_____________

No. 94-3525EA

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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

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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 
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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), 
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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 crossappeals 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 crossexamination, 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 
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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.
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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 
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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 
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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 
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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 robberymurder 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 
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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 
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(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) 
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(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.
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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 
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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 
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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 
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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.