Darryl GUMM, Petitioner-Appellee, v. Betty MITCHELL, Warden, Respondent-Appellant.
No. 11-3363
United States Court of Appeals, Sixth Circuit
Decided and Filed: Dec. 22, 2014.
Argued: Nov. 20, 2013.
775 F.3d 345
There is no indication in this record of the continued risk presented by people who were involuntarily committed twenty-eight years ago and who have no history of mental illness, criminal activity, or substance abuse. Indeed, Congress seems to have focused on the risk presented by those who are mentally ill, rather than the continued risk of those who were long ago found to be mentally ill. Moreover, as the majority opinion notes, Congress explicitly recognized that there were instances in which the ban of
The record is therefore inadequate for this court to confidently hold that
CLAY, J., delivered the opinion of the court in which DAUGHTREY, J. joined, and MOORE, J. joined in all but Part II.B.4.c. of the majority‘s opinion and in the judgment. MOORE, J. (pp. 385-86), delivered a separate concurring opinion.
OPINION
CLAY, Circuit Judge.
Petitioner Darryl Gumm is mentally retarded and has an IQ of approximately 70. He was convicted by an Ohio jury for the kidnapping, attempted rape, and murder of ten-year-old Aaron Raines. For these crimes, Petitioner was sentenced to death. His convictions and sentences were affirmed on direct appeal, and his state post-conviction petition was found to lack merit by the Ohio state courts. After he filed a petition for federal habeas corpus, the United States Supreme Court decided in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) that persons who are mentally retarded cannot be executed. In Petitioner‘s post-Atkins petition for state post-conviction review, the Ohio courts adjudicated Petitioner mentally retarded and reduced his sentence to thirty years to life in prison. In that second petition, the Ohio courts rejected Petitioner‘s non-Atkins claims.
On federal habeas review, the district court granted Petitioner a conditional writ of habeas corpus on the four claims we have before us on appeal. These claims include (1) that the government failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) that Petitioner received an unfair trial due to the improper admission of incendiary prior bad acts evidence; (3) that admission of a psychiatric report violated the Sixth Amendment‘s Confrontation Clause; and (4) that the prosecutor‘s elicitation of inflammatory testimony and admission of psychiatric reports constituted prosecutorial misconduct, causing a denial of due process. Respondent Warden has appealed. For the following reasons, this Court AFFIRMS the district court‘s grant of the conditional writ of habeas corpus based on Petitioner‘s Brady and prosecutorial misconduct claims.1
I. BACKGROUND
A. Factual Background
The facts of the crimes in this case are not disputed and have been summarized by the Ohio Supreme Court during its review of his convictions and sentences on direct appeal as follows:
Early on the morning of May 12, 1992, the bludgeoned body of ten-year-old Aaron Raines was found by police in the basement of an abandoned building in the lower Price Hill section of Cincinnati....
At 11:00 p.m. on May 11, 1992, Aaron Raines‘s family reported Aaron as missing to Cincinnati police. An extensive neighborhood search took place, culminating in the discovery of Aaron‘s body in the basement of an abandoned building adjacent to a neighborhood park where Aaron had previously been playing.
Several weeks later Betty Gumm, a friend of the Raines family and defen
dant‘s sister through adoption, learned that her brother Darryl had been in the neighborhood on the day of Aaron‘s murder. Betty knew that her brother was acquainted with Aaron, and was familiar with the abandoned buildings where Aaron‘s body was found, having stripped copper out of them many times at night. Betty called the local “crime Stoppers” number to report her information. On July 24, 1992, Cincinnati police interviewed appellant at his job site, a tobacco farm in Brooksville, Kentucky. At that time, Gumm told police he hadn‘t been in Cincinnati since March 1992, and indicated his desire to cooperate with police. On July 27, Cincinnati police returned to Brooksville to talk to Gumm again, and Gumm accompanied them back to Cincinnati, ostensibly to clear himself of any wrongdoing. After extensive questioning in which he changed his statement several times, Gumm eventually confessed involvement in the murder of Aaron Raines.
Gumm‘s statement disclosed that he and one Michael Bies, a Kentucky acquaintance, were driven to Cincinnati on May 11 by acquaintances and dropped off around noon. Gumm told police that he and Bies went to a bar to drink beer, and later went to the Price Hill park adjacent to two abandoned buildings, where they encountered Aaron. Gumm and Bies were observed at approximately 7:00 p.m. sitting on a bench in the park in which Aaron last played. Gumm admitted that he lured Aaron into the abandoned building for sexual purposes by telling him he would be paid $10 to help strip copper from the buildings. According to Gumm, after the three entered the first building and crossed over a walkway into the second building, Bies asked Aaron to perform oral sex for money. When Aaron refused, Gumm claimed that Bies punched Aaron—several times, picked him up and carried him downstairs to the basement. According to Gumm, Bies there hit Aaron several additional times, once on the head with a “two by four.” After that, Gumm stated that he and Bies fled the scene. Gumm claims that he himself did not hit Aaron at all, but conceded that he might have stepped on his body as he was attempting to flee from the basement.
When police found Aaron‘s body at the crime scene, they noticed several objects around the body that contained blood and hairs consistent with the victim‘s. These objects included a chunk of concrete, a pipe, pieces of wood, and twine found wrapped around Aaron‘s neck.
Amy Martin, M.D., a former deputy coroner of Hamilton County, examined Aaron‘s body at the crime scene and conducted the post-mortem exam at the coroner‘s office. Dr. Martin testified that Aaron sustained twenty-one lacerations to the back of his head, representing twenty-one separate blows from an object, and that some of these wounds manifested lines that matched the threading on the pipe found next to the body. Five of Aaron‘s ribs were broken, which Dr. Martin found unusual for a boy of his age, since such bones are usually flexible. Dr. Martin opined that “something like a kicking or stomping” would be the type of force necessary to break a young boy‘s ribs. Dr. Martin further testified that the left side of Aaron‘s face was completely crushed in a manner consistent with a blow from the chunk of concrete found lying next to the body. Several “chevron pattern” bruises consistent with the tread of a Nike gym shoe were found on several areas of Aaron‘s body. Gumm had told police that he thought Bies had been wearing L.A. Gear gym shoes, and ac
knowledged that he had thrown his own shoes away. Dr. Martin testified that Aaron also sustained a broken jaw, chipped teeth and cut lips, a deep laceration and bone chip on the underside of his jaw, compression wounds and hemorrhages in the eyes probably caused by compression of twine wrapped around his neck, and pattern bruises typical of injuries caused by being struck with a stick or rod.
Dr. Martin found no evidence of any defensive wounds on Aaron‘s body, and opined that the absence of defensive wounds was consistent with Aaron having been held or restrained while his injuries were being inflicted. Dr. Martin determined that the cause of death was a combination of blunt impacts to the head, chest and abdomen, as well as blunt injury to the neck.
State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253, 257-58 (1995); see also State v. Bies, 74 Ohio St.3d 320, 658 N.E.2d 754, 756-57 (1996) (discussing facts of the crime in the context of co-defendant Bies’ appeal).
B. Procedural History
Petitioner was indicted on the following counts: (1) aggravated murder with death penalty specifications, in violation of
Petitioner did not testify during the mitigation phase of his trial and called only one witness—his sister, Karen Ridenour. The jury recommended imposition of the death penalty after concluding beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. The trial court imposed the death sentence for the aggravated murder count and imposed consecutive terms of imprisonment for Petitioner‘s attempted rape and kidnapping convictions. State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253, 258 (1995).
Petitioner‘s convictions and sentence were affirmed by the Ohio Court of Appeals, see State v. Gumm, Nos. C-920907, B-925608, 1994 WL 44411 (Ohio Ct.App. Feb. 16, 1994), and by the Ohio Supreme Court, see Gumm, 653 N.E.2d 253, cert. denied, 516 U.S. 1177, 116 S.Ct. 1275, 134 L.Ed.2d 221 (1996).
1. Trial
A number of issues on appeal concern evidence adduced during Petitioner‘s trial. Specifically, Petitioner raises claims relating to the testimony of Phyllis Thacker and Charlotte Jean Baker, as well as psychiatric reports admitted during the testimony of Petitioner‘s expert, Dr. Henry Leland.
Following opening statements by each side, the prosecutor put on Thacker, whom Petitioner had lived with on and off for a number of years. After establishing how Petitioner came to live with Thacker, the prosecutor began questioning Thacker about Petitioner‘s “problem with alcohol.” (J.A. at 247.) This line of questioning drew an objection from Petitioner‘s counsel, but the objection was overruled. Thacker then testified about Petitioner‘s “hateful” nature when he was drunk, explaining that he would “quarrel[] and smart[] off to people.” (Id. at 248.)
The prosecutor continued to press the issue and eventually focused his attention on a situation that occurred sometime in
Q. Mrs. Thacker, I think we were at the point where I asked you why you became afraid of Junior and why you wanted him out of your house. Was there anything specific that evening?
A. Junior‘s personality changed. He talked crazy talk and he—he acted strange to me and he said things that made me afraid to be there with him, just me and my daughter by myself.
Q. What did he say to you that made you afraid?
A. Once he told us—we have a horse. Once he told us that the horse told him that he was mad at—that she was mad at him because he was mistreating him, and he was crying and he was serious that that horse had actually talked to him and told him that.
Q. Did he tell you why the horse was mad at him?
A. She said he wasn‘t taking care of him, that he was mistreating him and that the horse told him that he didn‘t love him anymore.
Q. Anything more specific than that? Do you remember what you told me? ... Did he tell you one time something he had done with the horse?
A. (No response.)
Q. Is that difficult for you to tell us?
A. Yes.
Q. You‘re going to have to.
[Petitioner‘s counsel]: I‘m going to object to the form of the question. He‘s leading the witness.
THE COURT: Overruled. Go on. You can tell us. Can you answer?
A. I can‘t say that. He told us that he did it to the horse and the horse got mad at him.
Q. He did it to the horse?
A. (Indicate yes.)
Q. Is that the word he used or did he use a different word?
A. He used the other word.
Q. You can use the other word.
A. I can say the letter to the other word.
Q. Can you spell it?
A. That‘s still cussing. F—he said he fucked the horse.
(Id. at 251-53.) After obtaining this answer about bestiality, the prosecutor moved on to another topic.
Thacker‘s testimony was not limited to the initial presentation. The prosecutor used the inflammatory information in the rebuttal closing arguments to the jury:
Sex is the motive in this particular case, and it fits the profile.... Darryl likes to shoot pool, and he likes to have sex. It‘s probably a strange hobby, but it fits. Sex is a hobby, and he likes to have it every day: Sex with a woman; sex with a man, which he‘s had on fifteen to twenty occasions according to the evidence; sex with animals, according to Phyllis Thacker; and sex with little boys.
(Id. at 315 (emphasis added).)
The prosecutor used the second witness in the case, Charlotte Baker, to show that
Q. [D]o you remember the conversations that you had with Junior back in April or May of ‘92?
A. Yes. Just mostly the same thing about he was, you know, coming back to his girlfriend.
Q. Okay. What specifically did he say with regard to how he was feeling about having sex?
A. .... He said that he was going to go home and—he was going to go home and get him some pussy and that he was going to fuck her until they both was sore....
Q. Did he say anything about being hard up for a woman?
A. Well, he didn‘t say it. You could see it.... towards the way he looked at any woman at all.
Q. Did he ever say that he‘s so hard up he‘d do it to anyone?
[Petitioner‘s counsel]: Now there‘s an objection to that, Judge.
THE COURT: Overruled, if you can remember.
A. No.
(Id. at 261-63.) Once again, after obtaining this inflammatory testimony and injecting his own language, the prosecutor moved on.
The final episode of Petitioner‘s trial that is relevant for this appeal concerned the testimony of Petitioner‘s sole witness: psychiatrist Dr. Leland, who opined that Petitioner evinced “a mild to borderline level of mental retardation” as well as a difficulty “synthesiz[ing] external stimuli.” (Id. at 281.) This condition would cause Petitioner to “confuse what he had witnessed or experienced with what had been told to him,” (id. at 284), which, Dr. Leland explained, made Petitioner‘s statements to the police unreliable. Dr. Leland‘s opinions were based, in part, on court-compiled psychiatric reports.
At the close of Dr. Leland‘s testimony, the prosecutor moved to strike the entirety of his testimony unless the psychiatric reports were admitted into evidence. Petitioner‘s counsel objected to this based on hearsay. However, Petitioner‘s counsel later stated that he had no objection to admission of the reports “[e]xcept for whatever hearsay, prejudicial material the Court is permitting the jury to hear which is not from witnesses who appeared in this case.” (Id. at 299.) Petitioner‘s counsel did not press his objection further because he did not want Dr. Leland‘s testimony stricken from the record.
The psychiatric reports contained bizarre statements and allegations, which were summarized by the magistrate judge as follows:
[I]n her statement respecting her interview of Charles Bray, social worker Marilyn Geeding states that “Charles recalls hearing a story from his wife of an incident where [Petitioner] threw a raccoon into a 5-gallon bucket of paint.” ... Similarly, Geeding notes that Bray related [Petitioner]‘s having tried to persuade a relative to “suck him,” but that Bray did not know the date of the incident because it “was never reported to him, simply the behavior.” ... Betty Gumm, Petitioner‘s sister ... “had a report that Darryl had crawled into bed with some woman and her husband who lived in the apartment across the street from Betty.” ... Betty also described
to Geeding an incident in which [Petitioner] threw a dog into a space heater, killing it, and another in which [Petitioner] was barred from a relative‘s house because he had stolen from the relative.... Betty Gumm[] report[ed] that [Petitioner] had tried to rape a friend of hers. Both Charles Bray and Betty Gumm stated that [Petitioner] was frequently cruel to animals. Bray reported that [Petitioner] would kick dogs and had planned to kick a neighbor‘s dog to death before he was stopped.... Betty Gumm told Geeding that [Petitioner] had once heated a spoon on the stove, then pressed it against a nephew‘s arm, which left a permanent scar on the boy.
Gumm v. Mitchell, No. 1:98-cv-838, 2009 WL 7785750, *37-38 (S.D.Ohio Sept. 28, 2009) (citations omitted).
Like Thacker‘s testimony, the prosecutor used this evidence in the closing argument to the jury as follows:
Charles recalls hearing a story from his wife of an incident where [Petitioner] threw a raccoon into a five-gallon bucket of paint. Charles admits that [Petitioner] was cruel to animals and would frequently kick them. On one occasion he recalls [Petitioner] planning to kick the neighbor‘s dog to death before he was stopped by the dog‘s owner. Begin to fit the personality?
After this offense occurred, he did report an incident where [Petitioner] attempted to get one of their nephews to suck him. Begin to fit the pattern? These are from people who are not police officers, not prosecutors. They‘re people, if anything, who should be in the defense. They interviewed Betty Gumm. You heard what she said.... Betty recalls [Petitioner] tried to rape a friend of hers; however, there was not enough evidence on this occasion to convict him. He was described as rowdy, arguing, and fighting when he was drunk. Does that fit the pattern? Betty recalls [Petitioner] as always being cruel to animals.
On one occasion, [she] recalls [Petitioner] throwing her sister Karen‘s daughter‘s dog into a space heater and the dog dying. On another occasion, Betty recalls [Petitioner] putting a spoon on the stove until it got hot and then putting it on their nephew‘s arm.
(J.A. at 308-09.)
2. State Court Post-Conviction and Federal Habeas Proceedings
On September 16, 1996, Petitioner filed a petition for state post-conviction relief. State v. Gumm, No. C-960972, 1997 WL 752608, at *1 (Ohio Ct.App. Dec. 5, 1997). The common pleas court found that all of Petitioner‘s grounds for relief were barred by Ohio‘s res judicata rule, which “provides in relevant part that a final judgment of conviction bars a convicted defendant from raising in any proceeding, except an appeal from that judgment, any issue that was raised, or could have been raised, at trial or on appeal from that judgment.” Williams v. Bagley, 380 F.3d 932, 967 (6th Cir.2004) (citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, 105-06 (1967)). The court of appeals affirmed. Gumm, 1997 WL 752608, at *2-3. The Ohio Supreme Court refused to hear an appeal. State v. Gumm, 81 Ohio St.3d 1495, 691 N.E.2d 1057 (1998) (table decision), cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998).
Following his defeats in state court, Petitioner filed his federal petition for a writ of habeas corpus on November 6, 1998. That petition was amended on October 20, 2000, and again on April 20, 2001. While his federal petition was pending, the Supreme Court, on June 20, 2002, held that the execution of mentally retarded crimi
The state trial court, using the standards set forth in State v. Lott, 97 Ohio St.3d 303, 779 N.E.2d 1011 (2002), adjudged Petitioner mentally retarded, Gumm, 864 N.E.2d at 135, and reduced his sentence to life imprisonment with the possibility of parole after thirty years on the aggravated murder count, eight to fifteen years’ imprisonment on the attempted rape count, and ten to twenty-five years’ imprisonment on the kidnapping count. Gumm v. Mitchell, No. 1:98-CV-838, 2009 WL 7785750, at *4 (S.D.Ohio Sept. 28, 2009). In addition to his Atkins claim, Petitioner also presented “claims seeking relief from his conviction on an array of non-Atkins grounds,” all of which were denied by the trial court.2 Gumm, 864 N.E.2d at 135. The Ohio Court of Appeals affirmed the trial court‘s determination that Petitioner was mentally retarded, id. at 136-40, as well as the trial court‘s dismissal of Petitioner‘s non-Atkins claims based on
After his return to state courts, Petitioner‘s federal habeas claim was reopened, and Petitioner amended his petition for a third time on September 13, 2007. The petition was referred to a magistrate judge, who recommended granting Petitioner a conditional writ on his fair trial, Confrontation Clause, and prosecutorial misconduct claims, but not on his claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Gumm, 2009 WL 7785750.
On the Brady claim, the magistrate judge concluded that the Ohio Court of Appeals’ decision was not entitled to AEDPA deference because it was based on that court‘s lack of jurisdiction to entertain the claim under
Applying AEDPA deference to Petitioner‘s fair trial claim, the magistrate judge found that “the damaging testimony was elicited from the prosecutor‘s first witness, tainting the trial from the outset. The [“fucked a horse“] testimony was irrelevant to the offenses charged, highly inflammatory, of exceedingly questionable veracity, and not counterbalanced by a limiting instruction or overwhelming evidence of Gumm‘s guilt to render its admission harmless.” Id. at *28-34. The magistrate
Construing Petitioner‘s claim regarding the admission of the psychiatric reports as one under the Confrontation Clause, the magistrate judge reviewed this claim de novo because “[a]lthough Gumm did not present this part of his claim to the state supreme court, Respondent does not advance a procedural default defense.” Id. at *34-35. The magistrate then found that, under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the prosecutor failed to demonstrate either unavailability of the witnesses or indicia of reliability, and recommended granting habeas on this claim.
Finally, with respect to Petitioner‘s prosecutorial misconduct claim, the magistrate judge found that the only preserved portion of this claim regarded the “prosecutor‘s elicitation of the other acts evidence“—that is, the evidence of bestiality and Petitioner‘s sexual drive and the claims made in the psychiatric reports. Id. at *39-40. The magistrate judge found that the prosecutor had deliberately elicited the testimony about bestiality without adequately informing the trial court about the specifics of what he intended to bring out. See id. at *42. The magistrate judge found similarly as to the introduction of the hearsay in the psychiatric reports and further, the prosecutor “argued [it] as truth ... in its closing argument.” Id. at *43. In sum, the magistrate judge held, “the Court concludes that the prosecutors in Gumm‘s trial did engage in misconduct to the substantial prejudice of the defense. The state supreme court‘s conclusion [to the contrary] ... is objectively unreasonable when evaluated under the governing federal law as articulated by the United States Supreme Court.” Id. Therefore, the magistrate judge recommended granting habeas on Petitioner‘s prosecutorial misconduct claim as well.
The district court reviewed the report and recommendation and adopted it with respect to Petitioner‘s fair trial, Confrontation Clause, and prosecutorial misconduct claims but rejected it with respect to Petitioner‘s Brady claim. Gumm v. Mitchell, No. 1:98-CV-838, 2011 WL 1237572, at *1 (S.D.Ohio Mar. 29, 2011). On the claims that the magistrate judge recommended granting relief, the district court essentially adopted the magistrate judge‘s reasoning in toto. See id. at *10-12. The district court disagreed with the magistrate judge‘s assessment of the Brady claim. Whereas the magistrate judge had found that the Brady claim failed because most of the evidence complained of was inadmissible, the district court noted that “does not necessarily mean that it would not lead to admissible evidence or that it was not subject to disclosure.” Id. at *6. The district court was particularly bothered by the prosecutor‘s “failure to turn over tips, interview notes and other evidence concerning suspect Roger Cordray,” which it believed could have led to reasonable doubt (especially given the prosecutor‘s “not very strong” case). See id. at *7-8. The district court therefore granted Petitioner habeas relief on his Brady claim as well.
II. DISCUSSION
A. Standard and Scope of Review
On appeal of a denial or grant of a petition for a writ of habeas corpus, this
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A state court‘s decision is “contrary to” clearly established law if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established law occurs when “the state court identified the correct governing legal principle from [the Supreme] Court‘s decisions but unreasonably applies that principle to the facts of the prisoner‘s case.” Id. at 413, 120 S.Ct. 1495. “[R]elief is available under
The Supreme Court has explained that “[f]or purposes of
If, however, a claim was not “adjudicated on the merits in State court proceedings,” pursuant to
B. Petitioner‘s Brady Claim
Petitioner asserts that the state prosecutor failed to honor its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to disclose information favorable to Petitioner during his trial. Specifically, Petitioner claims that “[t]he State failed to disclose more than [170] pages of evidence that detailed their investigation into the death of Aaron Raines.” (Pet‘r‘s Br. at 8.)
Petitioner‘s Brady claim was presented to the Ohio Court of Appeals during his post-Atkins petition for post-conviction review. That court addressed the Brady claim as follows:
In his fifth claim, Gumm sought relief from his conviction on the ground that the state had failed to disclose exculpatory evidence in the form of information developed by the police during their investigation....
In support of his fifth claim, Gumm offered Crimestopper reports, lead and tip sheets, and investigation notes and summaries memorializing information received and gathered by the police during their investigation. These records showed what the investigating officers had stated at Gumm‘s trial: that the police had initially had few leads and had cast a very wide net to find the killer. The officers inquired about sex offenders known to live in or frequent the neighborhood surrounding the abandoned building where the victim had been found. They followed tips, often based on rumor and second- and thirdhand information, concerning individuals who had made incriminating statements or had exhibited suspicious behavior, individuals who had been seen in or around the abandoned building or the surrounding neighborhood, and individuals who had been seen with the victim around the time of the murder. They also obtained information that impeached the victim‘s brother‘s [Dallas Haynes] credibility and contradicted the state‘s theory concerning when the murder had occurred.
From our review of the record, we conclude that the undisclosed evidence, viewed collectively, was not “material” in that it could not “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict[s].”3 Therefore, the state‘s failure to disclose the evidence did not deny Gumm his constitutional right to a fair trial.4 Moreover, the record will not permit the conclusion that, but for the state‘s failure to disclose the evidence, no reasonable factfinder would have found him guilty of the offenses of which he was convicted. Thus, Gumm failed to satisfy the [
Ohio Revised Code § ] 2953.23 jurisdictional requirement of outcome-determinative constitutional error. We therefore hold that the common pleas court properly declined to entertain his fifth postconviction claim.5
After reviewing this decision and relevant Ohio case law, the magistrate judge found that
1. Standard of Review
Although the Ohio Court of appeals conducted a brief Brady analysis, it went on to conclude that it did not have jurisdiction to entertain Petitioner‘s second petition for post-conviction relief. See Gumm, 864 N.E.2d at 133. De novo review is appropriate in this case because the state court did not adjudicate this claim on the merits and did not address the issue in an opinion in which the court had jurisdiction over the matter.6 This Court and others have held that where a state court decides a petitioner‘s claim on alternative grounds, one on the merits and the other on a procedural bar ruling, a federal habeas court may still review that court‘s merits analysis and apply AEDPA deference to that adjudication. See Brooks v. Bagley, 513 F.3d 618, 624 (6th Cir.2008); Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir.2010), cert. denied, — U.S. —, 131 S.Ct. 2117, 179 L.Ed.2d 910 (2011); Busby v. Dretke, 359 F.3d 708, 721 n. 14 (5th Cir.2004), cert. denied 541 U.S. 1087, 124 S.Ct. 2812, 159 L.Ed.2d 249 (2004); Johnson v. McKune, 288 F.3d 1187, 1192 (10th Cir.2002), cert. denied, 537 U.S. 1050, 123 S.Ct. 621, 154 L.Ed.2d 525 (2002). However, this case is not such a case. Instead, the Ohio courts have clearly indicated that
Relief on Petitioner‘s Brady claim is warranted because there was an unquestionable and egregious Brady violation in this case.
The goal of the criminal justice system, as set forth in Brady and its progeny “is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. To achieve this goal, ”Brady held ‘that the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.‘” Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting Brady, 373 U.S. at 87). Because a Brady duty is triggered even if the “evidence [is] ‘known only to police investigators and not to the prosecutor,‘” compliance with Brady imposes a duty on the prosecutor “to learn of any favorable evidence known to the others acting on the government‘s behalf in this case, including the police.” Strickler v. Greene, 527 U.S. 263, 280-81, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quoting Kyles, 514 U.S. at 437-38). In sum, “regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles, 514 U.S. at 433. Or, put another way, “[t]here are three components of a true Brady violation: [(1) t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [(2)] that evidence must have been suppressed by the State, either willfully or inadvertently; and [(3)] prejudice must have ensued.” Strickler, 527 U.S. at 281-82.
Taken together, the materiality and prejudice prongs do not require a defendant to show that disclosure of the evidence would have ultimately led to an acquittal. Instead, the defendant must establish only that in the absence of the evidence he did not receive a fair trial, “understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434. If the undisclosed evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict,” then a Brady violation has occurred. See id. at 435. See also Smith v. Cain, — U.S. —, 132 S.Ct. 627, 630, 181 L.Ed.2d 571 (2012) (“[E]vidence is material within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.“). “A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine[] confidence in the outcome of the trial.” Id. at 630 (internal quotation marks omitted).
Significantly for this case, withheld information is material under Brady only if it would have been admissible at trial or would have led directly to admissible evidence. United States v. Ogden, 685 F.3d 600, 605 (6th Cir.2012). “[Inadmissible] information is not ‘evidence at all’ for purposes of Brady and thus can have no ‘direct effect on the outcome of a trial.‘” Wogenstahl v. Mitchell, 668 F.3d 307, 325 n. 3 (6th Cir.2012) (quoting Wood v. Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995)). A federal habeas court‘s conclusion that undisclosed inadmissible evidence would lead
Importantly, when viewing the undisclosed evidence, courts are to focus on the cumulative effect of the undisclosed evidence on the jury‘s verdict. See Kyles, 514 U.S. at 436-37 (holding that undisclosed evidence should be “considered collectively, not item by item“).
3. Evidence Withheld
Petitioner identifies several categories of evidence that the state failed to turn over prior to his trial. This includes evidence regarding other suspects, some of whom confessed to having committed the crime, evidence regarding the prosecutor‘s implied timeline of the crime, and impeachment evidence.
a. Other Suspects
The state failed to disclose a substantial collection of tips, leads, and witness statements relating to other individuals who had been investigated for the murder of Aaron Raines. On its face, the nondisclosure of the identities of these suspects—two of whom were reported to have confessed to the murder—is an egregious breach of the state‘s Brady obligations. See D‘Ambrosio v. Bagley, 527 F.3d 489, 498-99 (6th Cir.2008); Jamison v. Collins, 291 F.3d 380, 390-91 (6th Cir.2002). Prosecutors are not necessarily required to disclose every stray lead and anonymous tip, but they must disclose the existence of “legitimate suspect[s],” D‘Ambrosio, 527 F.3d at 499, especially when such information has been specifically requested by the defendant, as it was in this case. “Withholding knowledge of a second suspect conflicts with the Supreme Court‘s directive that ‘the criminal trial, as distinct from the prosecutor‘s private deliberations, [be preserved] as the chosen forum for ascertaining the truth about criminal accusations.‘” United States v. Jernigan, 492 F.3d 1050, 1056-57 (6th Cir.2007) (en banc) (quoting Kyles, 514 U.S. at 440).
i. Roger Cordray
Police investigators amassed a number of reports that Cordray had confessed to the murder of Aaron Raines, and witnesses told police that Cordray was known to sleep in the abandoned building where Aaron‘s body was found. One witness, George Putteet, told police that he had seen Aaron in the vicinity of the abandoned building around 10:30 p.m. on the night of the murder. Putteet further stated that a group of unidentified individuals “were messing with drunks in the alley,” including Cordray, and were “calling him names & getting him to chase them.” (J.A. at 55.) Although many of the witnesses’ statements were second-hand, it was widely believed that Cordray had admitted to numerous people that he was guilty of the crime, and indeed that he had bragged about it and was “glad Aaron was dead.” One witness reported that another man “beat up” Cordray after he said that he and a friend had killed Aaron. Cordray allegedly threatened a woman named Christine Robertson that he would harm her if she told anyone about a coat belonging to him that was discovered in the abandoned building.
Anthony Steele and Theresa Wright-Steele told police that Cordray had approached them and said, “I did it. I killed the little kid.” (Id. at 39.) They further reported that Cordray‘s hands and knuckles were “all scraped up,” and although Cordray was drunk and high on Valium at the time, they believed him when he confessed to killing Aaron. (Id.) Police investigated Cordray further, but they could not match his shoes to the footprints found
at the crime scene. There were “some similarities” between the ridge pattern of Cordray‘s palm print and the prints found at the scene, but the police were unable to make a positive identification. (Id. at 41.) Cordray denied any involvement in Aaron‘s murder when speaking with the police, and there was no further investigation because the investigating officer drafting the report thought Cordray was being truthful. The magistrate judge described the overwhelming evidence pertaining to Cordray as follows:The “Crime-Stoppers” tips include information that an individual by the name of Roger was known to sleep in the building where Aaron‘s body was found. Roger also frequently drank in the building next door. Another tip came from Barb Desborough, who indicated that Roger Cordray confessed to the murder. Desborough also informed police that Vivian Stimetz might know who heard Roger confess, but the tip sheet stated that Vivian had not been located as of May 18, 1992. Barb Desborough reported hearing from people who attended Aaron‘s funeral that Roger Cordray was bragging that he had killed Aaron, and that he was glad Aaron was dead. The police eventually found Vivian Stimetz, who was Aaron‘s aunt, and interviewed her. She stated that Betty Gumm, Petitioner‘s sister, communicated a rumor to Stimetz that Cordray was bragging about how he had beaten Aaron. Stimetz also repeated the rumor that Cordray lived in the abandoned building where Aaron‘s body was found, but stated that she had never seen him anywhere but on the street. There is a reference to Cordray‘s having been taken away by the paramedics after he said this, but the context of that comment is unclear.
ii. Raymond Moore
Police received numerous reports potentially implicating Raymond Moore, who had apparently previously lived in the abandoned building where Aaron‘s body was found. The police records include a statement from a witness who saw Moore enter the abandoned building around 7:00 p.m. on the night of the murder, which is around the same time that Petitioner and Michael Bies were seen in the adjacent park. Moore stated that he knew Aaron and he had looked for him for several hours after being asked to help search by a police officer around 9:00 p.m.; however, Aaron had not been reported missing until 11:00 p.m. Aaron‘s uncle, William Raines, told police that following Aaron‘s murder, he noticed Moore acting strangely and that he seemed to be avoiding Aaron‘s mother. A police officer “looked at it and he said he didn‘t feel that [Moore‘s palm print] matched what he had from the crime scene.” (Id. at 116.) After speaking with Moore, the police determined that they “kind of” believed him and effectively eliminated him as a suspect, particularly after Moore admitted that he had a “shot” memory and his shoes did not match the prints found at the crime scene. (Id. at 118-19.)iii. Other Potential Suspects
Although Roger Cordray and Raymond Moore were the most notable and talked-about alternative suspects, the undisclosed police files are replete with references to other individuals who may have had some involvement in Aaron‘s murder. For example, a boy named Larry Peters told the police that Reggie Hetsler approached him at a bus stop in Cincinnati and told him that he killed and raped the little boy along with his brother, Steve Pence. Several undisclosed documents concerned Garland Inman, an individual who had previously been adjudicated a juvenile delinquent for the sexual assault of several family members. Inman had recently been released from juvenile detention, was seen by a named, identified witness near the scene of the crime on the night of the murder, and a number of individuals believed he might have been involved in the crime. Another suspect was Claude Justice, who was the subject of a “crime-stoppers” tip. An anonymous caller reported that Justice is a homosexual man who often propositioned young boys for sex. The tipster stated that he had seenb. Impeachment of the State‘s Witnesses
The state offered the testimony of Aaron‘s brother, Dallas Hayes, but did not disclose that he had failed a polygraph examination and that the polygraph operator believed that Dallas “was lying on all questions that had to do with Aaron‘s death.” (J.A. at 177.) However, as the district court found, Ohio has long prohibited the admission of polygraph evidence unless both the prosecutor and defendant agree to admission and numerous safeguards are observed by the trial judge. See State v. Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318, 1321-23 (1978). Therefore, it is unlikely that the polygraph evidence would have been admissible, even if the State had disclosed its existence to Petitioner. A Crime Stoppers tip sheet showed that an anonymous tipster believed the police should look into Hayes because he had been playing in the abandoned building where Aaron‘s body was found only five days before the murder. Additionally, Petitioner asserts that he is entitled to access to a statement by one of Hayes’ friends, who stated that Hayes wanted more freedom and wished that his mother would spend more time with him. However, in that same statement, the friend stated that Hayes loved his brother and would not let anything happen to him.c. Evidence Undermining the State‘s Theory of the Case
Petitioner also points to undisclosed evidence that Aaron had been seen in the abandoned building in the past, which contradicts the state‘s argument at trial that Aaron was afraid of the dark and would not have entered the building unless coerced by another person. Although the question of how Aaron entered the building appears largely irrelevant to Petitioner‘s guilt or innocence, it potentially undermines the state‘s narrative of the crime and contradicts details provided in Petitioner‘s statements to the police. Next, Petitioner argues that the state‘s timeline of events is contradicted by undisclosed evidence. Specifically, Petitioner identifies numerous witness statements placing Aaron at a local ice cream stand as late as midnight on the night of the murder. This information was garnered by the police from firsthand accounts of named, identified people in the neighborhood. Although the state never definitively established a timeline of Aaron‘s movements on the night of the murder and the medical examiner could not determine a time of death, the state did present evi-4. Analysis
a. Admissibility of Undisclosed Evidence
The state‘s primary argument against the materiality of the undisclosed evidence in this case is that much of it is inadmissible hearsay and could not have led to the discovery of admissible evidence. As the Supreme Court and this Court have explained, without some indication of admissibility, such evidence cannot be considered material for purposes of Brady. See Ogden, 685 F.3d at 605. And this indication cannot be merely speculative. Wood, 516 U.S. at 6, 116 S.Ct. 7. The magistrate judge concluded that “[m]uch of the alleged Brady material is nothing more than rumor, hearsay, hearsay upon hearsay, hearsay upon hearsay upon hearsay, or worse. Gumm has not explained how any of that ‘evidence’ would have been rendered admissible in court, or how it would have led to admissible evidence.” Gumm, 2009 WL 7785750, at *24. The district court did not adopt this portion of the magistrate judge‘s report and instead concluded that while it agreed that “much of the undisclosed evidence was itself inadmissible, ... that does not necessarily mean that it would not lead to admissible evidence or that it was not subject to disclosure.” Gumm, 2011 WL 1237572, at *6. In Wood, a habeas petitioner alleged that the state had violated Brady by failing to disclose the results of a polygraph examination that could have been used to impeach a witness. 516 U.S. at 5-6, 116 S.Ct. 7. The Ninth Circuit granted the writ, finding that although the polygraph results were themselves inadmissible, their disclosure could have led to admissible evidence or affected defense counsel‘s preparation for trial. The Supreme Court reversed, finding that neither the Ninth Circuit nor the petitioner could identify precisely how the trial could have been affected, or admissible evidence discovered, had the admittedly inadmissible polygraph results been disclosed. Id. at 6-7, 116 S.Ct. 7. The Court further reasoned that the results would have had no material effect under Brady because the remainder of the evidence against the petitioner was overwhelming. Courts applying Wood have rejected the writ when a single piece of inadmissible evidence such as a polygraph examination or hearsay statement was not disclosed by the state, concluding that the result of the trial could not have been altered by the nondisclosure of only inadmissible evidence. See, e.g., Hutchison v. Bell, 303 F.3d 720, 743 (6th Cir. 2002) (addressing a single hearsay statement). However, this case is not one where a petitioner is complaining about the failure to disclose a single inadmissible statement or polygraph test. On the contrary, Petitioner alleges that the state failed to disclose a small mountain of favorable evidence that he and his counsel would have used to undermine the prosecution‘s case. Some of this evidence consists of rumors and double-hearsay statements which would likely have been inadmissible at tri-b. Consideration of the Evidence in Context
When the prosecution fails to turn over numerous pieces of favorable evidence, the proper focus of Brady‘s materiality inquiry is on the cumulative effect of the unsuppressed evidence on the jury‘s verdict. See Kyles, 514 U.S. at 436-37, 115 S.Ct. 1555. “[T]he omission[s] must be evaluated in the context of the entire record.” United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Considering the quality and quantity of the evidence that the state failed to disclose, the potential for that evidence to have affected the outcome of Petitioner‘s trial is inescapable. Even armed with only the evidence implicating Roger Cordray, defense counsel would have easily constructed an alternative narrative of the crime. Defense counsel would have been able to establish through eyewitnesses that a group of people, which may have included Aaron Raines, was taunting Cordray near the abandoned building around 11:00 p.m. on the night of the murder. Witnesses place Aaron in the same area at approximately the same time. Cordray, who was known to sleep in the abandoned building, later confessed to numerous people that he had murdered Aaron. After the murder, a witness noticed that Cordray‘s knuckles were scraped. Even though the police identified “some similarities” between Cordray‘s palm print and the print found at the scene of the crime—a similarity they were unable to establish with Gumm‘s print—they eliminated Cordray as a suspect because they simply believed him when he denied involvement in the crime. Taken together, these facts demonstrate that Cordray had the means, motive, and opportunity to murder Aaron. These facts, had they been disclosed, would have provided a compelling counter-narrative to the state‘s theory of the case and would have called into question the thoroughness of the police investigation. The capacity for the undisclosed evidence to have affected the outcome of Petitioner‘s trial becomes even clearer when viewed in light of the small amount of evidence that the state adduced at Petitioner‘s trial. In fact, the prosecutor admitted in his opening statement to the jury that “the police had very little concrete evidence” and that the case came down to what neighbors had seen that night. (J.A. at 242-43.) The prosecutor framed the case as the neighbors coalescing around Petitioner as the murderer, but the evidence regarding Cordray and the holes that the neighbors could have poked in the(Id.) Although the expert witness did not view the recordings of Petitioner‘s confessions, Dr. Leland did view a recording of Petitioner‘s walk-through of the abandoned building in which Aaron Raines’ body was found. Dr. Leland was questioned regarding his opinion as to the reliability of the statement Petitioner made during that walk-through. He stated in response, “I think it‘s even less reli-A. He could relate the same type—the same type of facts consistently as long as there was no other intrusion of new facts.
Q. What would happen if there was an intrusion of new facts?
A. Then he—then that would contaminate the original memory, and he wouldn‘t be sure which he was remembering and which he wasn‘t; that is, it would become jumbled sets of information because he at no time would have been able to synthesize them to make them into a real idea.
Q. Do you have an opinion with reasonable psychological certainty as to whether or not he would confuse what he had witnessed, he would get them very confused.
A. Well, it would—if what he had been told concerned what he had witnessed, he would get them very confused.
c. AEDPA Deference
Although AEDPA does not apply to Petitioner‘s Brady claim, even if we were confined by the stringent limitations in134 S.Ct. at 1706 (internal citation and quotation marks omitted). Therefore, the Court held, habeas relief is improper where a state court‘s decision constituted an unreasonable failure to extend clearly established federal law. This holding does
Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [Supreme] Court[] precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. Thus, if a habeas court must extend a rationale before it can apply it to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision.
C. Petitioner‘s Prosecutorial Misconduct Claim
In addition to his Brady claim, Petitioner asserts that the admission of prior bad acts evidence through testimony and the psychiatric reports and the manner by which the evidence was used in argument constitute prosecutorial misconduct that require the grant of habeas relief.1. Standard of Review
Before the Ohio Supreme Court, Petitioner asserted that the prosecution‘s argument pushing for admission of the full psychiatric reports as well as the use of material contained in those reports constituted prosecutorial misconduct. In the same section of Petitioner‘s merits brief, he asserted a fair trial claim that the trial court improperly admitted Thacker and Baker‘s testimony. (J.A. at 206 (“It is submitted that the lower courts [sic] admission into evidence testimony as to the Appellant‘s drinking and sexual habits was clearly prejudicial error.“).) In response to those assertions, the Ohio Supreme Court concluded as follows:Gumm first challenges the admissibility of testimony elicited from witnesses Phyllis Thacker and Charlotte Baker.... Gumm asserts that his chance for a fair trial was irretrievably lost after this testimony [sic]....
We note that the prosecution did not revisit these factual disclosures in its summation or emphasize them in any way thereafter. Even assuming, arguendo, that the challenged evidence should have been deemed inadmissible, we find on the basis of the record as a whole that Gumm received a fair trial....
Second, Gumm asserts that the state engaged in prosecutorial misconduct in connection with the testimony of defense witness Dr. Henry Leland....
2. Clearly Established Law
A prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). To achieve this goal, the prosecutor “may prosecute with earnestness and vigor.... But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Id. “It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge, are apt to carry much weight against the accused when they should properly carry none.” Id. In particular, statements meant to inflame the passions of the jury are often considered improper. Slagle v. Bagley, 457 F.3d 501, 518 (6th Cir. 2006). Additionally,Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 93 L.Ed. 168 (1948). At the same time, this Court recognizes that our review of alleged prosecutorial misconduct is “the narrow one of due process, and not the broad exercise of supervisory power that [we] would possess in regard to [our] own trial court.” Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (internal quotation marks omitted). See also Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.“) When this Court reviews a prosecutorial misconduct claim, “it is not enough that the prosecutor‘s [conduct was] undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Instead, that conduct must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. Further, the Supreme Court has noted that “the Darden standard is a very general one, leaving courts ‘more leeway ... in reaching outcomes in case-by-case determinations.‘” Parker v. Matthews, — U.S. —, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). In Parker, the Supreme Court instructed that this Court may not consult its own precedent to decide under AEDPA whether a state court‘s adjudication on the merits was contrary to clearly established federal law. 132 S.Ct. at 2155 (internal citation and quotation marks omitted) (“[C]ircuit precedent does not constitute clearly established Federal law.... It therefore cannot form the basis for habeas relief under AEDPA.“). The Court explained that its “highly generalized standard for evaluating claims of prosecutorial misconduct set forth in Darden bears scant resemblance to the elaborate, multistep test employed by [our Court].” Id. Therefore, because our review of Petitioner‘s claim regarding admission and argument of hearsay statements in the psychiatric reports is subject to AEDPA deference, we must apply the “highly generalized standard for evaluating [such claims] set forth in Darden” and its progeny, not our own four-factor test. Id. In Darden, 477 U.S. at 182, 106 S.Ct. 2464, the Supreme Court held that the petitioner‘s due process right was not violated because “[t]he prosecutor‘s argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” The Court was also convinced by the fact that many of the prosecutor‘s objectionable statements were responsive to arguments initially asserted by defense counsel and the trial court properly instructed the jurors that the arguments of counsel were not evidence. The Court also found particularly compelling the fact that the “weight of the evidence against [the] petitioner was heavy.” Id. Similarly, in Donnelly, the Supreme Court found telling the fact that “[c]onflicting inferences ha[d] been drawn from the prosecutor‘s statement by the courts below,” and concluded that it was “by no means clear that the jury did engage in the hypothetical analysis suggested by the majority of the Court of Appeals, or even probable that it would seize such a comment out of context and attach this particular meaning to it.” 416 U.S. at 643-44, 94 S.Ct. 1868. Additionally, in Donnelly, the prosecutor emphasized that his own argument did not constitute evidence and the trial judge admonished the jury to ignore the prosecutor‘s improper remark. The Court concluded that “[a]lthough some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect, the comment in this case is hardly of such character.” Id. at 644, 94 S.Ct. 1868. “The consistent and repeated misrepresentation of a dramatic exhibit in evidence may profoundly impress a jury and may have a significant impact on the jury‘sthe State may not show defendant‘s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.
3. Analysis
a. Prior Bad Acts Contained in the Psychiatric Reports
The Ohio Supreme Court concluded that the psychiatric reports were properly admitted into evidence and that the prosecutor did not act improperly in arguing the information contained in the reports. Even if this was proper under the Ohio Rules of Evidence, it does not mean that the prosecutor was free to use the materials contained in that packet however he wished. The manner in which he used those materials was improper in this case. The prosecutor aggressively pushed to have the reports admitted into the record as support for the defense expert‘s testimony, and then turned around and argued the information contained in those hearsay statements as though it was unrebutted, reliable fact. Unlike some of the Supreme Court‘s cases described above, this case does not concern unclear statements in a closing argument that can be interpreted in different ways. Additionally, this case is not one in which the trial judge clearly instructed the jurors regarding propensity evidence and the value of hearsay statements. A portion of the prosecution‘s closing argument bears repeating:(App. at 308-09.) Although unrelated and removed in time from the crimes in this case, the prosecution put forth unreliable hearsay statements regarding cruelty to animals and bizarre sex acts to suggest that Petitioner had a propensity to commit acts like the crimes in question. This evidence was clearly meant to “inflame the passions of the jury,” Slagle, 457 F.3d at 518, and paint Petitioner as a sexual deviant and animal-killer who deserved to be removed from society.Charles recalls hearing a story from his wife of an incident where [Petitioner] threw a raccoon into a five-gallon bucket of paint. Charles admits that [Petitioner] was cruel to animals and would frequently kick them. On one occasion he recalls [Petitioner] planning to kick the neighbor‘s dog to death before he was stopped by the dog‘s owner. Begin to fit the personality?
After this offense occurred, he did report an incident where [Petitioner] attempted to get one of their nephews to suck him. Begin to fit the pattern? These are from people who are not police officers, not prosecutors. They‘re people, if anything, who should be in the defense. They interviewed Betty Gumm. You heard what she said.... Betty recalls [Petitioner] tried to rape a friend of hers; however, there was not enough evidence on this occasion to convict him. He was described as rowdy, arguing, and fighting when he was drunk. Does that fit the pattern? Betty recalls [Petitioner] as always being cruel to animals.
On one occasion, [she] recalls [Petitioner] throwing her sister Karen‘s daughter‘s dog into a space heater and the dog dying. On another occasion, Betty recalls [Petitioner] putting a spoon on the stove until it got hot and then putting it on their nephew‘s arm.
b. Testimony by Thacker and Baker
Because Petitioner‘s claims regarding testimony by Thacker and Baker were not presented to the Ohio courts, the state courts did not adjudicate those claims on the merits. As a result, we review those claims de novo. See Robinson v. Howes, 663 F.3d 819, 822-23 (6th Cir. 2011). Therefore, this Court must determine whether the prosecutor‘s remarks and actions surrounding testimony by Thacker and Baker, “in the context of the entire trial, were sufficiently prejudicial to violate respondent‘s due process rights.” Donnelly, 416 U.S. at 639, 94 S.Ct. 1868. Under this standard of review, this Court has “employ[ed its own] two-part test to determine whether prosecutorial misconduct require[d] a new trial.” Cristini v. McKee, 526 F.3d 888, 899 (6th Cir. 2008). Again, “[w]e are well aware that we possess no supervisory powers over state trial proceedings and that our scope of review over allegedly prejudicial arguments by state prosecutors is narrow. Prosecutorial argument must be so egregious so as to render the entire trial fundamentally unfair.” Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir. 1979). On de novo review, our first step is to determine whether the challenged conduct and remarks by the prosecution were improper. Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000); United States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996). If we find that the prosecutor‘s conduct was improper, “we then ‘look to see if [it was] flagrant and warrant[s] reversal.‘” Boyle, 201 F.3d at 717 (quoting United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999)). To make such a determination, we examine four factors: “1) whether the statements tended to mislead the jury or prejudice the defendant; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally beforei. Impropriety of the Prosecution‘s Conduct
In the instant case, the prosecutor‘s conduct was “so deplorable as to define the term ‘prosecutorial misconduct.‘” Boyle, 201 F.3d at 717. Although this Court has previously stated that “[a] prosecutor may rely in good faith on evidentiary rulings made by the state trial judge and make arguments in reliance on those rulings,” Cristini, 526 F.3d at 900, this Court has also held on a number of occasions that “[w]hen a prosecutor dwells on a defendant‘s bad character to prove that he or she committed the crime charged, we may find prosecutorial misconduct,” id. at 899. See also Walker v. Morrow, 458 Fed.Appx. 475, 490 (6th Cir. 2012) (internal quotation marks omitted) (“[T]his Court has concluded that a prosecutor commits misconduct by making an animated recitation of properly-admitted character evidence and by asserting that members of the jury should be afraid to run into [the defendant] at night....“). In Cook v. Bordenkircher, 602 F.2d 117, 120 (6th Cir. 1979), this Court concluded that a prosecutor‘s conduct was improper where the prosecutor‘s closing argument constituted a “persistent Ad hominem attack on the petitioner‘s character.” The prosecutor‘s attack on the petitioner‘s character was particularly egregious because it “pervade[d] the closing argument” and “[t]he prosecutor continually portrayed the petitioner as a lowlife who had to be kept from society.” Id. And in Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000), we confronted a situation in which the prosecutor put forth a “bad character argument[] that the alleged criminal acts ‘fit’ the evidence of [the defendant]‘s character and lifestyle.” The Court concluded that “while the evidence as to Washington‘s character was admissible for certain limited purposes, the prosecutor went far beyond the bounds of permitted conduct when presenting that evidence to the jury” by “impl[ying] that the jurors should consider Washington‘s unseemly character when rendering their verdict; in his rebuttal closing argument, he explicitly urged them to do so.” Id. at 699-700. Although it is not improper merely to direct a jury‘s attention to properly admitted evidence, it can be improper for a prosecutor to use that evidence to suggest that a criminal defendant had a propensity to commit the charged crimes. Id. at 700 (finding that the misconduct was severe and improper because the “character attack pervaded the closing argument and rebuttal.“).7 As the above-referenced case law demonstrates, the prosecutor‘s acts and remarks in this case were improper. Although the Ohio trial court overruled defense counsel‘s objections to admission ofii. Flagrancy of the Prosecution‘s Conduct
Having found that the prosecutor‘s remarks were improper, we move on to determine whether the remarks were so flagrant as to warrant reversal, considering the four factors set forth in Francis, supra, and Bowling, supra. The only thing given AEDPA deference in this instance is the Ohio Supreme Court‘s decision that the prosecutor‘s conduct with respect to the psychiatric reports does not constitute prosecutorial misconduct. What the Ohio Supreme Court did not address, however, is whether the prosecutor‘s elicitation and use of Thacker‘s and Baker‘s testimony in isolation constitute prosecutorial misconduct or whether the cumulative effect of those statements and the prosecutor‘s arguments regarding those statements amounts to prosecutorial misconduct. In fact, on de novo review, this Court‘s test directs us to consider a series of statements and actions to determine the flagrancy of the prosecutor‘s conduct. In this case, we are not left to guess whether the prosecutor‘s egregious acts, viewed in the context of the rest of the evidence presented at trial, were flagrant and whether habeas is therefore an appropriate form of relief. In the instant case, the prosecutor relentlessly pressed the witnesses to obtain specific testimony, testimony which was highly inflammatory and unreliable. The prosecutor then used the inflammatory in-(J.A. at 315 (emphasis added).) It is clear that the prosecutor‘s misconduct was flagrant and severe. Like the misconduct in Bordenkircher and Hofbauer, the prosecutor intended to mislead the jury and prejudice the defendant by using highly inflammatory and prejudicial evidence, much of which was known to be of questionable reliability, to assert that Petitioner had a propensity to commit the acts in question. Particularly, with regard to Thacker‘s testimony, the statement that Petitioner had mentioned having had sex with a horse was unreliable due to the fact that in that same conversation with Thacker, Petitioner also stated that the horse had spoken to him. The prosecutor then reminded the jury of this evidence by arguing its truth in his rebuttal closing argument, which also included reference to the subject of Baker‘s testimony. The prosecutor intended to prejudice the jury against Petitioner by portraying him as a sexual deviant whose character aligned with the crimes in this case. These statements were neither isolated nor innocently placed before the jury. In Bordenkircher, although this Court found that the prosecutor‘s conduct was improper, the Court concluded that the conduct was not so flagrant as to require reversal. The Court found particularly compelling the fact that the prosecutor‘s improper arguments were made in response to arguments first asserted by defense counsel, “diminish[ing] the allegations made concerning a due process violation.” Bordenkircher, 602 F.2d at 121. In this case, on the other hand, the prosecutor‘s elicitation of prejudicial testimony and propensity arguments were part of a series of deliberate and improper statements that were used at multiple points throughout the trial to convince the jury that Petitioner had a propensity to commit the alleged crimes. The prosecution‘s propensity-driven argument was deliberate and was not made in response to defense counsel‘s arguments. It was “part of a calculated effort used to evoke strong ... emotions” against Petitioner. United States v. Payne, 2 F.3d 706, 715 (6th Cir. 1993). Thacker‘s damaging testimony was one of the first things heard by the jury in this case and one of the last things argued to the jury in the prosecution‘s rebuttal. It is clear from the prosecutor‘s line of questioning that he had interviewed Thacker before trial and knew which stories from her interview he wished to place before the jury. From the beginning, the prosecutor intended to infect Petitioner‘s trial with prejudicial and unreliable evidence. When Thacker was uncomfortable using the harsh and damaging language sought by the prosecutor, he continued to push. He pushed Thacker until she reluctantly stated to the jury that Petitioner told her that he “fucked the horse.” Although the prosecutor moved on from that subject after obtaining the language he was searching for, he pressed Baker in a similar manner, even putting words on the record that she denied ever having heard Petitioner say. The discussion of irrelevant prior bad acts did not end there, however. The prosecution‘s rebuttal closing argument included an ex-Sex is the motive in this particular case, and it fits the profile.... Darryl likes to shoot pool, and he likes to have sex. It‘s probably a strange hobby, but it fits. Sex is a hobby, and he likes to have it every day: Sex with a woman; sex with a man, which he‘s had on fifteen to twenty occasions according to the evidence; sex with animals, according to Phyllis Thacker; and sex with little boys.
III. CONCLUSION
We recognize thatMichael BIES, Petitioner-Appellee/Cross-Appellant,
v.
Ed SHELDON, Respondent-Appellant/Cross-Appellee.
Nos. 12-3431, 12-3457.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: Dec. 22, 2014.
Argued: Nov. 20, 2013.