Wallace v. Lockhart

• Decision Date: 07 March 1983
• Docket Number: No. 82-1773,82-1773
• Citation: 701 F.2d 719
• Parties: Lewis C. WALLACE, Appellant, v. A.L. LOCKHART, Director of Arkansas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 719

701 F.2d 719

Lewis C. WALLACE, Appellant, v. A.L. LOCKHART, Director of Arkansas Department of Corrections, Appellee.

No. 82-1773.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 17, 1982.

Decided March 7, 1983.

Mark L. Ross, Ross & Ross, P.A., Little Rock, Ark., for appellant.

Steve Clark, Atty. Gen., by Theodore Holder, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before BRIGHT, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Lewis C. Wallace appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1976). We affirm the judgment of the district court. ¹

I. Factual Background

Wallace was convicted by a jury of kidnapping and capital felony murder and sentenced to fifteen years and life imprisonment without the possibility of parole. The evidence presented at Wallace's trial indicated that Wallace and his three co-defendants forced Calvin Smith into a car, drove him to the bank of the Arkansas River, and pushed him into the river causing him to drown.

Marlin Hallman and Henry Harris, Wallace's co-defendants who had previously been convicted of kidnapping and capital felony murder for their participation in the crime, testified at Wallace's trial. Their testimony reveals that Annette Wilson told Wallace, Harris, Hallman, and co-defendant Tywanna Martin that Calvin Smith burglarized Hallman's and Martin's apartment. Wilson also told the four where Smith lived and the car he drove. Wallace, Hallman, and Harris then got into Wallace's car and drove to Smith's apartment, where they observed Smith getting into his car and driving off. They followed Smith to the parking lot of a local restaurant, accosted him when he got out of his car, forced him into Wallace's car, and drove him back to Hallman's and Martin's apartment. When they arrived at the apartment, Wilson apparently identified Smith as the man who had burglarized the apartment. Thereafter, Wallace and Harris took turns hitting Smith. Wilson testified that Harris was holding a gun to Smith's head during this time.

Later, Wallace, Harris, Hallman, and Martin drove Smith to the Arkansas River a few miles away. The purported purpose of this excursion was to locate the items that Smith had allegedly stolen from Hallman's and Martin's apartment. When they arrived at the bank of the river, Wallace, Harris, and Hallman ushered Smith out of the car and onto a platform overlooking the river. While on the platform, Wallace hit Smith several times and pushed him off the platform into the river fifteen feet below. Smith drowned in the river.

Wallace also testified at his trial. Wallace testified that he was present when Hallman and Harris forced Smith into the car. He also admitted that he drove the car to the river and was present when Smith was pushed into the river. Wallace, however, denied that he ever hit Smith or pushed him into the river. Wallace claimed that he was merely an innocent bystander and that Hallman and Harris were the ones who abducted Smith and ultimately pushed him into the river.

Wallace appealed his conviction to the Arkansas Supreme Court and, with the aid of newly appointed counsel, claimed: he was denied a speedy trial; the trial court improperly refused to give his requested jury instructions; and the trial court improperly excluded character evidence regarding the victim's brother. Wallace also filed a pro se supplemental brief claiming, inter alia, ineffective assistance of trial counsel and bias of the trial judge in admitting certain evidence. The Arkansas Supreme Court delivered a short opinion rejecting Wallace's claims as meritless and affirming his convictions. Wallace v. State, 270 Ark. 17, 603 S.W.2d 399, 400 (1980). Wallace later filed a pro se petition for post-conviction relief which was summarily denied by the Arkansas Supreme Court in an unpublished per curiam opinion.

Wallace then filed his federal habeas petition alleging: denial of a fair trial by the admission and exclusion of certain evidence; denial of effective assistance of trial counsel; insufficient evidence to sustain his convictions; improper refusal to give his requested jury instructions; and denial of his right to a speedy trial under Arkansas speedy trial rules. Wallace also requested appointed counsel and an evidentiary hearing. The district court, adopting a magistrate's report, found Wallace's allegations to be conclusory and insubstantial, and dismissed his petition without an evidentiary hearing. Wallace appeals the district court's dismissal of his petition.

II. Discussion

A. Admission of Evidence

Wallace initially claims he was denied a fair trial by the trial court's various rulings on the admission and exclusion of evidence. Initially, we note that questions concerning the admissibility of evidence are matters of state law and are not reviewable in a federal habeas corpus proceeding unless the asserted error infringed a specific constitutional protection or was so prejudicial as to deny due process. Richards v. Solem, 693 F.2d 760, 767 (8th Cir.1982); Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976).

Wallace claims the trial court erred in admitting, without proper authentication, the copies of two of the victim's dental charts. This claim is meritless. The two dentists who compiled the original dental charts testified that the admitted charts were copies of the original dental charts. The original dental charts were unavailable because they had been introduced into evidence in an earlier criminal case and were in the possession of the Clerk of the Arkansas Supreme Court. We do not believe the trial court abused its discretion in admitting the copies of the dental records; proper authentication was established by the testimony of the dentists in whose offices the original dental charts were compiled. Ark.Stat.Ann. Sec. 28-1001, Rules 901(a), (b)(1), 1001-1005 (Repl.1979). Furthermore, Wallace was not prejudiced by the admission of the copies of the victim's dental charts. The purpose of admitting the dental charts was merely to identify Smith as the victim of the drowning. No suggestion was ever made during trial that Calvin Smith might not have been the victim of the drowning. Indeed, Wallace's own defense conceded that Smith was the victim of the drowning. Thus, the alleged improper authentication of the Smith's dental records could not have denied Wallace a fair trial.

Wallace also argues that the trial court denied him a fair trial in permitting the prosecution to ask leading questions of Wallace's co-defendants Hallman and Harris, both of whom had already been convicted of kidnapping and felony murder for their participation in the drowning death of Calvin Smith. Wallace suggests that the trial court erred in classifying Hallman and Harris as adverse or hostile to the prosecution. Initially, we note that a ruling permitting the prosecution to ask leading questions is a matter of state evidentiary law which is committed to the trial court's discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589, 592 (1980); Ark.Stat.Ann. Sec. 28-1001, Rule 611(c) (Repl.1979). See also, Thomas v. Cardwell, 626 F.2d 1375, 1386 (9th Cir.1980), cert. denied, 449 U.S. 1089, 101 S.Ct. 881, 66 L.Ed.2d 816 (1981). Accordingly, the validity of such a ruling is reviewable in a federal habeas corpus proceeding only insofar as it resulted in a trial so fundamentally unfair as to deny Wallace due process. Batten v. Scurr, 649 F.2d 564, 569 (8th Cir.1981). Without addressing whether the trial court abused its discretion in classifying Hallman and Harris as hostile witnesses, ² we conclude that Wallace was in no way prejudiced by the leading questions that the prosecution was permitted to ask Hallman and Harris. The only leading question Wallace can point to as being prejudicial was the prosecution's asking both Hallman and Harris: "Who hit Calvin Smith?" Presumably, this question was leading because it assumes Smith was ever hit. However, the trial judge sustained Wallace's objection to this question and required the prosecution to rephrase the question. ³ Furthermore, Wallace could not have been prejudiced by the question "who hit Calvin Smith?" because his own testimony established that Calvin Smith was hit. Finally, Wallace was given the opportunity to rebut the testimony of Harris and Hallman by cross-examination and by providing his own testimony that he never hit Smith.

Wallace next contends that Hallman and Harris should not have been permitted to divulge their jury convictions for their participation in the drowning death of Calvin Smith. Wallace suggests this prejudiced him by instilling in the jury's mind the inference that if Hallman and Harris were guilty, then Wallace must be guilty too. We recognize that one person's conviction may not be admitted as substantive evidence of the guilt of another. See United States v. Wiesle, 542 F.2d 61, 62 (8th Cir.1976); Bisaccia v. Attorney General, 623 F.2d 307, 312 (3d Cir.1980); United States v. Baete, 414 F.2d 782, 783 (5th Cir.1969). However, a co-defendant's prior conviction may be admitted for other purposes, such as to reflect his acknowledgment of participation in the offense for which the defendant is being charged. Wiesle, 542 F.2d at 62. Accordingly, as we stated in Wiesle:

"When a co-defendant appears as a witness at defendant's trial ... he must testify honestly and completely when questioned as to his participation in the crime for which defendant is being tried. He may be examined as to all aspects of his involvement in that crime, including the disposition of any criminal charges entered against him."

Generally, when a co-defendant's prior conviction is admitted to show his acknowledgment of participation in the crime, the trial judge should instruct the jury that the evidence is...