Case Information
*1 Before, B AUER , F LAUM W ILLIAMS , Circuit Judges. W ILLIAMS Circuit Judge
. Fredrick Michael murdered young woman her four year ‐ old daughter their home. In connection crime, convicted Mar ion Superior Court two murders, robbery, theft tempted rape. He sentenced death. He filed direct appeal Supreme Court raising several issues including prosecutorial misconduct, convictions sentence affirmed. filed post conviction ‐ proceedings alleging his trial and appellate counsel were ineffective. court denied his petition and denial affirmed by Indiana Supreme Court. Baer then filed a pe tition for writ habeas corpus with United States Dis trict Court for Southern District Indiana, which also denied. After we issued certificate appealability, Baer ap pealed district court’s denial his petition for writ habeas corpus.
Baer asserts Supreme Court’s ruling unreasonable under Strickland Washington U.S. (1984), failing find Baer’s trial consti tutionally ineffective failing (1) object improper and confusing instructions given penalty phase his trial, (2) prejudicial prosecutorial statements made throughout trial, (3) investigate present mitigating on Baer’s behalf. While we affirm his convictions, we agree Baer that, penalty phase, Baer’s failed challenge crucial misleading instructions pattern prosecutorial misconduct, unreasonably applied Strickland denying relief. Coun sel’s deficiency resulted denial due process, we find errors were sufficient undermine confidence outcome penalty trial so find prejudice. While offenses despicable guilt is clear, entitled untainted constitutional er ror.
I. BACKGROUND
A. Factual History
On February 2004, Fredrick Michael saw twenty four year old Cory Clark her front porch. He turned 15 ‐ 1933 3 car around and pulled into her driveway. He approached Cory’s apartment, knocked, and asked use her phone to call his boss. When she turned go back inside, he followed her into her apartment with the intent rape her. After attacking her, Baer decided against raping her because he feared con tracting disease so instead he cut Cory’s throat with fold able hunting knife. Witnessing atrocity, Cory’s four ‐ year old daughter, Jenna Clark, ran the room. Baer caught her and cut her throat. Taking Cory’s purse, three four hundred dollars, and some decorative stones, Baer then left the apart ment. He cleaned himself up, changed shirt, returned work. When he arrested as suspect police asked if he committed the murders, Baer shook head affirma tively told officers location knife purse.
B. Procedural History
Early on, conceded murdered Clarks, sought plead guilty but mentally ill (GBMI). [1] The trial rejected plea, finding there insufficient show illness. case proceeded only issue being whether GBMI or simply guilty.
Voir dire began. In front jurors prospective jurors, prosecutor persistently began stating incorrect stand ard GBMI conviction. prosecutor routinely sug gested (incorrectly) GBMI standard legal insanity standard same. He encouraged jurors recite incorrect standard response his questioning. The prose cutor also made statements suggesting that life without pa role be abolished incorrectly stated that a GBMI con viction might permit sentence. Baer’s counsel any these statements. The prosecutor also told jurors that victims’ family wanted Baer put death. Toward end jury selection, during bench conference, defense asked mistrial prosecutor’s com ments mentioning victims’ family (referring them as “victim impact” comments). The judge remarked that he was paying attention, denied defense motion, suggested prosecutor tell jurors that he had misspoken. No objection clarification made front jury.
After selection, Baer’s began, fo cused on convincing that Baer suffered from mental illness. Defense offered expert witness, Dr. George Parker, who testified that Baer history drug issues, including methamphetamine use. He also diagnosed Baer as suffering from psychotic disorder. also provided appointed experts, Dr. Larry Davis Dr. Richard Lawler, who agreed Baer suffered mental illness, also cited Baer’s abuse methamphetamine something would disturb wellness exacerbate mental health problems. Dr. Davis testified likely expe riencing psychosis induced by heavy methamphetamine use time crime. Dr. Lawler described account used methamphetamine on morning crimes. experts’ account use methamphetamine on day crime contradicted Danny Trovig, friend reportedly used methamphetamine morning, who testified Trovig parole time and consume or see Baer consume methampheta ‐ mine. prosecutor also offered a toxicology expert, Dr. Mi ‐
chael A. Evans, who testified a blood sample collected Baer hours after offense and tested months af ter collection showed some marijuana usage, but tested “ab solutely zero” methamphetamine any other drug. How ever, because delay blood draw testing blood, Dr. Evans could conclude Baer had used any methamphetamine morning crime. At post conviction proceedings, Dr. Evans clarified he could say whether methamphetamine existed blood time it was collected, could only confirm there no such substance his blood when it tested. prosecution also presented evidence counter whether Baer mental illness, sought prove Baer instead lying about health. This included playing portion telephone conversation rec orded while incarcerated which Baer told sis ter, “[o]h, yeah, while we’re it boot, here let’s go ahead say you’re stupid insane so will make it little easier. I don’t think so. Matter fact, I ain’t got worry about ‘cause I’m ready go out here f*cking doc tor, tell stupid son bitch bunch stupid lies.”
At close evidence, convicted mur dering Cory Jenna Clark, robbery, theft, attempted rape without finding of GBMI. case then proceeded with same jury penalty trial.
At phase, Baer’s offered one witness, Dr. Mark Cunningham. In approximately seven hours of tes ‐ timony, Dr. Cunningham discussed Baer’s prenatal and peri ‐ natal difficulties, including his mother having cancer while pregnant, drinking while pregnant, Baer’s malnourish ment first several months of life. Dr. Cunningham also testified about Baer’s family troubles such Baer’s child hood out foster care murder sister. Dr. Cunningham also stated Baer had poor school perfor mance struggled ADHD, head injuries, exten sive abuse inhalants, alcohol, methamphetamine, other substances. Dr. Cunningham reported “extraor dinarily damaged.” However, while questioning Dr. Cun ningham show mitigating circumstances, failed ask Dr. Cunningham whether met definition having illness. found proved all five al leged aggravating circumstances crime (all which uncontested), (1) murder while committing crime attempted rape, (2) murder while committing crime robbery, (3) murder two human beings, (4) committing two murders while parole, (5) murder child under age twelve years. Finding mitigating factors outweigh these aggravating factors, recommended ‐ death penalty. On June 9, 2005, court sentenced Baer death.
C. Appellate History
Baer filed direct appeal of death sentence Indi ana Supreme Court, raising four issues: (1) prosecutorial mis conduct, (2) failure comply proper procedures han dling prospective jurors, (3) erroneous admission recorded telephone calls jail, and (4) inappropriateness death sentence. On May 22, 2005, Indiana Supreme Court affirmed Baer’s convictions death sentence. Baer v. State , N.E.2d (Ind. 2007) ( “Baer I ”). court discussed length its holding prosecution commit mis conduct by suggesting GBMI conviction sup port death sentence. Id . 755–61. also held death supported evidence brutal nature killings lack Baer’s posi tive character. Id. 764–66. Baer filed petition writ certiorari, which denied. Baer U.S. (2008). filed petition post conviction relief on May 1, raising numerous allegations trial counsel ap
pellate ineffective, including challenging trial failure instructions prejudicial prosecutorial statements. Baer’s post conviction also raised prosecutorial misconduct, structural errors judge’s rejection GBMI plea failure correct prosecutorial errors, cruel unusual punishment based on Indiana’s method execution, challenge sentence based illness. At evidentiary hearing, presented testimony several witnesses No. ‐ bolster his claim for mitigation, including neuropsycholo gist, Baer’s mother, Baer’s juvenile probation officer, former teacher, and former wife Zola Brown. After hearing addi tional testimony, court denied Baer’s petition for relief. The court found Baer’s prosecutorial misconduct, structural error, and method execution claims were foreclosed cause raised them trial or on direct appeal. The court rejected Baer’s ineffective assistance trial and appel late counsel claims merits, and found about illness failed to undermine confidence verdict or sentence.
The Indiana Supreme Court affirmed denial post conviction relief, holding, part, Baer’s trial counsel and appellate ineffective. See Baer v. State , N.E.2d 80, 90–108 (Ind. 2011) (“ Baer II ”). Supreme Court specifically addressed merits of, rejected, claims ineffective for failing challenge instructions relating intoxication, failing present claim for prosecutorial misconduct, failing investigate or pre sent adequate mitigating evidence. Id. 97, 98, 102–03,
On November 29, 2011, filed his petition for writ habeas corpus United States District Court for Southern District Indiana. He again challenged appellate effectiveness regarding phase instructions, for failing challenge prosecutor’s comments, failing investigate present mitigat ing circumstances. denied petition motion alter amend judgment, declined grant request certificate appealability. Wilson 1:11 cv WL 7272772, *27 (S.D. Ind., Dec. 18, 2014). In its order, district court ruled Indiana Su preme Court unreasonably apply Strickland when finding performance was deficient during voir dire or for failing to object to penalty phase jury instructions.
We granted certificate appealability agreed to hear arguments ineffective assistance counsel. presents three arguments under theory: (1) counsel ineffective for failing to object to phase instructions were likely interpreted to preclude from considering central mitigating evidence; (2) ineffective failing numerous instances prosecutorial misconduct; (3) ineffective failing investigate present prove mitigat ing factors were described by medical experts. Our anal ysis first two arguments are determinative issue before us, so decline reach third argument.
II. ANALYSIS appeals denial habeas relief under
U.S.C. § Because Sixth Amendment claims ad judicated on merits by Supreme Court, they are subject U.S.C. § 2254(d), commonly referred as Anti Terrorism Effective Death Penalty Act (AEDPA). AEDPA permits federal court issue writ habeas cor pus only if court reached decision “con trary to, or involved an unreasonable application of, clearly established Federal law, determined Supreme Court United States,” U.S.C. § 2254(d)(1), “based unreasonable determination facts light evi dence presented State proceeding,” U.S.C. *10 10 15 1933 § 2254(d)(2). Needless say, the AEDPA standard of review is a difficult standard, was meant be. seeks relief for the alleged denial of Sixth
Amendment right effective assistance counsel. This claim is analyzed under
Strickland
,
Because are under AEDPA review
Strickland
claim, “pivotal question is whether state court’s application
Strickland
standard unreasonable.”
Harrington Richter
U.S. (2011). This is difficult standard, even strong case relief under
Strickland
does neces sarily mean court’s contrary conclusion unrea sonable.
Id
102. But is insurmountable standard. writ habeas corpus, as limited AEDPA, is more than dead letter. “The writ habeas corpus stands safeguard those held violation law.”
Id.
writ’s purpose provide “guard against extreme malfunctions 15 ‐ 1933 11 state criminal justice systems.”
Jackson Virginia
,
A. Failure Object Penalty Phase Instructions Challenged Instructions At penalty phase capital trial, after been convicted crimes, strategy avoiding sentence was ensuring jury consid ered gave effect mental health intoxication (use methamphetamine) evidence. During this penalty phase, instructed following considered mitigating factor:
Defendant’s capacity appreciate criminality defendant’s conduct or conform conduct requirements substantially impaired result disease defect. language this instruction came statutory mitigating factor provision, Indiana Code ‐ ‐ ‐ 9(c)(6), one major difference. As given phase trial, statutory instruction modified exclude final words “or intoxication.” complete Code ‐ 9(c)(6) reads: 15 ‐ 1933
Defendant’s capacity appreciate the criminality of the defendant’s conduct or conform conduct the requirements of the substantially impaired as a result of mental disease or defect or of intoxication . (emphasis added). did not object the modification this statutory instruction.
After instructed aggravating mitigating factors, near end penalty phase instructions, following instruction given:
Intoxication is not a defense a prosecution an fense be taken into consideration deter mining existence a is ele ment offense unless defendant meets re quirements [Indiana Code] ‐ ‐ ‐ 5.
[Indiana Code] ‐ 5: It person who engaged prohibited conduct did so while intoxicated, only if intoxication resulted from introduction substance into body: (1) without consent; or (2) when did know substance might cause intoxication. “voluntary intoxication”
instruction as given phase trial. Failure Object Instructions Ineffective
“[T]he Eighth Fourteenth Amendments require sentencer precluded considering, as miti gating factor any aspect defendant’s character record any circumstances offense defendant proffers basis sentence less than death.” Lockett 15 ‐ 1933 13 Ohio , U.S. (1978) (emphasis in original). There ‐ fore, defense in case will fall deficient where he fails object to removal mitigating factor from jurors’ consideration. See id. Baer argues that precisely what happened here. Indiana Supreme Court separately evaluated defense failure object modification Indiana’s stat
utory mitigating factor (removal words “or intoxica tion” from Code ‐ 9(c)(6)) inclusion “voluntary intoxication” instruction. Analyzing modified mitigating factor instruction, state court found that trial judge could believed Baer failed prove that was intoxicated during offense, therefore in toxication language mitigating factors unneces sary. II N.E.2d 97. It also found “[g]iven link between ongoing methamphetamine usage illness repeatedly arose expert testimony, an adequate opportunity hear act on even omission ‘or intoxication’ instruc tion.” Id.
Separately, state court concluded ineffective failing voluntary intoxi cation instruction because “correct statement relevant determining whether committed crimes intentionally.” Id. (internal emphasis omitted). Furthermore, court also determined because told jurors they could consider “[a]ny circum stances” mitigation “there are no limits what factors individual juror find mitigating,” jurors instructed they could consider intoxication purposes mitigation.
In our view, was unreasonable for the state court alyze Baer’s challenges the jury instructions in isolation. See Boyde v. California , U.S. 370, (1990) (jury instructions “may judged in artificial isolation, but must be viewed the context of the overall charge”). Further, “[t]he question what the State Supreme Court declares the meaning of the charge be, but rather what reasonable juror could have understood the charge as meaning.” Francis Franklin U.S. 315–316 (1985). Here, reasonable juror could have understood the complete phase instructions as foreclosing evidence of voluntary intoxication consid eration all purposes sentencing, including barring vol untary intoxication mitigating evidence.
Examining counsel’s failure structions context entire charge illuminates the unreasonableness state court’s rejection Baer’s first Strickland claim. First, found court could rejected Baer’s request adding language “or intoxication” statutory mitigation fac tor “because evidence showed Baer was intoxi cated time offense.” II, N.E.2d at Even on its own, finding was clearly incorrect. evidence Baer’s intoxication time crime disputed, there evidence he used methamphetamine on day crime there certainly ample evidence long term effects intoxication exacerbated psychosis affected capacity conform his behavior. Two experts, Drs. Davis Lawler, both testified drug use time crime likely impacted behavior. This rebutted Danny Trovig’s testimony use methamphetamine morning the crime expert Dr. Evans’s testimony it was un ‐ clear whether Baer’s blood contained any methamphetamine at the time the crime. It was the jury’s task to resolve the factual dispute. It would have been plainly erroneous for the trial judge weigh the evidence favor the prosecution determine was not intoxicated time crime. Therefore, this reason cited Supreme Court finding failure not ineffective unreasonable. court also found Baer’s not
effective because “the link between ongoing methampheta mine usage mental illness repeatedly arose expert testimony,” close tie between Baer’s mental health ev idence intoxication gave jury “adequate oppor tunity hear act this evidence even omission ‘or intoxication’ from instruction.” Id. However, fails consider instructions as whole. At end instructional charge, trial expressly told jurors they could consider intoxication un less it involuntary. In light voluntary intoxication instruction, reasonable jurors would have believed they could consider intoxication evidence as it related mental health. Instead, is likely jurors heeded court’s charge refused consider voluntary intoxication all, including health evidence stemming voluntary drug use. It unreasonable assume jurors could catch nuance voluntary intoxication can consid ered mitigation, as criminal intent, without any clear instruction. Here, instructions relating mitigation mention word “intoxication,” they under statute. In fact, only instruction ad dressing intoxication rendered use of methampheta mine other drugs out of bounds for consideration for any purpose. modification of statutory mitigating factor worked in conjunction voluntary intoxication in struction effectively exclude consideration of key mitigat ing evidence. Therefore, failure object was constitutionally deficient.
Looking at voluntary intoxication instruction, state reasoned was not ineffective for failing because it “was correct statement was relevant determining whether committed crimes in tentionally .” Id. at (emphasis original). Alone, this ment might seem reasonable, context, it is not. First all, challenged voluntary intoxication instruction was given at penalty phase trial— after had been convicted intentionally committing crimes. Intent was chal lenged before jury penalty phase; it was decided guilt phase. So, it unlikely understood this instruction, given again phase, applicable only decided issue intent. A reasonable juror would understood this instruction as excluding evidence voluntary intoxication purposes punishment, specifi cally excluding voluntary intoxication mitigating factor.
Further, while this instruction correct statement law, likely jurors’ interpretation instruction legally correct. Jurors were unlikely decipher voluntary intoxication instruction related only proof aggravating factors (which disputed defense) plainly exclude voluntary intoxication all purposes, including mitigation sentencing. In fact, been primed believe voluntary intoxication could impact sentencing. prosecutor even told jurors closing argument “self ‐ induced drugs is[sic] no protection from … don’t give anybody pass who takes drugs on their own then uses as … some effort make their sentence little easier.”
Furthermore, voluntary intoxication instruction was read aggravating factor instructions. This ‐ struction was given end charge, well after aggra vating mitigating factor instructions, soon before jurors recessed make decision. There no instruction clarity provided this instruction related only proof aggravating factors, likely (and incorrectly) interpreted instructions as specific preclusion con sidering Baer’s voluntary drug use deciding just punish ment. There no reason instruction given phase where aggravating factors were dispute, less so end lengthy instructional charge. So, ineffective failing object, state court unreasonably found otherwise.
Finally, concluded any instructional er ror which may inhibited consideration intoxi cation voluntary intoxication instruction cured by court’s instructions there “no limits what fac tors individual juror find mitigating,” Indi ana’s general instruction “[a]ny other circumstances” 1933 be considered as mitigating. Id . Looking at the state court’s finding in light of the entire charge, we again find the state court’s analysis unreasonable. While the “any other cir ‐ cumstance” “no limits” instructions contradicted the in ‐ struction excluding voluntary intoxication evidence, the con ‐ tradiction provide clarity. “Language merely con ‐ tradicts does explain constitutionally infirm instruc ‐ tion will suffice absolve the infirmity.” Francis, U.S. 322. Further, general mitigation instructions given earlier separately from voluntary intoxication instruc ‐ tion, making it unclear charge whether “any other circumstances” excluded voluntary intoxication. We are left “no way knowing which of two irreconcilable ‐ structions jurors applied reaching their verdict.” Id . Therefore, find court’s conclusion court’s broad generic mitigating instructions cured faulty instructions reasonable. Trial fail ure deficient.
Prejudice found where “[t]he result proceeding can be rendered unreliable, hence proceeding itself un fair, even if errors cannot shown by pre ponderance evidence have determined out come.” Strickland U.S. Here, evidence toxication methamphetamine use time offense, well as voluntary drug use large period his life, central mitigating jurors considered. See, e.g., Cone Bell , U.S. 449, 474–475 (2009) (finding that suppressed evidence of prior drug use been material to jury’s assessment of proper punish ment death penalty case, finding a review such evidence was warranted). Evidence Baer’s mental health drug use intertwined cornerstone Baer’s defense, defense sole strategy for avoiding sentence ensuring that considered gave effect to Baer’s health intoxication evidence. Yet, Baer’s trial counsel failed to object to instructions ef fectively blocked consideration this crucial mitigating evi dence. We find “there [was] reasonable likelihood has applied challenged instruction[s] way prevent[ed] consideration constitutionally relevant ev idence,” Boyde U.S. mitigation left unconsidered central to Baer’s claim for less than death. It unreasonable for to conclude otherwise.
B. Failure Object Prejudicial Prosecutorial Com ments
While we need only find one reversible error grant claim habeas relief, continue consider Baer’s second claim address troubling story prosecutorial misconduct found transcript case. asserts deficient failing Mad ison County Prosecutor Rodney Cummings’s repeated im proper prejudicial comments. Our review record demonstrates pattern prosecutorial misbehavior deficiently failed challenge. refrain prejudicial comments went unaddressed the trial invited doubt into the reliability penalty phase trial.
In evaluating prosecutorial misconduct under governing Supreme Court law, “[t]he relevant question whether the prosecutors’ comments so infected the trial unfairness make the resulting conviction denial due process.’” Darden v. Wainwright U.S. 168, (1986) (internal quota tion omitted). We examine whether prosecutor’s comments were improper and whether in light the entire record the defendant denied fair trial. See United States Bow man, F.3d (7th Cir. 2003). In conducting quiry, we consider several factors, including the nature and seriousness misconduct; whether comments invited by defense; extent which remarks have been neutralized by court’s instructions jury; defense’s opportunity counter any prejudice; weight supporting conviction. Id. challenges following categories comments by prosecutor argues they generated objections his attorneys direct appeal: (1) prosecutor’s misrepresentation regarding sanity guilty but mentally ill verdict; (2) prose cutor’s false claim no case authorizes following guilty mentally ill verdict; (3) prose cutor’s false claim legislature about abolish life without parole; (4) prosecutor’s improper references victim impact statements; (5) prosecutor’s comments disparaging Baer, experts; (6) prosecutor’s use personal opinion facts evidence. We discuss only those categories which find prosecutor’s comments 15 ‐ 1933 21 were most offensive and where counsel’s failure to ob ‐ ject deficient. We look at comments made throughout record and analyze cumulative prejudice stemming from trial counsel’s persistent failure object.
1. Prosecutor’s Misrepresentation of GBMI Law first argues trial deficient fail ‐ ing object prosecutor’s consistent conflation of standards a legal insanity defense guilty but mentally ill (GBMI). These comments injected at earliest phase proceedings, voir dire. asserts court’s finding failure a strategic de cision (and therefore deficient) an unreasonable ap plication Strickland agree.
There is a clear legal difference between a jury’s finding “not responsible reason insanity at time crime,” Ind. Code § 35 ‐ 36 ‐ 2 ‐ 3(3), “guilty but mentally ill time crime,” Ind. Code § 35 ‐ 36 ‐ 2 ‐ 3(4). To found legally insane, a defendant must suffer from “a severely ab normal mental condition grossly demonstrably im pairs [his] perception,” renders him “unable appreciate wrongfulness conduct time offense.” Ind. Code. ‐ 41 ‐ 3 ‐ 6. On other hand, a verdict GBMI is appropriate if a defendant suffers an illness “dis turbs [his] thinking, feeling, or behavior impairs [his] ability function.” Ind. Code ‐ ‐ ‐ Another important distinction between insanity defense GBMI convic tion is latter has no effect defendant’s convic tion sentence. Ind. Code ‐ 5(a). In capital case, consider illness mitigating circumstance phase trial, it is defense intent nor guilt. ‐ 1933
In this case, sought guilty but mentally ill (GBMI) verdict. He made clear he seeking insanity defense. However, from earliest stages voir dire, prosecutor, Mr. Cummings, misstated legal standard GBMI verdict conflated it with an insanity defense. This confusion continued voir dire into prosecutor’s closing statements.
In early exchange voir dire, Cummings led fol lowing line questioning front jurors prospective jurors:
Mr. Cummings: What do you think psychologi cal evidence? Have disease defect so you should find me guilty but mentally ill?
Mr. Davis: I never really give much thought that. Mr. Cummings: Do you think someone who can appre ciate wrongfulness their conduct knew what they doing wrong guilty?
Mr. Davis: I figure, you know … I look he [sic] know doing it.
Mr. Cummings: then that’s someone should get pass.
Mr. Davis: Yeah.
Mr. Cummings: Or somebody who you find guilty mentally ill?
Mr. Davis: Yes.
(Tr. 469.)
Similar lines questioning persisted throughout voir dire. Cummings also incorrectly suggested GBMI ver dict or excuse, illness could only be considered (even as mitigation) if know right wrong. For example:
Mr. Cummings: They don’t want him put death, if he’s found guilty but mentally ill, it will be more dif ficult State execute [him]. Ms. Brumbaugh: Yes.
Mr. Cummings: And what are kinds things you think you should look before you decide whether he guilty mentally ill? Ms. Brumbaugh: If knew right wrong Mr. Cummings: He could appreciate wrongful ness. You are right top it. I mean I’m feeling good already. You understand issues.
(Tr. 494.)
Mr. Cummings: [referencing facts case] Is kind crime someone be executed for? Mr. Brown: Yes, I believe could circumstance, unless there are mitigating circumstances.
Mr. Cummings: Okay what what do you mean mitigating circumstances? Mr. Brown: Not having ability to know right from wrong
Mr. Cummings: Okay.
Mr. Brown: time crime occurred.
Tr.
In Cummings’s closing argument, he reiterated to jury “[m]ental illness. Well, that’s what you do when you have to admit you did it, but I got some excuse.” In his rebut tal argument, he again told jury illness “did cause [Baer] to do it, it did not keep him understand ing what he doing wrong; and, if that’s evidence, you find him guilty but mentally ill.” Defense counsel did object to these statements. Supreme Court found no ineffectiveness counsel failing object prosecutor’s inaccu
rate misleading conflations GBMI legal insanity. noted “during voir dire prosecutor often conflate separate concept GBMI insanity refer ring whether could appreciate wrongfulness actions,” it held:
It seems likely consciously chose prosecutor’s misstatements part their general strategy letting prosecutor dis credit himself. At PCR, [Defense Counsel] Williams testified he known Prosecutor Cummings years knew capable overstating case jury. Trial planned correctly when their turn, judge echo their statement through instructions, hope the jury would decide the contrast the prosecutor was not credible.
Baer II , N.E.2d at 99–100 (internal record cites omitted).
We cannot agree the state court’s analysis, nor do find it reasonable. Under Strickland strategy must be reason able. See Campbell Reardon , F.3d 752, 763–64 (7th Cir. 2015). Planning state law correctly “hop[ing] would decide … prosecutor was not credible,” II , N.E.2d cannot considered “strategic” here, where prosecutor was never discredited defense counsel’s failure simply conceded prosecutor’s confusing prejudicial remarks, which put client’s life risk. Case does mandate deference unreasonable defense tactics. See Strickland U.S.
Further, confusion created between GBMI sanity defense never clarified. At end closing argument, defense counsel stated “for hundredth time: We are saying Fredrick Michael insane. I said it you selection. [Defense Counsel] Lockwood said it you. I’ve said it you repeatedly Mental disease defect.” But, difference between GBMI standard insanity standard remained murky. To extent defense counsel tried clarify, prosecutor’s word versus defense word. Furthermore, struct difference between GBMI standard sanity standard, defense requested no such instruction. Under these circumstances, court’s finding deficient unreasonable. ‐ Comments Regarding Victim Impact
Also during voir dire, prosecutor told potential jurors victim’s family wanted to be given death penalty. Prosecutor Cummings told jury:
[Y]our [sic] ones sitting here in this seat who have this man’s life in their hand and they have be one who makes decision. I know he be executed I don’t want be one has do that. If everyone felt way, then this family gonna receive justice entitles them to.
(Tr. 379.) He also stated:
It’s just life. It’s family left be hind who no longer wife and four year old child and you’re gonna see those people room throughout this entire trial they’re here seek ing justice the[y] believe that’s penalty. (Tr. 405.) Again, told prospective jurors
It’s serious for everyone it’s serious for com munity receive justice for person who commits crime like this our community. For this man for family for man child who survives these horrible crimes. They’re going want justice don’t you think?
(Tr. 766.) After yet another mention victim’s family, asked bench conference, fol lowing sequence:
Mr. Cummings: But you are going standing people our community, they’re going ask you take very seriously. Not just because him, it’s very important for our system take this very seriously, but what about you know husband other child, woman her child murdered their family everyone com munity. Justice …
Mr. Williams: Your Honor approach? [ At bench conference :]
Mr. Williams: Judge, he’s come close a few times … He’s come close a few times, Judge, Mr. Cummings arguing victim impact. Now we’re there. Because that, we’re asking for a mistrial. is clear you cannot argue victim impact. During situa tion like this, he’s come close few times.
Judge: I got tell you truth, I wasn’t listening what Rodney said. I don’t know about it terms selection. You can argue victim impact trial, but I don’t know about selection, but you’re risk ing …
Mr. Williams: record is clear … well, I want record clear we’re asking mistrial point based upon he’s come close few times, but now say you need consider impact husband, other child, victim is nothing but victim impact argument. Because that, we’re asking mistrial. Judge: I don’t think it’s mistrial, you need clean up say I misspoke. I Judge instructs you, you will follow instructions.
(Tr. 801–02.) No “clean up” made, though prosecutor *28 28 15 1933 generally adhered the judge’s warning and stopped refer ‐ ring the victims’ family’s desired punishment. However, at closing the penalty phase, the prosecutor again argued, “We would here if that’s not what the Clarks wanted.” Again, trial object. now argues that persistent failure constituted deficient performance. We agree.
In
Payne v. Tennessee,
ecutor’s comments were problematic. In addressing Baer’s ar ‐ guments ineffective assistance prosecu ‐ tor’s victim impact statements state court found “[i]nap ‐ propriate though these comments have been, we do think they rendered ʹ s trial fundamentally unfair.” II N.E.2d We agree Cummings’s remarks inappropriate. It follows defense counsel’s failure ob ject these improper statements record deficient. state also concluded, “[t]he prosecutor then told he misspoke. This is sort rebuke prosecutor defense likely found helpful.” Id . This finding supported by record. In fact, Cummings never told misspoke no “rebuke” given. Accord ingly, no follow up statement prosecutor or judge remedied prosecutor’s victim impact comments allevi ated deficiency failing make objec tion before jury.
As court’s conclusory statement prosecu torial comments regarding victims’ family’s desired pun ishment render trial fundamentally unfair, cannot consider these statements isolation. While these comments alone might rendered funda mentally unfair, they constituted piece broader pattern problematic prosecutorial comments. We also note that trial judge’s comment (“I got to tell you truth, I wasn’t lis tening to what Rodney said.”) exposes another issue that seems to infected trial. record reflects that trial judge missed numerous opportunities to stop or clarify prosecutor’s statements absence noticeable throughout trial.
3. Personal Opinions & Facts Not in Evidence argues early in Prosecutor Cum mings also began pattern introducing facts not in evi dence, which directed jurors toward recommendation death penalty. This included introducing insecurity in life without parole sentences. For example, in voir dire, Cum mings addressed questions about whether or not life without parole result in probation release:
Mr. Cummings: Law in right now is life without parole means life without pa role … That does mean it’s going chance [sic]. Hardly year doesn’t go by where there isn’t bill legislature is … wants change law allow parole some point after so many years. No one room is going able tell you that’s going change. What they’re going do is ask you do is least consider something other than life without parole, other than penalty, you consider it. Tr. There is nothing record supported Cum mings’s statement that: “Hardly year doesn’t go where there isn’t bill legislature wants change allow parole some point after so many years.” law in was clear life without parole does permit parole, ever. There was no reason specu lation about future law.
Later, penalty phase trial, Cummings made multiple comments in closing argument now main tains prejudicial, which contends have objected. Specifically, Cummings stated:
[i]n my career enforcement in this community, have least one hundred twenty five murders … those … no murder even comes close murders committed Fredrick Michael Baer. Not even among three men who have been sentenced death. He continued, commenting that: depravity, horror, I would challenge you
think, you ever heard murder you’ve heard news or seen news more heinous more deserving than this case. You might say 9/11 because 3,000 so people died there. Maybe Oklahoma City bombing because numbers. But think about violence, horrific nature crime (Tr. 2513–14.)
Cummings then recounted murders graphic detail told using “the abuse excuse,” Cummings’s childhood worse than child hood:
My mother here. She prostitute who died drug overdose. I got convicted felony when I eighteen and spent time in jail, and I had a worse childhood than he did. Maybe that’s why I say, “Suck it up.” If you lived this community, you would know that because people back there already know it. I had tougher childhood than did, I somehow managed become lawyer got elected prosecu tor community three times now. And me some other people who overcome tough circumstances like that get sick our stomach when people like that sit around cry about how tough they had … (Tr. 2548–49.)
Finally, Cummings urged vote death penalty justify money being spent on trial:
We are anxious file cost unbelievable. Who knows what it’s going cost our community. Probably half million dollars. We’ve got people laid off. It’s something you do haphaz ardly. It’s something you do seek justice com munity.
(Tr. 2551.) argues now, argued before state court,
these arguments went unchallenged counsel were cogently argued appeal, which demonstrates professional deficiency. rejected claim, determined prosecutor’s arguments unobjectionable because introduced topics. II, N.E.2d
Defense mention crime wasn’t “worst worst,” they positive childhood up bringings put them better position make good 33 choices than Baer, and death unnec ‐ essary financial burden state. However, just because cracked open door these subjects, it did not permit prosecutor drive truck through it. The se ‐ ditious specific comments about prosecutor’s own mother, community’s layoffs, 9/11 were all not hard blows, but beyond pale foul ones. See United States v. Young , U.S. 1, (1985). “The kind advocacy shown record has no place administration justice neither permitted nor rewarded.” Id . 9. The un supported details about Prosecutor Cummings’s personal history were unnecessarily provocative highly improper. We find it unreasonable Baer’s not ob ject.
4. Cumulative Prejudice
Supreme Court held that, after analyzing each Baer’s raised challenges performance, prosecutor’s comments “did not affect outcome trial.”
II
, N.E.2d We find Indi ana Supreme Court’s conclusion unreasonable under
Strickland
because failed analyze aggre gate prejudice Prosecutor Cummings’s improper com ments, looking cumulative effect these com ments it unreasonable conclude case did suffer prejudice. prosecutor’s misleading prob lematic statements consistent extensive, so finding prejudice is “one several equally plausible outcomes,” it nearly impossible comments impact juror’s decision recommend penalty.
See Hall Washington
F.3d (7th Cir. 1997) (“Congress would used word ‘unreasonable’ if really
*34
34 15 1933 meant federal courts were defer all cases to state court ʹ s decision.”);
see also Martin v. Grosshans
,
Under Indiana law, ineffective assistance of counsel claim can dismissed easily upon prejudice prong court do so without addressing whether counsel’s performance deficient.
See II
,
“The well settled standard review [is] are consider prosecutor’s conduct isolation, context trial as whole, determine if such conduct ‘so inflammatory prejudicial defendant deprive him fair trial.’” United States v. Chaimson , F.2d 798, (7th Cir. 1985) (quoting United States Zylstra , F.2d (7th Cir. 1983)). state court stated simply reviewed prejudice “taken aggregate.” II N.E.2d 102. But, analysis opinion does support its conclusion. While state underwent lengthy analysis on several categories prosecutorial misstatements Baer’s deficiency, there no analysis on cumulative impact all these comments. Instead, court’s pithy analysis prejudice states only “these comments affect outcome Baer’s trial.” Id. There no further reasoning ex planation.
Cummings’s misstatements prolific harmful case, yet failed every opportunity. Cummings’s comments began in voir dire, where his comments conditioned jurors believe Baer a liar, illness a “copout” “defense,” not receive a GBMI conviction because appreciated the wrongfulness of actions (improperly us ing the insanity standard), life without parole at high risk providing release, the Clark family wanted death sentence. All these comments made before the heard any in case. Then, close phase, Cummings again injected inflammatory comments facts not in evidence, including remarks about Cummings’s mother’s prostitution, people being laid off af ford state’s pursuit death penalty, crime being worse than any prior murders Cummings had heard career in enforcement. Each these comments made Cummings carried weight au thority state.
Like court, cannot say surety Cummings refrained injecting inflammatory, incorrect, unsupported statements into this trial, would row. We acknowledge this is case where defendant is sympathetic case where defendant’s guilt is uncertain. This makes finding prejudice less intuitive. But, “a defendant need show deficient con duct more likely than altered outcome case.” Strickland U.S. 693. standard prejudice is “that there is reasonable probability that, ʹ s unpro fessional errors, result proceeding would been different. A reasonable probability probability sufficient undermine confidence outcome.” Id . taint prosecutor’s comments here infected entire trial, erodes confidence outcome case. No. court unreasonable to determine otherwise. cumulative effect prosecutor’s remarks likely hampered jurors’ ability decide dispassionately whether Baer receive term years or life without parole rather than death sentence, even trust life without parole would remain barrier Baer’s reentry into society. Further, suggesting Baer might serve less than entirety life prison if sentenced life without parole, Cummings by saying legislation proposed almost yearly permit release, provided with belief could be released parole if executed. “To extent this misunderstanding pervaded jury’s deliberations, it effect creating false choice between sentencing [him] death sentencing him limited period incarceration.” Simmons South Carolina , U.S. 161–62, (1994) (plurality opinion) (reversing death sentence remanding further proceedings because “grievous misperception” “cannot be reconciled our well established precedents interpreting Due Process Clause”).
Can certain would have been sen tenced if given fair effective counsel? But, “reasonably likely” without prosecutor’s jection impermissible statements incorrect ju rors would have recommended death. See Strickland U.S. (“[A] making prejudice inquiry must ask if defendant has met burden showing deci sion reached would reasonably likely been different ab sent errors.” (emphasis added)). Our confidence outcome sentencing proceedings undermined prejudicial prosecutorial comments throughout trial. Because Baer’s failed these com ments, misleading instructions, de nied fair prejudiced unprofes sional errors.
III. CONCLUSION
We R EVERSE district court’s denial petition writ habeas corpus regard phase trial. convictions stand.
Notes
[1] In cases where insanity is raised, find defendant is: (1) guilty; (2) guilty; (3) responsible reason insanity time crime; or (4) guilty but mentally ill time crime. Ind. Code § ‐ ‐ ‐ A defendant who found pleads guilty mentally ill sentenced same manner defendant found guilty offense. Ind. Code § ‐ 5(a).
[2] full “any other circumstances” instruction read: “any other cir cumstances, which includes defendant’s age, character, education, en vironment, state, life background any aspect offense itself involvement which any individual juror believes makes him less deserving punishment death.” (Tr. – 71.)
[3] Under law, could legally seek GBMI verdict out having filed notice intent raise insanity. Ind. Code § ‐ 3(4) (2008).
[4] Mr. Brown served foreperson. DA App. –
[5] incorrectly argues victim impact evidence per se inadmis sible, citing Booth Maryland , U.S. (1987) Bivins v. State , N.E.2d (Ind. 1994). He relies heavily on Supreme Court’s analysis Booth quotes victim impact statements “can serve no other purpose than inflame divert deciding case any relevant concerning crime defendant.” U.S 508. However, Booth modified, greatly limited, Payne, U.S.