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Evidence at the hearing showed the booklet the State sought to admit is a handwritten copy of an Islamic religious booklet, “Koran Questions for Moorish Children.”
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.
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, as well as his personal belief that the Bloods gang is part of the Islamic church.
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.”
The district court concluded the prosecutor fed on “gang hysteria” in the community at the time and bought into it himself.
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.
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.
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.”
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 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 ” any 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 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.
Wainwright v. Lockhart, U.S. Court of Appeals for the Eighth Circuit – 80 F.3d 1226 (8th Cir. 1996)Submitted Sept. 11, 1995. Decided April 8, 1996
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