*1 intentional, and that the assistance was of the challenged segment modification greatly with intent to kill or do given the instructions would quite unlikely be bodily knowledge harm or that such harm have affected the verdict. affirm We think, in probable. was We do not denial of Daniels’s ineffective-assistance arguably misleading that one state- claim. requirement likely ment of the mens rea jury ignore repeated to have caused IV prior require- statements of the correct ment. reasons, For foregoing the judgment sure, of the district court is AFFIRMED. challenged
To instruction is juror confusing; we can understand how a
theoretically might interpreted have it to requirement
weaken the mens rea
why Daniels would not have wanted
given. say But we cannot that it violated rights.
Daniels’s federal constitutional We n affirm due-process the denial of Daniels’s
claim. GIRTS, Petitioner-Appellant, Robert C reasons, reject
For similar
we also
Dan
YANAI,
Burgess’s
object
Warden, Respondent-
iels’s claim that
failure to
Chris
challenged
instruction was ineffec
Appellee.
prevail
tive assistance of counsel. To
No. 05-4023.
claim,
a petitioner
ineffective-assistance
performance
must show that counsel’s
Appeals,
United States Court of
perform
deficient and that the deficient
Sixth Circuit.
prejudiced
ance
his defense. Strickland v.
6,
668, 687,
Argued:
Washington, 466
June
2007.
U.S.
S.Ct.
(1984).
lish that the instructions were inaccurate. Stovall, 05-1528,
Cross v. No. 238 Fed. 32, 39,
Appx. 2007 WL at *6 2007) (unpublished). June
Cir. And to prejudice, petitioner
demonstrate “must probability
show that there is a reasonable
that, unprofessional but for counsel’s er
rors, the result of the proceeding would Strickland,
have been different.” 466 U.S. 2052. Daniels cannot
satisfy requirement the first because he
has not established that the instructions inaccurate; satisfy he cannot the sec requirement jury
ond because the instruc
tions, whole, apprised taken as a requirement, rea
of the mens such *4 Redmond, Hope Thomp- E.
ARGUED: Cleveland, Ohio, Hine, Appellant. for son Price, Attorney T. of the Thelma Office General, Columbus, Ohio, Appellee. for Redmond, Hope BRIEF: E. Robert ON Ohio, Ware, Hine, Cleveland, Thompson F. Horrigan, D. Appellant. Bruce Office General, Cleveland, Ohio, Attorney of the Appellee. *5 BATCHELDER, MARTIN, Before: CLAY, Judges. Circuit CLAY, J., opinion delivered the MARTIN, J., court, joined. in which BATCHELDER, 761-62), (pp. J. delivered separate dissenting opinion. a OPINION CLAY, Judge. Circuit appeals the dis- Petitioner Robert Girts a writ petition court’s denial of his for trict to 28 U.S.C. corpus pursuant of habeas argues that his convic- § 2254. Petitioner murder violated his aggravated tion rights Amendment because Fifth and Sixth commented on improperly prosecution closing during remain silent right his trial counsel was inef- argument, and his object prosecu- failing in fective reasons that For the tor’s statements. court’s follow, the district we REVERSE decision, the writ of conditionally GRANT and REMAND this petition, corpus habeas court. case to the district
BACKGROUND
History
I. Procedural
1993,
in-
9,
Petitioner was
February
On
murder, under Ohio
aggravated
dicted for
(“O.R.C.”)
2903.01,
12,
§
by
judgment
Revised
trial court’s
on
Code
June
1997.
County,
in
At
grand jury Cuyahoga
Ohio.
Petitioner filed motion for reconsidera
trial,
ensuing
Petitioner testified
his
District,
Eighth
tion with the
which was
ag-
defense. Petitioner was convicted of
24,
July
Girts,
denied on
1997.
State
gravated
Cuya-
murder
539,
(Ohio
App.3d
Ohio
Ladies and we don’t have to effective assistance of counsel. A you tell how it was introduced into her magistrate judge report issued a and rec system. We know that it ingested. 29, 2003, ommendation on May recom only And there person one that can mending that the writ of corpus habeas you introduced, tell how it was petition be denied. objec Petitioner filed that’s the defendant. report tions and recommendation. (J.A. 1287) 12, 2005, Petitioner’s July counsel did not ob- On the district court found ject to the prosecutor’s statements. Peti- that the improperly commented again tioner was aggravated convicted of on right Petitioner’s to remain silent and 9,1995. by jury August murder a on that trial counsel was ineffective in failing object prosecution’s statements, Petitioner filed two appeal notices of but held that Eighth Petitioner failed challenging District to show appeals prejudice conviction. The two petition were consoli- denied the for writ dated, Eighth and the Yanai, District affirmed corpus. of habeas See Girts v. No. bathing. Be- suddenly had died while *1
02CV0264, 2005 WL 2005). readily deter- (NJD.Ohio police Petitioner filed cause the could July death, August they transported mine a cause of timely appeal notice a body to the office an coroner’s autopsy. Facts II. Substantive During autopsy, the coroner’s office they as on the facts relies This Court cause of death. noted no obvious court on appellate by the state found meal undigested coroner did find an Bell, See, Bell v. e.g., review. direct stomach, decedent’s pasta salad in (6th Cir.2006); see also 28 lividity reddening of recognized or (“In 2254(e)(1) insti- proceeding § a U.S.C. in typically be found skin which would n habeas for a writ of by application tuted monoxide. person exposed to carbon custody pursuant by person corpus however, testing, Carbon monoxide court, a determi- of a judgment State The coro- significant no levels. showed by a State issue made nation of a factual no of death. ner listed cause correct. to be presumed shall be court 20, 1992, September Around defendant the burden applicant shall have them telephoned police and told of correctness rebutting presumption note, by found a hand-written he had evidence.”). In convincing by clear and decedent, might explain which her the Ohio facts stated as stated, “I The undated note hate death. follows: are as Appeals Court of my- I my job. I hate Cleveland. hate in a lived decedent ... [Defendant explained Defendant he self.” funeral home adjoined house papers some the note underneath found a funeral where defendant worked police case. He told his brief On the morn- and embalmer. director despondent had over decedent been 2, 1992, defendant and September ing of move to the Cleveland area. their recent driving back from began several others difficulty finding work and wor- She had having assisted Parma Chicago to after problem. weight that she ried had Dece- brother. moving defendant’s that dece- police also told the Defendant home, being scheduled remained at dent *7 miscarriages three dent suffered day. she did at noon When to work grips with trying come to had been to time, on a coworker arrive at work might not be able thought that she and ex- home telephoned funeral to bear children. un- concern over decedent’s pressed her time, the coroner the same At about em- funeral home tardiness. A usual toxicologists per- to department ordered in car ployee noticed decedent’s body fluids tak- on form additional tests The he the house. driveway, so checked decedent, specifically asking from en open screen door employee found the any poi- of presence detect the them to dece- into the house. When and called presence for the of An initial sons. test respond, he entered dent failed discarded cyanide had potassium body slumped her house and discovered toxicologist discovered when the in the bathtub. over testing process had reagents used play of foul no evidence police The found reagents New compromised. been A razor sign of suicide. any nor obvious obtained toxicologist a and the obtained water, curling a hot floating on the bath cyanide at about twice result for positive table, dressing nearby resting on iron The coroner dose. the minimum lethal yard roaming in the couples’ dog asking the Frank- this result that decedent verified to conclude police led the County lin ing request, Coroner’s Office to test for officer of defendant’s so she cyanide by presence using of a dif- couple cyanide sent “a grams” of of methodology. ferent The Franklin the funeral home address listed on de- County virtually Coroner obtained iden- fendant’s card. business The command- tical results. The coroner then listed ing officer explained that she came for- the cause of death as homicide. ward with learning the information after police The returned to defendant’s house that defendant’s wife had died as a re- warrant, pointed- and executed a search cyanide sult of poisoning.
ly telling they defendant were look- When confronted with evidence that he ing cyanide poisons. or other De- had cyanide, obtained defendant told the search, cooperated fendant with the but police cyanide that he had used police nothing. found police groundhogs control property. on the A questioned the operators funeral home however, funeral employee, home insist- possible cyanide about the use of in the ed that he knowledge had no of a process, embalming but found no evi- groundhog problem, produced rec- dence that the funeral home had re- showing squirrels ords were the cyanide any ceived from suppliers. its only pest problem control proper- A funeral home director later recalled a ty. city pest control officer stated conversation with defendant in which that he had complaints no about ground- they police discussed investigat- how hogs. representative A pest from a con- shipments ed funeral home supply company trol cyanide conceded that containing cyanide deliveries and defen- might have pest been used for control said, dant “That got is not where I well in past, years but that in ten from.” business, she had any products not used The evidence did not show that the po- containing cyanide. any lice suspects they had until broad- Other persons came forward with infor- plea cast a for assistance with a televi- mation that soon police corroborated sion crime watch service. As a result of suspicion on defendant. A business as- broadcast, commanding defendant’s sociate recalled conversation in which Army officer reserves came for- abruptly defendant interrupted her in January ward 1993 with information if ask she could him show the measure- that she grams had sent defendant two gram. ment of a When business potassium cyanide. explained She why associate asked he needed in- that defendant knew that she worked as formation, defendant said that he need- job chemist her civilian and that in ed to measure some medicine for his the spring of he asked her she dog’s veterinarian, food. Defendant’s *8 could supply him with a small amount of however, prescribed stated that he no cyanide in for use controlling ground- medication for dog that would re- hogs on property. The commanding quire any measuring. kind of immediately officer did not cya- send the colleague A at the funeral home de- nide. She later discovered that defen- scribed a in conversation which he said dant had left his business card on her that defendant him had told that dece- card, desk. A notation on the in defen- dent committed suicide. stated, When the col- dant’s handwriting you “Thank league your wondered how decedent help.” In the could lower corner of procure “KCN,” cyanide, the card defendant responded defendant wrote chemical potassium cya- probably abbreviation for that “she got down on West nide. The card reminded the command- 25th Street where she worked because affair she had discovered low because a lot of with came in contact she conversation, lying his marital status defendant about subsequent In a lifes.” how dece- affair re- previous wondered wife. The colleague again with cyanide, briefly have obtained in 1985 or but dent could sumed either said, “Someone time defendant agreement. and this It shortly by mutual ended spilled probably the coroner’s office De- February in 1992. again resumed it there.” they keep itof because some that he told the woman was fendant colleague testified married, Another funeral home and his wife were but he trans- came to the ambulance that when to finalize divorcing and expected yelled body, defendant decedent’s port por- intimate July The divorce they take should the drivers relationship ended late tion of their Hospital. body to Parma General they remained in May although previ- had learned defendant police De- more months. contact for several County the Lorain ously worked that he was not a stipulated fendant would there experience His Coroner. any action. party divorce occurring without him that all deaths tell shortly af- called woman Defendant this would ordinari- natural cause any known and informed her decedent’s death ter of- by the coroner’s investigated ly be from an aneu- died that decedent had more fice, ordinarily performed which and, They spoke twice thereafter rysm. hospitals. autopsies than complete early part of in the October dece- question began also police early morning tele- woman received an to commit suicide. motivation dent’s in which call from defendant he phone police told the close friends Several Bethea, said, is Robert Girts. “Miss shortly with decedent they spoken had my decorating of put have to We’ll good her in and found her death before really Something hold. bizarre house on un- nothing The friends found spirits. the woman asked happened.” has When and noted about her behavior usual “I’m replied, happened, what defendant moving forward to looking was decedent my wife’s death.” investigated for being recently defendant into a house she and hung up. The woman found He then did, however, One friend purchased. because defen- unusual this conversation defendant had met with say that she her as “Miss” never dant had referred he death and decedent’s shortly before because, had worked as an she while depressed her that decedent told had not discussed designer, she interior This state- living about Cleveland. of defendant’s decorating interior percep- the friend’s contradicted ment house. her con- days before tions. Just three police then called The woman defendant, the friend versation with them of her conversation informed with decedent weekend spent telephoned, her Defendant defendant. nothing unusual and found defendant he heard that evening. When late that decedent’s demeanor. about and that police telephoned she had motivat- on two factors The state settled her, coming question they would First, it discovered murder. ing the doing in her no harm there was he said fitful affair had a that defendant had *9 and she should “be for him design work con- who would not woman with another questioning. during brief’ long as defendant affair tinue the as arose from motivating factor The second married. Defendant remained Defendant status. financial defendant’s for a short involved woman first became just over that he had received stipulated off broke but woman period in $50,000 from proceeds lividity fluid, life insurance that the and collection of policies taken on decedent’s life. The however, explained by could be other money to pur- state tied this defendant’s factors, such refrigera- as the immediate chase of a house and his desire to invest body being tion of the after taken from $10,000 partner and become silent in warm water. another funeral home. Girts, 700 N.E.2d 400-02. primarily Defendant’s case consisted of showing evidence that he had in been DISCUSSION Chicago at the time of decedent’s death I. Standard of Review (a dispute) fact the state did not expert testimony rebutting the state’s “In corpus a habeas proceeding, findings relating to the manner and legal Court reviews the district court’s cause of death. conclusions de novo findings and its factual Defendant’s sister-in-law testified that Karnes, for clear error.” Miskel v. pasta she ate from a bowl of salad she (6th Cir.2005) (citation omit had found in refrigerator defendant’s ted). and suffered no ill effects. expert Defendant’s testified he Legal II. Framework would have listed the cause of death as Under the Antiterrorism and Effective “undetermined” opinion because in his Penalty (“AEDPA”), Death Act a writ of cyanide the level of found in decedent’s habeas corpus petition may granted if a body not correspond did with the classic state court decision: signs cyanide of poisoning that he would to, contrary or an involved unrea- expected have expert find. The testi- of, application clearly sonable cyanide basically fied that estab- poisons all the law, in body point cells lished they by where Federal as determined oxygen. cannot use Because the cells Supreme States; of the Court United or oxygen, cannot use the blood becomes [ ] resulted a decision that was based superoxygenated, thus giving body on an unreasonable determination of the its reddish appearance. cyanide The light facts in presented of the evidence ' breathe, victim can but nonetheless ex- in the proceeding. State court periences the sensation and effects of 2254(d). § 28 U.S.C. The Supreme Court asphyxiation. cyanide poi- onset of has found that soning is marked dizziness or faint- A state-court decision involves an unrea- rapid Convulsions, ness with breathing. application sonable [Supreme] palpitations, may or seizures follow be- precedent Court[] the state court fore the victim falls into a coma and identifies the correct governing legal dies. [Supreme] rule from th[e] Court’s cases cyanide ingestion outward indicia of but unreasonably applies it to the facts burning include around the mouth and particular prisoner’s state case. area, throat uniform lividity of other ma- Second, a state-court decision also in- jor organs, internal petechiae or small volves application unreasonable bleeding points usually found [Supreme] precedent th[e] Court’s if the stomach, involuntary release of both state court unreasonably either matter, urine extends and fecal and collection of legal fluid in lungs. principle precedent from our signs, only Of these to a lividity and collection of new context where it fluid should not apply or lungs present. The expert thought unreasonably refuses to extend that
753 it To a claim to a new context where determine whether has principle defaulted, procedurally apply. ap been Court should plies four-part test: 407, 362, 120 Taylor, 529 U.S. Williams v. (2000) (citation First, 1495, 146 the court must determine that L.Ed.2d 389
S.Ct.
Packer,
procedural
omitted);
v.
537
there
a state
rule that is
Early
also
see
3,
362,
7-8,
applicable
petitioner’s
154
263
and
123 S.Ct.
L.Ed.2d
claim
U.S.
(2002);
706,
Hofbauer,
716
the petitioner
comply
Hill v.
337 F.3d
failed to
(6th
Second,
the rule....
the court
de-
must
actually
cide whether
state courts
generally
“A federal court
procedural
enforced the
sanc-
state
considering an issue of federal
barred from
Third,
tion ....
the court must decide
arising
judgment
law
from the
of a state
procedural
whether
state
forfeiture
on a
judgment
court if the state
‘rests
is an “adequate
independent”
and
state
‘independent’
that is both
ground
state-law
ground
rely
on which the state can
and an
of the merits of the federal claim
review
constitu-
foreclose
‘adequate’
deci
federal
basis
court’s
[state]
”
tional claim.... Once the court deter-
780,
Huffman,
v.
F.3d
sion.’ Frazier
343
procedural
mines that a state
rule was
(6th Cir.2003)
Reed,
(quoting
790
Harris v.
with and that the rule was
complied
255, 260,
1038, 103
489
109 S.Ct.
U.S.
independent
an
and
adequate
state
(1989));
also
L.Ed.2d 308
see
Coleman
petitioner
ground,
then
must dem-
722, 729-30,
dent
rule must
raised
the
state
fol
“firmly
regularly
and
pleadings,
Bowling]
established
the
court in
...
[state
lowed,”
rely on federal
law.
and cannot
claims,
the merits of
considered]
those
Com.,
Rehab.
Dep’t
Smith v. Ohio
&
stating, ‘Notwithstanding
supple
that his
(6th Cir.2006).
426,
it
463
431
“[I]f
F.3d
by
mental motion
struck
the trial
was
state court rested
fairly appears that the
court,
judicial economy
in the
interest
law,
primarily
its
on federal
this
decision
we will review the seven additional claims
question
reach the federal
on
may
Court
of ineffective assistance of counsel raised
”
opinion con
review unless the state court’s
(citation omitted).
in
motion.’
Id.
the
plain
that
decision
[its]
tains a
statement
opin
This
found that the
court
Court
state
state
upon adequate
independent
rests
and
ambiguous
vague
respect
ion was
and
Harris,
261,
grounds.”
U.S. at
109
489
bar,
procedural
proceeded
and
(internal
and
quotation
marks
1038
petitioner’s
consider the
on the
claims
omitted);
also
v.
citations
see
Clinkscale
merits. The Court found that “there must
(6th
Carter,
Cir.2004);
430,
375 F.3d
450
unambiguous
be
state-court reliance on a
(6th
Parker,
487,
F.3d
Bowling v.
344
498
procedural
it
default for
to block our re
Parker,
Id. (citing
view.”
Gall
Clinkscale,
In
where
state
a case
265,
Cir.2000));
Harris,
321
see also
clearly
court
did
express-
decision
not
and
at
489 U.S.
266 n.
court Statements The Prosecutor’s 1. concession This claims. underlying the of three made prosecutor the In this has found This Court significant. is about closing argument during statements appellate [by a state review “plain error In testify. pertinent failure to Petitioner’s state a of waiver constitute does court] stated: prosecutor part, Seymour rules.” default procedural words. And are Again these (citation (2000) Walker, 224 F.3d folks from you heard these words that to distin- omitted). attempts Petitioner unrefuted, they him are by supplied arguing Seymour case from this guish has been no There are uncontroverted. a involves this case that, Seymour, unlike people say that these to evidence assum- Even claim. constitutional offered federal at all. None are incorrect. Seymour claims in that the ing arguendo substantive on Ohio exclusively based added). com- (J.A. 1284) This (emphasis fed- between law, proposed distinction failure directly Petitioner’s points to ment by unsupported is claims state eral and jury that to the suggests testify and to case point cannot Petitioner case law. obligation affirmative had an Petitioner between distinguishing supports law testimony. statement refute witness law or substantive on state claims based Fifth of the the exercise suggests that Simply put, law. constitutional federal nega- silent right to remain Amendment cases Seymour for exception no there is presented the evidence tively impacted claims. constitutional concerning federal “un- testimony went namely, witness trial — state conceded that Petitioner Since “uncontroverted.” refuted” review, in error plain a court performed “with stated that also prosecutor a waiver cannot find Seymour, of we light cyanide], source [of respect rules. default procedural state of the three occasions no less than had underlying Therefore, defendant find Petitioner’s we had ordered that he police to tell the de- procedurally claim to be process due added). 1285) (J.A. (emphasis cyanide.” faulted. on Petition- focused statement Again, this Prejudice B. Cause si- right to remain Amendment Fifth er’s lent. procedural that a has found This Court “demons- may be overcome default stated: Last, prosecutor default [procedural] cause for trat[ing] have we don’t gentlemen, Ladies and of result prejudice and actual her into introduced it was you how tell law, or demons federal alleged violation ingested. it was know that We system. the claims consider that failure trating] can person that only one And there miscarriage in a fundamental will result introduced, and how was you tell Rehab. & Dep’t v. Ohio
justice.” Smith
that's the defendant.
(internal quotation
Corrs.,
463 F.3d at
added).
the dis-
As
(J.A. 1287) (emphasis
omitted);
Ege
also
see
and citation
marks
any-
noted,
“statement
trict court
Yukins,
the evidence.”
a comment
below,
thing but
find
we
forth
set
reasons
For the
1230)
(J.A.
By indicating
indulge
strong
that Petitioner
court must
“[A]
person”
could
“only
one
who
ex-
presumption
counsel’s conduct falls
jury,
plain
crime to the
range
pro-
within
wide
of reasonable
the fact
Petitioner did not
highlighted
assistance;
is,
fessional
the defendant
testify,
negative
connota-
attached
that,
presumption
must overcome the
un-
*13
of
tion to the exercise
the Fifth Amend-
circumstances,
der the
ac-
challenged
the
right
ment
to remain silent.
tion might be considered sound trial strat-
Strickland,
689,
prosecutor’s three
egy.”
statements were
“In to order avoid second- outcome.” Id. guessing strategic trial counsel’s deci Petitioner must demon sions,” performance review of counsel’s strate that “counsel’s errors were serious Foreman, highly deferential. F.3d enough deprive 323 of a proceeding [him]
757 turn, In would jury. to the v. tion Glenn reliable.” of which the result prose that the judge from the (6th heard have 1204, 1210 Tate, F.3d 71 improper called for cutor’s comments if there is satisfied prong prejudice “[T]he inference for negative impermissible one that at least probability a reasonable Fifth Amend exercise bal Petitioner’s different struck have juror would objection had if an Certainly, Mitchell, rights. F.3d ment Hamblin ance.” first state (internal prosecutor’s Cir.2003) quotation been raised have been omitted). Prejudice ment, would and citation marks overstep counsel to continue permitted petitioner’s “if presumed may counsel’s Trial comments. prosecution’s subsequent subject the ‘entirely fails ” prejudi testing!.]’ object exacerbated adversarial failure meaningful case Adams, statements. prosecutor’s effect cial Millender *14 Cronic, at strong likelihood Cir.2004) 466 U.S. is a (6th find that there (quoting We legist 2039). changed have would juror one 659, 104 that at S.Ct. prejudicial improper mind if the fail case, counsel’s trial In this made, es been would not have statements im prosecutor’s the object allowed to ure presented the because pecially to reach statements prejudicial proper Trial at trial. and limited evidence weak prop the without uncontested the assis ineffective clearly rendered counsel This court. the trial from er admonition object the to to by failing of counsel tance be characterized simply cannot inaction statements.1 prosecutor’s no conceiva There was litigation strategy. ineffec- that recognized has This Court failing to from derived to be ble benefit used to may be counsel of tive assistance improper state challenge prosecutor’s the procedural the prong of satisfy the “cause” resulting from prejudice “[T]he ments. See, 228 Hofbauer, e.g., exception. default Gro patent.” lawyering [] [counsel’s] at 708-09; Ege, 485 F.3d (6th see also at 1161, 1170 F.3d Bell, F.3d 130 v. seclose cause may constitute Attorney error 378. Cir.1997). performance “[Counsel’s] constitutionally level of rises a constructive to to amount inept as so Gravley of counsel. assistance ineffective of counsel, relieving [Petitioner] of denial (6th Cir.1996); Mills, 785 87 F.3d v. If trial Id. prejudice.” to show the need that Bell, (noting at 761 see also the trial objection, had raised counsel only be considered can error “attorney prose the reprimanded would have court of the threshold meets if the error cause instruc curative prompt and issued cutor itself, con trial court’s problem the predicate found that state court this In did not violate counsel] improper or that [trial not were clusion prosecutor's statements problem object that failing to "nothing by in the record to that prejudicial and Strickland that, prose- [improper Washington v. inherently the[] but flawed.” suggests ... Hof clearly comments, would verdict bauer, cutorial] F.3d 705 228 1240) (J.A. Although prosecu different.” have been that the found court the state Since the statements found district court preju improper or were not statements tor’s deferred to the court prejudicial, were "predicate dicial, recognize the to it failed of the writ denied court’s conclusion state Indeed, character ”[t]o Id. problem itself.” 1240) (J.A. law Case corpus petition. habeas ‘objec as an court’s] conclusion state [the ize give does not clearly Court indicates of Strickland application reasonable’ tive conclusion court’s to a state deference Strickland, AED- under review dilute our would to court if the state violated was not of the clearest apology for generous atoPA prosecutor’s concludes improperly de erred in court district Id. The errors.” aWhen prejudicial. statements finding. court’s ferring to the state clear "recognize!] court fails state 758 judicial, investigatory
ineffective assistance of counsel
violation
or
administrative
Amendment”).
of
Because trial
the Sixth
adjudicatory;
protects against
or
and it
object
level
counsel’s failure to
rises
any disclosures that the
reason-
witness
counsel,
Peti-
ineffective assistance of
ably
could be used in a criminal
believes
tioner has established “cause”
overcome
or
prosecution
could lead to other evi-
procedural
bar. Petitioner has
state
might
dence
be so used.”
“prejudice” to
also established
overcome
States,
(quoting Kastigar
Id.
v.
406
United
procedural
bar. As
state
discussed
441, 444-45,
92
U.S.
32 L.Ed.2d
above,
object prej-
trial
counsel’s failure
(1972)).
expressly
This Court
found
aggravated
prej-
udiced Petitioner and
that the Fifth Amendment “is not limited
prosecutor’s improper
udicial effect of the
custody
with a
persons
charged
or
prejudicial
Ege,
and highly
statements.
crime”
privilege “may
and that the
also be
presents
F.3d
379. Since Petitioner
suspect
questioned
asserted
who is
successful ineffective assistance
coun-
during
investigation
of a
Id.
crime.”
claim,
sel
and has established cause and
Powell,
(quoting
at 283
Coppola
prejudice
procedural
to overcome the state
(1st
Cir.1989));
see also
bar, we will
the merits
address
Wainwright
Greenfield,
474 U.S.
Petitioner’s
below.
claims
*15
13,
634,
295 n.
106 S.Ct.
[t]he Court has despite conviction his counsel’s failure to lege against self-incrimination a broad (Pet. 39) object ... at Br. scope, explaining that can be trial.” at This “[i]t assert- any criminal, proceeding, ed in or employs civil Court a two-part test to deter-
759
prejudicial to
leading or otherwise
the de
prosecutorial misconduct
mine whether
Modena,
States v.
v.
302
new trial. United
fendant.” United States
a
warrants
Cir.2001)
(6th
Carter,
(6th
783
F.3d
635
This
236
F.3d
Court
Carroll, 26 F.3d
v.
(citing
States
United
has
that prosecutorial
found
statements
Cir.1994)).
“Under
1385-87
may
“great[ potential
have a
for mislead
]
must
first consider
a court
approach,
Carter,
ing
jury,”
236 F.3d at
and re-
prosecutor’s conduct
whether the
impacting jury deliberations “because
and “then consider
improper,”
marks were
jury generally
prose
has confidence
determining
four factors in
weigh
his
cuting attorney
faithfully observing
flagrant and
impropriety
was
whether
obligations
representative
a sover
(citing
Id.
Car-
thus warrants reversal.”
Hofbauer,
at
eignty,”
(quoting
id.
785-86
1387).
roll,
factors
at
The four
F.3d
700).
at
228 F.3d
include:
this Court considers
which
proffering
Instead of
evidence
(1)
the conduct and remarks
whether
his
directly
connected Petitioner
mislead the
tended to
prosecutor
death,
jury
told the
wife’s
defendant;
(2)
prejudice
or
“only
one person”
that Petitioner was
or
were
the conduct
remarks
whether
who
his wife’s death. The
explain
could
(3)
extensive;
or
whether
isolated
prosecutor’s
prejudicial
were
comments
deliberately
accidental-
or
remarks
they concerned central issues
because
(4)
made; and
whether the evidence
ly
case—namely,
how Petitioner’s wife
strong.
against the defendant
ingested cyanide; how Petitioner
allegedly
1385);
Carroll,
see
(citing
Id.
cyanide;
what
allegedly obtained
Million,
Boyle
also
said about
wife’s
allegedly
Petitioner
Collins,
(6th Cir.2000);
United States
*16
death.
Cir.1996).
(6th
1021,
“When
1039
F.3d
prosecutor’s
to a
re
reviewing challenges
object
trial
did not
to
Since
counsel
trial,
Court] examine[s]
[this
marks at
statements,
not
admon-
prosecutor
within the context
prosecutor’s comments
See, e.g.,
ished for
comments.
United
to
whether such
of the trial
determine
(6th
624,
316
633
Galloway,
States v.
F.3d
prejudicial
error.”
comments amounted
Cir.2003) (finding that court’s admonition
Carter,
(citing
at 783
United
236 F.3d
specific disapproval
prosecu-
expressing
11-12,
1,
Young,
U.S.
105
470
States v.
comment is
improper
tor’s
sufficient
(1985)).
1
If “de
84 L.Ed.2d
instruction). Although
curative
constitute
objection
no
to the
made
fense counsel
Petitioner’s
on
jury was instructed
trial,
at
this court
statements
prosecutor’s
jury in-
right, a routine
Fifth Amendment
(cit
Id.
plain
only.”
error
will review
of the trial is
at
conclusion
struction
1039).
Collins,
at
Neverthe
78
ing
F.3d
im-
prosecutor’s
not
to cure a
sufficient
less,
may
misconduct
be so
“prosecutorial
See,
Carter,
e.g.,
236
comments.
proper
that
it constitutes
exceptionally flagrant
(holding
general
that
instruc-
F.3d at 787
error,
grounds
for reversal
plain
is
trial,
than
at
end of
rather
given
tion
it.”
object
did not
even
the defendant
made, did
cure
not
when comments were
6).
Carroll,
1. The Prosecutor’s Statements in re- curative instruction prompt, vide a Prejudicial state- sponse highly prejudicial Therefore, we find there ments. [flagraney]
“The first factor focus prosecutor’s strong very likelihood improper arguments es on the effect of the jury. statements misled issue; namely they prejudicial were mis- whether 760
2. The Prosecutor’s Statements Were
Not Isolated very repetition “[t]he improper of the com- ments reveals that such comments were
This
charged
Court is
with consid
placed
accidentally
before
jury.”
ering
the improper arguments
“whether
(Pet.
45)
Br. at
“[R]epeated comments [ ]
prosecutor
made
were isolated” in
demonstrate that the errors were not inad-
Modena,
nature. United States v.
302
vertent” because “clearly, we
(6th
are not
deal-
F.3d
635
This Court
ing
with
spontaneous comment
has
only
found that “[i]t
takes a single
could be regretted but not
comment
...
retracted.”
jury
remind a
Smith,
United
States v.
962 F.2d
defendant
has not testified and to fix in the
(9th Cir.1992).
jurors’
prosecutor
minds the
made re-
impermissible inference
peated
references to
the defendant
Petitioner’s
has not
silence
testified and to
fix
failure to
jurors’
testify
in the
in the
impermissible
closing argu-
minds the
ment. The
inference that
statements were simply not a
guilty
defendant
merely
response to
arguments
because of his
trial counsel’s
exercise of that
be-
right.”
cause trial
Bordenkircher,
Eberhardt v.
counsel “never
any-
mentioned
(6th
Cir.1979)
thing
opening
(finding that
statement
[Peti-
about
even a “[rjelatively brief and [un]repeated
testifying
(Pet.
tioner]
or not testifying.”
45)
comment” may
prejudicial
have
Br. at
effect if a
As the district court indicated,
judge
give
does not
a strong
timely
prosecutor
“the
(es-
intended to comment
instruction);
curative
see also United
pecially
regard
to the third state-
Smith,
States v.
ment)
failure
testify
[Petitioner’s]
Cir.1974). Thus,
single
while a
improper
and that
likely understood the
comment may be sufficient to create a
comments to have been offered for that
violation,
constitutional
the frequency and
(J.A. 1230)
purpose.”
(citing Gall v. Par-
cumulative effect
multiple
improper
ker,
(6th Cir.2000)).
mented on Petitioner’s silence three times *17 Strength 4.The of the Evidence during closing argument. The multiple Against Petitioner Was Not Over- statements strongly suggests that Petition whelming er’s silence awas central theme in the Last, prosecutor’s the Court closing considers argument. the The com strength of ments the against evidence relatively came Petitioner sequence close and were assess the impropriety some of prosecu the of last the statements by heard Carter, tor’s the comments. before 236 F.3d at deliberations. Since prosecutor’s case, the In this the comments were district court noted that isolated, the the statements a evidence profoundly against had Petitioner was not prejudicial effect. The multiple overwhelming. state The record shows that Pe amplified ments prejudicial the effect. titioner was out of state when his wife died. The prosecutor little, also if had 3. The Prosecutor’s Statements Were any, evidence concerning the alleged in Deliberate gestion cyanide. of More specifically, dur Court This also ing considers whether the first autopsy, the toxicology test prosecutor deliberately placed cyanide the im for yield did not positive a result. proper comments Carter, before jury. Although the second toxicology yield- test
761
”
Donnelly
(quoting
Id.
process.’
al of due
Petition-
cyanide,
result
positive
aed
637, 642,
symptoms
physical
416 U.S.
DeChristoforo,
not exhibit
wife did
v.
er’s
1281-82)
(J.A.
The
poisoning.
(1974));
cyanide
of
accord
Diane’s death and had hidden this fact Plaintiff-Appellee, police. from the He had killing motive for And, her. he had offered certain wit- inconsistent, nesses’ in- contradictory, and Gary (05-6621); Michael Jerry BROCK stories, criminating all of which created (05-6623); Giles Brock and Darrin T. (and powerful) reasonable inference that (05-6622/6645), Webb Defendants-Ap- Girts was the murderer. pellants. prosecution’s statement regarding 05-6621, 05-6622, Nos. 05-6623, 05-6645. pre-arrest secrecy Girts’s telling United States Court Appeals, police purchasing cyanide about his is not Sixth Circuit. even a issue, Fifth Amendment part prosecution’s theory of the in- Argued: Jan. 2007. somuch prior to any arrest or Girts — Decided Filed: Sept. Miranda warning information —withheld critical police investigation. The
statement regarding government-wit-
ness-testimony’s being is not unrefuted either,
improper it merely a summary of
the evidence. The statement only
Girts explain could how cyanide got
into system, however, Diane’s in- could be
terpreted as a comment on Girts’s decision testify
not to at trial. But if this state- any
ment had effect on at all—
and I do not believe that it did—then the
only conclusion reasonable from the totali-
ty of the evidence is that the effect was
minimal. There is no basis to conclude
that, statement, but for this jury’s
decision would have been different.
The district court should be affirmed.