense objections to the questions and allowed the testimony as evidence of a prior consistent statement. Ark. R.E. 801(d)(1)(ii). Henderson asserts that the trial court erred in its interpretation of state evidentiary rules, and claims the error was of constitutional magnitude. He characterizes counsel's cross-examination as merely an attack on Wilson's memory, and argues that a prior consistent statement can only be admitted when a witness has been attacked as having a motive to lie.

As an initial matter, Henderson has not even established that state evidentiary rules proscribed reference to Wilson's statement. The Arkansas Supreme Court has held that attacking the accuracy, even without impugning the integrity, of a witness's testimony, allows admission of a prior consistent statement under 801(d)(1)(ii). Frazier v. Arkansas, 323 Ark. 350, 915 S.W.2d 691, 693 (1996).

More fundamentally, Henderson's assertion amounts to nothing more than reargument of the state law question he presented to the Arkansas Supreme Court. These positions were rejected twice by that court. Henderson has not made any additional showing that the introduction of this evidence violated his constitutional rights or was flagrantly unjust. We fail to see how the reference to Wilson's statement was fundamentally unfair, as the Federal Rules of Evidence provide for its admission. See United States v. Coleman, 631 F.2d 908, 914 (D.C.Cir.1980) ("Even where the suggestion of contradiction is only imputation of an inaccurate memory, a prior consistent statement is admissible to rebut the inference.") (citing cases). Henderson makes no claim that Wilson's police statement, made shortly after the murder, was false or in any way unreliable. Reference to the statement did not constitute grossly unfair prejudice in this case. The district court correctly withheld habeas relief on these claims.

B. Ineffective Assistance of Counsel

Henderson complains that his trial counsel was ineffective in...