                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 96-4180
                                   ___________

Michael L. Hood,                         *
                                         *
             Petitioner - Appellee,      *
                                         *
                                         * Appeal from the United States District
       v.                                * Court for the Southern District of Iowa.
                                         *
                                         *
James Helling, as Warden of the Iowa *
State Penitentiary; Tom Miller, Attorney *
General of the State of Iowa,            *
                                         *
             Respondents - Appellants. *
                                    ___________

                             Submitted: November 18, 1997
                                 Filed: April 14, 1998
                                  ___________

Before BOWMAN, LAY, and MURPHY, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       Michael Hood and Sherryl Snodgrass were convicted after a joint trial in Iowa
state court for the first degree murder of Gregory Snodgrass, Sherryl's husband. The
district court granted Hood’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 after concluding that the joint trial had violated his due process rights. The state
appeals, and we reverse.1

      Gregory Snodgrass was killed by a shotgun blast at his home near Ottumwa,
Iowa on September 20, 1981. Hood and Sherryl Snodgrass turned themselves in to
authorities five days after the killing and gave taped oral statements about their
involvement in it. The two had been carrying on an adulterous affair during the
preceding months, and Hood had paid a retainer to an attorney to procure a divorce for
Sherryl. On the weekend of the killing, Sherryl had driven to Missouri where she
picked up Hood. They stopped at his mother’s house to get his sawed off shotgun and
returned to Iowa with Sherryl’s children and several loaded guns including a .357
revolver and a rifle. The shotgun was later determined to have been used to kill
Gregory.

       Before they reached the Snodgrass home, Hood got out on a dirt road that led
to the house and hid for several hours. Then he entered the house through the back
door. The stories told by Hood and Sherryl differed as to the actual sequence of events
that ensued, but Gregory was shot and then stabbed several times. He died at the
scene, and Hood put his body in the trunk of the Snodgrass car along with his shotgun
and ammunition. Hood then cleaned up the blood in the house and wiped off
fingerprints.

       Hood, Sherryl, and her children left for Missouri where they sought help in
disposing of the body from the Jumper brothers. Hood had met the Jumpers in the Ku



      1
       The parties disagree about whether the 1996 amendments to 28 U.S.C. §
2254(d)(1) and (2) apply to this case. Hood filed his petition before the Antiterrorism
and Effective Death Penalty Act took effect, but we need not decide whether the
amendments apply because the outcome would be the same under either version of §
2254(d).

                                           -2-
Klux Klan and with their help he eventually dumped Gregory’s body in the Mississippi
river. During his visit to the Jumpers, Hood burned various items in their backyard,
tried to give away the murder weapon, and exchanged a rifle for the shotgun that had
belonged to Gregory. He also left at their house a blood-stained carpet cleaner which
had been used to clean up after the killing.

      Hood, Sherryl, and the children went on to Springfield, Missouri where they hid
in a motel, and the two adults worked out the story they would give to authorities.
They turned themselves in on September 25, and Hood originally maintained that he
was the one who shot Gregory. He later changed his story and said that it was Sherryl
who had pulled the trigger and that he had lied earlier to protect her.

       Hood moved for a severance prior to trial under Iowa R. Crim. P. 6(4)(b); the
motion was denied, and Hood and Sherryl were tried together. The state's theory at
trial was that Hood and Sherryl had planned and executed the killing together and that
the one who had not fired the fatal shot was still guilty of murder as an aider and
abettor. Both defendants took the position that the killing was justified, but each
defendant said that the other was the one who had pulled the trigger. Hood testified
that Gregory pointed a shotgun at him when he entered the house, that Sherryl shot
Gregory, and that Hood stabbed him when he continued forward. Sherryl testified that
she was in the bedroom when she heard Hood and Gregory arguing. Then she heard
Gregory walk towards the closet where he kept his shotgun, followed by a shot. She
came out of the bedroom, and Hood told her that he had had to kill Gregory in self
defense.

      The jury convicted Hood and Snodgrass of first degree murder. Both Hood and
Sherryl appealed their convictions to the Iowa Supreme Court, arguing that their due
process rights to a fair trial were prejudiced by the joint trial because evidence was
admitted against each one that would have been inadmissible had they been tried
separately. The Iowa court affirmed the convictions, holding that the defendants did

                                         -3-
not present mutually antagonistic defenses so it was appropriate to try them together.
See State v. Snodgrass, 346 N.W. 2d 472 (Iowa 1984); State v. Hood, 346 N.W. 2d
481 (Iowa 1984).

        Hood then brought this habeas corpus petition, and the district court ordered the
state to give Hood a new trial within 60 days or release him from custody. The court
concluded that the joint trial had violated Hood's due process right to a fair trial in that
it forced the codefendants to waive the privilege against self incrimination and led to
the introduction of evidence inadmissible in separate trials. The court also determined
that Hood’s constitutional rights were violated by the admission of his original
statements to authorities which contained references to his criminal record and the
violation of his parole by interstate travel and possession of weapons, of evidence of
membership in the Ku Klux Klan, and of his familiarity with weapons. Additionally,
the court found fundamentally unfair the admission of Dr. Allen Silberman's testimony
that Sherryl had a passive dependent personality and was thus incapable of taking the
initiative in the killing.

       The state argues that Hood is barred from raising his federal constitutional claim
in this habeas proceeding because he did not first present it in state court, Duncan v.
Henry, 115 S.Ct. 887, 888 (1995), but that the state court’s factual resolution of
whether his defense was antagonistic to that of Sherryl must be accepted if the issue
is reached. The state argues further that the defenses at trial were not actually
antagonistic and that Hood was not unfairly prejudiced by the presentation of evidence
in the joint trial.

      Hood responds that his claims were properly presented to the state court, as
demonstrated by the Iowa Supreme Court's use of federal constitutional cases to
evaluate his claim. He says the question of antagonistic defenses is a mixed question
of law and fact so a federal court is not required to defer to the state court
determination. He contends that his defense was antagonistic to that of Sherryl because

                                            -4-
the jury could not believe him unless it disbelieved her defense that she had had nothing
to do with the shooting and did not aid or abet the killing. Finally, he argues that
otherwise inadmissible evidence was permitted at the joint trial.

        In order for a federal court to have jurisdiction over a habeas claim it must have
first been adequately presented to the state court. See Duncan, 115 S. Ct. at 888. A
petitioner adequately presents a federal constitutional claim by referring to “a specific
federal constitutional right, a particular constutitonal provision, a federal constitutional
case, or a state case raising a pertinent federal constitutional issue.” Myre v. State of
Iowa, 53 F. 3d 199, 200 (8th Cir. 1995) (quoting Kelley v. Trickey, 844 F.2d 557, 558
(8th Cir. 1988)). The Iowa Supreme Court referred to Hood's due process right to a fair
trial in evaluating his appeal. See Hood, 346 N.W. 2d at 482-83; Snodgrass, 346 N.W.
2d at 475. Hood also made reference in his brief before that court to his due process
right to a fair trial. Hood's constitutional claim was therefore adequately presented, and
the state court had an opportunity to “pass upon and correct” the alleged violation of
federal constitutional rights. Duncan, 115 S.Ct. at 888.

       The state argues that even if Hood properly presented his claim, the Iowa
Supreme Court determination that the defenses were not mutually antagonistic is
controlling under 28 U.S.C. § 2254 (d) (state court findings of fact presumed correct in
habeas corpus review). Mixed questions of law and fact are subject to independent
review in habeas proceedings, however. See Thompson v. Keohane, 116 S.Ct. 457, 464
(1995). The question of whether the defenses of codefendants are so antagonistic as to
constitute a due process violation is such a mixed question because it requires
application of the law of severance and due process to the facts developed at trial. See
id. at 464-65. Independent review of the question is therefore appropriate. See id.

       The state also asserts that the defenses of Hood and Sherryl were not
antagonistic and that Hood's right to a fair trial was not infringed, while Hood contends
that the denial of a severance was an abuse of discretion that led to a fundamentally

                                            -5-
unfair trial. Hood's defense was that he neither shot Gregory nor aided or abetted
Sherryl. He presented evidence that would have tended to show, if the jury believed
it, that Sherryl killed Gregory to protect Hood and that she was justified in shooting
him. Sherryl similarly claimed she neither shot Gregory nor aided or abetted Hood, and
she presented evidence to show justification for Hood's action. Hood claims that the
defenses were antagonistic because if the jury believed all the details of either story,
it would have necessarily found the other defendant to have been the killer.

      A habeas petitioner is not entitled to relief on the grounds that he was entitled
to a severance unless he can show that a joint trial was fundamentally unfair. See
Jenner v. Class, 79 F.3d 736, 741 (8th Cir.), cert. denied, 117 S.Ct. 194 (1996).
Fundamental unfairness is shown where mutually antagonistic defenses compromised
a specific trial right or prevented the jury from making a reliable determination of guilt
or innocence. See id. at 741-42. Mutually antagonistic defenses are those which force
the jury to disbelieve the core of one defense in order to believe the core of the other.
See United States v. Gutberlet, 939 F. 2d 643, 645-46 (8th Cir. 1990).

       The core of each defendant’s defense in this case was that neither he or she
aided or abetted the killer but that the killer was justified in shooting. The jury could
have accepted Sherryl's story that she did not fire the fatal shot and still have believed
that Hood was not guilty of murder, however, since he could have shot Gregory in self
defense. Likewise, if the jury had believed Hood, it still could have acquitted Sherryl
on the ground that she did not commit premeditated murder. Had the jury accepted
either defendant’s theory of justification, it could have acquitted both of first degree
murder under Iowa law. See Snodgrass, 346 N.W. 2d at 477. Since the defenses were
not mutually antagonistic, the trial court's failure to sever is not a basis for a due
process violation. See Jenner, 79 F. 3d at 741.

      Hood also argues that the joint trial led to the admission of evidence that could
not have been used against him had he been tried alone, and that this denied him the

                                           -6-
specific due process right to be tried only on evidence admissible against him. In
support he points to the admission of testimony of Dr. Silberman, references to his prior
criminal record and parole violations, his Ku Klux Klan membership, his familiarity
with guns, and Sherryl's original statement.

       The trial court allowed Sherryl to play Hood's original statement to the police in
which he made references to his parole and criminal record and to cross examine
witnesses on the subject. The Iowa Supreme Court ruled that Hood's convictions and
parole violations were admissible to show why he and Sherryl had fled the scene of the
crime and why they did not notify authorities immediately after the killing, since Hood
was not supposed to leave Missouri or carry firearms. See Hood, 346 N.W. 2d at 483.
The Iowa court found that such evidence did not unfairly prejudice Hood because it
offered a nonincriminating reason for the couple's departure from Iowa. See id. at 484.
We do not disagree, and the admission of this evidence did not render Hood’s trial
fundamentally unfair.

       Hood complains that Sherryl's testimony at trial and her introduction of his
recorded statement in which he admitted shooting the victim demonstrated antagonism
between the codefendants and violated his right to a fair trial. Accusations between
codefendants at a joint trial and the admission of evidence by one party that is harmful
to the other do not necessarily make a trial fundamentally unfair. See Zafiro v. United
States, 506 U.S. 534, 538 (1993). Hood concedes that this evidence would be
admissible against him if he were tried alone, and its introduction at a joint trial did not
violate his constitutional rights.

       Hood also complains that Sherryl brought out his familiarity with weapons during
cross examination. The Iowa Supreme Court found that this evidence was cumulative
and did not merit reversal. See Hood, 346 N.W. 2d 484. In light of the admissible
evidence at trial concerning Hood's trades for firearms and his transportation of an


                                            -7-
arsenal of weapons to the scene of the killing, any additional evidence of his familiarity
with guns was merely cumulative and it did not violate his due process right.

       Sherryl called Dr. Silberman to testify that she had a “passive dependent”
personality and was subject to manipulation in support of her defense that she neither
intended nor planned to kill her husband. Hood argues that this testimony made his trial
fundamentally unfair because it tended to show that he must have planned the crime.
Even if the evidence would have been inadmissible at a separate trial, it did not violate
his due process right to a fair trial because the testimony was not inconsistent with
Hood's theory of defense. The jury could have believed Dr. Silberman and still have
found that either of the defendants shot Gregory in self defense and that neither planned
the killing. Moreover, on cross examination, Dr. Silberman admitted that Sherryl was
capable of violent acts such as striking her mother, thus undercutting his theory.2

        Hood also challenges evidence Sherryl brought out during her cross examination
of the Jumpers to show his membership in the Ku Klux Klan and its propensity toward
violence. Hood became acquainted with the Jumpers as fellow Klan members, and he
hoped that their common tie would cause them to help hide Gregory’s body. The
evidence was thus properly admitted to explain why Hood felt he could go to the




      2
        Before oral argument, Hood filed a motion for the court to take judicial notice
that Dr. Silberman’s license to practice as a psychologist had been revoked because he
was having a sexual relationship with Sherryl during the time he was treating and
evaluating her in preparation for trial. Hood argues that evidence of this relationship
calls into question the truthfulness of Silberman’s testimony and the reliability of the
jury’s verdict. The jury convicted both defendants of murder, however, so it must have
disbelieved Dr. Silberman’s testimony that Sherryl could not have been responsible for
murder. The court declines to take official notice of the details of the license
revocation or the sexual relationship because the additional evidence would not entitle
Hood to habeas relief.

                                          -8-
Jumpers for assistance in disposing of a dead body. The admission of this evidence did
not violate his due process rights.

        Hood further contends that Sherryl's cross examination of witnesses and her
closing argument shifted the blame to him, violating his constitutional right to a fair trial.
He claims it was unfair of Sherryl to suggest for the first time during closing that Hood
had a motive for the killing. Mere finger pointing among codefendants during trial and
closing argument is not a basis for habeas relief, however. See Jenner, 79 F.3d at 742
(citing Zafiro, 506 U.S. at 540). Sherryl's questioning and closing argument presented
the evidence in a light favorable to her but did not violate Hood's constitutional right to
a fair trial.

       Finally, Hood argues that the jury was unable to compartmentalize the evidence
or to determine his guilt or innocence only on evidence that pertained to him, and that
this made his trial fundamentally unfair. He points to Dr. Silberman's testimony, the tape
of his statement to Iowa authorities, and evidence of his prior convictions and parole
violation. The only cited evidence that might have been inadmissible in a separate trial
was Dr. Silberman's testimony, and this evidence did not inculpate Hood. If it were
believed, it only tended to show that Sherryl could not have committed first degree
murder, not that Hood definitely did. It was thus irrelevant to Hood's defense that the
shooting was justified.

      For these reasons, the order of the district court granting relief to the petitioner is
reversed, and the case is remanded for entry of judgment in favor of the state.

LAY, Circuit Judge, dissenting.

        I respectfully dissent. As the experienced district judge points out, there should
be little question the defenses urged by the petitioner Michael Hood and his co-defendant
were mutually antagonistic. Each accused the other of pulling the trigger of

                                            -9-
the gun that killed Sherryl Snodgrass’ husband. To urge that such defenses were not
irreconcilable defies common acceptance of that term.

       Irreconcilability requires severance when “<there is a danger that the jury will
unjustifiably infer that this conflict alone demonstrates that both are guilty.’” United
States v. Basile, 109 F.3d 1304, 1310 (8th Cir.) (quoting United States v. Delpit, 94 F.3d
1134, 1143 (8th Cir. 1996)), cert. denied, __ U.S. __, 118 S.Ct. 189 (1997). Given the
conflicting testimony of these two co-defendants, the irreconcilability of their defenses
could not be more clear. As Justice Harris’ strong dissent in the Iowa Supreme Court
opinion notes:

      The rationale for the antagonistic defenses rule rests on two bases. First,
      it is inherently prejudicial for a defendant to face multiple prosecutors, or
      for the State to orchestrate a pit fight in which each defendant’s attorney
      attempts to destroy the other’s client. Secondly, a defendant should not
      face the risk that a jury may become so disgruntled or perplexed by the
      codefendants’ inconsistencies that they will unjustifiably disbelieve both
      and find both guilty.

Snodgrass, 346 N.W.2d at 480 (Harris, J., dissenting) (citations omitted).

       The majority argues that the jury could have accepted Ms. Snodgrass’ story that
she did not fire the fatal shot and still have believed Hood was not guilty of murder,
because Ms. Snodgrass testified that Hood acted in self-defense in shooting Gregory
Snodgrass. This misses the point. As Justice Harris pointed out, the core of the
defenses presented by Hood and Ms. Snodgrass were much broader than justification.
Specifically, they each presented irreconcilable and mutually exclusive defenses to the
specific intent element of both first-degree murder and aiding and abetting first-degree
murder. As Justice Harris observed, the joint trial “was indeed a battle in which the co-
defendants’ attorneys attempted to destroy each other’s client.” Snodgrass, 346



                                          -10-
N.W.2d at 481. Each defendant claimed the other defendant was lying. How much
more evidence of irreconcilability is needed?

       Each defendant denied an intent to kill, and each denied knowledge of the
other’s intent to kill. Significantly, they disagreed on whether each knew the intent of
the person who pulled the trigger. These are not just simple inconsistencies in
testimony; they are clearly irreconcilable versions of events. Justice Harris points out
that even the prosecutor at trial argued that the two defendants could not both be telling
the truth. Snodgrass, 346 N.W.2d at 480. Jurors could not believe the “core” of
Hood’s defense—that he did not pull the trigger—without disbelieving Ms. Snodgrass’
“core” defense that he did. See Gutberlet, 939 F.2d at 645-46.

         However, conflicting defenses alone are not enough to mandate severance. In
Zafiro, 506 U.S. at 538, the Supreme Court ruled that “[m]utually antagonistic
defenses are not prejudicial per se.” Instead, the Court stated that severance is
warranted “only if there is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.” Zafiro, 506 U.S. at 539. The Court stated: “Such a risk
might occur when evidence that the jury should not consider against a defendant and
that would not be admissible if a defendant were tried alone is admitted . . . .” Id. This
scenario which the Supreme Court identified as highly prejudicial is exactly what took
place at Hood’s trial.

      Ms. Snodgrass’ first witness was Dr. Allen Silberman, who testified that he had
diagnosed Sherryl as a “passive dependent personality” with low self-esteem, who
“would tend to subordinate her own needs for other people upon whom she is
dependent.” Dr. Silberman also stated that Ms. Snodgrass “would go along with many
things without questioning,” and as a rule, people with this disorder do not become
violent. During closing arguments, Ms. Snodgrass’ attorney emphasized Dr.


                                          -11-
Silberman’s assessment of Ms. Snodgrass’ passive-dependent personality and
portrayed Hood as the aggressor in the relationship.

       Two years after Hood’s criminal appeal was completed, the State of Iowa
revoked Silberman’s license to practice psychology when it was learned that Silberman
had a sexual relationship with Ms. Snodgrass while he was treating and evaluating her
in preparation for his trial testimony. The majority declines to take judicial notice of
the details of the license revocation or the sexual relationship, stating the additional
evidence would not entitle Hood to habeas relief. See supra note 2.

       This testimony would not have been admitted into evidence if Hood had been
tried alone. The State in fact objected to the calling of Silberman at trial, arguing he
was improperly giving an opinion on Hood’s likelihood to commit a crime. The result
of Silberman’s testimony was to shift the blame of the crime away from Ms. Snodgrass
(as the “passive-dependent”) and on to Hood (as the aggressor.) The prejudice to
Hood is compounded by the fact that, in light of Silberman’s sexual relationship with
Ms. Snodgrass, his testimony now must be viewed as shockingly biased and
unreliable. It is difficult for me to assess this prejudice as anything but constitutional
error.

      The majority further argues that the admission of some of the evidence presented
by Ms. Snodgrass did not render Hood’s trial fundamentally unfair, because much of
this evidence would have been admissible against Hood if he was tried alone.
Assuming this is true, the dynamics of the joint trial still amounted to a tag-team
prosecution against Hood and Ms. Snodgrass, as each side desperately tried to pin the
blame on one another. In Zafiro, Justice Stevens recognized that joinder may be highly
prejudicial “in cases . . . in which mutually exclusive defenses transform a trial into
<more of a contest between the defendants than between the people and the
defendants.’” 506 U.S. at 543 (Stevens, J., concurring) (quoting People v. Braune, 2
N.E.2d 839, 842 (Ill. 1936)). This is exactly what happened here, as Hood was forced

                                          -12-
to fend off attacks from both the prosecutor and his co-defendant. As Justice Harris
poignantly put it:

      The tensions [between Hood and Ms. Snodgrass] were greatly
      exacerbated by the fact that a circle was drawn around both defendants
      in the same trial. The circle was then tightened, not only by the
      prosecution but also by the attempts of each defendant to escape by
      becoming a star witness against the other.

Snodgrass, 346 N.W.2d at 481.

      For these reasons, I believe it clear that the mutually antagonistic defenses
prevented the jury from making a reliable judgment about Hood’s guilt or innocence
on the first-degree murder charge. This extreme prejudice rendered Hood’s trial
fundamentally unfair, and in turn constituted a violation of the defendant’s right to due
process. His conviction should be reversed, and a separate trial should be granted.

      A true copy.

             Attest:

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




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