Barrett v. Acevedo

United States Court of Appeals for the Eighth Circuit · 1999 · Evidence

169 F.3d 1155 (8th Cir. 1999)

Updated August 22, 2026

Evidencehabeas corpusConfrontation Clausehearsayeffect on listenerstate of mindharmless errorBrecht

Facts

At Barrett's second murder trial, the State introduced a 143-page journal Barrett had written in 1977 describing schemes to harm or kill his ex-wife and showing that he had forged her signature on a life insurance application; Barrett had left the journal at a restaurant, police copied it, and Barrett later admitted he wrote it. The State also presented expert testimony from Dr. DiMaio that one victim, Willits, had been murdered rather than committed suicide. After cross-examination suggested Dr. DiMaio was inflexible, the prosecutor asked whether any colleagues had given him persuasive reason to disregard his opinion, and over hearsay objection he answered, "No, sir." Barrett sought federal habeas relief, arguing that admission of the journal violated the First and Fifth Amendments and that Dr. DiMaio's answer violated the Sixth Amendment Confrontation Clause.

Issue

Whether Barrett was entitled to federal habeas relief because the admission of Dr. DiMaio's statement violated the Confrontation Clause, because admission and compelled production of Barrett's journal violated the First or Fifth Amendments, and whether AEDPA's amended § 2254(d) applied to his already-pending habeas petition. The court also considered Barrett's due process challenge to the Iowa Supreme Court's comment that two juries had found him guilty.

Rule

AEDPA's amended 28 U.S.C. § 2254(d) does not apply to noncapital habeas petitions pending when AEDPA was enacted. An out-of-court statement offered not for its truth but to show its effect on the listener or the listener's state of mind is not hearsay and raises no Confrontation Clause concern; even a Confrontation Clause violation is subject to harmless-error review. The Fifth Amendment does not protect the contents of voluntarily created documents when there is no governmental compulsion and no legitimate expectation of privacy, and compelled production is not testimonial where the existence, possession, and authenticity of the documents are foregone conclusions.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a homicide trial in St. Louis, forensic engineer Lena Ortiz testified that a warehouse fire was intentionally set. On cross-examination, defense counsel suggested Ortiz was arrogant and would never revise her conclusions. On redirect, the prosecutor asked whether comments from other engineers during her case review gave her any persuasive reason to abandon her opinion, and Ortiz answered, "No."

If the defendant objects under the Sixth Amendment Confrontation Clause, how should the court rule?

Explanation. The governing rule is that an out-of-court statement offered not for its truth, but to show its effect on the listener or the listener's state of mind, is nonhearsay and raises no Confrontation Clause concern. Here, the redirect question responds to the defense claim that Ortiz was dogmatic and seeks to show whether anything in the consultations affected her thinking. That use is nonhearsay for federal constitutional purposes.