Kirt D. Wainwright v. A. L. Lockhart

           _____________

           No. 94-3525EA
           _____________

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

           _____________                   Appeals from the United States
                                           District Court for the Eastern
           No. 94-3528EA                   District of Arkansas.
           _____________

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

                       Submitted:   September 11, 1995

                        Filed:    April 8, 1996
                                 _____________

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

790 S.W.2d 420

 (Ark. 1990) (Wainwright I),




                                     -2-
cert. denied, 

499 U.S. 913

 (1991).                  State postconviction relief was denied,
Wainwright v. State, 

823 S.W.2d 449

 (Ark. 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




                                                    -3-
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.




                                         -4-
     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

 (1984).         At the habeas hearing,
Wainwright's




                                    -5-
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 4, 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

 (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

 (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




                                     -6-
penalty.   Whitmore v. Lockhart, 

8 F.3d 614, 624

 (8th Cir. 1993); see Walton
v. Arizona, 

497 U.S. 639, 652-53

 (1990); Williams v. Clarke, 

40 F.3d 1529, 1537-38

 (8th Cir. 1994), cert. denied, 

115 S. Ct. 1397

 (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, 

551 S.W.2d 212, 215

 (Ark. 1977) (en banc), cert. denied, 

435 U.S. 909

 (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




                                         -7-
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




                                    -8-
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, 

113 S. Ct. 1710, 1722

 (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




                                         -9-
(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 (quoting Estelle v. Williams, 

425 U.S. 501, 505

(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

.    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

 (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

 (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)




                                      -10-
(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, 

115 S. Ct. 1126

 (1995); Griffin v. Delo, 

33 F.3d 895, 903-04

 (8th Cir. 1994),
cert. denied, 

115 S. Ct. 1981

 (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

.




                                                  -11-
       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




                                         -12-
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, 

112 S. Ct. 1093, 1098-99

 (1992); O'Neal v.
Delo, 

44 F.3d 655, 661

 (8th Cir.), cert. denied, 

116 S. Ct. 129

 (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




                                       -13-
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 the
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




                                      -14-
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.


     A true copy.


           Attest:


                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                      -15-