2. Admission of Evidence of Victim's Pre-Homicide Fear
Several witnesses testified about Tiffany's fear of the
petitioner and her concern that he might harm her. According to
Heather Vrutnski, Tiffany "appeared frightened, confused. She
was scared." Kitty Keller testified that Tiffany was "very
frightened. She was pale, shaky. Her voice was quivering."
Joseph Bruzas, Tiffany's uncle, testified that "[s]he said, `You
don't understand.' She goes, `I'm scared.' [and] `I sleep with a
knife under my pillow.'" Tiffany's mother also related Tiffany's
fear of the petitioner.
The state alluded to Tiffany's fears in its opening statement.
The prosecutor told the jurors that "[t]he evidence will show
that Tiffany Skiba was in fear of, was terrified of one person
in her short lifetime, and that person is sitting right over
there, and that's Richard Frazier, the defendant." He also
stated that "[t]he evidence will show, ladies and gentlemen, in
November of 1990 that Tiffany was sleeping with a knife under
her pillow, that she was in obvious fear of her life."
The prosecutor returned to this theme in closing argument. He
referred explicitly to the testimony of Heather and the victim's
uncle, Joseph Bruzas. The prosecutor also commented that this
"was a well-placed fear," and noted that Tiffany was "terrified"
Defense counsel objected frequently to evidence and comments
about Tiffany's state of mind.
Petitioner argues that this evidence was not relevant, and
that its introduction violated his rights under the
confrontation clause of the Sixth Amendment. In addition, he
argues that admission of this testimony and the prosecutor's
comments violated his right to due process of law.
To the extent that the petitioner challenges the trial court's
ruling on relevance, his claim is not cognizable in this
proceeding, absent a showing of a denial of fundamental
fairness. Rulings on evidence involve state law, and erroneous
rulings on matters of state law cannot lead to habeas corpus
relief. Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79
L.Ed.2d 29 (1984) ("federal court may not issue the writ on the
basis of a perceived error of state law"); Moore v. Tate,
882 F.2d 1107, 1109 (6th Cir. 1989) ("It is well established that
[w]hile habeas review does not ordinarily extend to state court
rulings on the admissibility of evidence . . . an erroneous
evidentiary ruling which renders a trial fundamentally unfair
warrants a writ of habeas corpus.'") (citing Fuson v. Jago,
773 F.2d 55, 59 (6th Cir. 1985)).
With regard to petitioner's confrontation clause claim, the
Supreme Court described the showing he must make to prevail in
Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d
where a hearsay declarant is not present for
cross-examination at trial, the Confrontation Clause
normally requires a showing that he is unavailable.
Even then, his statement is admissible only if it
bears adequate indicia of reliability. Reliability
can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay
exception. In other cases, the evidence must be
excluded, at least absent a showing of particularized
guarantees of trustworthiness.
The Ohio Supreme Court relied on the "state of mind" exception
to the hearsay rule, as embodied in Ohio R. Evid. 803(3), as a
basis for upholding admission of the testimony about Tiffany's
fear of the petitioner. Frazier, 73 Ohio St.3d at 337,
Alfonso, 66 F. Supp.2d 261, 267 (P.R. 1999); United States v.
King, 1997 WL 666778, *11 n. 6 (S.D.N.Y.), rev'd on other
grounds, United States v. King, 126 F.3d 394 (2nd Cir. 1997).
Other courts have held that evidence of a victim's fear of a
habeas corpus petitioner does not violate the confrontation
clause. Barber v. Scully, 731 F.2d 1073, 1074 (2d Cir. 1984)
(admission of statement by a friend of the murder victim that on
the day of her murder the victim had told the witness that she
was afraid of the defendant did not violate confrontation
clause); United States ex rel. Jacques v. Hilton, 423 F. Supp. 895,
899 (N.J. 1976) (evidence that victim told witness that he
was in fear of defendant and expected to be killed was within
scope of state evidentiary rule; habeas confrontation clause
Even if the "state of mind" exception is not a "firmly rooted"
hearsay exception, Tiffany's statements had sufficient indicia
of reliability to be trustworthy. The petitioner had been seen
following her. For two years he had resisted submitting to a
blood test. She was substantially younger than the petitioner,
and had been the victim of an emotionally traumatizing
crime.*fn1 As a result of that crime, Tiffany had borne the
petitioner's child. Tiffany's expressions of fear were repeated
and consistent, rather than isolated.
Tiffany's statements about her fears, like those of the victim
in Moore v. Reynolds, 153 F.3d 1086, 1107 (10th Cir. 1998),
thus satisfy Sixth Amendment requirements. In that case, as
here, more than one witness testified about the victim's
statements, which also were otherwise corroborated. The
"challenged statements support[ed] each other, and [were] in
turn supported by other evidence," so they could be viewed as
trustworthy. Id.; see also Hopkinson v. Shillinger,
866 F.2d 1185, 1201, rev'd on other grounds, 888 F.2d 1286 (10th Cir.
1989) (victim's out-of-court statements, about which five other
witnesses testified, that habeas petitioner threatened him and
he feared the petitioner, possessed sufficient "indicia of
reliability" to satisfy the Confrontation Clause).
Petitioner also claims that admission of testimony about
Tiffany's fear of the petitioner violated his right to due
process of law because its prejudicial effect so substantially
outweighed its probative value as to cause the trial to have
been fundamentally unfair. In response to the petitioner's
challenge to this evidence, the state appellate court stated
that the "evidence that Tiffany expressed fear when appellant
made bond, the testimony that she was physically upset when he
was seen driving by her home, and the fact that she slept with a
knife under her pillow were relevant to prove appellant's
identity as the murderer." State v. Frazier, 1994 WL 50703, *9
(Ohio App. 8 Dist.).
I agree with the state court's assessment of the relevance of
this evidence. The identity of Tiffany's murderer was the
critical issue in the trial. Her expressions of fear were
probative because they supported the substantial evidence of
petitioner's likely motive. In addition, the testimony that she
said she was sleeping with a knife under her pillow pointed to
the source of the wound observed after the murder on the
Even if the evidence were erroneously admitted, habeas relief
would not be appropriate "unless the admission of the evidence
rendered the trial `so fundamentally unfair as to constitute a
denial of federal
rights.'" Webster v. Rees, 729 F.2d 1078, 1079-80 (6th Cir.
1984) (citing Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir.
1982)). Federal courts sitting in habeas corpus proceedings are
not concerned with state court evidentiary rulings unless such
rulings result in a denial of due process. Id. I conclude that
admission of this evidence did not cause the petitioner's trial
to be fundamentally unfair.
The petitioner cites United States v. Brown, 490 F.2d 758
(D.C.Cir. 1973), to support his challenge to the admission of
evidence about Tiffany's fears. That case and its reasoning may
well have provided support for a decision not to admit that
evidence. But its relevance to the issues in this habeas
proceeding is slight, because its holding that evidence of a
victim's fear is inadmissible except in limited circumstances is
based on evidentiary principles, rather than the constitutional
requirements of due process and fundamental fairness. It is,
therefore, not authority for finding that introduction of this
evidence violated the petitioner's constitutional rights.
3. Description of Victim's Character
At several points during closing argument, the prosecutor
referred to Tiffany's character and background. These references
included a description of Tiffany as "this young, innocent
girl," "a loving, caring individual," "that little girl," and
"beautiful young lady," who, "in her death [was] a carved-up
cadaver." The prosecutor also called on the jurors to remember
Tiffany, and how she "was alive [and] had a right to live on the
day she died," with the right, "which was taken away by this
defendant, to life [and] her youth, [and] her adolescence," "to
go to college," "to walk down the aisle," and "to have a
Not content with his verbal depiction of the victim, the
prosecutor used props to make his point. He placed an empty
chair in the middle of the courtroom to "be representative of
her." He called on the jurors to "[m]ost importantly, remember
this girl right here, symbolically represented in this empty
chair." After referring to Tiffany in death "as a carved-up
cadaver," the prosecutor showed photographs to the jurors,
telling them, "Take a good look. May it live with you the rest
of your life."
The Ohio Supreme Court stated that "use of the empty chair was
excessive." Frazier, 73 Ohio St.3d at 341, 652 N.E.2d 1000.
The respondent does not dispute this characterization, which is
well-taken. Stunts like this have no place in a fair and
professional prosecutor's presentation. To the extent that they
aid his cause, they increase the likelihood of reversal.
In determining whether the due process standard has been met,
a federal court, under the Anti-Terrorism and Effective Death
Penalty Act, 28 U.S.C. § 2254(d), must conclude that the state
court's decision is contrary to clearly established federal law.
Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1521-23, 146
L.Ed.2d 389 (2000) (O'Connor, J. concurring). This showing is
made only "if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law or if the
state court decides a case differently than this Court has on a
set of materially indistinguishable facts." Id. at 405, 120
S.Ct. at 1519.
Justice O'Connor's concurring opinion further stated in
Williams that an "unreasonable application" occurs when "the
state court identifies the correct legal principle from this
Court's decision but unreasonably applies that principle to the
facts of the prisoner's case." Id. at 412, 120 S.Ct. at 1523.
A federal habeas court may not find a state adjudication to be
unreasonable "simply because that court concludes in its
independent judgment that the relevant state-court decision
clearly established federal law erroneously or incorrectly."
Id. at 411, 120 S.Ct. at 1522.*fn2
The Ohio Supreme Court correctly concluded that the
prosecutor's gratuitous misconduct did not influence the jury
and that his statements were not prejudicial. 73 Ohio St.3d at
341, 652 N.E.2d 1000. The depiction of Tiffany as young,
innocent, beautiful, and caring do not appear either to have
been inaccurate, based on evidence outside the record, or beyond
inferences that fairly could have been drawn from the record.
See Byrne v. Butler, 845 F.2d 501, 511-12 (5th Cir. 1988)
(description of victim as decent and hardworking and innocent of
wrongdoing based on evidence before the jury and not
fundamentally unfair); Pierson v. O'Leary, 959 F.2d 1385,
1389-90 (1992) (prejudicial impact from improper, irrelevant
testimony about victim's hard-working character and effect of
homicide on his family was minimal); Alley v. Bell,
101 F. Supp.2d 588, 649 (W.D.Tenn. 2000) (testimony about victim's
education, desire to join the Marines, and general friendliness
and family's last contacts with her and decision not to have an
open casket funeral did not have a substantial and injurious
effect or influence in determining the jury's verdict where
guilt was overwhelmingly shown). Likewise, the description of
Tiffany as a "carved up cadaver" was accurate and not
4. Misapplication of State Law re. Excusal of Jurors
The petitioner claims that the trial judge misapplied the
standard of O.R.C. § 2945.25(C) for excusing jurors in a capital
case. This claim raises only an issue of state law, which is not
cognizable in a federal habeas corpus proceeding. Estelle v.
McGuire, 502 U.S. 62, 71, 112 S.Ct. 475, 116 L.Ed.2d 385
(1991); see also Clemmons. v. Sowders, 34 F.3d 352, 356 (6th
Cir. 1994) (grant of excuse for cause, though arguably improper
under state law, did not state a federal constitutional
5. Excusal of Jurors for Views Against Capital Punishment
Petitioner claims that two jurors, Algirdas Nasvytis and
Elisabeth Laskey, were excused improperly for cause on the basis
of their views against capital punishment. In Wainwright v.
Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the
Supreme Court prescribed the standard for determining when a
prospective can be excused for cause based on his or her views
about capital punishment. That standard, the court stated, "is
whether the juror's views would prevent or substantially impair
the performance of his duties as a juror in accordance with his
instructions and oath." Id. at 424, 105 S.Ct. 844.
The trial judge's finding that a juror is impartial is a
finding of fact entitled to the presumption of correctness under
§ 2254(d). Id. at 429, 105 S.Ct. 844; Patton v. Yount,
467 U.S. 1025, 1028, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Under §
2254(e)(1) the petitioner has the burden of rebutting this
presumption by clear and convincing evidence. Alley v. Bell,
101 F. Supp.2d 588, 650-51 (W.D.Tenn. 2000). Review by this court
is limited to determining whether the state court record "fairly
supports" the trial judge's finding on this issue. Rushen v.
Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983).
The trial judge need not have issued written findings of fact,
provided that the finding is evident from the record. Witt,
supra, 469 U.S. at 430, 105 S.Ct. 844.
In response to questions from the trial judge, Juror Nasvytis
initially stated that he had "no position" on the death penalty.
Tr. 234. Then, however, he stated that he would have a problem
in voting for the death penalty if the law so required. Id. at
235. This was based on his personal belief that he was "not sure
— that capital punishment is warranted," and that he would be
"more inclined toward life imprisonment with no parole or
something. . . ." Id. at 235-36.
Mr. Nasvytis also acknowledged that he would have to put his
personal feelings aside and follow the law as given to him by
the court, even if it conflicted with his personal feelings.
Id. at 236.
On further questioning by the prosecutor, Mr. Nasvytis stated
that he "tend[ed] to lean toward being against the death
penalty." Id. at 241. He stated that he could listen to the
testimony during the guilt phase and, based on that testimony,
return a verdict. Id. When asked whether he "would be able to
sign a piece of paper that authorizes the imposition of death on
this defendant," he responded, however, "[i]t would be hard for
me to do that." Id. at 242). In answer to a question about
whether he could "do it," he stated, "Well, then I don't know
until I get there . . . it would be hard for me to do it. I
think that I probably would have to do it . . . if I felt there
was no doubt in my mind that the individual was guilty of all
the crimes. . . ." Id. at 242-43. He stated that he "probably"
would hold the state to a higher standard of proof than beyond a
reasonable doubt because of the death penalty. Id.
Mr. Nasvytis said that it was not the case that he would be
unable to vote for the death penalty, no matter what the
evidence was. Id. at 243-44. When asked whether he would be
able to "sign a verdict imposing the death penalty," he stated,
"I think so." But when then asked whether there was "any doubt
in your mind that you could," he responded, "Yes, there is."
Id. at 244.
When asked by defense counsel whether he thought he could be a
fair and impartial juror during the guilt phase, Mr. Nasvytis
responded affirmatively. Id. at 248. After posing questions,
as to a number of which objections were sustained, about the
legal aspects of aggravating and mitigating factors, the defense
attorney asked Mr. Nasvytis if he could "fairly consider all
three options?" To which he responded, "Uh-huh." Id. at 249.
The defense attorney later asked Mr. Nasvytis whether he
"could follow the law" if it stated that he had to impose the
death penalty. To which Mr. Nasvytis responded, "it would be
difficult for me to do anyway." Id. at 252. After reaffirming
his ability to determine guilt or innocence, Mr. Nasvytis, in
response to a final question from defense counsel as to whether
he "would follow the law and vote to impose the death penalty,"
stated, "Yes, I would say yeah." Id.
Thereafter, after a couple of preliminary comments by the
trial judge, the following colloquy ensued:
Judge: I need to know if you can make the commitment
to me that you will set
aside your personal feelings and you will follow the
law as I give it to you. In other words, if the law
requires you to vote for the death penalty, will you
commit to me that you will do so even if it violates
your personal feelings?
Juror: Well, if it violates my personal — my personal
beliefs, my moral beliefs, I couldn't do it, no
matter what you said. . . . I can do everything up to
Judge: If the law requires that you vote for the
death penalty, will you, in fact, do so? Juror: No,
not if I don't believe it is right.
Judge: What if the law says that under these
circumstances you must vote for the death penalty and
you find that those circumstances do exist?
Juror: Whose law?