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FRAZIER v. MITCHELL
January 5, 2001
RICHARD FRAZIER, PETITIONER
BETTY MITCHELL, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Carr, District Judge.
This is a capital habeas corpus case arising from the
petitioner's conviction of two counts of aggravated murder and
one count aggravated burglary. The petitioner has exhausted his
state court remedies.
For the reasons that follow, the petition will be denied.
The following summary of the evidence from the petitioner's
trial is taken from the opinion of the Ohio Supreme Court
affirming the petitioner's conviction on direct appeal. State
v. Frazier, 73 Ohio St.3d 323, 323-26, 652 N.E.2d 1000 (1995).
The victim, Tiffany Skiba, lived with her grandparents, Robert
and Rita Skiba, in Cleveland, Ohio. On November 8, 1990, Mr.
Skiba discovered Tiffany's body in her upstairs bedroom. Death
had been caused by multiple stab wounds. Four days later the
petitioner, Richard Frazier, was arrested and charged with the
The Medina County Court of Common Pleas ordered the petitioner
to submit a blood sample for DNA testing to determine the
paternity of Tiffany's child. He appealed that order to the
state court of appeals and Ohio Supreme Court, which upheld the
trial court's order. The United States Supreme Court denied
petitioner's writ of certiorari in October, 1990. Thereafter,
the Medina Court of Common Pleas ordered petitioner's blood
sample to be taken on November 13, 1990. Trial on the pending
indictment was set for December 5, 1990, and then continued to
January 14, 1991.
While the petitioner was on bond, Tiffany and her mother,
Susan Bednarski, expressed fears that petitioner might harm
Tiffany. Bednarski had seen the petitioner driving slowly past
their house on numerous occasions. One of Tiffany's friends also
saw the petitioner driving slowly by their house. When the
friend told Tiffany what she had seen, Tiffany said, "Heather,
oh, my God. He found me. He is going to kill me." Petitioner
also was seen following Tiffany's school bus.
From September 1989 to May 1990 Tiffany received counseling.
Her counselor testified that Tiffany was suicidal in October
1989. At a conference with her mother's attorney in October
1989, Tiffany was "petrified" during a discussion concerning the
appellant. At a later visitation hearing attended by the
petitioner, Tiffany appeared to be upset, "pale, shaky," and
After Tiffany moved in with her grandparents, she told her
uncle that she was afraid of petitioner and of what he might do
to her. She also told him that she slept with a knife under her
On several occasions the petitioner approached Tiffany's
stepfather, David Bednarski. During one of these encounters, the
petitioner indicated that he wanted to resolve some legal
matters. After Bednarski stated, "That's up to the state and the
attorneys," the petitioner replied, "You use your attorneys. I'm
going to do it in an illegal way." Petitioner's friends later
threatened David Bednarski.
One week before Tiffany's murder, the petitioner sent her a
Halloween card asking her to call him. Two days before the
murder, the petitioner rented a car from the Cleveland airport.
On the day of the murder, Tiffany's grandfather, as was his
custom, drove his wife to work around 5:00 a.m. He returned home
about fifteen minutes later. On his return, Mr. Skiba noticed
the family dog barking loudly and looking toward the back of the
house. This behavior was unusual.
At approximately 10:00 a.m., he called to Tiffany to get up to
get ready for work. Receiving no response, he went upstairs and
found Tiffany's body in her bed.
Next to the body, police found a steak knife belonging to a
set owned by her grandparents. The knife's blade was separated
from its handle. Blood was on the bed and in the surrounding
area. Police found smears of blood matching Tiffany's blood type
on the right side of the stairway leading down from her second
floor bedroom and on the door frame leading to the living room.
Officers found human blood on the steak knife, bedroom ceiling,
door frame to the rear door, and stairwell
landing leading upstairs. The quantity was insufficient to
determine blood type.
Entry to the house occurred through a basement window. The
screen had been torn from the window and the pane of glass was
broken. The window was partially open. The ground near the
window was disturbed, and the door, normally closed, leading
from the basement into the house was ajar.
Two footprints heading away from the murder scene were found
in the neighbor's garlic bed on the other side of the fence
separating the Skiba residence from their neighbor's home. From
plaster casts of the prints officers determined that a size nine
or ten boot sold exclusively by K-Mart had made the footprints.
On the morning of the murder the petitioner went to a medical
clinic to have a one-inch cut on his right wrist treated. He
appeared nervous and was pacing around the room. He said that he
cut his arm at approximately 7:00 a.m. while working on his
truck. The wound was consistent with a stab wound.
Later that day the petitioner contacted a friend to ask him to
move his car. The friend declined, having heard a news report
that the petitioner was a suspect in the murder of his former
stepdaughter. Petitioner then contacted another friend, Jeffrey
Weisheit, about moving his car. While the friend was driving the
car, police stopped him and instructed the man to get out of the
car. Before the officer had the opportunity to finish his
commands, Weisheit exited the car with his hands in the air and
began shouting, "Don't shoot."
The night of the murder, the petitioner drove his rental car
to Ned Shamon's home in Sheffield Lake, Ohio. Shamon and the
petitioner returned in Shamon's wife's car to petitioner's
apartment to collect various papers and articles of clothing.
The petitioner spent the ensuing weekend with the Shamons.
On November 12, 1990, Shamon followed the petitioner to a gas
station, where he returned the rental car. A clerk, recognizing
the petitioner from news reports, called the police. The clerk
provided a description of the truck that had followed the
petitioner and its license plate number. Police found a human
blood stain on the rental car's front passenger seat. The amount
was insufficient to be typed.
After receiving the information from the clerk, the police
went to Shamon's home and arrested the petitioner. Among
petitioner's effects, police found a wristwatch with a human
blood stain on the band, a pry bar stained with human blood, and
a letter from the United States Supreme Court about the denial
of his petition for certiorari.
In addition, the police found a receipt from K-Mart for a size
nine boot with the same pattern on its sole as the boot which
had left the print in the Skibas' neighbor's garlic garden. A
knife with human blood traces and a towel smeared with
petitioner's blood were found in his apartment. The blood on the
knife was not suitable for typing.
Anthony Skiba, Tiffany's uncle, testified that he had shown
the petitioner how to break into Skiba's residence through a
basement window. The petitioner also was familiar with the
basement and its storage area because he had stored personal
items there while he and Tiffany's mother had been married.
On November 12, 1990, police officers read the Miranda
warnings to the petitioner in the Medina County Jail. They asked
petitioner a series of questions about Tiffany's murder. The
officers noticed that petitioner had several bruises and
abrasions on his hands and arms and a sutured cut on the outside
of his right wrist.
On November 13, 1990, Cleveland police officers took the
petitioner for the blood test ordered by the Medina County
court. The test showed a 99.8% probability that petitioner
fathered Tiffany's child.
On November 14, 1990, during a further interview with law
enforcement officers, petitioner made indirectly inculpatory
statements that were later introduced against him at his murder
trial. At one point, he offered to tell the officers everything
that happened, but wanted to do so only after he talked with an
attorney. The officers then terminated the conversation.
Count One of the indictment charged aggravated murder, defined
as a purposeful killing while committing, or attempting to
commit, or while fleeing immediately after committing or
attempting to commit aggravated burglary. That Count contained
three death specifications: 1) the murder was committed while
committing or attempting to commit or fleeing immediately after
committing or attempting to commit aggravated burglary and the
offender was the principal offender or committed the murder with
prior calculation and design; 2) the victim was a witness and
was purposely killed to prevent her testimony; and, 3) the
murder was committed for the purpose of escaping trial and/or
punishment for another offense committed by him, to wit, rape.
Count Two also charged aggravated murder committed purposely
with prior calculation and design. Count Two contained the same
death specifications as Count One.
Count Three charged appellant with aggravated burglary.
Trial lasted from August 5 through August 14, 1991. On August
16, 1991, the jury returned a verdict of guilty on all three
counts and also found that the three specifications under Counts
One and Two had been proven beyond a reasonable doubt.
At the mitigation hearing the petitioner made an unsworn
statement denying his guilt. On August 19, 1991, the jury
returned with a recommendation that petitioner be sentenced to
death. The court followed the jury's recommendation, making an
independent finding that the aggravating circumstances
outweighed the mitigating factors beyond a reasonable doubt.
Petitioner was sentenced to death on August 29, 1991.
The court of appeals affirmed the decision of the trial court.
The Ohio Supreme Court affirmed the conviction and sentence.
State v. Frazier, 73 Ohio St.3d 323, 652 N.E.2d 1000 (1995).
The United States Supreme Court denied the petitioner's petition
for a writ of certiorari. Frazier v. Ohio, 516 U.S. 1095, 116
S.Ct. 820, 133 L.Ed.2d 763 (1996).
On July 31, 1996, the petitioner filed a post-conviction
relief petition in the trial court. Before doing so, he had
filed a Motion for Expert Assistance, seeking funds to hire an
investigator. The trial court denied that motion, which was
renewed and again denied after the petitioner filed his
Finding that the petitioner's claims were barred by the
doctrine of res judicata, the trial court dismissed the
petitioner's postconviction petition on November 26, 1996.
Thereafter, the petitioner filed a motion for relief from
judgment. He based that motion on a report from a psychologist,
who stated that testing should be undertaken to determine
whether the petitioner was brain damaged. Petitioner also filed
objections to the trial court's findings in its dismissal of the
petitioner's post-conviction petition. On December 13, 1996, the
trial court overruled both motions with a marginal entry.
Petitioner appealed the denial of his post-conviction petition
to the court of appeals, which affirmed the trial court's
decision on December 11, 1997. On April 1, 1998, the Ohio
Supreme Court declined to accept petitioner's appeal for review
on the basis that the petitioner had presented no substantial
The petitioner's habeas corpus petition asserts thirty grounds
for relief, which will be discussed in the order in which they
appear in the petition.
1. Failure of the Trial Court to Give a Cautionary
Instruction re. Evidence Admitted Under Ohio R. Evid. 404(B)
Without objection at trial, evidence was admitted against the
petitioner about 1) his alleged rape of Tiffany; 2) the pending
state court indictment for rape; 3) the paternity of Tiffany's
child; and 4) paternity testing procedures. In addition, the
state's opening statement referred to petitioner's alleged
sexual abuse of Tiffany, his indictment for rape, the paternity
test, and the likelihood that petitioner was the father of
Tiffany's child. The rape and paternity issues also were
discussed by the state during the guilt and penalty phases of
The trial court ruled that the evidence was relevant to the
death specifications in the murder counts of the indictment.
Those specifications alleged that the murder was of a witness,
and that it was committed to avoid prosecution.
No limiting or cautionary instruction was given when the
evidence was admitted or discussed. In addition to not objecting
to the admissibility of the evidence, the petitioner did not ask
the court to give such instruction. As a result, the Ohio
Supreme Court ruled that this claim was procedurally defaulted.
Accordingly that court declined to consider this claim on its
merits, except to examine it on the basis of a possible manifest
miscarriage of justice. Frazier, 73 Ohio St.3d at 339,
652 N.E.2d 1000. The court found no miscarriage of justice.
Review by a state supreme court of an otherwise procedurally
defaulted claim to determine whether the error, if any,
constituted a manifest miscarriage of justice does not revive
the defaulted claim for purposes of federal habeas corpus
review. Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989);
see also Scott v. Mitchell, 209 F.3d 854, 868 (6th Cir. 2000)
("manifest injustice" review by Ohio Supreme Court of defaulted
claim does not constitute waiver of the default).
In any event, even if the claim could be considered on its
merits, despite the default, it is without merit. The Ohio
Supreme Court has expressly declined to impose a duty on Ohio's
trial judges to give a limiting instruction sua sponte when,
without a request for such instruction, evidence comes in under
Ohio R. Evid. 404(B). State v. Schaim, 65 Ohio St.3d 51, 61-62
n. 9, 600 N.E.2d 661 (1992). As the Ohio Supreme Court has
pointed out, "the decision not to request a limiting instruction
is sometimes a tactical one, and we do not wish to impose a duty
on the trial courts to read this instruction when it is not
requested." Id. Thus, the trial court in this case complied
with state law when it did not sua sponte give a limiting or
cautionary instruction about this evidence.
The foregoing discussion assumes, moreover, that the
petitioner properly characterizes this evidence as having been
admitted under Rule 404(B). His characterization is incorrect.
The admission of the underlying facts regarding the
three separate drug sales tended to prove the
essential elements of the specification. R.C.
2929.04(A)(8) requires that the state prove motive,
and evidence was introduced to demonstrate that [the
defendant] was the key witness against appellant and
that her murder would hinder the state's case against
him by preventing her testimony, which explained
appellant's motive and deep obsession with killing
Stevens. Thus, the drug sales are not considered
"other acts" evidence limited by Evid. R. 404(B);
rather, they were introduced to prove the R.C.
2929.04(A)(8) death-penalty specification.
(citing State v. Frazier, 73 Ohio St.3d 323, 338-339,
652 N.E.2d 1000 (1995)). Accord State v. Keene, 81 Ohio St.3d 646,
661, 693 N.E.2d 246 (1998) (evidence that a victim was murdered
because she was a witness to a crime charged to the defendant
not Rule 404(B) evidence).
Even if the evidence came in under Rule 404(B), the petitioner
has not met his burden of showing that the federal Constitution
requires, as a matter of due process of law, that the trial
court sua sponte had to give a limiting instruction. The
petitioner, rather, simply argues that he was entitled to a sua
sponte limiting instruction under Spencer v. Texas,
385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), and Murray v.
Superintendent, Kentucky State Penitentiary, 651 F.2d 451, 453
(6th Cir. 1981). Both cases involved habitual offender
prosecutions. In Spencer the Supreme Court noted the efficacy
and effectiveness of limiting instructions relating to evidence
of prior convictions in an habitual offender prosecution. In
Murray the court stated that, in such prosecutions, "it is
unfair — and violative of due process — if evidence of other
crimes is admitted without a limiting instruction." 651 F.2d at
The statement in Murray was dictum. Neither it nor the
Supreme Court's decision in Spencer establishes, as a matter
of federal constitutional law, an entitlement to a sua sponte
instruction whenever evidence is admitted under the "other acts"
doctrine, as embodied in Ohio R. Evid. 404(B). As a matter of
federal evidentiary law, moreover, the Sixth Circuit has held
that no sua sponte instruction is required when evidence is
admitted under Fed.R.Evid. 404(b). United States v. Cooper,
577 F.2d 1079, 1088-89 (6th Cir. 1978). There is, accordingly,
no constitutional right to a sua sponte instruction limiting
consideration of other acts evidence.
Having failed to show an established constitutional right to
such instruction, petitioner is entitled to habeas relief only
if the trial court's failure to give such instruction resulted
in a fundamentally unfair trial. See Smith v. Gibson,
197 F.3d 454, 460 (10th Cir. 1999). The failure to give a limiting
instruction about the rape, pending indictment, blood test, and
putative paternity did not result in a fundamentally unfair
trial in view of the direct connection between that evidence,
petitioner's motive, and the killing. Cf. Amos v. State,
849 F.2d 1070, 1073 (8th Cir. 1988) (no denial of right to a fair
trial when trial court did not sua sponte give a limiting
instruction about prior crimes evidence offered for impeachment
pursuant to state evidentiary rule).
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,
652 N.E.2d 1000. The state of mind exception to the hearsay rule is
"firmly rooted." Terrovona v. Kincheloe, 852 F.2d 424, 427
(9th Cir. 1988); United States v.
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:
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: Not if I felt that it was morally incorrect, I
couldn't do that, no.
Judge: So you cannot commit to me that you will
follow the law and impose the death penalty if the
law requires you to do so?
Juror: I can't, because I don't feel bound by that
more than I do by my own beliefs.
Thereafter, the defense attorney asked, "You are not saying
that there are no circumstances where you could vote to impose
the death penalty; is that a fair starting point?" In response,
Mr. Nasvytis stated, "I have never been put in a situation where
I had to be directly responsible for someone's death. So that I
— for that reason I don't know what I would — how I would
respond if I was in that situation." Id. at 254.
After acknowledging that his concerns had to do with his moral
principles, id. at 254-55, Mr. Nasvytis that "I don't care
what the law is, okay, I am going to do what I think is right."
Id. at 256. When asked if he could "follow the law and do
[the] weighing process," Mr. Nasvytis stated, "certainly my
feelings against the death penalty would affect . . . how I
would weigh those,. . . ." Id. at 257-58. In response to the
defense attorney's final question, "So that, in a properly
proven case, . . . you could follow the law and impose the death
penalty," Mr. Nasvytis stated, "Depends — I suppose I could."
Id. at 258.
After this answer, the trial judge asked, "What does that
mean, sir, you suppose you could?" To which Mr. Nasvytis
answered, "Well, I think it means depending on — let's say that
one of my relatives was the — the individual, the victim, let's
say, I would suppose that in that case my — my vacillating would
vacillate toward the more serious choice." Id.
At sidebar, the trial judge stated that, "This gentleman has
indicated that under some circumstances, if a relative were a
victim, he would follow the law; in other circumstances, he
would not follow the law. He does not believe he is bound by the
law." Id. at 259-60.
On questioning by the prosecutor, Mrs. Laskey stated that she
had "serious reservations about" the death penalty and
"reservations that it serves a useful purpose." Id. at 386.
Asked if she had "serious doubts," she said, "Yeah." Id. When
asked if she would "be able to pick up the pen, sign your name
on that death penalty verdict," she stated, "I really don't
know," and "I think I would have so many reservations I may not
be able to do it." Id. at 387-88.
Mrs. Laskey also indicated, however, that "the law has to be
obeyed regardless of my personal feelings." Id. at 389. On
then being asked, "would you follow the instructions of the
law," she responded, "I am still not sure, I guess. Seriously, I
am not sure. Maybe I wouldn't. I better not. I better say no, I
couldn't follow the law." Id. In conclusion, she stated, "I
don't think I could take that responsibility. I think my
feelings about the death penalty being a deterrent is too deeply
engraved. I don't think it is a deterrent. I don't think it
solves anything, to kill someone or killing someone." Id. at
390. These feelings, she stated, were not religiously based,
though she thought "it ethically makes sense." Id.
When questioned by defense counsel, Mrs. Laskey stated that
she did not have a problem sitting in judgment as to the guilt
or innocence of a person charged with a crime. Id. at 390-91.
She acknowledged that there might be "times I probably would
feel" that a crime had been "so heinous I probably would" be
able to return a death verdict. Id. at 392. Asked later that
if "the law says in this circumstance [you] have to follow the
law, that you would follow the law," Mrs. Laskey answered, "I
can probably follow the law and put my personal bias against the
death penalty aside, if I had to make that decision what the law
says had to be done." Id. at 395-96.
The following colloquy then ensued between the trial judge and
Judge: . . . I need a commitment . . . that you will
follow the law, even if the law requires you to sign
you name to a verdict in which you are voting for the
Will you make that commitment to me or can you
make that commitment to me?
Juror: No, I don't think I could.
Juror: I don't think I could.
Judge: . . . So, what I am telling you is, ma`am, you
may be personally against death, but you would have
to set aside your personal feelings, and even if you
believe in your heart that, no, I really don't want
to impose death in this case but the law tells me I
have to, I am asking you, will you set aside what
your heart tells you and do what the law says? And I
need to know if you will make that commitment to me.
I know we are not asking you easy questions, but I
think you can appreciate we need the answers.
Juror: Yeah, that I need to follow the law instead of
a personal feeling regarding —
Judge: What I need to know is can you make that
commitment to me?
Juror: No, I don't think I could. I couldn't say I
Judge: You cannot say unequivocally you will follow
the law even if it is against your personal feelings?
Judge: If it is against your personal feelings,
that's what I should have said.
Juror: No, I probably couldn't.
Judge: That's what it really comes down to.
When questioned further by the defense attorney, as to whether
"it would take a lot to convince you that the aggravating
circumstances outweighed beyond a reasonable doubt the
mitigating factors," Mrs. Laksey acknowledged that that was
"fair." Id. at 399-400. In response to the question, "you
couldn't say under no circumstance would you follow the law and
impose the death penalty; isn't that a fair statement," Mrs.
Laskey answered, "Yes." Id. at 400. She gave the same answer
to the question, "you have said there are circumstances where
you could consider it." Id. Asked, "can you follow the law and
apply the law in this case even if the law said that you had to
impose the death penalty," Mrs. Laskey answered, "Yes, I know
the law would take precedence over my personal feelings about
the death penalty." Id. at 402.
Mrs. Laskey again was asked by the court, "are you now making
the commitment that you will, in fact follow the law, and if the
law requires you to vote for death, you will do so, even if it
is against your personal feelings, even if your heart tells you
differently." In response, Mrs. Laskey stated, "I think I would
have to follow the law until it was changed." Id. To this, the
court responded, "Ma'am, I need something stronger than I think
I might have to. You understand, I need something stronger than
I think I might, probably I will. I need a commitment. This is
too important. I need a commitment that you will follow the law
even if it is totally against your heart." This, in turn, led to
the response by Mrs. Laskey, "No I don't think I can give you
that commitment." Id.
The petitioner claims that the trial judge improperly asked
the prospective jurors to make a commitment to follow the law
and the court's instructions. Such questions from the court are
not improper, as Justice Kennedy noted in his dissenting opinion
in Mu'Min v. Virginia, 500 U.S. 415, 451, 111 S.Ct. 1899, 114
L.Ed.2d 493 (1991) (Kennedy, J., dissenting). A trial judge,
Justice Kennedy stated, can properly "evaluate impartiality by
explaining the trial processes and asking general questions
about the juror's commitment to follow the law and the trial
court's instructions." Indeed, here, as in Zuern v. Tate,
101 F. Supp.2d 948, 988 (S.D.Ohio 2000), "the Petitioner has not
cited a single case which would support the proposition that the
Eighth Amendment or any other provision of the United States
Constitution is violated, when . . . such a commitment from
potential jurors" has been secured.
Voir dire of each juror was extensive. Both expressed
reservations, based strongly held personal beliefs, about their
ability to impose capital punishment. Although some portions of
the jurors' responses may be viewed as expressing a willingness
to follow the law, the totality of their responses provides
ample support for the trial judge's decision to excuse them for
The petitioner has, in any event, failed to overcome the
presumption of correctness applicable to the state judge's
findings of inability to follow and apply the law. In addition,
applying the rigid standard of AEDPA, it is clear that the
decision to excuse these jurors was neither "contrary to, [n]or
involved an unreasonable application of clearly established
federal law" and was not "based on an unreasonable determination
of the facts." 28 U.S.C. § 2254(d).
6. Denial of Defense Challenges to Jurors
The first juror whom the petitioner claims should have been
excused for cause due to her beliefs regarding capital
punishment was Judy Ballard. When asked by the trial judge
whether she had a "position for or against the death penalty,"
Ms. Ballard stated, "For." Tr. 653. After Mrs. Ballard stated
that she would vote for the death penalty if the law so
required, the trial judge asked her if she would likewise
"follow the law that says you cannot vote for death . . . [and]
must vote for a lesser penalty." To which she responded, "Yes."
Then the trial judge asked her if she could "commit to us that
you will set aside your personal feelings regarding the death
penalty and simply follow the law, even if it is in conflict
with your personal feelings." Ms. Ballard again answered, "Yes,"
as she did when asked, "You will follow the law?" Id.
The prosecutor, after asking if Ms. Ballard could return a
death sentence, also asked, "if the law required a different
penalty, the penalty or the other option of life imprisonment
with the possibility of parole after serving a full 20 or 30
years, if that's what the law required, you would be able to do
that, also." Id. at 658. Ms. Ballard answered affirmatively.
When asked by defense counsel whether "in some cases she might
feel it was more appropriate for capital punishment," Ms.
Ballard responded, "Most cases, yes." Id. at 660. She
answered, "Yes," to the question, "if someone has been proven to
have killed somebody, do you generally feel that capital
punishment should be imposed?" Id. at 660-61. "Would you say,"
the defense attorney then asked, "that if a person has been
proven to have killed somebody, that he should be put to death?"
In response, Ms. Ballard stated, "If he has been proved to kill
someone, yes." Id. at 661. Ms. Ballard also answered, however,
"No," when asked, whether she had a "problem" with moving on to
"some other penalty" if the "death penalty may not have been
Ms. Ballard stated that she could consider, as a possible
sentence, thirty years before parole eligibility. But, when
asked if she would "have any problem with that," she answered
affirmatively. Id. at 663. Her problem was that "[t]he person
shouldn't be paroled. It should be a life sentence." Id. She
agreed with the defense attorney's statement, "that because of
the possibility of parole that maybe there should be a death
penalty," and acknowledged that "that would be on [her] mind."
Id. She also stated that she did not agree with the
possibility of parole after twenty years. Id. Asked if it were
a fair statement "that if the defendant is found guilty of
aggravated murder, that you would impose the death penalty
because you don't agree with the 30 years or the 20 years," Ms.
Ballard said, "Yes, that's correct." Id. at 660-61.
Next the trial judge asked Ms. Ballard, "would you
automatically impose the death penalty without consideration of
the law?" To which Ms. Ballard responded, "No." Id. at 661.
When asked what her earlier answers meant, Mrs. Ballard stated
that, "anyone who is killing someone shouldn't be out." Id.
At this point, the following colloquy occurred:
Judge: What if I were to tell you that our law does
not believe that, that that's not how our law is set
up? Would you set aside that personal feeling?
Juror: I could. It would be hard, but I could.
Judge: It may very well be hard. But I need to know —
and there are no right or wrong answers here, ma'am.
I need to know if you will commit to all of us that
you will set aside your personal feelings being in
favor of the death penalty and if you will follow the
law, and if the law tells you that you have to
consider certain factors that I will give to you, you
will consider those factors. Will you make that
commitment to me?
Judge: And will you make the commitment to me that if
the State doesn't meet their burden of proof of the
aggravating circumstances outweighing the mitigating
factors, will you commit to me that you will not vote
Judge: Even though you may not like it, you have to
make that commitment to me. If you can't make that
commitment to me, you have got to tell me now.
Juror. I could make that commitment.
Judge: Okay. And on the other hand, if the State does
meet its burden of proof in the penalty phase, you
will vote for death?
Judge: Do you understand my concern here is I think I
have heard two different answers from you, and I need
to know — I know you are in favor of the death
penalty, and I know you believe that if you take a
life, your life should be taken. But I cannot stress
enough, ma`am, that is not our law.
Will you accept the law or will your personal
feelings override what I have told you?
Juror: I will accept the law and put my personal
Judge: You are sure you can do that?
When asked by the defense attorney if she could put aside her
feelings, Ms. Ballard stated that "I have to put aside my
feelings." Id. at 666. During the course of further
questioning of Mrs. Ballard by defense counsel, the court
interjected, and asked, "But as you sit here now, do you have an
open mind to various possibilities, or, as you sit here now, are
you definite that if he is found guilty, I am going to vote for
death?" Id. at 670. Mrs. Ballard answered, "I don't know. It
depends. It might not be the rule . . . The death penalty might
not be the rule." Id. at 671.
This, in turn, led to some further questions by the court:
Judge: . . . [I]f I tell you you can consider A, B,
C, D, E, okay, if I list of things that you can
consider, that negate the death penalty, will you
Juror: Yeah. I have no choice.
Judge: Okay. So you will consider them and determine,
according to the law, whether or not you should
impose the death penalty or a lesser penalty?
Judge: Do you have an open mind as you sit here right
After this series of questions from the trial judge,
petitioner's attorney asked that, if she didn't agree with the
list of mitigating factors given by the judge, "would you still
feel that you should have to give the death penalty?" Mrs.
Ballard answered, "No." The defendant attorney's final question
was, "You could set aside your own personal feelings and move on
to one of these other areas?" To which Mrs. Ballard responded,
"Yes." Id. 672.
Defense counsel initially passed for cause. He then reversed
himself, and objected. The court denied the challenge. Id.
The other juror who, according to the petitioner, should have
been dismissed for cause was Harold M. Wills. As the outset of
his voir dire the court asked, "Do you have a position for or
against or no position at all as to the death penalty," to which
Mr. Wills responded. "No." Id. at 730. But then he said, "No.
If he deserves it, give it to him, that's what I say." Id. at
After explaining the two distinct phases of the trial and the
weighing of the aggravating and mitigating factors, the court
asked, "Will you, in fact, follow the law that would require you
to vote for death?" Id. Mr. Wills answered, "I think I would."
In response to the next couple of questions, Mr. Wills
indicated that he was confused. This led to the following
Judge: Under certain circumstances the law requires
you to vote for death. Would you follow that law that
would require you to vote for death?
Judge: You would vote for death, if you had to?
Judge: On the other hand, if other circumstances
exist, the law says you may not vote for death, you
must consider a lesser penalty of life imprisonment
with parole eligibility after 30 years or 20 years.
Would you follow the law that says no, you cannot
vote for death, you have to vote for lesser penalty?
Juror: I would follow the law.
Judge: So if the law says you can't vote for death,
would you follow that law?
Judge: . . . [W]ill you put aside all of your
personal feelings regarding the death penalty, put
them all aside, and just simply follow the law, even
if the law is different than your personal feelings?
When asked by the prosecutor if he could "vote for the
imposition of death in this case," Mr. Wills responded, "I think
I would." Id. at 736. After being told by the prosecutor, "We
need something more than that. We need either you can or you
can't do that. We need to know now," Mr. Wills repeated, "I
think I can do it." Id. When asked if he could "sign your name
. . . [i]f the law says it is an appropriate penalty," Mr. Wills
agreed he could do so. Id.
Mr. Wills also agreed with the prosecutor, when asked about
his initial statement ("If he deserves it, give it to him"),
that he meant to express that if the law says death is
appropriate, he could follow the law. Id. He reconfirmed his
ability to set aside his personal feelings and acknowledged his
ability to follow the law regarding alternative punishments and
impose a lesser sentence. Id. at 736-37.
After some initial questions from the defense attorney, Mr.
Wills expressed in-comprehension about the fact that a person
convicted a year and a half earlier of murder of a police
officer was still alive. Id. at 739. Asked if he thought that
person should be put to death for what he did, Mr. Will stated,
"Sure I do, sure." Id. He agreed with the statement that if
someone "kills another person, that he should be put to death."
Id. at 739-40.
At this point, the following colloquy occurred between defense
counsel and Mr. Wills:
Attorney: Now, the law also provides that there are
certain mitigating factors or factors that would
lessen against the death penalty to make a lesser
Can you think of anything in your own mind that
would cause you, in relying on these mitigating
factors as defined by the law, to change from the
death penalty verdict?
Attorney: So that because of the fact that there was
this type of a murder or there was a murder, the
taking of somebody else's life, you would feel — or
you would vote for the death penalty?
Attorney: You would not be able to consider any other
Attorney — mitigating factors?
Attorney: How much has this to do with [that other]
case or is this your own
Juror: That's my own feeling.
Attorney: This is your own feeling overall?
Juror: All you have to do is look at the state of
Michigan, Detroit, Michigan. They don't have a death
Attorney: And what are you saying about the state of
Michigan and the city of Detroit?
Juror: I got a daughter that lives in Michigan. I
don't like to go to Michigan.
Attorney: So you are saying that your personal
feelings because of your own daughter's situation,
the state of Michigan and everything that's going on
Attorney: — that you would not be able to put these
Attorney: — and that you would not be able to follow
the law with respect to mitigating factors?
Juror: Yeah, I would be able to follow the law.
Attorney: Well, you are saying you can follow the
law, but the law is that a juror can consider
mitigating factors that would lessen the penalty from
death to something else.
Juror: No, I wouldn't. I don't go for that.
Attorney: You could not follow the law in that
Juror: Well, I would have to follow the law.
Attorney: Well, let me go further, sir, and say if
you found the defendant guilty of the crime as
charged in the indictment, would you keep an open
mind in the penalty phase to something less than the
Juror: Well, I guess I would. I think I would.
Attorney: You say it very reluctantly, don't you?
Attorney: Sir, I need a commitment from you that you
would keep an open mind in the penalty phase and that
you would be able to consider something other than
death if I told you that that is what the law
required you to do. Would you be able to?
Juror: Yeah. Oh sure, yeah.
Attorney: So, if you found the defendant guilty, you
wouldn't automatically vote for death, ...