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Classification: Murderer
Characteristics: Robberies
Number of victims: 2
Date of murders: July 28/29, 1988
Date of arrest: July 29, 1988
Date of birth: 1966
Victims profile: Karen Ross / Barbara Smith (convenience store clerks)
Method of murder: Shooting
Location: Nevada County, Arkansas, USA
Status: Executed by lethal injection in Arkansas on January 8, 1997

United States Court of Appeals
Eighth Circuit


opinion 94-3525 / 94-3528


Kirt Wainwright Dies For 1988 Murder Of Clerk

- Nevada County Picayune

January 15, 1997.

"Tough," and "Poetic" were two terms used in describing convicted murderer Kirt Wainright as he met his death by lethal injection last Wednesday, January 8.

No mention was made of Wainright's victim Barbara Smith, her husband or her three children.

There was nothing "poetic" about her death nor "tough" in the way she was killed.

Wainright was convicted in 1989 by a Nevada County Circuit Court jury of shooting Smith in a robbery at the Best Stop Convenience Store in Prescott in July 1988.

Smith gave Wainright all the money she had access to, got on her hands and knees and was shot behind the ear.

Wainright had hope right up to the end when he, along with 16 witnesses, were told U.S. Supreme Court Justice Clarence Thomas put on hold the execution until the court could review his last claim - Arkansas Governor Mike Huckabee was biased in the case because he allegedly knew the victims.

As the Sodium Pentothal (lethal dosage), Pavulon (muscle relaxant) and Potassium Chloride (stops the heart) were administered into his system with a saline solution utilizing IV's, Wainright had a grin on his face and said, "Yeah," as he closed his eyes.

This followed a reciting of a poem he penned, entitled The Embrace, and a statement of "I love you Tish." and a defiant phrase, "Now send me to my God."

Less than two minutes after the injection began, his grin was gone his eyes were opened slightly staring at what waited for him in death.

Twelve minutes after the injection his eyes no longer saw anything.

Wainright's attorney, Craig Lambert, met the media after the execution and told them "He's the toughest guy I've ever seen." He also described him as a "warrior."

Lambert told of his involvment in the case for the past few years and said they "were not playing on a level field" involving the case.

He said even though Wainright lay on the gurney for nearly an hour with the needles in his arm while the Supreme Court reviewed his last appeal, he was "cautiously optimistic" and did not think it was cruel for the length of time he had to lay and wait on death.

Lambert said he felt they had a good appeal and it was on strong grounds of improper physical evidence towards the end of the appeal process.

He had argued Wainright could not have been the one to commit the murder because physical evidence from the gun was not on his hands.

Wainright's last appeal, based on the presumption Huckabee knew the victim's and/or their families and could not or would not give clemency to him because of this bias, was struck down by the Supreme Court.

According to news reports following the execution, the Govenor's office had prepared an affidavit denying the claim as totally false.

Reports say Huckabee's office was prepared to send the signed papers to the Supreme Court.

Lambert had argued Huckabee should have turned executive clemency powers over to Lt. Governor Win Rockefeller.

Lambert said the system failed in its carrying out of punishment on Wainright; he maintained his client was not guilty of the murder at all.

In the media center was a gathering of six television cameras,New York Times reporter Rick Bragg, a reporter from the French newspaper wire service, a French television reporter and a few American newspaper reporters.

The night's big news for the biggest part of the group was the fact the evening had three executions.

This is only the second time in U.S. history this has happened, the last being in 1994 at the same prison in Varner.

Still no one mentioned Barbara Smith or her family.



An Evening of Death: 3 Murderers Are Executed

By Rick Bragg - The New York Times

With the prick of a needle, once, twice, three times, the state's executioners put to death three killers on a single wet, icy night in southern Arkansas.

Two of the condemned men, escapees from an Oklahoma prison who went on a murder spree over three states, have haunted the dreams of their victims' families for 20 years. They died on schedule on Wednesday, almost quietly, refusing to say any last words.

The third, a less-famous killer of convenience store clerks, died with a poem on his lips, dramatically, after a last-minute appeal left him strapped to a gurney for 45 minutes with the needle already inserted in his arm. The highest court in the land gave him its attention, considering a final, fine point in his case, as he lay, as the clock ticked. Then, the Supreme Court told the state it could proceed.

It was a grim, jagged night that dismayed the people who protest state-sponsored killing. But for the families of the women and men who died at the hands of Earl Van Denton, Paul Ruiz and Kirt Wainwright, it brought relief, and revenge. It may, they hope someday, even bring peace.

''I hope I have some relief and the nightmares will stop,'' said Anne Jester, whose father, Opal James, a 58-year-old park ranger, was killed by Mr. Denton and Mr. Ruiz after their escape from prison in Oklahoma. Bound by a friendship that seemed to fall from the pages of Truman Capote's ''In Cold Blood,'' Mr. Denton and Mr. Ruiz are believed to have committed seven murders, some randomly.

In her nightmares, ''it is always that they have escaped again, and are after me,'' she said. And she would wake afraid that it might be true, that they are loose again, Mrs. Jester said.

Forever more, as the executioner pressed the button that sent a poison into their veins, she will wake and know it is just a dream.

It was the second time that Arkansas has put three men to death in a single night -- the first was in 1994 -- here in this stark concrete block and chain-link prison surrounded by soggy, dull cotton fields and red mud.

Texas and Illinois have executed two people on the same day in recent years. It is cheaper to do it this way, explained state and prison officials, because it reduces overtime costs and reduces the stress on prison employees.

But the executions of three men in less than three hours concentrated all the pain and other feelings that emanate from such powerful events.

Outside the Governor's mansion, in Little Rock, Ark., 100 miles away, a few dozen people stood in the freezing rain, to plead for compassion. Like those on the other side of this issue, they quoted a Bible to make their arguments. ''Forgive them, Father; they don't know what they are doing,'' said Sister Joan Pytlik, a Roman Catholic nun in Little Rock.

And, in a room near, but out of sight of, the execution chamber, a small group of people whose lives were unalterably changed by the killers huddled together. Arkansas does not allow the relatives of victims, or of the condemned, to witness the execution. But some of the victims' relatives just wanted to be as close as possible, as the thing was being done.

''They took the shirt off my dad's back before they killed him,'' said Virginia Hamilton, whose father, a small-town marshal who made $100 a week for breaking up fights and giving drunk teen-agers a strong talking to, was murdered by Mr. Denton and Mr. Ruiz when he went to help them with a flat tire.

It took her father away from her when she was 14, and ruined her mother's life, she said.

''Yeah,'' Mrs. Hamilton said, ''I hate them.''

Others, like Mrs. Jester, waited for word by phone. Angela Smith Cunningham, who was just 11 on July 19, 1988, the day Kirt Wainwright shot her mother behind the counter of a convenience store in Hope, Ark., wanted to know one thing, as the execution neared: would he beg for his life, ''like my mother did.''

As the hours ground down to 7 P.M., the start of the first execution, as the inmates sat alone or with their counselors in their ''quiet cells,'' the rain and cold combined to cover the barren trees around the prison in a sheen of glittering ice. Back in Little Rock, as the first man, Mr. Denton, began the short walk to the chamber, protesters lit a single candle.


Kirt Wainwright
11th-Hour Reprieve Considered, Denied

For a while, it looked as if Kirt Wainwright would cheat death, cheat the families of his victims, cheat it all.

He was already strapped down, the needles in his arms, when Justice Clarence Thomas of the Supreme Court, acting on a last-minute appeal from Mr. Wainwright's lawyer, asked Gov. Mike Huckabee to hold off on his execution as the high court considered that appeal.

The Governor, who held Mr. Wainwright's life in his hands, knew the two women who were killed.

Prison officials left the 30-year-old Mr. Wainwright on the gurney for 45 minutes with the needles in his arms, as the Court pondered whether to let him live to see another day.

Dina Tyler, a prison spokeswoman, said prison officials had to decide whether it would have been more humane to leave him there, or to take him away, giving him hope, only to strap him down again.

''I don't know,'' she said of that choice.

Back in Little Rock, the protesters, believing that his execution had gone as planned, lit their third candle prematurely.

Mr. Wainwright was in his early 20's in July of 1988, when he put a gun to Barbara Smith's head in the robbery of a convenience store in Prescott, Ark. He took the money, and killed her anyway.

The day before, he had been in on another robbery, in Hope. The clerk, Karen Ross, was shot to death, too.

His lawyers had argued that he was not the shooter in the robberies.

He was sentenced to die for the murder of Mrs. Smith, and was given a life sentence in the murder of Ms. Ross. While in prison, he stabbed two guards with a makeshift knife. A friend and spiritual adviser said that was because he was a proud man who would refuse to be abused by the guards.

''He would not allow them to break his spirit,'' said Linda Taylor, his friend and spiritual adviser.

He told her he was not afraid to die; ''God had given him a peace and strength,'' she said.

Back in Prescott, the family of Mrs. Smith remembered him only as the man who held her around the neck, and told her she was going to die even if she gave him the money, and waited for the phone call to let them know he was dead.

The Supreme Court decided to let the execution continue. When asked if he had any final words, about 9:35, he read a poem he had written, about new life, about his soul flying.

The last words were: ''Now send me to God.''

He died at 9:50.

The death penalty protesters in front of the governor's mansion in Little Rock had already gone home.


Petition Denied From Death Row In 1988 Murder

Nevada County Picayune

April 17, 1996

Kirt Douglas Wainwright will remain on death row.

Wainwright was sentenced to death for the 1988 murder of Barbara Smith, who was working at a local convenience store at the time. A federal district court ruled recently, Wainwright should get a new penalty-phase hearing or have his sentence reduced to life in prison.

However, prosecutors appealed to the Eighth U.S. Circuit Court of Appeals in St. Louis and Wainwright also asked the court to examine other claims.

The court ruled in favor of the prosecutors.

Wainwright claimed the trial court made a mistake when it allowed a prosecutor to question him about a religious booklet during the penalty phase.

He said during the cross examination, prosecutor Jim Hudson and Danny Rodgers, deputy prosecutor, asked him a bout a "Blood handbook."

When questioned about what the word "blood" meant, Wainwright said, "That means black. Blood means black."

Wainwright was referring to a slang definition of the word some black males use to refer to other men. The booklet in question was a handwritten copy of an Islamic religious text, "Koran Answers for Moorish Children."

According to the appeal, the prosecution mistakenly believed the booklet tied Wainwright to a street gang called "Bloods." The district court concluded the prosecutor was "carried away" on a wave of "gang hysteria." His questioning, according to the district court, made Wainwright appear more dangerous than he was, and this error entitled Wainwright to a new penalty phase.

The appeals court disagreed, saying the district court's ruling was based on unfounded speculation.

"The prosecutor's bigoted views and improper motive in questioning Wainwright about the booklet were not communicated to the jury," the appeals court wrote.

The question and display of the book's cover did not fatally infect the penalty phase, the court ruled.

Wainwright also has a life sentence in the murder of a Hope convenience store employee, which occurred on July 29, 1988.


80 F.3d 1226

Kirt Douglas Wainwright, Appellant,
A.L. Lockhart, Director, Arkansas Department of Correction, Appellee.

Kirt Douglas Wainwright, Appellee,
A.L. Lockhart, Director, Arkansas Department of Correction, Appellant.

Docket number: 94-3525EA94-3528EA

Federal Circuits, 8th Cir.

April 8, 1996

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

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 is not undermined by any error in failing to call Dr. Stone.

Wainwright next argues the State's reliance on the aggravating circumstance that he committed the murder to avoid or prevent arrest, Ark.Code Ann. 5-4-604(5), violates the Eighth and Fourteenth Amendments for several reasons. Wainwright contends the circumstance does not genuinely narrow the class of persons eligible for the death penalty as required by Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988). We have already rejected this challenge to Arkansas's death penalty scheme. Ruiz v. Norris, 71 F.3d 1404, 1408 (8th Cir.1995); Perry v. Lockhart, 871 F.2d 1384, 1393 (8th Cir.), cert. denied, 493 U.S. 959 , 110 S.Ct. 378, 107 L.Ed.2d 363 (1989). Arkansas's capital felony-murder statute sufficiently narrows the class of murderers eligible for the death penalty by specifying only a subgroup of murders as capital ones. Ruiz, 71 F.3d at 1408; see Ark.Code Ann. 5-10-101.

Wainwright also contends the circumstance that he committed the murder to avoid or prevent arrest is vague and overbroad, both facially and as applied in his case. We disagree. The statutory language defining the circumstance is specific enough to guide the jury and avoid arbitrary and capricious imposition of the death penalty. Whitmore v. Lockhart, 8 F.3d 614, 624 (8th Cir.1993); see Walton v. Arizona, 497 U.S. 639, 652-53, 110 S.Ct. 3047, 3056-57, 111 L.Ed.2d 511 (1990); Williams v. Clarke, 40 F.3d 1529, 1537-38 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1397, 131 L.Ed.2d 247 (1995).

Wainwright next argues the circumstance impermissibly elevates the required mental state at the penalty phase and thus produced an inconsistent jury verdict. According to Wainwright, the jury's guilt-phase finding that in the course of committing robbery, Wainwright "cause[d] the death of any person under circumstances manifesting extreme indifference to the value of human life" conflicts with its penalty-phase finding of the aggravating circumstance that the murder was committed purposely to avoid arrest. These findings are not inconsistent. Any higher intent requirement at the penalty phase simply supports the aggravating circumstance and further narrows the class of murderers eligible for the death penalty.

Wainwright also argues that even if the aggravating circumstance is constitutional, the evidence is insufficient to support it. The aggravating circumstance of committing the murder to avoid arrest applies when a robber "makes the cold-blooded calculation that by annihilating his victim he thereby eradicates an eyewitness to his crime." Pickens v. State, 261 Ark. 756, 551 S.W.2d 212, 215 (1977) (en banc), cert. denied, 435 U.S. 909 , 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978). On direct appeal, the Arkansas Supreme Court found the evidence sufficient to support this aggravating circumstance. Wainwright I, 790 S.W.2d at 427.

Ms. Smith was shot once in the top of the head at point-blank range. Further, the Best Stop's manager testified Ms. Smith knew Wainwright's name and could probably identify him because she had rejected a check he had tried to cash on two occasions. We conclude the evidence was sufficient to convince a reasonable juror beyond a reasonable doubt that Wainwright murdered Ms. Smith to avoid arrest. See Smith v. Armontrout, 888 F.2d 530, 538 (8th Cir.1989).

Wainwright next contends his death sentence violates the Eighth and Fourteenth Amendments because of the jury's "inconsistent findings" about the mitigating circumstance that he did not resist when arrested for the murder. On one special verdict form, the jury indicated it had unanimously found the lack-of-resistance circumstance and one other mitigating circumstance existed. On another form, the jury indicated it had unanimously found the lack-of-resistance circumstance did not exist. According to Wainwright, these contrary statements show the jury was confused about the lack-of-resistance circumstance. Whether or not the jury found Wainwright did not resist arrest, the jury clearly considered the circumstance one way or the other. Cf. Woodard v. Sargent, 806 F.2d 153, 157-58 (8th Cir.1986) (failure to submit applicable mitigating circumstance to jury for consideration prejudiced defendant).

The jury then specifically found the three "aggravating circumstances outweigh[ed] beyond a reasonable doubt all mitigating circumstances," whether the jury found one or two mitigating circumstances. Because this is not arbitrary or capricious, there is no Constitutional violation. See Williams, 40 F.3d at 1537-38.

Wainwright also asserts the State's reliance on the aggravating circumstance of murder committed for pecuniary gain, Ark.Code Ann. 5-4-604(6), violated the Eighth and Fourteenth Amendments. Wainwright argues the circumstance repeats an element of the underlying robbery and thus fails to narrow the class of murderers eligible for the death penalty. We rejected this challenge to Arkansas's death penalty scheme in Perry, 871 F.2d at 1392-93. Wainwright asserts our decision in Perry is wrong. We recently reaffirmed that duplication of an element of capital robbery-murder by one or more aggravating circumstances does not render Arkansas's death penalty scheme unconstitutional. Ruiz, 71 F.3d at 1407-08. As we explained in Ruiz, no panel of this court can reconsider the Perry decision. Id.

Wainwright next asserts the seating of the victim's family near the jury during the trial violated his due process rights. Before the jury entered the courtroom, a crime victims' assistant with the prosecutor's office asked some people seated in the front row to move so the victim's family could sit there. The defense objected and the trial court stated the prosecutor should not tell people where to sit and the victim's family could sit wherever they could find seats. Although the victim's family sat in the front row near the jury during the entire trial, the victim's family did not cry, shout, cause a disturbance, or identify themselves to the jury.

The state court found there was no evidence that the jury knew the people in the front row were the victim's family members. Wainwright I, 790 S.W.2d at 425. In this habeas proceeding, we must presume the state finding is correct. 28 U.S.C. 2254(d) (1988). In light of the finding, Wainwright cannot show the seating arrangement prejudiced him. Because any error was harmless, Wainwright is not entitled to habeas relief on this ground. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993).

Wainwright also asserts the presence and actions of security officers denied his right to a fair trial. During the guilt phase, two or three police officers sat in chairs directly behind the defense table. When Wainwright testified during the penalty phase, the sheriff and a police officer accompanied Wainwright to the witness stand, stood next to him while he testified, then escorted him back to his chair. The Arkansas Supreme Court found these security measures did not prejudice Wainwright. Wainwright I, 790 S.W.2d at 427. The district court agreed. Wainwright III, 872 F.Supp. at 607-08.

State judges have broad discretion to take security measures in state courthouses. Hellum v. Warden, 28 F.3d 903, 907-09 (8th Cir.1994). To succeed on a claim that state-court security measures denied the right to a fair trial, a federal habeas petitioner must show the measures were either actually or inherently prejudicial. Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1347, 89 L.Ed.2d 525

  (1986). Wainwright has not shown actual prejudice. To decide whether the security measures were inherently prejudicial, we consider whether they presented " 'an unacceptable risk ... of impermissible factors coming into play.' " Id. at 570, 106 S.Ct. at 1346 (quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976)).

Here, the officers' act of escorting Wainwright to the witness stand during the penalty phase may have suggested he was likely to flee or harm someone, but Wainwright was a convicted capital murderer at that point. The officers did not obstruct the jury's view of Wainwright, and were no closer to Wainwright during his testimony than during the rest of the trial.

We think the jury would view the officers' presence and actions as ordinary and normal concern for the safety and order of the proceedings. See id. at 571, 106 S.Ct. at 1347. In sum, we cannot say the scene presented to the jury was "so inherently prejudicial as to pose an unacceptable threat to [Wainwright's] right to a fair trial." Id. at 572, 106 S.Ct. at 1347 (no prejudice where four uniformed, armed state troopers sat in first row of spectators' section behind six defendants); see United States v. Darden, 70 F.3d 1507, 1533-34 (8th Cir.1995) (no prejudice to defendants being tried for extraordinarily violent criminal enterprise by use of unarmed officers in courtroom, metal detectors outside courtroom, jury sequestration and transportation by marshals, armed guards along street, helicopter surveillance, and snipers on courthouse roof); Hopkinson v. Shillinger, 866 F.2d 1185, 1218 (10th Cir.1989) (no prejudice where guards used magnetometer to check everyone entering courtroom, prosecutor's bodyguards wore bulletproof vests and visibly carried guns, and guards audibly cocked guns when lights went out in courtroom during trial), cert. denied, 497 U.S. 1010 , 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990).

Wainwright also asserts that even if we reject each claimed error individually, their cumulative effect deprived him of a fair trial. In support of the cumulative error doctrine, Wainwright cites Harris v. Housewright, 697 F.2d 202 (8th Cir.1982) (cumulative effect of eleven mistakes by trial counsel amounted to deficient performance). Harris is no longer good law in light of the Supreme Court's decision in Strickland v. Washington, however. Girtman v. Lockhart, 942 F.2d 468, 475 (8th Cir.1991); see United States v. Stewart, 20 F.3d 911, 917-18 (8th Cir.1994). Errors that are not unconstitutional individually cannot be added together to create a constitutional violation. Stewart, 20 F.3d at 917-18. Neither cumulative effect of trial errors nor cumulative effect of attorney errors are grounds for habeas relief. Id.; Wharton-El v. Nix, 38 F.3d 372, 375 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1126, 130 L.Ed.2d 1088 (1995); Griffin v. Delo, 33 F.3d 895, 903-04 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1981, 131 L.Ed.2d 869 (1995).

In its cross appeal, the State contends the district court incorrectly concluded the State's cross-examination of Wainwright about a "Blood handbook" and "the Bloods" violated his rights under the First and Fourteenth Amendments. See Wainwright III, 872 F.Supp. at 610-19. During the penalty phase, Wainwright testified that he is a Baptist, but had studied other religions. During cross-examination, the prosecutor showed Wainwright a booklet and asked him whether he had ever seen it. Id. at 612. Wainwright identified the booklet as Islamic material that belonged to him. The prosecutor then asked, "[I]s this what you refer to [as] the Blood handbook?" Id. at 613. Wainwright responded, "No, that's some [Moorish] Science Temple of America [material] ... [from] a book called 101."

The State next asked, "What is the Bloods?" and Wainwright said, "That means black. Blood means black." See Dictionary of Contemporary Slang 46 (1990) (defining "blood" as "a term of endearment or address used by black males to fellow males, a shortening of 'blood brother' "). The State then moved for admission of the booklet, and the defense objected on the ground of relevance. After a discussion, apparently off the record, the trial court decided the booklet was not relevant since it did not reflect Wainwright's religious beliefs. Wainwright III, 872 F.Supp. at 613-14.

Evidence at the habeas hearing showed the booklet the State sought to admit is a handwritten copy of an Islamic religious booklet, "Koran Questions for Moorish Children." The text consists of 101 questions and answers about the Islamic faith. Because of the way the questions and answers are phrased ("Who made you? Allah.") and because Wainwright had copied the booklet in his own handwriting, the prosecutor believed the booklet contained Wainwright's own answers to the questions and thus reflected Wainwright's personal beliefs.

The cover of Wainwright's copy of the booklet had a hand-drawn picture of a dagger dripping a dark substance into a puddle. "Blood" was written in large letters next to the dagger. See id. at 621 (reproduction of cover). The prosecutor mistakenly believed the booklet tied Wainwright to the Bloods street gang, based on the prosecutor's very strained interpretation of the booklet's text, see id. at 610, as well as his personal belief that the Bloods gang is part of the Islamic church, see id. at 616.

At the habeas hearing, the district court asked the prosecutor whether the booklet's cover and the State's questioning about the "Blood handbook" and "the Bloods" led the jury to believe Wainwright was a member of the Bloods street gang. The prosecutor responded, "At the time I questioned Mr. Wainwright about this booklet, I felt in my heart that he was a member of the Bloods and that's what I was trying to get out to challenge his testimony and other evidence that he was a Christian." Id. at 618.

The district court concluded the prosecutor fed on "gang hysteria" in the community at the time and bought into it himself. Id. at 619. The district court held the State's cross-examination did not serve any proper rebuttal purpose and tended strongly to link Wainwright to a street gang and generate a fear of gangs in the jury. Id.

The district court was convinced the prosecutor's questions and display of the booklet's cover made Wainwright appear more dangerous and led the jury to believe Wainwright was part of a criminal enterprise larger than a local convenience store murder. Id. The district court decided the jury would have imposed a sentence of life without parole absent these prejudicial circumstances. Id.

The district court concluded the cross-examination was improper and violated Wainwright's First and Fourteenth Amendment rights. Id. Although the prosecutor did not ask Wainwright directly about gang membership, the prosecutor's word choice in asking about the booklet suggests the prosecutor was setting the stage to elicit testimony about gangs rather than religion. The prosecutor admitted as much at the habeas hearing. A defendant's membership in a gang cannot be raised as bad character evidence in the penalty phase of a capital proceeding when the evidence is not relevant to the rebuttal of any specific mitigating evidence. Dawson v. Delaware, 503 U.S. 159, 165-69, 112 S.Ct. 1093, 1098-99, 117 L.Ed.2d 309 (1992); O'Neal v. Delo, 44 F.3d 655, 661 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 129, 133 L.Ed.2d 78 (1995).

Here, gang membership was not relevant to rebut any of Wainwright's mitigating evidence or for any other purpose. There was no credible, admissible evidence that Wainwright's crime was gang related, that Wainwright belonged to any gang, or that any gang membership would impeach Wainwright's testimony about his religious beliefs. Like the district court, we conclude the prosecutor's questions "did not serve any proper rebuttal purpose." Wainwright III, 872 F.Supp. at 619.

Nevertheless, we disagree with the district court's conclusion that the questioning led the jury to believe it was dealing with a street gang. This conclusion is based on nothing more than unfounded speculation. The prosecutor's bigoted views and improper motive in questioning Wainwright about the booklet were not communicated to the jury. Although some jury members had read pretrial newspaper articles about Wainwright and some articles had erroneously reported Wainwright was a member of the Bloods street gang, "gangs" were not mentioned during voir dire or the trial. The jury heard the prosecutor use the term "blood," the proper name for a gang, in two questions, but Wainwright gave reasonable responses unrelated to gangs and explained another meaning for the term.

Further, the booklet was never admitted, and the trial court instructed the jury it should disregard "[a]ny argument, statements, or remarks of attorneys having no basis in the evidence." The jury saw the booklet's cover with the word "blood," but in light of Wainwright's testimony about the booklet and the meaning of the term, we cannot say the jury would connect the booklet to a notorious street gang.

In addition, neither side referred to the booklet in its closing argument, and Wainwright testified he did not subscribe to the beliefs in the booklet. In the context of the entire proceeding, we cannot say the two improper questions and display of the booklet's cover fatally infected the penalty phase and rendered it fundamentally unfair. Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.1995).

We thus reverse the district court's grant of Wainwright's habeas petition on the "Bloods" issue, and affirm the district court's denial of the rest of Wainwright's petition.


HENLEY, Senior Circuit Judge, concurring dubitante.

I concur in the well-written opinion of the panel, although I have reservations about one aspect of our decision.

I agree fully with the panel's handling of the issues raised by appellant Wainwright in his appeal. Judge Eisele gave all of Wainwright's claims a very thorough airing and I am satisfied that he did not err in rejecting them.

I am troubled, however, by our decision to reverse on the one issue--the prosecutor's attempts to link Wainwright to gang membership not supported by any evidence--as to which he granted habeas relief. Judge Eisele, a very well-qualified and experienced trial judge, conducted a searching inquiry as to all of Wainwright's claims of error. He heard testimony and had an opportunity to evaluate the credibility of the witnesses first hand. Judge Eisele then wrote a 96-page opinion explaining in detail his reasoning for denying most of the claims but granting Wainwright a new sentencing hearing because of the prosecutor's improper references to gangs. His determination that the prosecutor's questions tainted the jury is one that I believe we ordinarily should respect. Moreover, the record is clear that the prosecutor was intentionally trying to inject the gang issue into the case and as both Judge Eisele and this court have found, this was improper. Such prosecutorial misbehavior I am reluctant to accept.

I have nonetheless decided to concur, with reservations, because the evidence against Wainwright was great and I cannot say, on balance, that the sentencing proceeding was fundamentally unfair.


121 F.3d 339

Kirt Douglas Wainwright, Petitioner,
Larry Norris, Director, Arkansas Department of Correction, Respondent

United States Court of Appeals, Eighth Circuit

Jan. 2, 1997

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


Kirt Douglas Wainwright has filed a motion for authorization to file a second habeas petition in the district court. See Antiterrorism and Effective Death Penalty Act of 1996 (the Act), 106(b), Pub.L. No. 104-132, 110 Stat. 1217 (1996) (to be codified at 28 U.S.C. 2244(b)). We deny Wainwright's motion.

In Wainwright's first habeas action, the district court granted Wainwright relief on the ground that the State's brief cross-examination of Wainwright about "the Bloods" and a "Blood handbook," actually a handwritten copy of an Islamic text, violated his First and Fourteenth Amendment rights under Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). Wainwright v. Norris, 872 F.Supp. 574, 619 (E.D.Ark.1994). Wainwright asserts that "[i]n his first round of habeas proceedings, ... [he] also claimed that the State's conduct amounted to the presentation of false evidence and false argument in violation of due process." Wainwright's Motion for Authorization to File Second Habeas Petition, No. 96-8168, at 2 (8th Cir. Dec. 19, 1996).

Having granted Wainwright relief under Dawson, the district court did not decide Wainwright's due process claim. On appeal to this court, the State of Arkansas asked us to reverse the district court's grant of habeas relief under Dawson. We did, holding the two improper cross-examination questions and display of the handbook's cover did not fatally infect the penalty phase of Wainwright's trial and render it fundamentally unfair. Wainwright v. Lockhart, 80 F.3d 1226, 1234 (8th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 395, 136 L.Ed.2d 310 (1996).

Wainwright now seeks a second habeas action to challenge the "Bloods" questioning as false evidence violative of due process. Because Wainwright presented the same claim in his first habeas proceeding, 2244(b)(1) prevents him from raising the claim again in a second habeas petition. The amended statute discards the pre-Act concept of "abuse of the writ" in favor of more restrictive standards. See Benton v. Washington, 106 F.3d 162, 163 (7th Cir. 1996); see also Felker v. Turpin, 518 U.S. 651, ----, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996).

The amended statute provides, "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. 2244(b)(1) (as amended). Wainwright's due process claim falls within the plain language of 2244(b)(1). The amended statute precludes any claim "presented" in the first action, rather than "adjudicated" "on the merits" in the first action, as the pre-Act version of 2244(b) provided. See 28 U.S.C. 2244(b) (1994); Camarano v. Irvin, 98 F.3d 44, 46 (2d Cir.1996).

As commonly understood, the term "present" means "to lay or put before a person for acceptance." Webster's Third New International Dictionary 1793 (1981). Wainwright presented the due process claim to the district court in the first habeas proceeding. In addition, the petition Wainwright seeks to file is a second or successive petition within the meaning of the Act. It raises claims concerning the same conviction that his earlier petition addressed, see Liriano v. United States, 95 F.3d 119, 121 (2d Cir.1996), and Wainwright's first habeas petition was not dismissed without prejudice for failure to exhaust state remedies, see Camarano, 98 F.3d at 47.

Wainwright blames the district court and this court for overlooking the due process issue in his first habeas proceeding, and states our refusal to permit consideration of the issue now "will send Wainwright to his death based on a judicial oversight that was not even of his own making or that of his lawyers." Wainwright is pointing an accusatory finger in the wrong direction. Although Wainwright argued the issue in post-trial briefs, the district court did not decide the issue because the court granted Wainwright the relief he sought on another ground.

In this circumstance, a familiar rule of trial practice places on Wainwright's shoulders the responsibility to obtain a ruling on any issue left unaddressed by the district court. Wainwright should have pressed the district court for a ruling on the due process issue, paving the way for our review in his first habeas appeal. We thus reject the kind of piecemeal habeas litigation Wainwright advocates.

Additionally, Wainwright failed to raise the due process issue in his first habeas appeal. Once the State attacked his success on the Dawson claim, Wainwright had an obvious need to bring the "overlooked" due process claim, which he now deems so meritorious, to our attention as an alternative ground for affirmance.

Wainwright neither complained that the district court overlooked the due process claim nor requested any remedial action. Rather than ask us to decide the issue ourselves or to remand the issue for the district court's consideration, Wainwright merely mentioned the issue in a single sentence within his Dawson argument, in the context of explaining the district court proceedings. Wainwright simply stated that in the district court, he had alleged the prosecutor presented false evidence and argument in violation of due process by creating the impression that Wainwright was a gang member. This was not enough to bring the "oversight" to our attention, much less raise the issue and expect us to rule on it.

Because Wainwright cannot satisfy the requirements of 28 U.S.C. 2244(b)(1), as amended, we deny his motion for authorization to file a second habeas petition with the district court. Our decision does not effectively deny Wainwright federal habeas review of his due process claim. Wainwright had his opportunity to seek adjudication of the claim in the first habeas proceeding, but did not pursue a decision on the merits. We also deny Wainwright's motion for a stay of execution because there are no substantial grounds on which relief might be granted by this court. Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) (per curiam). Of course, our action is without prejudice to any executive clemency that Wainwright may seek from the Governor of Arkansas.


103 F.3d 708

Kirt Douglas Wainwright, Appellant,
Leroy Brownlee, Member of the Arkansas Post-prison Transfer Board; August Pieroni, Member of the Arkansas Post-prison Transfer Board; Charles Chastain, Member of the Arkansas Post-prison Transfer Board; Ermer Pondexter, Member of the Arkansas Post-prison Transfer Board; Fred Allen, Member of the Arkansas Post-prison Transfer Board; Railey Steele, member of the Arkansas Post-prison Transfer Board; Larry Norris, Director, Arkansas Department of Correction; Mike Huckabee, Governor of Arkansas, Appellees.

Kirt Douglas Wainwright, Appellant,
Mike Huckabee, Governor of Arkansas; Olan Reeves; Larry Norris, Director, Arkansas Department Of Correction, Appellees

United States Court of Appeals, Eighth Circuit.

Submitted Jan. 8, 1997.
Decided Jan. 8, 1997

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


Two days before his scheduled execution for killing a convenience store clerk in Arkansas, Kirt Wainwright filed two civil rights lawsuits to delay his death. In the first action, Wainwright asserts his constitutional rights were violated on December 26, 1996 when the Post-Prison Transfer Board declined to recommend clemency without considering his case on the merits because Wainwright had not yet exhausted his habeas remedies in the courts. On January 2, 1997, however, we decided against Wainwright in the habeas proceedings the Board mentioned. Wainwright v. Norris, No. 96-8168 (8th Cir. Jan. 2, 1997) (order denying motion for authorization to file second habeas petition); Wainwright v. Norris, No. 94-3525 (8th Cir. Jan. 2, 1997) (order denying motion to recall mandate). We see nothing in the Board's ruling foreclosing consideration of the merits of Wainwright's request for mercy now, when the request is truly Wainwright's last chance.

In the second action, Wainwright asserts his equal protection, due process, and Eighth Amendment rights have been violated because the Governor of Arkansas and his executive clemency assistant have actual conflicts of interest. Wainwright also asserts he was denied his due process right to be considered for executive clemency because the Governor allegedly had decided in November that he would not commute Wainwright's death sentence.

Contrary to Wainwright's assertion, on December 9, in declining to recuse himself from deciding Wainwright's fate, the Governor wrote Wainwright's attorney that he would decide the case "fairly and impartially as [he was] obligated to do." Plaintiff's Complaint Exhibit 3, Wainwright v. Huckabee, No. LR-C-97-12 (E.D.Ark. Jan. 6, 1997). The district court consolidated the lawsuits and dismissed them with prejudice. Wainwright v. Brownlee, No. LR-C-97-11 (E.D.Ark. Jan. 7, 1997). Wainwright appeals.

Under the established law of this circuit, Wainwright's civil rights claims fail. See Whitmore v. Gaines, 24 F.3d 1032, 1034 (8th Cir.1994) (holding Arkansas statute does not impose standards constraining discretion about granting clemency, and thus does not create a constitutional right and invoke the Due Process Clause); Pickens v. Tucker, 851 F.Supp. 363, 365 (E.D.Ark.) (rejecting civil rights claim that clemency decision by biased Governor violates due process or equal protection), aff'd, 23 F.3d 1477 (8th Cir.1994) (en banc); see also Joubert v. Nebraska Bd. of Pardons, 87 F.3d 966, 969 (8th Cir.) (holding there is no constitutionally protected interest in how the Nebraska Board of Pardons receives a clemency request or in having unbiased decisionmakers on the Board; right to consideration of clemency not violated when decisionmaker is predisposed), cert. denied, --- U.S. ----, 117 S.Ct. 1, 135 L.Ed.2d 1097 (1996); Otey v. Stenberg, 34 F.3d 635, 637-39 (8th Cir.1994) (holding no procedural or fundamental constitutional right creates a protected interest in standardless clemency statute; absent a constitutionally protected interest, clemency statute only provides a state-created right to ask for mercy); Otey v. Hopkins, 5 F.3d 1125, 1128-29 n. 3 (8th Cir.1993) (same), cert. denied, 512 U.S. 1246, 114 S.Ct. 2768, 129 L.Ed.2d 881 (1994).

Thus, the questions presented in this appeal do not require further consideration and we summarily affirm the district court's dismissal of the lawsuits. See 8th Cir. R. 47A(a). In doing so, we commend the district court for its prompt and well-reasoned resolution of the issues. Last, because there is not a substantial ground for granting relief, we deny Wainwright's motion for a stay of execution. See Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) (per curiam).


HENLEY, Senior Circuit Judge, concurring.

I concur in the court's opinion. My concurrence, however, is with some misgiving. We rely in part on Pickens v. Tucker, 851 F.Supp. 363 (E.D.Ark.), aff'd, 23 F.3d 1477 (8th Cir.1994) (en banc). But in that affirmance, 23 F.3d at 1478, Circuit Judge Morris Sheppard Arnold, joined by Chief Judge Richard S. Arnold, Judge McMillian and Judge Wollman, would have remanded for a determination of the neutrality of then Governor Tucker.

We rely as well on Otey v. Stenberg, 34 F.3d 635 (8th Cir.1994), in which Senior Circuit Judge John R. Gibson dissented raising serious questions about fundamental fairness or bias in clemency proceedings.

Thus, while I accept the Governor's assurance that he would decide the case impartially, as indicated I am troubled by the state of the law in this field and look forward to possible changes.



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