                                 No. 95-3141


John Douglas Martin,                       *
                                           *
      Appellant,                           *
                                           * Appeal from the United States
          v.       *                       District Court for the Eastern
                                           * District of Arkansas.
Larry Norris, Director,                    *
Arkansas Department                        *
of Correction,                             *
                                           *
      Appellee. *




                          Submitted:    March 13, 1996

                            Filed:     April 25, 1996


Before MORRIS SHEPPARD ARNOLD, FLOYD R. GIBSON, and HEANEY, Circuit
     Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     In 1992, a jury convicted John Martin in Arkansas state court of
kidnapping and first-degree murder.      On direct appeal, he argued that there
was insufficient corroboration under Arkansas law of the testimony of his
alleged accomplice, see Ark. Code Ann. § 16-89-111(e)(1), and therefore
that the evidence was insufficient under Arkansas law to sustain his
convictions.   He also argued that the state trial court improperly refused
to instruct the jury on the lesser included offense of second-degree
murder.


     The state appeals court held that Mr. Martin's trial lawyer had
failed to make an adequately specific motion for a directed verdict at the
close of the evidence, see Ark. R. Crim. P.
36.21(b), and therefore that Mr. Martin had waived the issue of the
sufficiency of the evidence.     See Martin v. State, 879 S.W.2d 470, 472
(Ark. Ct. App. 1994).   The state appeals court also held that because Mr.
Martin's defense was that he was not even in Arkansas at the time of the
crime, there was no rational basis for allowing a jury instruction on
second-degree murder.     See id. at 472-73.     The state appeals court
subsequently denied Mr. Martin's petition for rehearing.     See Martin v.
State, 883 S.W.2d 854 (Ark. Ct. App. 1994) (en banc).


     In late 1994, Mr. Martin filed in federal district court for habeas
corpus relief under 28 U.S.C. § 2254(a).     In his habeas petition, Mr.
Martin alleged, first, that his state trial lawyer was ineffective to a
constitutionally significant degree in failing to move specifically enough
for a directed verdict at the close of the evidence and, second, that the
trial court denied him due process by refusing to instruct the jury on
second-degree murder.


     A magistrate recommended that Mr. Martin's petition be denied.   With
respect to the issue of ineffective assistance of counsel, the magistrate
assumed that Mr. Martin's trial lawyer's performance was not objectively
reasonable under Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
The magistrate noted, however, that the state trial court denied the motion
for a directed verdict that Mr. Martin's lawyer made when the state rested
(before the defense presented its only witness) and concluded from that
action that no matter how Mr. Martin's lawyer might have phrased his motion
for a directed verdict at the close of the evidence, the state trial court
would have denied that motion.


     The magistrate then went on to discuss the sufficiency of the
corroborating evidence and concluded that if the state appeals court had
considered the legal issue of sufficiency, that court would have upheld the
trial court's denial of the motion for a




                                    -2-
directed verdict.            The magistrate reasoned, therefore, that Mr. Martin
suffered no prejudice from his trial lawyer's action.                       See id. at 692.         In
other       words,    the   magistrate      believed     that      there    was    no    "reasonable
probability" that if Mr. Martin's trial lawyer had made a proper motion at
the close of the evidence, "the result of the proceeding would have been
different" -- i.e., that the state appeals court would have reversed the
trial court and dismissed the case as legally insufficient.                              Id. at 694.
With    respect       to    the   jury     instruction      on    second-degree          murder,   the
magistrate concluded that the state trial court's refusal to give that
instruction was not such a deprivation as to amount to a violation of due
process.


        The district court reviewed the record de novo and adopted the report
and recommendation of the magistrate.                       The district court also held,
independently, that the motion for a directed verdict that Mr. Martin's
lawyer made at the close of the evidence was adequate under Arkansas law
and    that     Mr.    Martin's      trial       lawyer's    performance          was,    therefore,
objectively reasonable.            See id. at 687-88.        Mr. Martin appeals.            We affirm
                                                  1
the judgment of the district court.


                                                  I.
        For the purposes of this opinion, we assume, without holding, that
Mr.    Martin's       lawyer      failed    to   preserve        properly   the     issue    of    the
sufficiency of the evidence against Mr. Martin.                     We further assume, without
holding, that that failure was not objectively reasonable under Strickland
v. Washington, 466 U.S. 668, 687-88 (1984).                  We turn, then, to the question
of whether that failure was




        1
      The Honorable Stephen M. Reasoner, Chief Judge, United States
District Court for the Eastern District of Arkansas, adopting the
report and recommendation of the Honorable H. David Young, United
States Magistrate Judge for the Eastern District of Arkansas. See
28 U.S.C. § 636(b)(1)(B).


                                                  -3-
so serious that "there is a reasonable probability that, but for counsel's
unprofessional error[], the result of the proceeding would have been
different."      Id. at 694.        In other words, we consider whether there is a
reasonable probability that the state appeals court would have reversed the
state trial court's denial of Mr. Martin's lawyer's motion for a directed
verdict if the state appeals court had evaluated the sufficiency of the
evidence as a legal matter.


     Under Arkansas law, a person may not be convicted of a felony solely
on the basis of the testimony of an accomplice.                           See Ark. Code Ann.
§ 16-89-111(e)(1).      There must be "other evidence tending to connect the
defendant with the commission of the offense."                      Id.     The corroborating
evidence "must connect the accused with the crime and be independent of the
evidence given by the accomplice.                  ...     The test for determining the
sufficiency of the corroborating evidence is whether, if the accomplice's
testimony were eliminated from the case, the other evidence independently
establishes      the   crime    and    tends       to    connect    the    accused   with    its
commission."      Sanders v. State, 838 S.W.2d 359, 360 (Ark. 1992).                         The
corroborating evidence must be "stronger evidence than that which merely
raises a suspicion of guilt.          ...    However, it is something less than that
evidence   necessary[,]        in    and    of    itself,    to    sustain    a   conviction."
Henderson v. State, 652 S.W.2d 16, 19-20 (Ark. 1983).                     When an accomplice's
testimony "is corroborated as to particular material facts, the factfinder
can infer [that] the accomplice spoke the truth as to all."                        Franklin v.
State, 845 S.W.2d 525, 529 (Ark. 1993).                 With these principles in mind, we
recount    the   testimony      of    Mr.    Martin's       alleged    accomplice     and    the
corroboration provided for that testimony.


                                                 II.
     The    alleged     accomplice         was    Mr.    Martin's     nephew,     Adell   Henry.
According to Mr. Henry's testimony, he and Mr. Martin drove




                                                 -4-
Mr. Martin's gold Cadillac from Lawton, Oklahoma, where they lived in the
same house, to Little Rock, Arkansas, on October 11, 1991.        The trip was
Mr. Martin's idea.    They arrived late (around 11:00 p.m. or midnight),
"rode around town," and then went to a convenience store, where Mr. Henry
called a former girlfriend.      They went to the former girlfriend's home
about two hours after they arrived in Little Rock.       Mr. Henry went inside
and stayed until shortly before 7:00 a.m; Mr. Martin remained in the car
(although he had family who lived only 10 blocks away).      In corroboration,
Mr. Henry's former girlfriend testified that he called her in Little Rock
on October 12, 1991, around 2:30 a.m., came over shortly thereafter, and
stayed till about 6:00 a.m.


       According to Mr. Henry, after he returned to the car that morning,
Mr. Martin drove to the college where his wife, Felicia Martin, from whom
he was estranged, worked.    His wife drove into the college parking lot at
approximately the same time.     Mr. Martin parked and went over to talk to
Mrs. Martin in her car.      After a short time, Mrs. Martin went inside the
building   where she worked but then came out and talked again with
Mr. Martin.   Both walked over to the gold Cadillac, where Mr. Henry was
waiting in the front seat.    Mr. and Mrs. Martin talked momentarily by the
back door on the passenger's side.          Mr. Martin then opened that door,
pushed Mrs. Martin into the car, and told Mr. Henry to drive off.


       In corroboration, a co-worker of Mrs. Martin's testified that he
arrived at the college on October 12, 1991, about 7:05 a.m.        He saw Mrs.
Martin clock in about 7:10 a.m.       Shortly afterward, he saw Mrs. Martin
sitting in her car with a black man who "looked large."     He also saw a gold
Cadillac nearby and identified a picture of Mr. Martin's car as the one he
saw.   He later saw Mrs. Martin standing by the gold Cadillac.        The next
time he looked, both Mrs. Martin and the gold Cadillac were gone, although
her car remained in the parking lot.        He stated that Mrs. Martin was




                                      -5-
wearing glasses that morning and left a coin purse and a cup of coffee at
her workplace.


        Also in corroboration, Mrs. Martin's great-aunt testified that one
of Mrs. Martin's co-workers called her about 9:00 a.m. on October 12, 1991,
to say that Mrs. Martin was missing.                      The great-aunt stated that Mrs.
Martin always wore glasses and "said she couldn't see without them."                       The
great-aunt identified a pair of glasses as those belonging to Mrs. Martin.
A man who worked in the housekeeping department at the college identified
those glasses as the ones he found between 9:00 a.m. and 10:00 a.m.
on October 12, 1991, near a curb behind Mrs. Martin's workplace.


        According to Mr. Henry, Mrs. Martin "was trying to get up [in the
car], and [Mr. Martin] was laying on top of her."                     A few blocks later,
Mr. Henry heard Mrs. Martin "gasping for air" and "choking."                       Mr. Henry
further      stated that Mr. Martin subsequently told him to pull over;
Mr. Martin began driving; Mr. Henry heard nothing more from the back seat.


        In corroboration, the medical examiner who autopsied Mrs. Martin
testified that she died from being strangled, specifically, that some sort
of ligature was pulled horizontally across her neck from front to back,
cutting      off   the    blood     flow     from   her    brain.    He   stated   that   such
strangulation,        which       requires    "surprisingly     little"   pressure,   causes
unconsciousness within "only an order of seconds," and induces death in
"only    a   matter      of   a    few   seconds    more."     He   further   remarked    that
Mrs. Martin had abrasions from pressure on the front of her neck that were
"consistent with ... [some] kind of a struggle" by Mrs. Martin and that she
had bleeding deep inside her neck and lacerations inside her lips of the
type "commonly" made by a fist.




                                                -6-
       Mr. Henry testified that Mr. Martin eventually stopped, got out of
the car and told Mr. Henry to get out, and handed some gloves to Mr. Henry,
directing him to help remove Mrs. Martin from the car.   Mr. Martin also put
on gloves.   Mrs. Martin was not moving and said nothing.    Although she was
wearing glasses when she first talked with Mr. Martin at the college, she
was not wearing glasses when Mr. Martin and Mr. Henry took her from the
car.   Mr. Martin and Mr. Henry put Mrs. Martin's body "in some weeds."


       In corroboration, a Lawton, Oklahoma, police detective testified that
when he searched Mr. Martin's car on October 13, 1991, he found two pairs
of   leather gloves "stuffed in a side pocket in the rear back seat
compartment."    He also testified that he found a gold chain "in a small
console in between the seats."    A Little Rock police detective testified
that Mrs. Martin was reported missing shortly after noon on October 12,
1991, and that her body was found a few hours later.          The police made
plaster casts of tire tread marks where her body was found; the crime
laboratory determined that those marks were "similar" to the tire tread
pattern on Mr. Martin's car.   The medical examiner testified that the marks
on Mrs. Martin's neck were "consistent with" the pattern of the gold chain
that was found in Mr. Martin's car.


       Finally, Mr. Henry testified that he drove Mr. Martin back to
Oklahoma.    On the way, Mr. Martin directed Mr. Henry to say that they had
been to Tulsa, "if anybody asks."     An Oklahoma state trooper stopped Mr.
Henry for speeding about noon and gave him a ticket.        When they got back
to Lawton, Mr. Martin washed the car.   In corroboration, an Oklahoma state
trooper testified that he stopped Mr. Henry for speeding around noon on
October 12, 1991, and that there was "a rather large shouldered" black man
who "appeared a little nervous" in the car with Mr. Henry.          The state
trooper also testified that one route from Little Rock to Lawton, Oklahoma,
would be on the highway where he stopped Mr. Henry and that a




                                    -7-
person   who   left   Little   Rock    around   7:30   a.m.   or   8:00   a.m.   "could
approximately be," by noon, in the area where he stopped Mr. Henry.                  He
identified Mr. Henry from a photo spread as the driver whom he stopped and
ticketed about noon.


       "Corroboration may [also] be furnished by the acts, conduct, [or]
declarations ... of the accused."         Henderson v. State, 652 S.W.2d 16, 20
(Ark. 1983).    "A jury may consider and give weight to any ... improbable,
and contradictory statements made by an accused explaining suspicious
circumstances."      Watson v. State, 720 S.W.2d 310, 312 (Ark. 1986).           "False
statements to the police ... may constitute corroborating evidence."
Henderson, 652 S.W.2d at 20.          It is "settled beyond question," moreover,
that "a party's attempt to fabricate evidence is admissible ... as proof
relevant to show his own belief that his case is weak.              As one court has
said, in a case involving a fabricated alibi, 'fabrication of evidence of
innocence is cogent evidence of guilt.'"        Kellensworth v. State, 633 S.W.2d
21, 23-24 (Ark. 1982), quoting Harvey v. United States, 215 F.2d 330, 332
(D.C. Cir. 1954).


       The   state    introduced   two    videotapes    showing     statements     that
Mr. Martin gave to the police in Lawton, Oklahoma.             In those statements,
Mr. Martin said that around 1:00 a.m. or 2:00 a.m. on the morning of
October 12, 1991, he was at a club in Lawton with Mr. Henry; he also told
the police that he never went to Arkansas on the weekend in question.                He
said instead that he and Mr. Henry left for Tulsa about 7:00 a.m. or 8:00
a.m.   that morning but stopped partway and turned around because of
difficulty with the car's brakes.        He confirmed that Mr. Henry got a ticket
for speeding.     He stated that they got back to Lawton about 1:30 p.m. or
2:30 p.m.


       Mr. Martin put on one witness in his defense, a staff sergeant who
served with him in the military.         The sergeant testified that




                                          -8-
on October 12, 1991, he left his own house in Lawton, Oklahoma, about noon,
washed his car for about half an hour, and then went to Mr. Martin's house.
He stated that he and Mr. Martin were together from then until about 2:30
p.m., when Mr. Henry drove up in Mr. Martin's car, and that there was
another person in the car with Mr. Henry.            The sergeant acknowledged that
although he read about Mr. Martin's subsequent arrest for a kidnapping and
murder that had allegedly taken place on the morning of the day that he and
Mr. Martin were together in the afternoon, he never contacted the police
in Little Rock.


        After   considering   all   of   the    evidence    offered   to   corroborate
Mr. Henry's testimony, we have no difficulty concluding that a reasonable
jury could find from it that Felicia Martin was kidnapped and murdered --
her unexplained disappearance from work, having left personal items and her
car at her workplace; the discovery of her glasses, without which she had
said she could not see, at a curb behind her workplace; and her death by
strangulation after a struggle.           Nor do we have any hesitation about
concluding that a reasonable jury could find that the corroborating
evidence tended to connect Mr. Martin with that crime -- the sighting of
his gold Cadillac at the college around the time that Mrs. Martin arrived
for work; Mrs. Martin's being seen beside the car; the contemporaneous
disappearance of both Mrs. Martin and the car; the discovery in Mr.
Martin's car of a chain whose pattern was consistent with the abrasions on
Mrs. Martin's neck; the similarity between the tire tread marks where
Mrs. Martin's body was found and those on Mr. Martin's car; and the
ticketing of Mr. Martin's car during a period for which he offered
conflicting explanations of his whereabouts (returning from Tulsa at noon
with Mr. Henry, subsequently arriving in Lawton at 1:30 p.m. or 2:30 p.m.,
according to his statements to the police; or at home alone and with his
staff    sergeant   between   12:30   p.m.     and   2:30   p.m.,   according   to   the
sergeant).      The corroborating evidence thus "independently




                                         -9-
establish[ed] the crime and tend[ed] to connect the accused with its
commission."     Sanders v. State, 838 S.W.2d 359, 360 (Ark. 1992).   That
evidence was also strong enough, in our view, to raise more than "a
suspicion of guilt."    Henderson, 652 S.W.2d at 19.


     We hold, then, that the corroborating evidence was substantial enough
as a matter of law to support the jury's implicit finding that Mr. Henry's
testimony was truthful.   Under these circumstances, we do not believe that
there is any "reasonable probability," Strickland v. Washington, 466 U.S.
668, 694 (1984), that if the state appeals court had considered the merits
of Mr. Martin's claim of insufficient evidence, the appeals court would
have reversed the state trial court's denial of Mr. Martin's lawyer's
motion for a directed verdict.   We therefore hold that Mr. Martin suffered
no prejudice as a result of his state trial lawyer's actions in that
regard.


                                    III.
     Mr. Martin argues that the state trial court's refusal to instruct
the jury on the lesser included offense of second-degree murder violated
his due process rights. See, e.g., Henderson v. Kibbe, 431 U.S. 145, 154
(1977).   Although Mr. Martin's premise is not completely clear from his
appellate brief, we believe that he may be contending that the state trial
court, and the state appeals court, incorrectly interpreted Arkansas law
on when a jury instruction is required on a lesser included offense.    In
that regard, we observe that a state court's error in interpreting state
law does not ordinarily give rise to a constitutional claim justifying
habeas relief.    See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991);
see also Anderson v. Goeke, 44 F.3d 675, 681 (8th Cir. 1995), and Schleeper
v. Groose, 36 F.3d 735, 737 (8th Cir. 1994).




                                    -10-
     To the extent that Mr. Martin may be asserting that the Arkansas law
itself is a violation of his due process rights under the Constitution, we
do not believe, given the state of the evidence contained in this record,
that the state trial court's refusal to instruct the jury on second-degree
murder was "a fundamental defect resulting in a complete miscarriage of
justice."    Baker v. Leapley, 965 F.2d 657, 659 (8th Cir. 1992) (per
curiam); see also Closs v. Leapley, 18 F.3d 574, 579 (8th Cir. 1994), and
Frey v. Leapley, 931 F.2d 1253, 1255 (8th Cir. 1991).   We therefore reject
Mr. Martin's arguments in that respect.


                                   IV.
     For the reasons stated, we affirm the judgment of the district court.


     A true copy.


            Attest:


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




                                   -11-
