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FRAZIER v. MITCHELL

January 5, 2001

RICHARD FRAZIER, PETITIONER
V.
BETTY MITCHELL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Carr, District Judge.

              ORDER

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.

Introduction

A Factual Background

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 murder.

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 "very frightened."

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 pillow.

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.

B. Procedural Background

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 post-conviction petition.

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 constitutional question.

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.

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 Ohio Supreme Court noted in its decision on petitioner's direct appeal that the evidence of the blood test was admitted properly under Rule 404(B) to show motive. In addition, the Court stated that evidence about the rape prosecution "is inextricably linked to the circumstances surrounding [the] murder." As the Ohio Supreme Court in the context of a death penalty case has since made clear, evidence of motive that is "inextricably linked" to the circumstances of a charge offense is not governed by Rule 404(B). State v. Coleman, 85 Ohio St.3d 129, 140, 707 N.E.2d 476 (1999). In Coleman, the Supreme Court, citing its earlier decision in the petitioner's direct appeal, stated:

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 453.

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" and "suicidal."

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 597 (1980):

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 claim rejected).

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 petitioner's arm.

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 family."

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 applied 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 fundamentally unfair.

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 violation).

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 that point.
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?

Judge: Our law.

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.

Id. at 253-54.

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 indicated that her reservations were based on her belief that the death penalty, in effect, was "like saying I am going to murder you to teach you not to murder." Id. at 388. Asked if she thought "it is wrong to execute or wrong to murder, whether the state is doing it or whether someone else is doing it," she replied, "Yes," and acknowledged that she did not want to be a part of it. (Id.). When the time came to sign her name on a death verdict, she repeated, she would "probably have really sincere reservations." Id.

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 Mrs. Laskey:

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 death penalty.
Will you make that commitment to me or can you make that commitment to me?

Juror: No, I don't think I could.

Judge: You cannot?

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 could.
Judge: You cannot say unequivocally you will follow the law even if it is against your personal feelings?

Juror: Probably not.

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.

Juror: No, I think probably my feelings against the death penalty would be so strong I couldn't follow the law. I will not follow the law, would be better, no probably won't follow the law.

Id. at 396-98.

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 cause.

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." Id.

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. Id.

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 proven." Id.

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?

Juror: Yes.

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 for death?

Juror: Yes.

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?

Juror: Yes.

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 feelings aside.

Judge: You are sure you can do that?

Juror: Yes.

Judge: You are positive?

Juror: Yes.

Id. at 664-66.

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 consider them?

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?

Juror: Yeah.

Judge: Do you have an open mind as you sit here right now?

Juror: Yes.

Id. 671-72.

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. 673.

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 731.

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 exchange:

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?

Juror: Oh yeah.

Judge: You would vote for death, if you had to?

Juror: Sure, yeah.

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?

Juror: Yes.

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?

Juror: I would have to.

Id. at 732-33.

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 in Ohio says that if the prosecutor proves these aggravating circumstances and that they outweigh mitigating factors that the defense would put on, and they prove this beyond a reasonable doubt, that the jury should return a death penalty verdict. Do you agree with that?

Juror: Sure.

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 penalty.
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?

Juror: No.

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?

Juror: I sure will.

Attorney: You would not be able to consider any other

Juror: Huh-uh.

Attorney — mitigating factors?

Juror: No.

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 penalty.
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 in Detroit

Juror: Yeah.

Attorney: — that you would not be able to put these aside

Juror: No.

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 respect?

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 death penalty.

Juror: Well, I guess I would. I think I would.

Attorney: You say it very reluctantly, don't you?

Juror: Yeah, yeah.

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: Are you sure?

Juror: Sure.

Attorney: So, if you found the defendant guilty, you wouldn't automatically vote for death, ...

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