1

The Honorable Harold D. Vietor, United States District

Judge for the Southern District of Iowa, adopting the report and

recommendation of the Honorable Celeste F. Bremer, United States

Magistrate Judge for the Southern District of Iowa.

___________

No. 95-4007

___________

Jessie Masterson, suing as *

Jessie Daniel Masterson, *

 *

Appellant, *

 * Appeal from the United States

v. * District Court for the

 * Southern District of Iowa.

State of Iowa; Iowa State * [UNPUBLISHED]

Penitentiary; Thomas Hundley, *

Warden, *

 *

Appellees. *

___________

 Submitted: December 6, 1996

 Filed: December 12, 1996 ___________

Before FAGG, WOLLMAN, and MURPHY, Circuit Judges. ___________

PER CURIAM.

In 1982, a jury found Jessie Daniel Masterson guilty of firstdegree murder, he was sentenced to life imprisonment, and the Iowa

Supreme Court affirmed on direct appeal. State v. Masterson, No.

68237 (Iowa Dec. 22, 1982) (unpublished per curiam). State

postconviction relief was denied. Masterson v. State, No. 89-1446

(Iowa Ct. App. Nov. 29, 1990) (unpublished per curiam). Masterson

now appeals the district court's1 order dismissing his 28 U.S.C.

§ 2254 petition. We affirm. 

At trial, Masterson admitted causing the death of the victim,
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but presented evidence that he was incapable of forming the

specific intent required for a first-degree murder conviction

because he was a chronic alcoholic who had been drinking

continuously for five days. In this habeas petition, Masterson

claimed, as relevant to this appeal, (1) that his trial counsel

performed deficiently by failing to object to the State's rebuttal

witness, a psychiatrist who had previously examined Masterson and

was called to testify without prior notice concerning Masterson's

ability to form the requisite intent and who, by his own admission,

was not an expert on alcoholism; and (2) that the evidence was

insufficient.

We conclude that Masterson did not establish that his trial

counsel performed deficiently by failing to object to the testimony

of the State's rebuttal witness on the basis of surprise, as it is

undisputed that Masterson and his trial counsel knew of the witness

in question and were aware of his opinions. See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (ineffective-assistance

standard). Nor did the lack of notice deny Masterson due process.

Cf. Wardius v. Oregon, 412 U.S. 470, 475 (1973) (due process

forbade enforcement of Oregon's notice-of-alibi rule against

petitioner in absence of reciprocal requirement that State reveal

its rebuttal witnesses). We further conclude that trial counsel

did not perform deficiently by failing to object to the expert

witness's testimony on the ground that he was not qualified. Under

Iowa law, the general rule is one of liberality in the admission of

opinion evidence, State v. Hummell, 228 N.W.2d 77, 82 (Iowa 1975),

and "opinion evidence should be received if it will aid the

factfinder and is based on special training, experience or

knowledge with respect to an issue in controversy." State v.

Moses, 320 N.W.2d 581, 587 (Iowa 1982). The psychiatrist could

testify as an expert in his given field. See Ganrud v. Smith, 206

N.W.2d 311, 315 (Iowa 1973). He was thus qualified to testify

concerning Masterson's mental state, although defense counsel

properly attempted to discredit his testimony on cross-examination
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because he was not an expert on alcoholism.

 

We also reject Masterson's challenge to the sufficiency of the

evidence. We conclude that a rational jury could have found beyond

a reasonable doubt he acted with premeditation, deliberation, and

specific intent to kill. See Blair-Bey v. Nix, 44 F.3d 711, 713

(8th Cir. 1995) (standard of review); Iowa Code §§ 707.1 (murder

defined), 707.2(1) (first-degree murder defined); State v. Hall,

214 N.W.2d 205, 210-11 (Iowa 1974) (willful use of deadly weapon

with opportunity to deliberate is evidence of malice, deliberation,

premeditation, and intent to kill). Although there was

considerable testimony to the contrary, the jury was entitled to

reject that testimony and believe the State's rebuttal witness's

opinion that Masterson was capable of forming the specific intent

to kill. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). 

The judgment is affirmed.

A true copy.

Attest:

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