                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1845
                                  ___________

Vernon Brown,                          *
                                       *
            Appellant,                 * Appeal from the United States
                                       * District Court for the
      v.                               * Eastern District of Missouri.
                                       *
Allen D. Luebbers,                     *
                                       *
            Appellee.                  *
                                  ___________

                            Submitted: April 14, 2004
                                Filed: June 15, 2004 (Corrected June 17, 2004)
                                ___________

Before LOKEN, Chief Judge, RICHARD S. ARNOLD, BOWMAN, WOLLMAN,
      MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY,
      SMITH, and COLLOTON, Circuit Judges, En Banc.
                              ___________

BOWMAN, Circuit Judge.

       In 1991, a jury convicted Vernon Brown in Missouri state court for the 1985
strangulation death of Synetta Ford. He was sentenced to death. His consolidated
direct appeal and post-conviction challenges in the Missouri Supreme Court were
unavailing. State v. Brown, 998 S.W.2d 531 (Mo.) (en banc), cert. denied, 528 U.S.
979 (1999). His 28 U.S.C. § 2254 petition in the District Court1 raising thirty-one


      1
       The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
grounds for relief was denied, but the court granted a certificate of appealability on
eleven grounds. A panel of this Court affirmed the District Court in part but granted
the writ on one of Brown's claims challenging his sentence. Brown v. Luebbers, 344
F.3d 770 (8th Cir. 2003).

       Both Brown and Allen D. Luebbers (representing the State) filed petitions for
rehearing with suggestions for rehearing en banc. We requested from Brown a
supplemental response addressing the appropriate standard of review to apply to the
issue upon which the writ had been granted. After receiving the response, the panel
denied both petitions for rehearing. The Court en banc rejected Brown's suggestions
for reconsideration by the full Court but granted an en banc rehearing to the State.

       The claim in question concerns a letter that Brown's defense counsel sought to
have read into evidence during the penalty phase of Brown's trial for the Ford murder.
Counsel represented to the trial court that the letter was from Darius Q. Turner,
Brown's younger brother, and had been sent to Brown's counsel in the public
defender's office. According to the letter, Turner, a sergeant in the United States
Army, was deployed in Saudi Arabia in Operation Desert Shield at the time of
Brown's sentencing. As a result, he was unable to be present in the courtroom to
testify. In the letter, Turner noted the love and understanding between him and his
brother and recounted how Brown had protected Turner from bigger boys when
Turner was a child. As for their relationship as adults, Turner expressed regret for not
staying in touch and told his brother that the telephone calls and letters from Brown
meant more to him than those he received from others. Finally, he implored those
who might read the letter to let God's law decide Brown's fate. The trial court
excluded the letter as hearsay.

       We now affirm the District Court's denial of relief on all grounds. In doing so,
we adopt the holdings and reasoning of the panel opinion, except for Part VIII and
the result.

                                          -2-
                                           I.

       Under 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death
Penalty Act (AEDPA) in 1996, a decision by a state court "with respect to any claim
that was adjudicated on the merits in State court proceedings" is entitled to deference
by the federal courts. 28 U.S.C. § 2254(d). That is, we look only to see if such
adjudication "resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States" or "resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding." Id. § 2254(d)(1), (2). AEDPA effected a move toward greater
deference in the § 2254 courts' review of state-court decisions. See Lindh v. Murphy,
521 U.S. 320, 333 n.7 (1997) (noting "§ 2254(d)'s new, highly deferential standard
for evaluating state-court rulings").

       But as the language of the statute makes clear, there is a condition precedent
that must be satisfied before we can apply the deferential AEDPA standard to
Brown's claim. The claim must have been "adjudicated on the merits" in state court.
The majority (and the dissent, for that matter) in the panel opinion for the Court
concluded that Brown's constitutional claim regarding the Turner letter had not, in
fact, been adjudicated on the merits in state court.2 So the first question for us to

      2
        This is what the Missouri Supreme Court said in deciding Brown's claim of
state-law error as well as his claim that the exclusion of the letter violated his rights
under the Due Process Clause:

      Brown contends that the trial court abused its discretion in the penalty
      phase when it refused to allow his counsel to read into evidence a letter
      about him that was written by his brother, Darius Turner. Turner was
      stationed in Saudi Arabia during the Operation Desert Shield as a
      member of the United States Army at the time of trial. The state
      objected to the introduction of the letter because the letter is

                                          -3-
consider is: what constitutes an adjudication on the merits? From the plain language
of the statute and black-letter law, we know that the state court's decision must be a
judgment—an adjudication—on a substantive issue—the merits (as compared with
a procedural or technical point). A survey of opinions from our sister circuits
demonstrates that, beyond these two considerations, resolving the question is not so
easy. One thing is clear—no court has established bright-line rules about how much
a state court must say or the language it must use to compel a § 2254 court's
conclusion that the state court has adjudicated a claim on the merits. That is as it
should be, given one court's difficulty in divining the thought processes of another
based only on language being used in certain ways, not to mention the comity issues
that would be raised. Cf. Coleman v. Thompson, 501 U.S. 722, 739 (1991) (noting
in discussion of procedural default in state habeas cases that the Court has "no power
to tell state courts how they must write their opinions" so that reviewing "federal
courts might not be bothered with reviewing state law and the record in the case").
We must simply look at what a state court has said, case by case, and determine
whether the federal constitutional claim was considered and rejected by that court.

       After careful reflection upon the adjudication issue in this case, we now
conclude that Brown's constitutional claim was indeed adjudicated on the merits in
state court, on two independent grounds, and that the AEDPA § 2254(d) standard of
review should apply.


      inadmissible hearsay that was unreliable. Brown alleges that the letter
      should have been read into evidence pursuant to State v. Phillips and
      Green v. Georgia. The determination of reliability is left to the trial
      court judge who was uncertain as to the authenticity of the letter. We
      uphold his ruling and note that even if he was wrong about the letter's
      reliability, its exclusion does not in the context of this case seem
      prejudicial.

State v. Brown, 998 S.W.2d 531, 549–50 (Mo.) (en banc) (citations omitted), cert.
denied, 528 U.S. 979 (1999).

                                         -4-
                                           A.

       In Brown's consolidated appeal, the Missouri Supreme Court, at the very least,
acknowledged that a federal constitutional claim was before it when it said, "Brown
alleges that the letter should have been read into evidence pursuant to State v.
Phillips, 940 S.W.2d 512, 517–18 (Mo. banc 1997), and Green v. Georgia, 442 U.S.
95 (1979)" (per curiam). Brown, 998 S.W.2d at 549. Phillips, a Missouri death
penalty case, concerned a Brady3 issue raised in the petitioner's consolidated appeal.
The State had argued that the Brady issue was of no consequence because the
statement in question was hearsay and would not have been admitted into evidence
even if it had been disclosed. The Phillips court, in the pages cited by the Missouri
Supreme Court in Brown, analyzed the question under Green and concluded that the
testimony was highly relevant and reliable, and it should have been admitted.

       In Green, also a capital case, the hearsay at issue was the testimony of a witness
given at the trial of Carzell Moore, who was indicted on the same charges of murder
and rape as Green, the petitioner. Moore and Green were tried separately. The
witness testified in Moore's trial, the first to be held, that Moore, Green's alleged
partner in crime, had confessed to him, the witness. According to the testimony,
Green was not present when the victim was murdered. The testimony was excluded
from Green's later trial as hearsay. The Supreme Court did not second-guess the state
court's evidentiary ruling that the testimony was hearsay but held that "its exclusion
constituted a violation of the Due Process Clause of the Fourteenth Amendment. The
excluded testimony was highly relevant to a critical issue in the punishment phase of
the trial, and substantial reasons existed to assume its reliability." Green, 442 U.S.




      3
       Brady v. Maryland, 373 U.S. 83 (1963) (prosecutorial suppression of evidence
favorable to the accused).

                                          -5-
at 97 (citing Lockett v. Ohio, 438 U.S. 586, 604–05 (1978) (plurality opinion); id. at
613–16 (opinion of Blackmun, J.)).4

        It is true that the bulk of the Missouri Supreme Court's brief discussion of
Brown's claim was devoted to the state-law evidentiary question and whether "the
trial court abused its discretion" in excluding the letter. Brown, 998 S.W.2d at 549.
But the "summary nature" of the discussion of the federal constitutional question does
not preclude application of the AEDPA standard. James v. Bowersox, 187 F.3d 866,
869 (8th Cir. 1999), cert. denied, 528 U.S. 1143 (2000). Here, the Missouri Supreme
Court cited cases applying the relevant constitutional rule and held against Brown on
the question of reliability. Under Green, absent a determination that "substantial
reasons" exist to assume the reliability of the evidence in question, it will not be a due
process violation for a court to decline to admit the evidence. The citation to the
relevant law and the invocation of "reliability" in the opinion are enough to persuade
us that the Missouri Supreme Court adjudicated the due process claim on the merits.
That is not to say that citation to law and a key word from the application of that
law—or anything else—is required for us to determine that the claim was adjudicated
on the merits. We only hold that they suffice in this case for us to conclude that the
Missouri Supreme Court's decision on this claim was an adjudication on the merits.




      4
        In Lockett, the petitioner challenged a state death penalty statute that "did not
permit the sentencing judge to consider, as mitigating factors, [the petitioner's]
character, prior record, age, lack of specific intent to cause death, and her relatively
minor part in the crime." 438 U.S. at 597 (plurality opinion). The Court concluded
that the Constitution requires "that the sentencer . . . not be precluded from
considering, as a mitigating factor, any aspect of a defendant's character or
record . . . that the defendant proffers as a basis for a sentence less than death." Id.
at 604.

                                           -6-
                                            B.

       We further conclude that the Missouri Supreme Court adjudicated Brown's
federal constitutional claim on the merits in an alternative holding. Following its
references to Green and the reliability of the letter, the court said, "We . . . note that
even if [the trial judge] was wrong about the letter's reliability, its exclusion does not
in the context of this case seem prejudicial," Brown, 998 S.W.2d at 549–50, a
conclusion that is an application of the harmless-error standard set forth in Chapman
v. California, 386 U.S. 18 (1967).5 In Chapman, the Court held that certain federal
constitutional errors made in state-court criminal trials could "be deemed harmless,
not requiring the automatic reversal of the conviction" if the errors are shown to be
harmless "beyond a reasonable doubt." 386 U.S. at 22, 24. Again, there are no
"magic words" that must be invoked before we can conclude that the Missouri
Supreme Court decided that any error was harmless beyond a reasonable doubt. But
here, the state court's use of "prejudicial" signals to us the application of the Chapman
standard, as the Supreme Court has long considered prejudice in its Chapman
harmless-error analyses. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 636 (1993)
("State courts are fully qualified to identify constitutional error and evaluate its
prejudicial effect on the trial process under Chapman . . . ."); Kimmelman v.
Morrison, 477 U.S. 365, 382 n.7 (1986) ("Furthermore, when an attorney chooses to
default a Fourth Amendment claim, he also loses the opportunity to obtain direct
review under the harmless-error standard of Chapman, which requires the State to
prove that the defendant was not prejudiced by the error.") (citation omitted); Hopper
v. Evans, 456 U.S. 605, 613–14 (1982) ("The preclusion clause did not prejudice
respondent in any way, and a new trial is not warranted.") (citing Chapman). On the
facts of this case, the state court's determination that the exclusion of the Turner letter

      5
       We are assuming that the Chapman harmless-error standard applies here. See
Sweet v. Delo, 125 F.3d 1144, 1158 (8th Cir. 1997) (noting Supreme Court cases
"implying that harmless-error analysis applies to Lockett errors"), cert. denied, 523
U.S. 1010 (1998).

                                           -7-
did not seem "prejudicial" to Brown was sufficient adjudication on the merits to
entitle this alternate holding to AEDPA deferential review.

                                           II.

       Having concluded that the standard set out in § 2254(d) as amended by
AEDPA applies to Brown's claim, we now consider whether the Missouri Supreme
Court's adjudication of the claim resulted in a decision that was contrary to or an
unreasonable application of clearly established federal law.6 We will consider both
grounds on which the Missouri Supreme Court decided the constitutional claim. But
before we get to the analysis, we must lay out the evidence of aggravating and
mitigating circumstances that was before the jury, as that evidence is critical to our
legal conclusions here and in Part III.

      The jury was instructed on four aggravating circumstances, two statutory and
two nonstatutory. The first factor that the jury considered was whether Brown was
convicted in 1973 in Indiana on a charge of assault and battery with intent to gratify
sexual desires. In fact, the indictment on the charge, read into evidence during the
sentencing portion of Brown's trial, accused Brown of fondling and caressing the
body of a twelve-year old girl to gratify his own sexual desires. Trial Transcript at
2298. Brown pleaded guilty to the charge.

      Next, the jury was instructed to consider whether Brown's murder of Synetta
Ford "involved torture and depravity of mind and whether, as a result thereof, the
murder was outrageously and wantonly vile, horrible, and inhuman." State v. Brown,
Cause No. 861-03056, Legal File Components of the Record on Appeal in the


      6
        Brown throws the language from § 2254(d)(2), "unreasonable determination
of the facts," into his claim, but he does not argue the facts. It appears to us that the
underlying material facts are a matter of record and are not disputed.

                                          -8-
Missouri Supreme Court at 86. The jury could find depravity of mind only if it found
that Brown "committed repeated and excessive acts of physical abuse upon Synetta
Ford and the killing was therefore unreasonably brutal." Id. The evidence before the
jury was that nineteen-year-old Synetta Ford was found dead in her basement
apartment with a knife sticking out of her throat and the electrical cord from a curling
iron "tightly knotted around the neck." Trial Transcript at 2043, see also id. at 1662,
1684. The door to her apartment had been forced open. The evidence showed that
Brown first strangled her, taking the time to knot the electrical cord around her neck,
and then as she was dying he stabbed her in the chest and neck. The stab wound to
her neck severed her carotid artery, the major artery in the neck. The jurors saw
photographs of Ford's body as it appeared when it was discovered on the floor of her
apartment and also an autopsy photograph. In addition, the jury watched a videotape
of Brown's confession, where he claimed that Ford had accidentally stabbed herself
before and after he strangled her with the cord.

        The jury was further charged with deciding whether Brown was convicted of
first degree murder in 1988. During sentencing, jurors heard evidence that in October
1986, Brown took nine-year-old Janet Perkins, who was at his home playing with his
stepsons, into the basement where he wrapped a cord around her neck and strangled
her. The boys heard her screaming as they played upstairs. The body was found near
a trash dumpster, wrapped in trash bags, with a rusty coat hanger wrapped around her
ankles and one of her arms, so that her knees were drawn up to her body. After
Brown was picked up in connection with the Perkins murder and confessed his guilt,
he led officers to another dumpster a block from where the body was found. There
they found a bag containing Janet Perkins's missing shoe, a yellow plastic raincoat,
and some of her school papers. The Ford jury also saw photographs of the little girl's
body and watched Brown's videotaped confession to the Perkins murder. Brown was
convicted of first degree murder in the Perkins case and sentenced to death.




                                          -9-
       Finally, the jury was instructed to decide whether Brown committed acts of
sodomy on his stepsons Christopher Moore, Jason Moore, and Tommy Johnson, who
were about seven, five, and nine years old, respectively, at the time of the abuse to
which they testified. Christopher, age eleven at the time of the sentencing, testified
that before Brown was arrested for the Perkins murder in October 1986, he would
take Christopher alone into the bedroom Brown shared with Christopher's mother and
tell him to undress and lie on his stomach on the bed. Brown would undress, put
"hair grease" on his penis, and put his penis in Christopher's anus and then in his
mouth. Id. at 2262. Brown committed these acts of sodomy on several different
occasions. Christopher told no one about the incidents until Brown was in jail
because Brown had said that if he told, he "would never see any of [his] brothers or
[his] mother again." Id. at 2264. Jason, nine years old when he testified, also
explained to the jury how Brown had performed anal sex on him and said that Brown
had threatened to "kill us" if he told anyone. Id. at 2288. Thirteen-year-old Tommy
Johnson testified that Brown put his penis in Tommy's anus and mouth and that
Brown also put his mouth on Tommy's penis. Id. at 2323. The boys said that Brown
would commit the acts of sodomy when their mother was not at home, taking them
one at a time from playing with their brothers and locking the door so that the boys
who were not being victimized at the time could not come in.

      The jury found all four aggravating circumstances, unanimously, beyond a
reasonable doubt.

      Brown's defense team called a number of witnesses who gave mitigating
evidence. First, the jury heard from Maggie and Donald Coplen who knew Brown,7
his wife, and his wife's sons (the children who testified for the State in the penalty
phase). They became acquainted in 1981 (four years before the Ford murder, ten


      7
       The witnesses who testified about relationships they had with Brown in the
early 1980s knew him as Thomas Turner.

                                        -10-
years before the trial) at Sunday school. The Coplens testified that the families spent
two Christmases together, and Donald Coplen said he and Brown delivered Christmas
baskets to the needy one year. They saw each other socially an additional time or two.
The Coplens also saw Brown regularly at church until he stopped attending in 1984
and became distant. They did not see him after that, although Maggie Coplen said
that she had visited him in the city jail and in state prison and was staying in touch
with him. Both Coplens testified that they had not seen Brown physically abuse his
wife or her sons during the time that they were in regular contact with him.

        Paul Sasser, a retired minister and former director of a homeless center that was
affiliated with Brown's church, became acquainted with Brown at the center. Brown
began to help Sasser at the homeless center, first as a volunteer, then for a small
salary, and lived with Sasser for a while. While working at the center, Brown had
protected Sasser from angry or drunk clients who had threatened Sasser. Brown
found his future wife and her three sons living on the streets and was concerned for
them, according to Sasser, eventually taking them in. Sasser was still in contact with
Brown at the time of the trial.

      Forensic social worker Jill Miller testified next. She had spent hours talking
with Brown, his family, and others who knew him, and she also had reviewed his
educational, medical, and correctional records. She noted that Brown had refused
educational and neurological testing that she had recommended for her use in
preparing her testimony for the sentencing.

       From the school records, Miller gleaned that Brown had a borderline IQ, at
best, and generally performed two to three grades below his grade level. She testified
that he was close to his mother, brothers, and sister growing up, although his mother
was strict. He was protective of his younger siblings (he was the oldest), sometimes
taking the blame for things they had done so that they would not be punished.



                                          -11-
Personally, she found Brown to be "personable, pleasant, generally
cooperative . . . verbal, polite, but . . . very guarded." Trial Transcript at 2415.

       The jury then heard the testimony of three corrections officers. The supervisor
of social services at the city jail when Brown was held there said Brown had made
few requests of the staff and did not get in trouble for fighting. Also testifying were
corrections officers from Potosi Correctional Center, where Brown had been
incarcerated for about a year and a half before his trial for the Ford murder. A
recreation supervisor said that Brown, an inmate worker at the prison, was
"cooperative, self-motivated and honest" in the work setting. Id. at 2423. Brown got
"along exceptionally well with the staff" but would not have much to do with other
prisoners. Id. Another Potosi officer who had substantial contact with Brown from
the time Brown arrived testified that Brown was being held in minimum custody
(although in a maximum security facility). His behavior was good, he avoided other
inmates, and in one case, he literally ran from trouble when a fight broke out.

       In addition to the testimony of these live witnesses, Brown's counsel read to the
jury joint stipulations as to what the testimony of Janie Brown, Brown's daughter, and
Irvin Brimmage, who knew Brown as a teenager in Indianapolis, would be, had those
witnesses been present in the courtroom to testify. Janie Brown was born when
Brown was seventeen years old. She saw her father occasionally until she was ten,
and she had not seen him since. She had, however, started to write to him in prison.
Brown never behaved inappropriately around her. Brimmage met Brown when they
were teenagers, and they became good friends. Although he was poor, Brown would
share whatever money he had. Brown was helpful to older people, and Brimmage
never saw him behave inappropriately around children. As a teenager, Brown did not
abuse alcohol or drugs.

     Finally, there was an audiotape interview with Patricia Beverly, Brown's
mother, recorded at her home in Indianapolis late in 1990. She was unable to travel

                                         -12-
to St. Louis for the trial because she was totally disabled at the time. She had last
seen Brown in 1984 when he came to visit her after she was injured.

       Beverly said that Brown was born at home after a problem pregnancy, two
months early and following a difficult labor and delivery. He struggled in school,
although he enjoyed some sports, ROTC, and wood shop. He eventually quit high
school at age 16. Beverly said that she had three other sons, including one who was
stationed in Saudi Arabia at the time of the interview, and one daughter. As the
oldest, Brown was protective of them as they were growing up, such as when they
were threatened by other children going to and from school. Brown tended to the
needs of his grandmother after she had a stroke, essentially taking responsibility for
her care while Beverly was at work. He was respectful of his grandparents and
mother and regularly attended church where his grandfather was the minister.

       He married a woman in Indianapolis who already had children, and Beverly
said he always treated those children well. After he moved to St. Louis, he would
write and call Beverly; he continued to call once or twice a week from prison. As the
interview was drawing to a close, Beverly said that she loved Brown, and she asked
the jury to spare his life.

                                          A.

       We turn first to the state court's Green adjudication. At the outset, we decline
Brown's invitation to revisit the trial court's conclusion that the letter was hearsay
under Missouri's law of evidence. "[I]t is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions." Estelle v. McGuire,
502 U.S. 62, 67–68 (1991). We assume the state court properly applied state law. All
that concern us are issues raised under the United States Constitution.




                                         -13-
       In its review, the Missouri Supreme Court left undisturbed the trial court's
conclusion that the letter was not reliable, citing Green, which sets out the applicable
federal law. Under Green, as we explained in Part I.A, the hearsay evidence in
question must be "highly relevant to a critical issue in the punishment phase" and
"substantial reasons [must exist] to assume its reliability" before its exclusion will be
deemed a due process violation. Green, 442 U.S. at 97. Brown has not shown that
the state courts' conclusion is "opposite to that reached by" the Supreme Court in
Green or any other case "on a question of law." Williams v. Taylor, 529 U.S. 362,
405 (2000). Likewise, Brown has not directed us to, and we have not found, a
Supreme Court case with "materially indistinguishable" facts in which the Court
reached a different result. Id. The Missouri Supreme Court decision is therefore not
contrary to clearly established federal law.

       We note again the brevity of the adjudication and its emphasis on the question
of state law. This does not affect our determination that the result is not contrary to
federal law. The Supreme Court advises us that the state court need not cite or even
be aware of the governing Supreme Court cases, "so long as neither the reasoning nor
the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3,
8 (2002) (per curiam). In the "contrary to" analysis of the state court's decision, our
focus is on the result and any reasoning that the court may have given; the absence
of reasoning is not a barrier to a denial of relief. Cf. James, 187 F.3d at 869 ("The
summary nature of the [state court] opinion does not affect this [AEDPA] standard
of review.").

       We now consider whether the decision was the result of an unreasonable
application of federal law. The Green standard, the applicable law here, has two
parts: relevance and reliability. The Missouri Supreme Court did not specifically
address relevance. Indeed, there was no reason to, given its ruling on reliability, as
the evidence must be both relevant and reliable. Nevertheless, we have considered
the question and have determined that it is not an objectively unreasonable

                                          -14-
application of Green and its progeny to conclude on the facts of this case that the
letter did not meet the first part of the Green standard, as it was not "highly relevant
to a critical issue in the punishment phase." Green, 442 U.S. at 97.

       The issue in mitigation, to which the Turner letter would go, was Brown's
character. The letter had essentially two messages.8 First, Turner described how
Brown protected Turner and his friends from older boys who chased them home from
school, then taught Turner to stand on his "own two feet." The letter conveyed the
additional message that Turner loved Brown, although the brothers had been out of
touch. Turner said that Brown had "too much good in him to let go of" and that he,
Turner, found it "very hard to believe" that Brown was guilty.

       We have no quarrel with the general propositions that a defendant's character
may be a "critical issue" in the sentencing phase of a death penalty case and that the
testimony of relatives as to character may be "highly relevant." Here, however, the
situation is different. The only real example of Brown's character that Turner gave,
acknowledging that it "might not sound like much," was an incident that occurred
years before Brown murdered Synetta Ford, when Brown protected Turner from older
boys. It is clear from the letter that Turner had not spent time with his brother since
they were much younger, although they had reconnected through telephone calls and
letters. We think it is an objectively reasonable application of Green to conclude that
stale evidence of a convicted murderer's character, evidence that harkens back to
incidents or relationships of years past, well before the murder was committed, is not
"highly relevant" to a "critical issue." The degree of relevance is further diminished
by the fact that, as described above, the jury had before it other evidence of Brown's
character. Indeed, the "aspect of [Brown's] character" suggested by the letter—his

      8
       To the extent Brown suggests that the jury would have found mitigating
circumstances in Turner's service to his country in the Gulf War, that is, in deeds of
Turner that have no relevance to Brown, his crime, his character, or his relationship
with Turner, we hold that is not proper mitigation evidence.

                                         -15-
efforts to protect those less able to protect themselves—was before the jury through
the testimony of other witnesses. Lockett, 438 U.S. at 604 (plurality opinion). As we
noted above, the forensic social worker testified that she had spoken with Brown's
family, who described Brown as being "pretty protective of his younger brothers and
sister." Trial Transcript at 2413. Brown's mother stated the same thing. Likewise,
Paul Sasser testified that Brown protected him from belligerent patrons of the
homeless center. That evidence is precisely the sort of evidence that Turner offered
in his one memory of his relationship with Brown—Brown's protection of people
close to him—and is actually broadened beyond Turner's recollection to include
Brown's friend and all of Brown's siblings, not just Turner. Additional character
testimony, as recited above, came from witnesses who apparently had more recent and
frequent contact with Brown than Turner. Several of those witnesses recalled
specific, positive incidents that were more contemporaneous both to the approximate
time of the murder and to the time of sentencing. Finally, Turner's love for his
brother, his belief in Brown's innocence, and his opinion that "God's law" should
decide Brown's fate are subjective feelings that cannot be deemed "highly relevant"
under Green to the question of Brown's character, and it would not be objectively
unreasonable to so conclude.

       On this record, we cannot say that it is an unreasonable application of clearly
established law to conclude that the Turner letter was not "highly relevant to a critical
issue" at Brown's sentencing.

        The Missouri Supreme Court did mention the letter's reliability, deferring to the
trial court's uncertainty "as to the authenticity of the letter." Brown, 998 S.W.2d at
549. Under Green, excluding otherwise inadmissible hearsay will result in a violation
of due process if the evidence is not only relevant but also "substantial reasons
existed to assume its reliability." We hold that the circumstances surrounding the
letter do not make it contrary to or an unreasonable application of clearly established



                                          -16-
federal law for the state courts to have concluded there were not "substantial
reasons . . . to assume its reliability."

       The Supreme Court opinion dealing with reliability that Brown cites in his brief
is Chambers v. Mississippi, 410 U.S. 284 (1973). At issue in that case was the
exclusion of the testimony of three witnesses that someone other than the petitioner
had confessed to them the crime for which the petitioner was being tried. The
petitioner also alleged that his constitutional right to confront a witness had been
violated.9 The Chambers Court noted that the statements in question "were originally
made and subsequently offered at trial under circumstances that provided
considerable assurance of their reliability." Id. at 300 (noting that the statements were
spontaneous, made to several people, corroborated, and against interest, and that the
person who purportedly made the out-of-court statements was in the courtroom and
could be called to testify). Moreover, the witnesses' testimony went directly to the
question of guilt or innocence. On the facts of this case, we do not think it is contrary
to or an objectively unreasonable application of Chambers (or any other Supreme
Court case that we have identified, for that matter) for the state courts to have
concluded there were not "substantial reasons" to assume the Turner letter's
reliability, that is, that the letter's reliability could not be assured because it was not
submitted as a sworn affidavit. We may believe the state courts got it wrong, but that
is not our call to make. "[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant state-court


      9
        The Supreme Court since Chambers has noted that the opinion "was an
exercise in highly case-specific error correction." Montana v. Egelhoff, 518 U.S. 37,
52 (1996) (plurality opinion). The Egelhoff Court went on to say that "the holding
of Chambers—if one can be discerned from such a fact-intensive case—is certainly
not that a defendant is denied 'a fair opportunity to defend against the State's
accusations' whenever 'critical evidence' favorable to him is excluded, but rather that
erroneous evidentiary rulings can, in combination, rise to the level of a due process
violation." Id. at 53 (emphasis added).

                                           -17-
decision applied clearly established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable." Williams, 529 U.S. at 411. We hold that
the state courts' decision on the question of reliability is not contrary to or an
unreasonable application of Green.

                                           B.

       As for Chapman prejudice, the Missouri Supreme Court had before it the
transcript of Brown's trial and sentencing, and noted that its decision was made "in
the context of this case." Brown, 998 S.W.2d at 550. As we have demonstrated,
there was before the jury extensive evidence of aggravating circumstances, as well
as mitigating character evidence to which the Turner letter was cumulative. In
addition, as we have said, the jury heard from character witnesses who had more
recent contact with Brown, including three correctional officers who testified to his
model behavior while incarcerated. The Missouri Supreme Court might have been
a bit more forceful in its conclusion, where it stated that the letter's exclusion did not
"seem prejudicial." Id. at 550. But we do not think the state court was expressing
ambivalence or anything less than an unequivocal conclusion of law, although
perhaps not in the strongest terms. In any event, that court's use of "seem" does not
make the decision contrary to any Supreme Court precedent. Likewise, we hold that
the result of the Missouri Supreme Court's application of the Chapman harmless-error
standard, given the record in this case, is not objectively unreasonable.

                                           III.

       If we have misjudged congressional intent and the Supreme Court's
interpretation of "adjudicated on the merits" for purposes of § 2254, we nevertheless
would hold that the District Court's decision should be affirmed under the pre-
AEDPA standard of review. See Robinson v. Crist, 278 F.3d 862, 865 (8th Cir. 2002)



                                          -18-
("Because this claim apparently was not adjudicated by the [state] court, we likely
should apply the pre-AEDPA standard of review.").

       We have gone to some lengths in Part II of our opinion to describe the law
applicable to Brown's claim and the facts related to it in order to explain why we
reject his claim that the Missouri Supreme Court's decision was contrary to or an
unreasonable application of clearly established federal law. Little more needs to be
said here. For the reasons we have already explained in some detail, we do not think
Brown has shown that the Turner letter was "highly relevant to a critical issue" in his
sentencing. While we may be less certain under the pre-AEDPA standard of review
about the state courts' decision that Brown failed to show "substantial reasons" to
conclude that the letter was reliable, we need not decide the question because the
relevance standard cannot be met.

      In any event, we are confident that the exclusion of the letter was harmless
beyond a reasonable doubt. "A constitutional error is harmless when 'it appears
"beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained."'" Mitchell v. Esparza, 124 S. Ct. 7, 12 (2004) (citations to quoted
cases omitted). As we have explained, the Turner letter's statements, to the extent
they may be relevant, were cumulative to evidence as to Brown's character that was
already before the jury. Moreover, the evidence of aggravating circumstances was
devastating. This is not a case, like Chambers, where the evidence in question was
highly relevant to actual guilt or innocence. The Turner letter was not offered to
prove that Brown was actually innocent, either of the crime or of the death penalty.
Here, Brown received the constitutionally required "individualized consideration"
before the death penalty was imposed. Lockett, 438 U.S. at 605 (plurality opinion).
In these circumstances, we are convinced beyond a reasonable doubt that the
admission of the letter would not have altered the jury's decision to impose the death
penalty on Brown, and thus its exclusion was harmless error at most.



                                         -19-
      The judgment of the District Court denying the writ on any and all of Brown's
claims is affirmed.

WOLLMAN, Circuit Judge, with whom MURPHY, Circuit Judge, joins, concurring
in the judgment.

      I agree with the court that because Brown’s constitutional claim was
adjudicated on the merits in state court, AEDPA’s § 2254(d) standard of review
should apply. I also agree that any error in excluding the Turner letter was harmless
beyond a reasonable doubt.

       For the reasons so persuasively advanced in Judge Richard Arnold’s dissent,
however, I cannot agree that the letter was properly excluded on either relevancy or
reliability grounds. Accordingly, I concur in the judgment affirming the denial of the
writ.

COLLOTON, Circuit Judge, concurring.

      I join the opinion of the court, but add a few points to clarify my views.

       It is quite reasonable to ask, as does the dissent, whether the AEDPA-standard
issue is properly before the en banc court, if the state did not assert before the three-
judge panel that 28 U.S.C. § 2254(d) should apply to review of the state court's
adjudications. It must be remembered, however, that as this case first came to the en
banc court on a petition for rehearing, a panel of the court already had reached and
decided the question whether § 2254(d) applied in this case. Brown v. Luebbers, 344
F.3d 770, 785 (8th Cir. 2003). At that point, the panel opinion established the law of
the circuit on the AEDPA-standard issue, regardless what the parties had asserted in
their briefs, and I believe it was properly the business of the en banc court to decide
whether the panel opinion should remain the law of the circuit on that issue. If the

                                          -20-
panel opinion merely had reported a concession or waiver by the state in this case,
and left the AEDPA-standard issue for another day, then the matter of judicial
administration might be resolved differently.

       Harmless error analysis is sufficient to resolve this case, but with brief
amplification, I also join the court's conclusion that the state court proceedings did
not result in a decision that involved an unreasonable application of Green v.
Georgia, 442 U.S. 95 (1979) (per curiam). With respect to reliability of the disputed
letter, it is true that the Missouri Supreme Court referred to the trial court's
uncertainty as to the authenticity of the letter, while the trial court did not appear to
rely on authenticity in excluding the letter. On the other hand, the trial judge did say
that he rejected the letter because it was unsworn hearsay -- "We're not talking about
depositions where a man is under oath, you're talking about a letter, plain and
simple," (Tr. 2443) -- and the state supreme court said more generally that "[w]e
uphold his ruling," which the court said was "about the letter's reliability." State v.
Brown, 998 S.W.2d 531, 549 (Mo. 1999) (en banc).

       If we were reviewing the decision of the Missouri Supreme Court as though it
were an administrative agency, then it may well be that the unclear reasoning of the
state court would be inadequate to sustain its judgment on the issue of reliability
without further explanation. I understand the court, however, to join our sister
circuits in rejecting this model of judicial review, which would tend to "place the
federal court in just the kind of tutelary relation to the state courts that the recent
amendments are designed to end." Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.
1997); see also Bell v. Jarvis, 236 F.3d 149, 159 (4th Cir. 2000) (en banc); Bui v.
DePaolo, 170 F.3d 232, 243 (1st Cir. 1999).

       Under AEDPA, the question for a federal habeas court is not whether the state
court's opinion is well reasoned, but whether the decision reached in state court
proceedings is "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409

                                          -21-
(2000). The rule of reliability established by Green is quite general in nature, and
state courts thus have a good deal of leeway in reaching reasonable outcomes.
Yarborough v. Alvarado, No. 02-1684, 2004 WL 1190042, at * 8 (U.S. June 1,
2004). On this understanding, I agree with the court that the decision of the Missouri
state courts to exclude hearsay contained in an unsworn letter, while perhaps incorrect
if reviewed de novo, does not represent an unreasonable application of federal law as
determined by the Supreme Court of the United States. See Buchanan v. Angelone,
103 F.3d 344, 348-49 (4th Cir. 1996), aff'd on other grounds, 522 U.S. 269 (1998);
Alley v. Bell, 307 F.3d 380, 398-99 (6th Cir. 2002); Glenn v. Tate, 71 F.3d 1204, 1207
(6th Cir. 1995).

RICHARD S. ARNOLD, Circuit Judge, with whom BYE and MELLOY, Circuit
Judges, join, dissenting.

       I respectfully dissent. In my opinion, Vernon Brown is entitled to relief on his
habeas corpus petition because during the penalty phase, the trial judge excluded the
letter written by Mr. Brown's brother. I would therefore vacate Mr. Brown's sentence.
Mr. Brown's conviction would of course stand. Unless the state sought to retry the
penalty phase within a reasonable time to be set by the District Court, he would be in
prison for life.

       I believe the Court is mistaken in concluding that the state trial court made no
constitutionally significant errors in the penalty phase of Mr. Brown's trial. In my
view, the trial court violated petitioner's rights under both the Eighth Amendment and
the Due Process Clause of the Fourteenth Amendment by excluding as hearsay a
letter written by his brother, Mr. Darius Q. Turner, who was on active duty in the
United States Army serving in the Middle East as part of Operation Desert Shield
during petitioner's trial. Petitioner wanted the jury to see the letter as mitigating
evidence. This Court discounts both the reliability and relevance of the letter, and I
respectfully disagree.

                                         -22-
       Under the amended AEDPA standard, our Court may grant habeas relief if a
state court decision is either contrary to federal law or involves an unreasonable
application of federal law. 28 U.S.C.A. § 2254(d). Mr. Brown alleges that the
exclusion of the letter violated both the Eighth Amendment and Due Process Clause
of the Fourteenth Amendment. In Lockett v. Ohio, 438 U.S. 586 (1978) (plurality
opinion), and later cases, the Supreme Court established that the Eighth Amendment
guarantees a capital defendant the right to introduce all relevant mitigating evidence
in the penalty phase. The Court noted that "the Eighth and Fourteenth Amendments
require that the sentencer, in all but the rarest kind of capital case, not be precluded
from considering, as a mitigating factor, any aspect of a defendant's character or
record and any of the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death." Lockett, 438 U.S. at 604; see also Eddings v.
Oklahoma, 455 U.S. 104, 110 (1982). The Supreme Court has also held that the Due
Process Clause requires that a state's rules of evidence not be applied mechanically
when doing so would preclude the defendant from introducing relevant evidence at
the penalty phase. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("[T]he
hearsay rule may not be applied mechanistically to defeat the ends of justice."). Thus,
the exclusion of hearsay testimony at the penalty phase of a death penalty case
violates the Due Process Clause of the Fourteenth Amendment where "[t]he excluded
testimony was highly relevant to a critical issue in the punishment phase of the trial,
and substantial reasons existed to assume its reliability." Green v. Georgia, 442 U.S.
95, 97 (1979) (per curiam) (citations omitted).

       The first question is whether the AEDPA-standard issue is properly before us
as a matter of judicial administration. I think the answer is no, and the procedural
history of the case is instructive on the point. In briefs submitted to the three-judge
panel that initially cited Brown's case, the state did not assert that it should be
governed by the AEDPA standard. In fact, this particular question was not
controversial before the panel. Both the panel majority and the dissent (as the Court
today acknowledges) hold, or at least assume, that the AEDPA standard does not

                                         -23-
apply, because the Missouri Supreme Court had not reached the merits. The first time
the applicability of the AEDPA standard was urged was in the state's petition for
rehearing en banc. Petitioner was reduced to the last-minute expedient of placing his
entire argument on this point in the response to the petition for rehearing en banc on
this point. No supplemental briefing was allowed prior to the oral argument on
rehearing en banc.

        I am not questioning at all the power of this Court to decide the issue. Courts
often (sometimes too often, it seems) decide issues that are somewhat irregularly
before them — for example, an issue not properly raised in the court below. But that
is certainly not the normal practice. I am not saying that proceedings before three-
judge panels are analogous in every respect to proceedings in lower courts, but there
is a certain similarity. The state, like petitioner, should be required to come with all
of its guns loaded the first time. This it has not done. Instead, it has saved one bullet.
I do not think this practice should be encouraged, even though the effect of the
argument is to affirm the judgment of a district court.

       Assuming we decide the standard-of-review question, what is the answer? The
standard set out in AEDPA — that the holding of the state court cannot be set aside
unless it was contrary to clearly established law as set forth in opinions of the
Supreme Court of the United States, or was unreasonable in light of the facts in the
state-court record — is crucial here. This standard, more difficult for habeas
petitioners, comes into play, however, only if the state court decided the federal
constitutional issue on its merits. In deciding this question, it is critical to examine
closely the opinion of the Supreme Court of Missouri. In my view, the Missouri
Supreme Court did not clearly decide the case on federal grounds.

       The relevant passage from the opinion of the Missouri Supreme Court is set
forth by this Court ante, at 3-4 n.2. The Court rightly recognizes two separate legal
issues: whether the letter was unreliable, and whether its exclusion was prejudicial.

                                          -24-
As to unreliability, the opinion clearly reads, with the exception of a citation to
Green, like a garden-variety state-evidence-law issue. The first sentence of the
quoted part of the Missouri Supreme Court opinion says: "Brown contends that the
trial court abused its discretion in the penalty phase when it refused to allow his
counsel to read into evidence a letter about him that was written by his brother,
Darius Turner." State v. Brown, 998 S.W.2d 531, 549 (en banc), cert. denied, 528
U.S. 979 (1999). The state court does not explain what it believes Green stands for,
or how it helps the position taken by the State of Missouri. I believe a habeas
petitioner is entitled to a more thorough answer. Indeed, it must have been with such
a situation in mind that Congress included the "on the merits" language. The more
attention the state court appears to have given the federal issue, the more its decision
is entitled to respect. As to the prejudice holding, I do not see any "holding,"
properly so called, at all in the state court's opinion. The Missouri Supreme Court's
discussion of prejudice says only that admission of the letter did not seem prejudicial.
This is not a holding, but simply an off-the-cuff observation made in passing.

       So we come to the merits, applying, according to my way of thinking, pre-
AEDPA law. In my opinion, regardless of whether the letter constituted hearsay, its
exclusion violated Mr. Brown's due-process rights. The Green standard involves a
two-part inquiry, requiring a court to determine whether evidence relevant to a critical
issue at the punishment phase is both relevant and reliable. Green, 442 U.S. at 97.
If such evidence is both relevant and reliable, its exclusion at the punishment phase
is reversible error. Ibid. Here, the letter was highly relevant to a critical issue,
petitioner's character, at the punishment phase and no substantial reasons existed not
to assume its reliability.

       This Court acknowledges that the Missouri Supreme Court did not specifically
address relevance. This notwithstanding, this Court concludes that the letter was not
relevant to a critical issue because the letter contained "stale evidence" of petitioner's
relationship with his brother. I disagree with this characterization of the contents of

                                          -25-
the letter, and do not join the Court in its conclusion that "evidence that harkens back
to incidents or relationships of years past, well before the murder was committed, is
not 'highly relevant' to a 'critical issue.' " Indeed, if courts were to follow this
standard, I doubt that much mitigating evidence of a defendant's character could ever
be admitted. No better method of describing a person's character likely exists than
by recounting incidents and interactions of years past.

        The Court also intimates that the character evidence contained in the letter was
repetitive of other evidence already before the jury. I disagree with this conclusion.
It appears from the letter's contents that petitioner and his brother shared a unique,
although often distant, relationship that was unlike that which he shared with any
other witness whose testimony was admitted. Furthermore, I am convinced that its
effect on the jury would have been greater than the other mitigating evidence
petitioner presented. Mr. Turner was not only a member of the armed services on
active duty, he was also serving in the Gulf War, and over and over again during the
trial, on the record, and in the presence of the jury, the Court praised the performance
of our troops in the Gulf War. Theirs is the highest example of patriotism, the Court
says. But the minute the defendant adduces evidence of this kind in his favor, the
Court takes a completely different stance. I think the jury's opinion of Mr. Brown
might well have risen dramatically if it had known about the letter.

        As to the reliability of the letter, this Court refers to the Missouri Supreme
Court's deference to the trial court's uncertainty of the letter's authenticity. I am
troubled by this. The Missouri Supreme Court appears to defer to a finding that was
not made by the trial judge. When the prosecution objected to the admission of the
letter, the trial judge relied on state evidence law, not lack of authenticity, to exclude
the letter. Specifically, the trial judge stated: "I have no problems with the
authenticity of [the letter] except that it's just not admissible even if this was an
affidavit. The law is clear even an affidavit in the absence of a consent by both
parties is not admissible, now that's evidentiary law." Tr. 2443. I am unpersuaded

                                          -26-
that the trial judge believed the letter was unauthentic and find no basis upon which
it would be considered unauthentic. Furthermore, the letter's return address was to
"SFC Darius Q. Turner, HLM 801st MAINT BN, 101st ABN DIV (AASLT), APO
NY 09309" and the letter's postmark indicates that it was sent from the United States
Army. I therefore believe that "substantial reasons existed to assume [the letter's]
reliability" and that due process required its admission because it was highly relevant
to a critical issue. Green, 442 U.S. at 97.

       The exclusion of Mr. Turner's letter was not harmless. "A constitutional error
is harmless when 'it appears "beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained".' " Mitchell v. Esparza, 124 S. Ct. 7, 12
(2004) (internal quotations omitted). The critical issue in the penalty phase of Mr.
Brown's trial was his character. The State of Missouri aimed to convince the jury that
petitioner was a bad person. Petitioner's attorneys, on the other hand, attempted to
prove that although he had committed bad acts, petitioner was a man whose life was
worth saving. Mr. Turner's letter seems highly relevant in itself, and it would have
been even more compelling than the other mitigating evidence because its author was
a member of the armed services on active duty in time of war. Thus, I conclude that
the exclusion of Mr. Turner's letter violated Mr. Brown's rights under the Eighth and
Fourteenth Amendments and that, upon applying the proper prejudice standard, the
exclusion was not harmless.

                          ______________________________




                                         -27-
