Wilburn Henderson v. Larry Norris ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-2709
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Wilburn L. Henderson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, Director, *
Arkansas Department of Correction, *
*
Appellee. *
*
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Submitted: April 16, 1997
Filed: July 9, 1997
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Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge and BEAM,
Circuit Judge.
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BEAM, Circuit Judge.
Wilburn Henderson appeals the district court's1 denial of his
petition for a writ of habeas corpus. We affirm.
1
The Honorable William R. Wilson, United States District Court Judge for the
Eastern District of Arkansas.
I. BACKGROUND
Three times Wilburn Henderson has been tried for the murder of Willa
Dean O'Neal and three times he has been convicted and sentenced to death.
The first conviction was voided as a result of juror exposure to pretrial
publicity. The second conviction was invalidated when this court affirmed
the district court's grant of habeas corpus relief. Henderson v. Sargent,
926 F.2d 706 (8th Cir. 1991), modified, 939 F.2d 586 (8th Cir. 1991). The
third conviction is the subject of this appeal.
In November 1980, Ms. O'Neal was found shot to death behind the
counter of the family furniture store in Fort Smith, Arkansas. She was
murdered between approximately 1:40 and 2:00 p.m. The cash register was
found open and empty. Suspicion fell on Henderson when a folded sheet of
yellow paper with two telephone numbers, the name of a real estate agent,
and a description of a lake cabin was found on the floor. Police contacted
the real estate agent who explained that Henderson had failed to keep an
appointment to discuss the cabin. Further investigation revealed that
Henderson had taken a .22 caliber pistol out of pawn a few days before the
murder, and had returned it after the murder. Ballistic testing showed
that Ms. O'Neal was killed by a .22 caliber pistol, but could not
conclusively match the bullet to Henderson's gun. Aware he was a suspect,
Henderson fled to Houston where he was later arrested despite attempts to
alter his appearance. Arkansas police questioned Henderson in Houston.
Henderson admitted that he was at the murder scene but claimed he had only
witnessed the murder. He later recanted the statement, claiming it was
involuntary.
At his first two trials, Henderson's defense was that he had been in
Springdale, Arkansas, at 12:00 noon the day of the murder and could not
possibly have driven to
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Fort Smith in time to commit the crime. Both juries convicted Henderson
of capital murder.
After his second conviction, Henderson filed a section 2254 petition
contending that his trial counsel had failed to investigate and present
evidence implicating the victim's husband, Bob O'Neal, as the killer. That
evidence included Bob O'Neal's history of violence and marital infidelity,
Willa O'Neal's desire for a divorce, and Bob O'Neal's suspicious behavior
on the day of the murder. For example, on this particular day, contrary
to usual routine, Mr. O'Neal insisted that his daughter Glenda work with
him rather than with her mother at the store. They returned to the store
around noon that day, and left at about 1:40 p.m. As they were leaving,
Mr. O'Neal told Glenda and her husband to stay in the truck while he went
back into the store for a few minutes. The three then left, but as soon
as they reached their destination, Mr. O'Neal sent Glenda back to the
store, first to get soda and then (when she bought the drink elsewhere) to
get electrical tape. Glenda returned to the store and discovered her
mother's body. When Glenda arrived with the police, Mr. O'Neal exclaimed
without being told what happened: "Someone has robbed and killed
my--murdered my wife!"
The district court held an extensive evidentiary hearing, which
included the testimony of Clarence Wilson, a part-time employee of the
O'Neals. The court then issued a writ of habeas corpus. We affirmed,
finding that Henderson's counsel had been constitutionally defective in the
second trial by failing to develop this evidence and bring it before the
jury. Henderson v. Sargent, 926 F.2d at 712.
Henderson was assigned new counsel and was tried again. This time,
the defense further explored the evidence implicating Mr. O'Neal, including
all of the facts recited above. After the defense's presentation, the
government called Wilson as a rebuttal witness. Wilson testified that he
checked with Ms. O'Neal between 10:00 and 11:00 a.m. on the day of the
murder, to see if she had work for him. He further testified that he
returned to the store around 1:00 p.m. and that Ms. O'Neal told him that
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her family had stopped for lunch but had left. Wilson testified he then
left the store and did not return until after the murder.
Wilson's testimony that he had seen Ms. O'Neal alive after her
husband left the store essentially eviscerated defense contentions that Mr.
O'Neal was the killer. On cross-examination, defense counsel asked why
Wilson had only mentioned being at the store twice and not three times at
the habeas hearing two years before. Wilson responded that it must have
"slipped [his] mind." Trial Tr. at 1565. On redirect examination, the
state referred to a statement Wilson made to police shortly after the
murder, that detailed all three trips to the store. Over defense
objection, the trial court received the evidence. The jury convicted
Henderson again.
After exhausting his state remedies, see Henderson v. Arkansas, 844
S.W.2d 360 (Ark. 1993) and Henderson v. Arkansas, No. CR 93-849, 1994 WL
91313 (Ark. Mar. 14, 1994), Henderson filed this section 2254 petition.
The district court denied relief; Henderson appeals.
II. DISCUSSION
A. Wilson's Testimony
Henderson argues that Wilson's testimony denied him due process and
rendered his third trial fundamentally unfair, meriting habeas corpus
relief. Specifically, Henderson complains that the trial court: (1)
improperly allowed the state to present Wilson's testimony in rebuttal; and
(2) erred in allowing reference to Wilson's police statement.
On habeas review, evidentiary errors are only relevant to the extent
that the presentation or admission of particular proof infringed on "a
specific constitutional protection or was so prejudicial as to deny due
process." Hobbs v. Lockhart, 791 F.2d
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125, 127 (8th Cir. 1986) (quotation omitted). Only evidentiary errors that
are so grossly prejudicial that they fatally infect the entire trial,
preventing it from being fundamentally fair, will justify habeas corpus
relief. Rainer v. Department of Corrections, 914 F.2d 1067, 1072 (8th Cir.
1990). To make this determination, we "review the totality of the facts
in the case and analyze the fairness of the particular trial under
consideration." Hobbs, 791 F.2d at 128.
Henderson alleges that he was denied a fair trial and due process
when the state presented Wilson's testimony in rebuttal rather than in its
case-in-chief. We agree with the district court that the timing of
Wilson's testimony at trial was not fundamentally unfair. Under Arkansas
procedural rules, the only significant difference between testimony in the
state's case-in-chief and rebuttal is that rebuttal witnesses need not be
disclosed to the defense prior to trial. Ark. R. Crim. P. 17.1(a)(i). The
Arkansas courts have reversed convictions procured with testimony by
witnesses about which the defense was not notified on the grounds that they
were not true rebuttal witnesses. E.g., Birchett v. Arkansas, 708 S.W.2d
625, 626 (Ark. 1986). However, here, Wilson's identity was hardly unknown
to the defense. Not only had Wilson testified at Henderson's first habeas
corpus hearing, he had been subpoenaed by the defense for the third trial.
Henderson was not subject to unfair surprise by the state's presentation
of Wilson in rebuttal, and was therefore not denied due process by the
timing of his testimony.
Likewise, we see no fundamental unfairness in the prosecution's
reference on redirect to Wilson's police statement. The trial court
overruled defense objections to the questions and allowed the testimony as
evidence of a prior consistent statement. Ark. R. E. 801(d)(1)(ii).
Henderson asserts that the trial court erred in its interpretation of state
evidentiary rules, and claims the error was of constitutional magnitude.
He characterizes counsel's cross-examination as merely an attack on
Wilson's memory, and argues that a prior consistent statement can only be
admitted when a witness has been attacked as having a motive to lie.
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As an initial matter, Henderson has not even established that state
evidentiary rules proscribed reference to Wilson's statement. The Arkansas
Supreme Court has held that attacking the accuracy, even without impugning
the integrity, of a witness's testimony, allows admission of a prior
consistent statement under 801(d)(1)(ii). Frazier v. Arkansas, 915 S.W.2d
691, 693 (Ark. 1996).
More fundamentally, Henderson's assertion amounts to nothing more
than reargument of the state law question he presented to the Arkansas
Supreme Court. These positions were rejected twice by that court.
Henderson has not made any additional showing that the introduction of this
evidence violated his constitutional rights or was flagrantly unjust. We
fail to see how the reference to Wilson's statement was fundamentally
unfair, as the Federal Rules of Evidence provide for its admission. See
United States v. Coleman, 631 F.2d 908, 914 (D.C. Cir. 1980) ("Even where
the suggestion of contradiction is only imputation of an inaccurate memory,
a prior consistent statement is admissible to rebut the inference."
)(citing cases). Henderson makes no claim that Wilson's police statement,
made shortly after the murder, was false or in any way unreliable.
Reference to the statement did not constitute grossly unfair prejudice in
this case. The district court correctly withheld habeas relief on these
claims.
B. Ineffective Assistance of Counsel
Henderson complains that his trial counsel was ineffective in cross-
examining Wilson and in failing to offer the transcript of Wilson's habeas
corpus testimony into evidence. To prevail on an ineffective assistance
of counsel claim, Henderson must show that his attorney's performance fell
below professional standards of competence and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). We presume attorneys provide effective assistance and
will not second-guess strategic decisions or exploit the benefits of
hindsight. Payne v. United States, 78 F.3d 343, 345 (8th Cir. 1996).
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We first address Henderson's claim that counsel was ineffective for
failing to adequately cross-examine Wilson. Henderson does not specify how
counsel should have proceeded, simply describing counsel's performance as
"lame." Appellant's Brief at 23. This is not the type of error, if indeed
it was error at all, that the Sixth Amendment functions to correct. The
cross-examination of a witness is a delicate task; what works for one
lawyer may not be successful for another. Courts generally entrust cross-
examination techniques, like other matters of trial strategy, to the
professional discretion of counsel. Barnes v. United States, 859 F.2d 607,
608 (8th Cir. 1988). We have recently observed that "there are a few, if
any, cross-examinations that could not be improved upon. If that were the
standard of constitutional effectiveness, few would be the counsel whose
performance would past muster. " Willis v. United States, 87 F.3d 1004,
1006 (8th Cir. 1996). A careful review of the transcript convinces us that
counsel's cross-examination was not constitutionally infirm.
Henderson also claims that counsel's failure to introduce a
transcript of Wilson's habeas corpus testimony constituted ineffective
assistance. Henderson argues that the habeas transcript was "substantive
evidence that Wilson's testimony was incorrect [and] served to exculpate
Henderson." Appellant's Br. at 27. We disagree. First, Henderson has
provided no reason, at trial or in any subsequent proceeding, to think that
Wilson's statement made the day of the murder is less accurate than his
testimony at the first habeas hearing, ten years after the fact.
Furthermore, Wilson's prior testimony could not have been properly admitted
as substantive evidence under state rules of evidence. Henderson v.
Arkansas, No. CR 93-849, 1994 WL 91313 at *2 (Ark. Mar. 14, 1994)
(explaining why transcript was inadmissible under state law). Finally,
even had the habeas testimony been admissible, we fail to see how Henderson
was prejudiced by its absence. The jury was informed, through cross-
examination, of the contradiction between Wilson's habeas and trial
testimony. They were free to discredit Wilson based on this inconsistency.
Counsel's failure to proffer evidence that was both inadmissible and
cumulative does not constitute ineffective assistance. The district court
correctly withheld habeas relief on this claim.
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C. Henderson's Statement
Henderson next contends that the trial court violated the
Constitution by admitting his police statement into evidence. Although a
confession's voluntariness is a question of law, state court factual
findings about the circumstances surrounding a confession are presumed to
be correct. Miller v. Fenton, 474 U.S. 104, 117 (1985).2
On direct appeal, the Arkansas Supreme Court found that Henderson had
only been in custody for two days; was informed of and appeared to
understand his rights; willingly spoke with Arkansas police; had a normal
level of intelligence; and gave no indication of psychosis during his
interrogation. Henderson v. Arkansas, 844 S.W.2d at 362. In light of
these undisputed factual determinations, Henderson's challenge to the state
court's legal conclusions must fail.
Henderson alleges that his statements to police were not voluntary
because of his "schizophrenic reaction, schizo affective type with paranoid
trends." Appellant's Br. at 29. However, he makes no allegation of
coercive police conduct, a necessary prerequisite to the conclusion that
a confession was involuntary. See Colorado v. Connelly, 479 U.S. 157, 167
(1986). We have interpreted Connelly to mean that the "personal
characteristics of the defendant are constitutionally irrelevant absent
proof of coercion brought to bear on the defendant by the State. " United
States v. Rohrbach, 813 F.2d 142, 144 (8th Cir. 1987) (quotation omitted).
Because Henderson has failed to prove, or even allege, that the police
officers' conduct was coercive, we reject his
2
Although the standard by which federal courts review state court determinations
of law was changed by the Anti-terrorism and Effective Death Penalty Act of 1996, the
United States Supreme Court has held that those changes are not applicable to cases
which, like this one, were pending at the time the AEDPA was enacted. Lindh v.
Murphy, 65 U.S.L.W. 4557 (U.S. June 23, 1997) (No. 96-6298).
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argument that his incriminating statements were involuntary. The district
court correctly withheld habeas relief on this issue.
D. Cumulative Error
Henderson's final contention is that all of his other allegations of
error combine to constitute cumulative error warranting section 2254
relief. As Henderson himself acknowledges, "cumulative error does not call
for habeas relief, as each habeas claim must stand or fall on its own."
Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990). The district court
correctly withheld habeas relief on this issue.
III. CONCLUSION
For the foregoing reasons, the district court's denial of Henderson's
petition for a writ of habeas corpus is affirmed.
Judge Henley concurs in the result.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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