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United States Court of Appeals,
Fifth Circuit.
No. 93-4179.
Milton Eugene CUPIT, Petitioner-Appellee,
v.
John P. WHITLEY, Warden, Louisiana State Penitentiary,
Respondent-Appellant.
Aug. 16, 1994.
Appeal from the United States District Court for the Western
District of Louisiana.
Before REYNALDO G. GARZA, DeMOSS, and PARKER1, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
This is an appeal from a judgment of the district court
granting a conditional writ of habeas corpus to Milton Eugene Cupit
(Cupit) in a civil writ of habeas corpus proceeding. The
jurisdictional basis for this appeal is 28 U.S.C. § 2254. More
specifically, Respondent-Appellant John P. Whitley (Whitley)--the
Warden of the Louisiana State Penitentiary--appeals on behalf of the
State of Louisiana from a final judgment of the United States
District Court for the Western District of Louisiana (adopting the
reasoning and recommendation of the United States Magistrate Judge)
granting Cupit's petition for a writ of habeas corpus under 28
U.S.C. § 2254.
We vacate the judgment of the district court and remand with
1Judge Parker participated by designation in the oral
argument of this case as a United States District Judge for the
Eastern District of Texas. Since that time he has been appointed
as a Fifth Circuit Judge.
1

directions to dismiss the writ.
I. BACKGROUND
On October 9, 1993, the body of James Allen Halley was found
on the bank of the LaFourche Canal in Richland Parish, Louisiana.
Halley had suffered three gunshot wounds from a .12 gauge shotgun
discharged at close range. Before his death, Halley had been
scheduled to appear for his trial (on October 10, 1983) on a charge
of attempted aggravated arson. In that charge, it was alleged that
Halley had been discovered behind the Foxfire Lounge in Monroe,
Louisiana, on June 21, 1983, by the proprietor of the
establishment, Carl Gwin, applying gasoline to the walls of the
lounge in preparation to set the place on fire.
Cupit and Halley had spent a great deal of time together.
Cupit was questioned about Halley's death in October and November
of 1983--at which times he professed to know nothing about Halley's
death. On December 3 and 4, 1983, however, Cupit gave law
enforcement officials taped statements concerning Halley's death.
In his December statements, Cupit implicated Jeffrey Wayne Mann as
Halley's killer, stating that he was with Mann when Mann killed
Halley and that Mann killed Halley because Halley was having an
affair with Mann's wife. In these statements, Cupit said that he
and Mann left the scene together, and that together they had hid
the shotgun Mann used to kill Halley.
Cupit was arrested and charged in Richland Parish, Louisiana,
with first degree murder and with conspiracy to commit the first
degree murder of James Halley. He was ultimately charged with a
2

second degree murder count.
The Louisiana trial court held a pretrial hearing outside the
presence of the jury prior to the introduction of the particular
evidence about which Cupit complains. The purpose of this pretrial
hearing was to consider the admissibility in evidence of testimony
regarding Cupit's purported involvement in the attempted aggravated
arson of the Foxfire Lounge for which Halley was to be tried at the
time of his murder (on the prosecution's theory that "silencing"
Halley about Cupit's involvement in the attempted arson was Cupit's
motive to kill Halley). In the hearing: Carl Gwin, Bobby Nobles,
Officer Gary Brooks and Judy Scott all testified as to Halley's
statements to them prior to his death. All of this testimony, to
which Cupit's counsel objected, was ruled admissible by the state
trial judge.
Cupit was convicted on the second degree murder charge on June
7, 1986. He was subsequently sentenced to life in prison without
parole, probation, or suspension of sentence.
Cupit appealed his conviction to the Louisiana Second Circuit
Court of Appeals, alleging seven assignments of error--including the
claim central to this appeal, that a number of witnesses were
improperly permitted to give hearsay testimony to prove that Cupit
had a motive for killing Halley. The state appellate court
affirmed his conviction on June 10, 1987, 508 S.2d 996. Cupit
sought a writ of certiorari from the Louisiana Supreme Court, which
was denied on November 20, 1987, 517 S.2d 1174. He filed an
application for collateral, post-conviction relief in the Louisiana
3

Fifth Judicial District, Parish of Richland, on February 20, 1990.
That application was dismissed on April 5, 1990. His application
for a writ of review was then denied by the Louisiana Second
Circuit Court of Appeals, whereupon he filed an application for
writ of review with the Louisiana Supreme Court, which was denied
on September 20, 1991.
Cupit then filed this petition for a writ of habeas corpus
under the federal statutory regime, 28 U.S.C. § 2254, in the United
States District Court for the Western District of Louisiana--on
February 24, 1992. The magistrate court assigned to Cupit's case
by the district court issued a Report and Recommendation on
September 17, 1992, finding merit in Cupit's third (and only his
third) habeas issue--in which Cupit argued his constitutional rights
had been violated during his trial by the state trial court's
admission of hearsay evidence. The magistrate court recommended
that Cupit be granted a conditional writ of habeas corpus, ordering
his discharge from custody within 60 days unless the state
commenced proceedings to retry Cupit within that period.
The parties filed objections to the Report and Recommendation.
But on February 4, 1993, the district court adopted the Report and
Recommendation in full, which resulted in the district court's
decision that Cupit's trial may have been adversely impacted by the
erroneously admitted hearsay testimony, and that therefore Cupit's
petition should be granted.
Whitley filed a timely notice of appeal to this Court. And
the district court granted Whitley's motion to stay the judgment on
4

February 26, 1993.
II. ANALYSIS
A. Procedural Default and Exhaustion Requirement Issues
Whitley argues that the doctrines of procedural bar and
exhaustion should preclude our consideration of Cupit's hearsay
arguments. He argues in particular that Cupit failed to raise the
hearsay issue through his appropriate, state remedial avenues.
However, we hold that Whitley's procedural default and exhaustion
arguments are without merit, for the following reasons. First, the
state record belies Whitley's claim in this respect (in that Cupit
did indeed adequately raise his hearsay arguments through his state
court proceedings). Second, Whitley waived his right to object to
Cupit's hearsay claims on these doctrinal grounds, Whitley failed
to so object in his answer to Cupit's federal petition and/or in
argument to the United States Magistrate Judge assigned to the
case. Specifically, Cupit clearly raised this issue in his federal
petition. While Whitley was ordered by the Magistrate Judge to
file an answer and memorandum specifically addressing the claims
raised by Cupit in his petition, Whitley answered Cupit's hearsay
argument in but a cursory and non-responsive manner. In his
answer, Whitley did not object to Cupit's claims on procedural
default grounds. Rather, Respondent simply admitted that
Petitioner "has exhausted his state remedies."2 Indeed, in the
memorandum attached to his answer, without objecting on procedural
default grounds, Respondent actually attempted to address the
2Federal District Court Record, at 82.
5

merits of Petitioner's argument in this respect.3 Not until after
the magistrate court issued its Report and Recommendation to the
district court addressing Cupit's arguments and finding them
meritorious did Whitley object on procedural default grounds.4 By
waiting until after the magistrate court had issued its findings
and recommendations, and by admitting that Petitioner had exhausted
his state remedies on all issues raised in his federal petition,
Respondent has waived procedural default and exhaustion doctrine
objections.5
B. The Assumed Trial Error of Wrongfully Admitted Hearsay Evidence
What is and is not hearsay evidence in a state trial is
governed by the relevant state law on evidence. A state court's
3Id., at 85-86.
4Id., at 140-144.
5See, e.g., Long v. McCotter, 792 F.2d 1338, 1345 (5th
Cir.1986) ("we ordinarily do not consider issues that have not
been presented to the court of first instance") (citations
omitted). See also e.g., Paterson-Leitch Co. v. Massachusetts
Municipal Wholesale Electric Co., 840 F.2d 985, 990-991 (1st
Cir.1988) (explaining that a party "has a duty to put its best
foot forward" before the Magistrate Judge--i.e., "to spell out its
arguments squarely and distinctly"--and, accordingly, that a
party's entitlement to de novo review before the district court
upon filing objections to the Report and Recommendation of the
Magistrate Judge does not entitle it to raise issues at that
stage that were not adequately presented to the Magistrate
Judge); Anna Ready Mix, Inc. v. N.E. Pierson Construction Co.,
747 F.Supp. 1299, 1302-1303 (S.D.Ill.1990) (thoroughly analyzing
the federal Magistrate Judge Act, 28 U.S.C. § 631, et seq., and
discerning therefrom that when a matter is assigned to a
Magistrate Judge, Congress intended that the Magistrate Judge
hear all arguments of the parties and take all evidence; and,
accordingly, holding that while the Act provides for de novo
review by the district court if timely objections are filed, it
does not allow the parties to raise at the district court stage
new evidence, argument, and issues that were not presented to the
Magistrate Judge--"absent compelling reasons").
6

evidentiary rulings present cognizable habeas claims only if they
run afoul of a specific constitutional right or render the
petitioner's trial fundamentally unfair (in which case sustaining
the conviction would violate Petitioner's Fourteenth Amendment
right to due process).6 Cupit alleges that the state trial court
in his second degree murder case erred by admitting inadmissible
hearsay evidence, and that this error both violated Cupit's
specific rights under the Sixth Amendment's confrontation clause
and rendered his trial fundamentally unfair--which entitle him to a
writ of habeas corpus. Cupit relies upon out-dated law, however,
predating the now-controlling United States Supreme Court decision
of April 21, 1993, in Brecht v. Abrahamson.7
The district court adopted the reasoning and conclusions
6See Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir.)
(citing Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th
Cir.1985)), cert. denied, --- U.S. ----, 114 S.Ct. 637, 126
L.Ed.2d 596 (1993).
7Brecht, --- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 353
(1993). Compare Supplemental Brief of Appointed Counsel in
Support of Appellee, Milton E. Cupit, at 19-20 ("Where the state
court is found to have violated a defendant's constitutional
rights, the burden shifts to the party who has benefitted by the
violation (here, the respondent) to prove that the "error was
harmless beyond a reasonable doubt.' ") (quoting Chapman v.
California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705
(1967)), with Brecht v. Abrahamson, --- U.S. ----, ---- - ----,
113 S.Ct. 1710, 1721-1722, 123 L.Ed.2d 353 (1993) ("overturning
final and presumptively correct convictions on collateral review
because the State cannot prove that an error is harmless under
Chapman undermines the States' interest in finality and infringes
upon their sovereignty over criminal matters. * * * The
imbalance of the costs and benefits of applying the Chapman
harmless-error standard on collateral review counsels in favor of
applying a less onerous standard on habeas review of
constitutional error.") (holding the standard in Kotteakos v.
United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946),
to be applicable on habeas review).
7

contained in the Report and Recommendation of the magistrate court
to whom Cupit's petition had been assigned for the purpose of
conducting any necessary hearings and submitting proposed findings
of fact and conclusions of law. But the Report and Recommendation
adopted by the district court was itself based upon pre-Brecht
harmless error analysis.
Following Brecht, we hold upon de novo review of the record:
even assuming that the evidence about which Cupit complains was
wrongfully admitted hearsay evidence under the law of Louisiana,
and even assuming that the state trial court's erroneous admission
of such hearsay evidence violated Cupit's Sixth Amendment rights,
this evidence did not have much probative force in Cupit's second
degree murder trial and conviction. It did not have enough of an
effect upon Cupit's conviction to support the habeas relief Cupit
seeks.
1. Regarding Cupit's Sixth Amendment Claim in Particular
Even assuming the evidence about which Cupit complains was
wrongfully admitted hearsay under Louisiana evidence law, we regard
Cupit's Sixth Amendment claims to be empty.
The Sixth Amendment--made applicable to the states through the
Fourteenth Amendment--provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right ... to be confronted with the
witnesses against him....".8 Although the confrontation clause and
the hearsay rule are related, the Sixth Amendment right to
confrontation does not perforce preclude the admission of any
8U.S. CONST. amend. VI.
8

hearsay testimony.9 As the Supreme Court has explained, the
"mission of the confrontation clause is to advance a practical
concern for the accuracy of the truth-determining process in
criminal trials by assuring that "the trier of fact [has] a
satisfactory basis for evaluating the truth of the prior
statement.' "10 In order to determine whether the wrongful
admission of hearsay evidence violates the confrontation clause,
courts must assess the admission of the evidence in light of a host
of considerations--in order to determine whether the evidence was
not just inadmissible, but also whether it was material (i.e.,
whether it was a crucial, critical, or highly significant factor in
the framework of the whole trial).11
Specifically, in order to determine whether the admission of
hearsay violates the confrontation clause, five factors must be
considered:
(1) whether the hearsay evidence was "crucial" or
"devastating;"
(2) whether prosecutors misused a confession or otherwise
engaged in misconduct;
(3) whether a joint trial or the wholesale denial of
cross-examination was involved;
(4) whether the most important prosecution witness, as well as
other
prosecution
witnesses,
was
available
for
cross-examination;
9Johnson v. Blackburn, 778 F.2d 1044, 1051 (5th Cir.1985).
10Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27
L.Ed.2d 213 (1970) (quoting California v. Green, 399 U.S. 149,
161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970)).
11See e.g., Johnson v. Blackburn, supra note 9, at 1051.
9

and
(5) the degree to which the hearsay evidence is supported by
"indicia of [its] reliability."12
The prosecutors in Cupit's trial did not misuse a confession or
otherwise engage in significant misconduct. The third
consideration is wholly inapplicable to this case. The fourth
consideration weighs strongly against Cupit's position. Indeed,
the prosecution's most important witness was Cupit himself--in the
form of his own statements given to law enforcement officers.
These statements, in conjunction with Cupit's actions, constituted
the most devastating evidence against him. Finally, fifth, the
reliability of the hearsay testimony that was supported by Cupit's
own actions toward Halley, both before and after Halley's death.
Viewing the evidence about which Cupit complains through the
above prism of considerations, we are of the view that the hearsay
evidence in this case was not "crucial, devastating, or unreliable.
Therefore, its admission did not violate the confrontation
clause."13 Furthermore, even assuming that the evidence admitted
against Cupit did violate his Sixth Amendment rights, such
constitutional trial error was "harmless," affording Cupit no
grounds for habeas relief.
2. Regarding Brecht, "Harmless Error" and This Case, in Particular
In Brecht v. Abrahamson, the Supreme Court reaffirmed its
distinction between two broad, primary "kinds" of constitutional
12Id. at 1051 (quoting Dutton, supra note 10, 400 U.S. at
89, 111 S.Ct. at 1142).
13Johnson v. Blackburn, supra note 9, at 1051.
10

violations that may occur in a state criminal proceeding:
"structural errors"--which affect the most basic elements of a
criminal trial (e.g., a biased judge or the denial of counsel to
the defendant); and "trial errors"--mistakes made during the course
of the defendant's trial that are deemed less significant than
"structural errors."14 The Court also clarified that a different
"harmless error" standard is applicable to the federal court habeas
review of a case than the one applicable to a federal court's
direct review of a case:
In Chapman v. California [ ] we held that the standard
for determining whether a conviction must be set aside because
of federal constitutional error is whether the error "was
harmless beyond a reasonable doubt." In this case we must
decide whether the Chapman harmless-error standard applies in
determining whether the prosecution's use for impeachment
purposes of petitioner's post-Miranda [ ] silence, in
violation of due process, ... entitles petitioner to habeas
corpus relief. We hold that it does not. Instead, the
standard for determining whether habeas relief must be granted
is whether the ... error "had substantial and injurious effect
or influence in determining the jury's verdict."15
14Brecht v. Abrahamson, --- U.S. ----, 113 S.Ct. 1710, 123
L.Ed.2d 353 (1993). See also Arizona v. Fulminante, 499 U.S.
279, 306-311, 111 S.Ct. 1246, 1263-1265, 113 L.Ed.2d 302 (1991)
(holding that harmless error analysis applies to the wrongful
admission at trial of coerced confessions; explaining that the
essential feature of "trial errors" is that they occur during the
presentation of the case to the jury, "and may therefore be
quantitatively assessed in the context of other evidence
presented in order to determine whether its admission was
harmless"; and explaining further that "structural errors" are
not subject to this harmless error analysis, primarily because
"[t]he entire conduct of the trial from beginning to end is
obviously affected" by them--so, the trial cannot then reliably
serve its function as a vehicle for determination of guilt or
innocence and no criminal punishment may be regarded as
fundamentally fair).
15Brecht, supra note 14, --- U.S. at ---- - ----, 113 S.Ct.
at 1713-1714 (quoting Chapman v. California, 386 U.S. 18, 24, 87
S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); and Kotteakos v. United
11

In the habeas context, then, the first ("structural") type of
violation vitiates the proceedings; it cannot be considered
"harmless error." But the second ("trial") type of violation is
not necessarily fatal to the proceedings; it may, in light of a de
novo review of the whole record, be considered "harmless error"--in
that it can be found not to have caused actual prejudice to the
petitioner. There may also be "hybrid," or "unusual" cases that do
not fit so neatly into one of these two primary categories of
error. In Brecht 's footnote 9, the Court noted the possibility of
"an unusual case" in which there occurs "a deliberate and
especially egregious error of the trial type, or one that is
combined with a pattern of prosecutorial misconduct" that might so
"infect the integrity of the proceedings as to warrant the grant of
habeas relief, even if it did not substantially influence the
jury's verdict."16
The assumed wrongful and unconstitutional admissions of
hearsay evidence against Cupit are neither so unusual nor
egregious, either in isolation or as a part of a pattern of error,
as to constitute structural error or "Brecht Footnote Nine,"
States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557
(1946)) (other citations omitted).
16Brecht, supra note 14, --- U.S. at ---- n. 9, 113 S.Ct. at
1722 n. 9 (citing Greer v. Miller, 483 U.S. 756, 769, 107 S.Ct.
3102, 3110, 97 L.Ed.2d 618 (1987) (Stevens, J., concurring in
judgment)). See also e.g., Hardnett v. Marshall, 25 F.3d 875,
879 (9th Cir.1994) ("This hybrid, Footnote Nine error as we
denominate it, is thus assimilated to structural error and
declared to be incapable of redemption by actual prejudice
analysis. The integrity of the trial, having been destroyed,
cannot be reconstituted by the appellate court.").
12

"hybrid" error. These assumed wrongful evidentiary admissions are
but "classic trial errors."17 Still, when reviewing "classic trial
errors," a 28 U.S.C. § 2254 federal habeas court must heed the
caution contained in Kotteakos itself:
The [court's habeas, "harmless error"] inquiry cannot be
merely whether there was enough [evidence] to support the
[conviction] result, apart from the phase affected by the
error. It is rather, even so, whether the error itself had
substantial influence. If so, or if one is left in grave
doubt, the conviction cannot stand.18
Our task in a case like this, then, is to determine--based upon
careful review of the record in this case--whether the petitioner
has successfully established in our minds grave doubt as to the
question of whether the assumed wrongfully admitted hearsay
17Compare Arizona v. Fulminante, supra note 14, 499 U.S. at
309, 111 S.Ct. at 1265 (stating that the erroneous introduction
of a coerced confession by the trial court is "a classic trial
error"); id., 499 U.S. at 307, 111 S.Ct. at 1264 (explaining
that by classifying most constitutional errors--including coerced
confessions--as "trial errors," the Court remains faithful to the
view that harmless error is necessary to preserve the "
"[p]rinciple that the central purpose of a criminal trial is to
decide the factual question of a defendant's guilt or innocence
and promote public respect for the criminal process by focusing
on the underlying fairness of the trial rather than on the
virtually inevitable presence of immaterial error.' ") (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436,
89 L.Ed.2d 674 (1986); other citations omitted).
18Kotteakos, supra note 15, 328 U.S. at 765, 66 S.Ct. at
1248 (emphasis added). See also Brecht, supra note 14, --- U.S.
at ----, 113 S.Ct. at 1724 (Stevens, J., concurring) (emphasizing
that in order to apply the Kotteakos standard properly, the §
2254 federal habeas court must make a de novo examination of the
entire trial record, so as to fully consider all the ways in
which the complained-of error could have infected the course of
the petitioner's trial--as the habeas court must decide that the
error did not influence the jury, and that the judgment was not
substantially swayed by the error).
13

influenced the conviction.19
Cupit has failed to establish such doubt. Specifically, the
determination of whether the erroneous admission of such evidence
is "harmless" depends upon a host of factors, all readily
accessible to a reviewing court:
(1) the importance of the witness's testimony in the
prosecution's case;
(2) whether the testimony was cumulative;
(3) the presence or absence of evidence corroborating or
contradicting the testimony;
and
(4) the overall strength of the prosecution's case against the
defendant.20
Of these, the strength of the prosecution's case is probably the
single most important factor in determining whether the error was
harmless.21 The record reveals that the prosecution's case against
Cupit for second degree murder was substantial. As the magistrate
court's Report and Recommendation itself recognizes: "[e]ven if
the hearsay evidence as to Cupit's motive which was improperly
admitted into evidence had been excluded, there would still have
been sufficient evidence to support a guilty verdict, if the jury
19See Lowery v. Collins, 996 F.2d 770, 773 (5th Cir.1993).
20See Samuels v. Mann, 13 F.3d 522, 526 (2d Cir.1993),
petition for cert. filed, --- U.S. ----, --- S.Ct. ----, ---
L.Ed.2d ---- (U.S. June 8, 1994) (No. 93-9479). See also
Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438,
89 L.Ed.2d 674 (1986).
21See e.g., United States v. Castano, 999 F.2d 615, 618 (2d
Cir.1993) (per curiam). See also 3A CHARLES A. WRIGHT, FEDERAL
PRACTICE AND PROCEDURE § 854, at 305 (2d ed. 1982).
14

had brought in a guilty verdict without the inadmissible
evidence."22
The magistrate court (and the district court in turn)
nonetheless felt compelled to grant Cupit's writ petition--because
(and only because) the Chapman standard compelled that result:
"the jury may not have rendered the same verdict if it had not
heard the inadmissible evidence."23 This "maybe" finding is a good
degree less than the establishment by Cupit of "grave doubts" that
the inadmissible hearsay evidence actually prejudiced or had a
substantial and injurious effect or influence upon the jury's
guilty verdict against him.24
In short, not even the magistrate court harbored the "grave
doubts" as to the effect or influence of the hearsay evidence upon
22Report and Recommendation of 9-17-92, Federal District
Court Record, 94, 112.
23Id. (emphasis added).
24See Brecht, supra note 14, --- U.S. at ---- - ----, 113
S.Ct. at 1720-1721 (explaining how, in a § 2254 habeas context, a
state judgment is presumptively correct and habeas petitioners
therefore may not obtain relief from such a judgment based on
trial error "unless they can establish that it resulted in
"actual prejudice.' "). See also Jeffries v. Blodgett, 5 F.3d
1180, 1190 (9th Cir.1993) (Brecht applied to hold that in order
to obtain relief, a § 2254 habeas petitioner must show that the
alleged trial error "had substantial and injurious effect or
influence in determining the jury's verdict.") (quoting Brecht, -
-- U.S. at ----, 113 S.Ct. at 1722, in turn quoting Kotteakos,
328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)),
cert. denied, --- U.S. ----, 114 S.Ct. 1294, 127 L.Ed.2d 647
(1994). See also Castillo v. Stainer, 997 F.2d 669 (9th Cir.)
(applying Brecht on appeal to a pre-Brecht district court
decision--and accordingly holding that given the presumptive
correctness of a state judgment, the petitioner had failed to
meet his burden of establishing that the trial error resulted in
the petitioner's suffering actual prejudice), cert. denied, ---
U.S. ----, 114 S.Ct. 609, 126 L.Ed.2d 574 (1993).
15

the Cupit guilty verdict that is required under Brecht. Nor do we.
The probative value of the challenged statements is quite minimal
compared to the wealth of other, substantial and corroborating
non-hearsay evidence introduced against Cupit at his trial.
a. The Applicable State Law
"Motive" was not an element of proof under the Louisiana
second degree murder law. On the day the victim was killed,
Louisiana defined second degree murder as the killing of a human
being: (1) when the offender has the specific intent to kill or
inflict great bodily harm; or (2) when the offender is engaged in
the perpetration or attempted perpetration of a felony--including
aggravated rape, aggravated arson, aggravated burglary, aggravated
kidnapping, aggravated escape, armed robbery or, simple
robbery--even though he has no intent to kill or to inflict great
bodily harm.25 The prosecution presented both of these type
theories of Cupit's guilt for second degree murder to the Louisiana
jury sitting in judgment of Cupit. And the state trial court
charged the jury under both theoretical provisions of the state's
second degree murder statute. The law of Louisiana also defined
"principals" as follows:
All persons concerned in the commission of a crime, whether
present or absent, and whether they directly commit the act
constituting the offense, aid and abet in its commission, or
directly or indirectly counsel or procure another to commit
the crime, are principals.26
One convicted of a crime as a principal under this statute must
25See LOUISIANA R.S. § 14:30.1.
26LOUISIANA R.S. § 14:24.
16

himself be found to have possessed the intent required under the
relevant "principal" statute.27 The jury passing judgment on Cupit
was instructed on this law as well.
b. The Hearsay Evidence Deemed Critical by the District Court
The hearsay evidence the magistrate and district courts
determined "may" have been critical to Cupit's conviction was the
testimony of Bobby Nobles (Nobles) and Officer Gary Brooks
(Brooks). The district court adopted the magistrate court's
reasoning and conclusion that:
[t]he only evidence from which the jury could infer that Cupit
had a specific intent to kill Halley or to assist in Halley's
killing was the evidence that Halley intended to implicate
Cupit in the aggravated arson of the Foxfire Lounge when
Halley was tried for that crime on October 10, 1983. * * *
For that reason, I find that the admission of the just
discussed hearsay testimony of Bobby Nobles and Gary Brooks
rendered the trial as a whole "fundamentally unfair", and
stands as a ground for granting habeas corpus relief to
Cupit.28
This analysis and conclusion are mistaken.
The state trial court allowed witnesses Bobby Nobles and Gary
Brooks to testify as to the following.
i. Nobles' Testimony
Nobles told the jury that he was present at the Foxfire Lounge
on the night of Halley's alleged attempted arson of the place.
Nobles testified that he and Halley arrived at the Lounge between
seven and eight that night. He said that later, he saw Cupit
27See e.g., State v. Brooks, 505 So.2d 714, 717 (La.), cert.
denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).
28Report and Recommendation of 9-17-92, Federal District
Court Record, at 109, 111 (emphasis added).
17

arrive at the Lounge, he saw Halley go over to join Cupit at
Cupit's table, and that he saw the two of them then begin talking.
He testified that he (Nobles) went over to join them. Then, Nobles
stated that he heard Cupit and Halley talking about burning down
the Lounge, and that he saw Cupit hand Halley some money. Nobles
stated that he then saw Halley leave the Lounge, and a little
later, that he saw Lounge manager Gwin escorting Halley back into
the Lounge. He testified that he saw Gwin go immediately over to
Cupit at that point, and that then Gwin and Cupit went into a
storage room for a private conversation. Nobles stated that about
thirty to thirty-five minutes later, he saw the police arrive and
arrest Halley. Also, Nobles testified that during later meetings
he had with Halley, Halley told him that he intended to "turn
state's evidence" at his impending attempted arson trial, but that
he was scared about doing so--i.e., impliedly, that he was scared of
Cupit.
ii. Brooks' Testimony
Officer Brooks, a bomb specialist who talked to Halley the day
after the latter's arrest, testified that Halley told him that
Cupit was involved in the attempted arson, and that he (Halley) was
afraid of Cupit. Brooks testified that Halley told him that if he
implicated Cupit, "[Cupit will] kill me."29 And Brooks stated that
on a later occasion, Halley again mentioned Cupit's name to Brooks
in connection with the attempted Foxfire Lounge arson.
c. The Substantial, Non-Hearsay Evidence of Cupit's Guilt, and
29State Record, IV, at 886.
18

the Assumed Hearsay's Insignificance Within the Overall Scheme of
This Substantial Non-Hearsay Evidence, Specifically
Undoubtedly, the requisite specific intent to kill or to cause
Halley great bodily harm that Cupit must have had in order to be
found guilty of the second degree murder of Halley can be found in
the substantial non-hearsay evidence introduced at Cupit's trial.
The law is clear that specific intent can reasonably be found to
exist when circumstances indicate that the offender actively
desires criminal consequences to flow or to follow from his act(s)
or failure(s) to act. And even the actions of the defendant after
a crime can be deemed demonstrative of his or her intent relative
to the crime itself.30
In this case, non-hearsay evidence was to the effect that
Cupit knew Halley was going to trial on the arson charge--i.e., that
Cupit exhibited significant nervousness just before Halley's
scheduled trial date.
Furthermore, as Cupit's own statements disclose: Cupit drove
Halley to an obscure site on a Louisiana backroad. There, Cupit
allowed Mann to get a weapon out of Cupit's vehicle. Indeed, Cupit
had to exit the vehicle so that Mann could reach the shotgun.
Cupit also at least helped Mann by pretending to "look for stash"
after Mann asked Cupit to cooperate in this ruse in order to dupe
Halley long enough for him to be killed.
30See generally e.g., State v. Brooks, 505 So.2d 714, 717
(La.) ("specific intent is a state of mind and, as such, it need
not be proven as a fact, but may be inferred from the
circumstances of the transaction and the actions of the
defendant.") (citing Louisiana R.S. § 15:445), cert. denied, 484
U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).
19

Cupit certainly took no action to prevent Mann from killing
Halley. And, as the Louisiana Second Circuit Court of Appeals
recognized, this evidence of Cupit's failure to try to stop Mann
from killing Halley or to warn Halley, despite the fact that
(according to Cupit's statements) Cupit had been told by Mann that
he was going to kill Halley, is indicative of Cupit's own specific
intent to aid and abet Mann in the killing. So too are the facts
that, far from comforting or assisting Shotgun Victim Halley, Cupit
actually continued to assist Mann in covering up the murder--for
example, by driving the vehicle back from the scene, by assisting
Mann in the hiding of the murder weapon, and by assisting Mann in
the hiding of the vehicle that had been used in the killing.
Indeed, Cupit disposed of Halley's car keys after the killing (by
throwing them into a Bayou)--in what the jury might rationally have
considered to be yet another guilt-indicative attempt by Cupit to
eliminate evidence of Halley's murder. Further, far from promptly
reporting the crime, for two months following law enforcement
officers' discovery and initiation of investigation into Halley's
killing, Cupit maintained that he had no knowledge of Halley's
death, that he was not present when Halley was killed, that he did
not know who killed Halley, and that he did not kill Halley. Also,
an eyewitness testified at trial to having seen Cupit and Mann
together, driving near (and away from) the crime scene on the very
day the body was found, at approximately the time the body was
spotted. From this testimony, in light of the other non-hearsay
evidence presented, a reasonable jury could well have inferred that
20

Cupit and Mann were continuing with their cover-up cooperation,
checking to see whether Halley's body had been discovered and/or
the current discoverable state of his carcass.
In addition to the evidence of Cupit's guilt addressed above,
the jury might well have also found incredible Cupit's story that
the shotgun used in the killing remained behind a produce stand for
two months after the killing and before Cupit showed it to law
enforcement officers. The jury might reasonably have deemed this
unbelievable and indicative of Cupit's lack of credibility on the
subject of Halley's killing generally. Indeed, the jury might even
have found this story to but evidence Cupit's own "planting" of the
weapon that he had used on Halley, notwithstanding that he was
saying he and Mann placed the gun behind the stand after Mann
killed Halley. The jury had heard testimony from someone who had
sold Cupit a shotgun, as well as from someone who said she knew
Cupit carried a shotgun behind the seat of the vehicle he
customarily operated. Also potentially undermining of Cupit's
credibility with the jury was the fact that, when he did finally
decide to talk to law enforcement officers about the killing of
Halley, Cupit told them he had never gone back to the crime
scene--yet, as noted, an eyewitness testified to seeing Mann and
Cupit driving near the crime scene on the day the body was found.
The fact that Cupit denied that he killed Halley, and further
denied he had intended to participate in, or aid and abet in
Halley's murder, is certainly not devastating to the prosecution's
case. Anyone standing accused of murder as Cupit was can be
21

expected to say such things. And the jury was entitled to find
Cupit's contentions of innocence lacking in credibility, given the
substantial
circumstantial
evidence
contravening
such
contentions--i.e., his actions. The rendering of such credibility
determinations is precisely the thing juries are entrusted to do
under our system of criminal justice.
In sum, the fact that the assumed hearsay evidence about which
Cupit complains may have actually prejudiced Cupit by causing a
jury to convict him when it would not otherwise have done so is
just not enough to support Cupit's claim for habeas relief under
the applicable Brecht-Kotteakos standard. Even assuming that the
statements about which Cupit complains were wrongfully admitted
hearsay under the law of Louisiana, and even assuming that this
wrongfully admitted evidence violated Cupit's Sixth Amendment
rights, we conclude that--under the applicable harmless error
factors of consideration, supra--the record defies the harboring of
grave doubts as to whether such constitutional trial error had a
"substantial and injurious effect or influence in determining the
jury's verdict" of Cupit's guilt.31
C. Regarding Cupit's Insufficient Evidence Contention in Particular
As an additional, or more specific argument, Cupit maintains
that the evidence at his trial was insufficient to allow the jury
to find him guilty beyond a reasonable doubt of the second degree
murder of Halley. In accordance with the controlling standards set
31Brecht, supra note 14, --- U.S. at ----, 113 S.Ct. at
1714.
22

forth in the Supreme Court decision in Jackson v. Virginia, the
reviewing court confronted with such a claim must, after reviewing
all the evidence in the light most favorable to the conviction
(prosecution), determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.32 As the magistrate and the district courts found, so do we:
our de novo review of the record reveals, as we have addressed
above, that there was ample evidence upon which the jury could have
reasonably found Cupit guilty beyond a reasonable doubt of James
Allen Halley's second degree murder--even without the assumed,
improperly admitted hearsay evidence.
III. CONCLUSION
For the reasons stated above, the judgment of the district
court is hereby VACATED; and the case is hereby REMANDED with
directions to dismiss the petitioner's writ.
So Ordered.

32Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979).
23