Wainwright v. Lockhart

• Decision Date: 08 April 1996
• Docket Number: 94-3528EA,Nos. 94-3525E,s. 94-3525E
• Parties: Kirt Douglas WAINWRIGHT, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee. Kirt Douglas WAINWRIGHT, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1226

80 F.3d 1226

Kirt Douglas WAINWRIGHT, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction,

Appellee.

Kirt Douglas WAINWRIGHT, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellant.

Nos. 94-3525EA, 94-3528EA.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 11, 1995.

Decided April 8, 1996.

Appeals from the United States District Court for the Eastern District of Arkansas, Garnett T. Eisele, Judge.

Walter C. Lambert, Little Rock, AR, argued, for appellant.

Kelly K. Hill and Olan W. Reeves, Little Rock, AR, argued, for appellee.

Before FAGG and MAGILL, Circuit Judges, HENLEY, Senior Circuit Judge.

FAGG, Circuit Judge.

Kirt Douglas Wainwright, an Arkansas death row inmate, appeals the district court's partial denial of his habeas petition. We affirm. The State of Arkansas cross-appeals the partial grant of habeas relief. We reverse.

Wainwright was convicted of killing Barbara Smith, an attendant at the Best Stop convenience store in Prescott, Arkansas. Ms. Smith was shot during a robbery on July 29, 1988. Although no one saw the murder, witnesses saw Wainwright run out of the store after the robbery and jump into a pink Cadillac. A short time later, police saw the pink Cadillac and pulled it over. Andrew Woods was driving the car and Dennis Leeper was riding in the front seat. Wainwright was in the back seat with a Best Stop money bag containing cash and a gun. The State charged all three men with capital murder.

At Wainwright's trial, the State presented evidence that Wainwright went into the Best Stop alone and committed the robbery and murder while Leeper and Woods waited in the car. Wainwright argued Leeper was the triggerman. After hearing the evidence, an Arkansas jury convicted Wainwright of capital felony murder. Ark.Code Ann. § 5-10-101(a)(1) (Michie 1987). At the conclusion of the penalty phase, the trial court submitted special verdict forms to the jury. On these forms, the jury unanimously found three aggravating circumstances existed at the time of the murder: Wainwright had previously committed another felony involving a threat of violence to another person, the murder was committed to avoid or prevent arrest, and the murder was committed for pecuniary gain. The jury also unanimously found two mitigating circumstances: Wainwright had no history of homicide before the murder of Ms. Smith, and Wainwright did not resist when arrested for murdering her. The jury then unanimously found the aggravating circumstances outweighed any mitigating circumstances and justified a sentence of death.

The Arkansas Supreme Court affirmed on direct appeal. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990) (Wainwright I ), cert. denied, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991). State postconviction relief was denied, Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992) (per curiam) (Wainwright II ), and Wainwright filed this habeas petition in federal district court. After conducting evidentiary hearings, the district court denied Wainwright relief on all except one of his claims: that the State violated Wainwright's First and Fourteenth Amendment rights by questioning him about a "Blood handbook" during the penalty phase. Wainwright v. Norris, 872 F.Supp. 574 (E.D.Ark.1994) (Wainwright III ). The district court ordered the State to conduct a new sentencing trial or to convert Wainwright's sentence to life imprisonment without parole. Id. at 620. Wainwright now appeals the denial of his other claims for relief, and the State cross-appeals the partial grant.

Relying on Lewis v. Erickson, 946 F.2d 1361 (8th Cir.1991), Wainwright first contends witness Octavia Hardamon Gamble's partial recantation of her trial testimony is newly discovered evidence warranting habeas relief because the testimony would probably change the result on retrial. During Wainwright's trial, Gamble testified she was inside the Best Stop near the time of the murder and saw Wainwright, whom she had known for several years, leave the store with a gun in his hand. On cross-examination, Wainwright's attorneys accused Gamble of having an affair with Wainwright and suggested she had reason to spite him because he had told Gamble's husband about the affair, but Gamble denied any romantic relationship with Wainwright or reason to fabricate her testimony. Nevertheless, Sheila Butler, a friend of Gamble's, testified that Gamble had romantic encounters with Wainwright. At the habeas evidentiary hearing, Gamble admitted that she had been romantically involved with Wainwright and had lied at trial because she was newly married, embarrassed, and ashamed. Gamble reaffirmed that she saw Wainwright leave the Best Stop with a gun in his hand, however. See Wainwright III, 872 F.Supp. at 598-601.

In our view, evidence of Gamble's untruthfulness about the affair would not likely produce an acquittal on retrial, Lewis, 946 F.2d at 1362, or a life sentence at the penalty phase. At the habeas hearing, Gamble reaffirmed the material part of her trial testimony: she saw Wainwright run out of the Best Stop with a gun. Butler's trial testimony already contradicted Gamble's trial testimony about her relationship with Wainwright. Most importantly, even without Gamble's testimony that she saw Wainwright inside the Best Stop with a gun, substantial circumstantial evidence shows Wainwright committed the robbery and murder himself. See Wainwright I, 790 S.W.2d at 422; Wainwright III, 872 F.Supp. at 580-81. Several witnesses who arrived just after the murder took place testified they saw one black man run out of the Best Stop. A witness testified the man was wearing red and white flowered shorts and another testified he jumped into a pink Cadillac that sped away. A young man who knew Wainwright through family connections testified he was walking by the Best Stop at the time of the murder and saw Wainwright run out of the store. The young man was sure the fleeing man was Kirt Wainwright because he saw Wainwright's face. Moments later, the young man saw a pink Cadillac speed by him. The young man testified he saw Wainwright in the back seat and two other people in the car. When police stopped the pink Cadillac soon after the murder, Leeper and Woods were in the front, and Wainwright was in the back seat with the Best Stop money bag and a gun. Ballistics tests revealed the gun could have been the one used to kill Ms. Smith. Wainwright was wearing red and white flowered shorts when apprehended and the shorts were later identified as the ones the witness had seen on the man running from inside the Best Stop. Neither Leeper nor Woods was wearing red shorts. Given this substantial circumstantial evidence against Wainwright, we cannot say the jury would probably have reached a different conclusion in either the guilt or penalty phase had Gamble testified truthfully about her relationship with Wainwright. Thus, Wainwright is not entitled to habeas relief on this ground.

Wainwright next asserts his trial counsel was ineffective in failing to offer the testimony of Dr. Irwin Stone, a ballistics expert. According to Wainwright, Stone's testimony would have shown Leeper, rather than Wainwright, was the triggerman. Evidence at trial showed Ms. Smith's killer had the gun in his left hand when he fired the lethal shot. About three hours after the murder, gunpowder residue tests were performed on Wainwright, Leeper, and Woods. No gunpowder residue was found on Woods or Wainwright, who is left-handed. Leeper, who is right-handed, tested positive for gunpowder residue on his left hand, however, and there was more residue on the back of his hand than on the front.

To explain these results, the State argued Wainwright had rubbed the gunpowder residue off his hands sometime after he shot Ms. Smith, and Leeper had handled the gun sometime after the murder. See Wainwright III, 872 F.Supp. at 585-86. The State's ballistics expert, Gary Lawrence, testified at trial that a person could get gunpowder residue on his or her hands by firing a weapon, handling a weapon that has been fired, or being near a weapon when it is fired. Lawrence also testified that vigorous activity or washing with water can remove the residue. At the habeas hearing, Dr. Stone testified that the most likely way to get gunpowder residue on the back of the hand is by firing a weapon and it is unlikely that handling a gun would put residue there. Thus, Dr. Stone's testimony cast some doubt on the State's theory. Nevertheless, Dr. Stone confirmed that gunshot residue can be easily removed by washing or rubbing, and stated that even normal activity may remove it within three hours.

To establish ineffective assistance of trial counsel, Wainwright must show the decision not to call Dr. Stone was professionally deficient, and a reasonable probability that the result of the guilt phase or penalty phase would have been different had Dr. Stone testified. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). At the habeas hearing, Wainwright's trial attorney testified he had interviewed Dr. Stone before the trial but decided Stone's testimony was unnecessary because it was consistent with Lawrence's testimony. The district court concluded the attorney's decision not to call Dr. Stone was professionally deficient. Wainwright III, 872 F.Supp. at 586. Nevertheless, the district court was not convinced a different result in the guilt or penalty phase was reasonably probable if Dr. Stone had testified at trial. Id. at 586-87. We agree. In light of the circumstantial evidence indicating Wainwright was the lone robber and murderer, supra at 1229-30, we do not believe the jury would have found otherwise had Dr. Stone testified that firing a gun was the most likely way for Leeper to get gunpowder residue on the back of his hand. In sum, our confidence in the outcomes of the guilt and penalty phases...