                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2810
                                   ___________

Kevin Lamont Evans,                     *
                                        *
             Appellant,                 *
                                        *
       v.                               * Appeal from the United States
                                        * District Court for the
Kelly Lock, Superintendent; Jeremiah    * Western District of Missouri.
(Jay) Nixon, Attorney General of the    *
State of Missouri,                      *
                                        *
             Appellees.                 *
                                   ___________

                             Submitted: September 15, 1999

                                  Filed: October 8, 1999
                                   ___________

Before BOWMAN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

      Kevin L. Evans, a prisoner in the custody of the State of Missouri pursuant to a
conviction for second degree robbery, appeals from an order of the District Court1
denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. See Evans v.
Lock, No. 97-1005 (W.D. Mo. June 19, 1998). Evans claims that the District Court


      1
       The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
erred in failing to rule that the state trial court violated his due process rights by
allowing the admission of certain identification testimony Evans argues was tainted.
We do not reach the merits of Evans's constitutional claim. Instead, we conclude that
any error was harmless given the overwhelming evidence of guilt. We affirm.

       We begin with the facts of the crime for which Evans was convicted, as
presented in the record. Evans entered a Burger King restaurant shortly before closing
time on December 21, 1992, and approached the counter. At the counter, Evans asked
Julie Boucher, the cashier, for an employment application. After seeking and receiving
permission from Elizabeth Cass, a senior assistant manager, Boucher complied with
Evans's request. Both Cass and Boucher observed Evans take the employment
application to a nearby booth.

       Shortly thereafter, Evans returned to the counter and handed Boucher a note
reading: "Play for change. Just empty the register and no one will get hurt!" Boucher
stared at Evans for a minute before realizing that she was being robbed. She then
opened the cash register and gave Evans all of the money it contained, a total of
$72.00. Evans wished Boucher a "Merry Christmas" and fled. In total, Evans was in
the restaurant for seven to ten minutes.

       After Evans's departure, the employees found a partly-completed employment
application on the counter, near the cash register. The beginning of the defendant's
name, "Kevin L.," was written on the employment application. The police identified
Evans's fingerprints on the employment application. Cass and Boucher both testified
at trial that Evans was the only person to whom they had given an employment
application that day. Cass and Boucher also both testified that before Evans entered
the restaurant, they had cleared the restaurant of all debris and papers as part of their
standard practice in closing for the day. In particular, they testified that no employment
applications were laying on the counter when Evans entered the restaurant. From the
time he entered the restaurant until the time he fled, Evans was the only customer in the

                                           -2-
restaurant. Given all of the testimony and physical evidence with regard to the
employment application, it is not surprising that in closing argument the prosecution
told the jury that it considered the employment application to be the "linchpin" of its
case.

       The police arrived a short while after the robbery and, soon after obtaining a
description of the assailant, showed Boucher and Cass a photographic lineup of
potential suspects.2 It included a poor quality photograph of Evans that had been taken
several days earlier in unrelated circumstances. Cass, the senior assistant manager who
saw Evans enter the restaurant and leave the counter with the employment application,
selected Evans's picture stating that "it could probably be him." Cass also positively
identified Evans at trial.3 Boucher, who testified that she was quite upset at the time,
was unable to identify Evans from this photographic lineup. Subsequently, at the
preliminary hearing and at trial, Boucher identified Evans as the robber.

        In total, the prosecution presented six witnesses at trial – including Cass and
Boucher, both of whom identified Evans as the assailant – as well as the employment
application bearing Evans's fingerprints and name. Evans's attorney cross-examined
all of the witnesses and presented a defense of mistaken identity. After hearing the
evidence and argument, the jury found Evans guilty of robbery. The trial court denied
Evans's motion for a new trial and sentenced him to twelve years in prison as a prior
and persistent offender. Evans appealed his conviction, and it was upheld by the
Missouri Court of Appeals. See State v. Evans, 936 S.W.2d 893 (Mo. Ct. App. 1997).

       Evans challenges Boucher's identification testimony as tainted and unreliable.
Evans points out that before Boucher entered the preliminary hearing room, a police
officer told her that the accused assailant would be in the hearing room. Evans argues

      2
          Evans does not challenge the constitutionality of this photographic lineup.
      3
          Evans does not claim that Cass's identification testimony was tainted.
                                           -3-
that this statement and the other circumstances of the preliminary hearing were highly
suggestive – Evans, as it turned out, was the accused assailant and, as might be
expected, was seated at the defense table during his own hearing; he, along with three
others in the room (one of whom shared Evans's race), was dressed in orange prison
garb. Evans claims that Boucher's identification testimony was tainted irretrievably
from this moment forward.

       As an initial matter, we note that Evans, who was represented by counsel, failed
to preserve this claim at trial by objecting to the admission of Boucher's testimony.
Evans did, however, raise his claim on direct appeal to the Missouri Court of Appeals,
which reviewed for plain error and found none. See State v. Evans, No. WD 49602,
mem. supplemental order at 6 (Mo. Ct. App. Jan. 21, 1997). We have noted the
difficulty of procedural bar analysis in such circumstances. See Sweet v. Delo, 125
F.3d 1144, 1152 (8th Cir. 1997) (collecting cases), cert. denied, 118 S. Ct. 1197
(1998). We also note that discerning the proper standard for habeas review under the
provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA")
is relatively uncharted territory. But see James v. Bowersox, ___ F.3d ___, No.
98-2841, 1999 WL 638505, at *2 (8th Cir. Aug. 19, 1999) (noting "exceptionally
limited" scope of habeas court's review of trial court error – here, alleged prosecutorial
misconduct – given strict due process standard of constitutional review, deferential
review mandated by AEDPA, and habeas court's less reliable vantage point for gauging
impact of alleged violation on overall trial fairness).

       Accordingly, because we conclude that any error with respect to the inclusion
of Boucher's testimony was harmless, we see no reason to belabor these issues or to
reach the constitutionality of the circumstances surrounding Boucher's identification of
Evans. Cf. 28 U.S.C. § 2254(b)(2) (permitting federal court to deny habeas petition
on merits notwithstanding applicant's failure to exhaust state remedies); Lambrix v.
Singletary, 520 U.S. 518, 525 (1997) ("We do not mean to suggest that the procedural
bar issue must invariably be resolved first [given constraints of judicial economy.]");

                                           -4-
Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.) (en banc) ("Although the
procedural bar issue should ordinarily be resolved first, judicial economy sometimes
dictates reaching the merits if the merits are easily resolvable against a petitioner while
the procedural bar issues are complicated."), cert. denied, ___ U.S.L.W. ___ (U.S.
Oct. 4, 1999) (No. 98-9681).

       In general, a habeas court will apply the harmless error standard of Kotteakos
v. United States, 328 U.S. 750 (1946), under which constitutional error requires
reversal only if the error had a "substantial and injurious effect or influence in
determining the jury's verdict," id. at 776. See Brecht v. Abrahamson, 507 U.S. 619,
637 (1993). Nevertheless, this Circuit applies the stricter standard of Chapman v.
California, 386 U.S. 18 (1967), in the context of habeas review when a state court has
not conducted its own harmless error analysis on direct appeal. See Beets v. Iowa
Dep't of Corrections Svcs., 164 F.3d 1131, 1134-35 n.3 (8th Cir.), cert. denied, ___
U.S.L.W. ___ (U.S. Oct. 4, 1999) (No. 98-8551); see also Brecht, 507 U.S. at 636-37
(where direct review in state court had already found trial court error to be harmless
beyond a reasonable doubt under Chapman, federal habeas review properly limited to
"less onerous" Kotteakos standard). Here, the Missouri Court of Appeals reviewed for
plain error and did not conduct any express harmless error analysis. Accordingly, we
will apply the Chapman standard as set forth below.4

       The Supreme Court has "repeatedly reaffirmed the principle that an otherwise
valid conviction should not be set aside if the reviewing court may confidently say, on
the whole record, that the constitutional error was harmless beyond a reasonable
doubt." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (citing Chapman, 386
U.S. at 25). In applying this standard, a reviewing habeas court must gauge whether

      4
       Because we conclude that any error here could survive even the strict Chapman
harmless error standard, we do not consider whether, under AEDPA, a less stringent
standard would apply where, as here, the state court did not expressly review for
harmless error.
                                            -5-
any constitutional error could reasonably influence the jury in a manner adverse to the
defendant, given the record as a whole. See Lam v. Iowa, 860 F.2d 873, 876 (8th Cir.
1988) (citing Chapman, 386 U.S. at 23-24), cert. denied, 490 U.S. 1069 (1989).
"[T]his impermissible influence might appear in either of two forms: the evidence
might aid the state in proving its case beyond a reasonable doubt, or it might unfairly
influence or prejudice the jury." Id.

       Here, even assuming arguendo that the admission of Boucher's identification
testimony constitutes constitutional error, given the overwhelming evidence of Evans's
guilt on the record as a whole, we hold that the inclusion of Boucher's testimony was,
at most, harmless error.

        The following evidence in the trial record would have amply proved the State's
case beyond a reasonable doubt even without Boucher's identification testimony: Cass,
the assistant manager, whose testimony is not challenged as being tainted, testified that
she saw Evans take an employment application shortly before the robbery; Cass
testified that Evans was the only person who had been given an employment
application that day and that no employment applications were on the counter before
Evans arrived; an employment application bearing Evans's fingerprints and name was
found near the cash register immediately following the robbery; Cass identified Evans
as the robber both at a photographic lineup shortly after the robbery and at trial.
Accordingly, the question of guilt or innocence is not a close one here. Indeed,
Boucher's identification testimony was cumulative of Cass's unchallenged identification
testimony. Considering the State's overwhelming case against Evans, we are
thoroughly convinced that the trial jury, unaided by Boucher's testimony, would have
found Evans guilty as charged. We do not see any indication that Boucher's testimony,
even if constitutionally infirm (a question we need not and do not decide),
impermissibly prejudiced the jury. In these circumstances, any influence this testimony
may have had upon the jury is constitutionally insignificant.



                                           -6-
      If an alleged error was harmless beyond a reasonable doubt, the conviction
should be affirmed irrespective of that error. Accordingly, even assuming, without
deciding, that admitting Boucher's testimony constituted constitutional error, given the
harmless nature of any such error in the context of this case, we affirm the District
Court's denial of habeas relief.

      A true copy.

             Attest:

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




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