Kirt D. Wainwright v. A. L. Lockhart

80 F.3d 1226
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 8, 1996
Docket94-3525EA, 94-3528EA
StatusPublished
Cited by3 cases

This text of 80 F.3d 1226 (Kirt D. Wainwright v. A. L. Lockhart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirt D. Wainwright v. A. L. Lockhart, 80 F.3d 1226 (8th Cir. 1996).

Opinions

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 Leep[1229]*1229er 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, [1230]*1230and 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 tidal 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.

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