concurring.
I concur in the reversal of the district court and the denial of the writ of habeas corpus.
I write separately since I do not feel the issue of whether Batten was prejudiced by the state’s abuse of evidentiary proof raises a constitutional question. If we must review every evidentiary issue in a state criminal trial simply because a party couches the allegedly erroneous admission of evidence in terms of a violation of due process then we broaden the writ of habeas corpus beyond its jurisdictional purpose and meaning. This is true even if upon review of the conviction, as here, we find the error was not prejudicial and therefore not a denial of due process. Whether the admissibility of evidence in a state criminal trial is prejudicial is not a federal question. We simply should not review it. It does not become so simply because a party claims he was denied a fair trial and therefore was denied due process. There may be many erroneous evidentiary rulings which are prejudicial and which deny a person a fair trial, but those errors do not necessarily reach constitutional dimensions worthy of federal review. Questions of hearsay, foundational deficiencies, materiality and relevancy may all require a finding of prejudicial error by the appellate court in direct review. However, seldom are any of these errors worthy of federal review.
It is only when evidentiary questions raise direct constitutional claims, e. g., fourth or fifth amendment claims, that federal review should be provided upon a petition for writ of habeas corpus. The major federal concern under the due process clause is whether there exists sufficient evidence to sustain a conviction beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 313, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979). There of course may be other legitimate due process claims, see, e. g., Collins v. Auger, 577 F.2d 1107 (8th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979), but unless the error alleged is on its face so egregious and so erodes procedures affecting fundamental fairness of the trial, we lack jurisdiction to review these claims under section 2254. Morrow v. Wyrick, 646 F.2d 1229, at 1234 (8th Cir. 1981); Davis v. Campbell, 608 F.2d 317, 319 (8th Cir. 1979); Nelson v. Hutto, 597 F.2d 137, 138 (8th Cir. 1979); Cooper v. Campbell, 597 F.2d 628, 632-33 (8th Cir. 1979); Ball v. Wyrick, 547 F.2d 78, 79 (8th Cir.), cert. denied, 431 U.S. 941, 97 S.Ct. 2657, 53 L.Ed.2d 259 (1977); Wilson v. Parratt, 540 F.2d 415, 416 (8th Cir. 1976); Hogan v. Nebraska, 535 F.2d 458, 460 (8th Cir. 1976); Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976); Cunha v. Brewer, 511 F.2d 894, 898 (8th Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 108, 46 L.Ed.2d 83 (1975); Taylor v. Minnesota, 466 F.2d 1119, 1121 (8th Cir. 1972), cert. denied, 410 U.S. 956, 93 S.Ct. 1425, 35 L.Ed.2d 689 (1973); Atwell v. Arkansas, 426 F.2d 912, 915 (8th Cir. 1970).
In the present case the resolution of whether the testimony of the witness was prejudicial was one peculiarly for the state courts. I would hold that it would not rise to a constitutional question relating to due process.
The only federal issue I perceive is whether the state trial court committed constitutional error in his ruling that the petitioner could rebut any prejudicial error by taking the stand. Judge Stephenson’s analysis demonstrates that there was no violation of the fifth amendment in such ruling and that any constitutional error was harmless.