Wainwright v. Norris, PB-C-92-211.

• Decision Date: 29 September 1994
• Docket Number: No. PB-C-92-211.,PB-C-92-211.
• Parties: Kirt Douglas WAINWRIGHT, Petitioner, v. Larry NORRIS, Director Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

872 F. Supp. 574

Kirt Douglas WAINWRIGHT, Petitioner, v. Larry NORRIS, Director Arkansas Department of Correction, Respondent.

No. PB-C-92-211.

United States District Court, E.D. Arkansas, Western Division.

September 29, 1994.

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John W. Hall, Jr., Walter C. Lambert, John Wesley Hall, Jr., P.C., Little Rock, AR, for petitioner.

Olan W. Reeves, Atty. General's Office, Little Rock, AR, for respondent.

MEMORANDUM OPINION AND ORDER

EISELE, District Judge.

I. BACKGROUND

On July 29, 1988, at approximately 8:15 p.m., Ms. Barbara Smith, an attendant at the Best Stop in Prescott, Arkansas, was fatally shot once in the top of the head. Nobody saw the actual shooting. Mr. Kirt Wainwright was charged with capital murder for the killing of Ms. Smith.

At Mr. Wainwright's trial, Ms. Lavon Jackson testified that she had stopped at the Best Stop at approximately the same time on the night in question. Before turning to put gas in her car she noticed a black man standing at the end of the counter inside the Best Stop. A little boy came out and told Ms. Jackson that there was a lady on the floor. Ms. Jackson went in, saw Ms. Smith on the floor, and called the police. Ms. Jackson did not recall any specific physical characteristics of the black man that she had seen at the counter. She did recall seeing Mr. Sam Gatlin, a black woman, a white woman, a white man, and the white boy who had first told her about the woman on the floor.

Mr. Sam Gatlin testified that he had also been at the Best Stop at the relevant time. He had pulled up to the Best Stop and let his passenger, Pauline Henagan, out in front of the store. He noticed Octavia Hardamon pulling up at about the same time and then leaving. Mr. Gatlin then drove over to the air pump to get some air in his car tire. He heard someone running down the sidewalk as he filled his tire. He looked up and saw a black man with his hand behind him jump over the air hose, get into a pink Cadillac, and drive off. He could not tell if there were others in the car. Mr. Gatlin pulled around, got some gas, and entered the store with Ms. Jackson. There was a white male in the store who told Mr. Gatlin that there had been a murder, and there was a white boy with the man. Later that night, Mr. Gatlin went to Hope to identify a pink Cadillac as the same one that he had seen at the Best Stop.

Ms. Pauline Henagan testified that she had gone to the Best Stop with Mr. Gatlin that evening. As she entered the store, a young, tall, slim black man was exiting the store. She testified that he was wearing red and white flowered shorts and a red top. He had something behind his back. She testified that when she went in the store, she saw Octavia Hardamon already inside, but that Octavia left at approximately the same time that Ms. Henegan entered the store. Besides herself, Mr. Gatlin, and Ms. Hardamon, Ms. Henegan testified that a white man, a white boy, and a white woman were at the Best Stop that evening. Ms. Henagan later identified a pair of shorts shown to her by the police as the same ones she had seen on the young black man she saw exiting the Best Stop as she entered.

Mr. Donald Ray Geid testified that he and his son John, who at the time was about ten years old, stopped at the Best Stop that night. He saw Sam Gatlin and a woman by the gas pumps. He went inside with Mr. Gatlin and the woman and discovered Ms. Smith on the floor. He did not see any black males leaving the store before he entered.

Ms. Octavia Hardamon testified that she stopped at the Best Stop that evening to get some candy. She heard a noise while she was looking at the candy, but didn't see anyone. She looked up a few seconds later and saw Kirt Wainwright walking out the door with a black pistol in his hand. She panicked and left the store, passing Pauline Henagan on her way out. Ms. Hardamon returned to the Best Stop later that evening to find out that Ms. Smith had been shot. She then went to the Sheriff's office to give a statement. Ms. Hardamon testified that she had known Mr. Wainwright for a long time, but specifically denied ever having had a relationship or affair with him.

Patrick Flenory, a fourteen-year-old boy, testified that he had been walking past the Best Stop on his way home when he saw Kirt Wainwright running out of the store wearing "clam diggers" of different colors. He knew Mr. Wainwright through family connections, and testified that he had seen Mr. Wainwright's face. Moments later, a pink Cadillac sped past him and he saw Kirt Wainwright in the back seat. He saw two other people in the car. Mr. Flenory then went into the store, where he recalled seeing several people, both black and white, that he did not know. He specifically recalled seeing Mr. Gatlin. He further testified that it was dusk when these events happened.

Ms. Elnora Hopson testified that Kirt Wainwright knocked on her door on the evening of July 29, 1988 as it was beginning to get dark, which she guessed put the time at about 8:30 p.m. Mr. Wainwright was a friend of her grandson's, and he told her that he needed to get some clothes. He went into the bedroom, got his clothes, and left. She estimated that he had been in the house for less than a minute. When asked, "At any time, did you see him go in the bathroom, wash up or anything?", she responded, "No. He got his clothes and went to the car." She described the car as a reddish old model Cadillac.

Mr. Dwight Hopson testified that he stopped in the house where he lived with his grandmother, Elnora Hopson, on July 29, 1988 to change clothes. He noticed a check on the dresser, but didn't think much about it. The next morning he found that there were actually seven or eight checks, and that they had Best Stop on them. He turned them in to the police.

Officer Henry Parmer testified that at 8:23 on July 29, 1988, he was informed by dispatch that there had been an armed robbery at the Best Stop store and to look for a pink Cadillac with fender skirts. He saw the vehicle go by and pulled it over. Three black males were in the car. Andrew Woods was driving, Dennis Leeper was in the passenger seat, and Kirt Wainwright was in the back seat. The car was a two door, with bench seats that folded forward to allow someone to get in the backseat. He saw a money bag, later identified as being from the Best Stop, on the floorboard behind the driver's seat.

Several other officers testified. When apprehended, Mr. Wainwright was wearing the red flowered shorts identified by Ms. Henegan as those on the man she saw exiting the Best Stop. Mr. Woods was wearing a shirt and pants. Mr. Leeper was wearing a scrub shirt and cut-off blue jeans.

When the money bag was removed from the car, a blue .22 Colt revolver fell out. The revolver contained one "spent" casing and was loaded and ready for firing. Although the state expert could not say for certain that the gun found in the car fired the shot that fatally wounded Ms. Smith, the expert testified that the shot was fired from a revolver like the one found in the Cadillac.

Gunpowder residue tests were performed on the three car passengers. Mr. Wainwright and Mr. Woods were "negative." Mr. Leeper showed a significant amount of gunpowder residue on his left hand. More residue was on the back of his hand than on the palm area. Mr. Leeper is right-handed. Mr. Wainwright is left-handed. It appears that Ms. Smith was shot by someone holding a gun in his left hand.

The clothes Mr. Wainwright was wearing when stopped by the police were submitted for testing. No blood was found on the clothing. The clothing of Mr. Leeper and Mr. Woods was not submitted for testing.

Mr. Wainwright, Mr. Woods, and Mr. Leeper were all charged with capital murder. The cases were severed and Wainwright was tried first. He was convicted of capital murder and sentenced to death. Mr. Woods was acquitted, and Mr. Leeper pleaded to a reduced charge of aggravated robbery and received a seventeen year sentence.

Mr. Wainwright's conviction and sentence were affirmed by the Arkansas Supreme Court on May 29, 1990. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990). The United States Supreme Court denied certiorari on March 4, 1991. Wainwright v. Arkansas, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991). Mr. Wainwright then sought state post-conviction relief under Ark. R.Crim.P. 37, which was denied without a hearing on January 13, 1992. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Thus, Mr. Wainwright has exhausted his state remedies.

Mr. Wainwright filed a petition for federal habeas relief pursuant to Title 28 U.S.C. § 2254 on April 7, 1992. Hearings were held before this Court on February 24-26, 1993. Post-trial briefing was completed on April 30, 1993. The Court has now considered all of Mr. Wainwright's arguments, and sets forth its analysis and conclusions below.

For ease of reference, the Court has captioned its analysis of each issue by using the language employed by petitioner in his habeas pleadings.

II. GROUNDS FOR RELIEF

A(1) THE STATE COURTS' REFUSAL TO ALLOW ADEQUATE FUNDS FOR EXPERT PSYCHIATRIC TESTIMONY DENIED PETITIONER DUE PROCESS AND HIS RIGHT TO PRESENT A DEFENSE; ALTERNATIVELY PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BASED ON DEFENSE COUNSEL'S FAILURE TO PRESENT SUCH TESTIMONY AND CHALLENGE THE CONSTITUTIONALITY OF THE STATUTORY FEE CAP

Petitioner alleges that the trial court committed error in denying additional funds for him to hire a psychiatric expert. Alternatively, he argues that the failure to challenge the constitutionality of the statutory fee cap constituted ineffective assistance of counsel.

The state hospital evaluated petitioner, and found him to be competent, but suffering from cocaine abuse. Petitioner sought funds to enable him to present the expert testimony of Dr. Doug Stevens,...