Lead Opinion
BATCHELDER, J., delivered the opinion of the court in which SILER, J., joined, and CLAY, J., joined in part. CLAY, J. (pp. 784-91), delivered a separate opinion concurring in part and dissenting in part.
OPINION
In 2005, James Earl Trimble shot and killed his then-girlfriend and her seven-year-old son with an assault rifle. Later that same night, he broke into the apartment of a female college student, held her hostage, and eventually killed her with a handgun. Overwhelming evidence established Trimble’s guilt, including his admissions of guilt to two family members and the police, significant forensic evidence tying him to the murders, and eyewitness testimony. A jury convicted him of the three murders and the trial judge, upon the jury’s recommendation, imposed three death sentences. The district court conditionally granted Trimble habeas relief because it determined that an alternate juror who was later empaneled during the penalty phase of Trimble’s trial could not set aside his personal views on the death penalty and apply the law. Because we conclude that the alternate juror was not an automatic-death-penalty juror, and that Trimble’s other claims are meritless, we REVERSE the district court’s granting of the writ on the juror bias claim and AFFIRM the district court’s denial of habeas relief on Trimble’s claims of prejudicial admission of weapons and prosecutorial misconduct.
I.
On January 21, 2005, James Earl Trim-ble shot and killed his live-in girlfriend, Renee Bauer, and her seven-year-old son, Dakota Bauer, with an AR-15 assault rifle. Trimble shot Renee once in the head and eleven times in the back and the hand, and Dakota six times in the head, neck, and torso. Soon after the shootings, Trimble’s mother called him at the house he had shared with the two victims, and he confessed to the killings. Trimble’s mother called Trimble’s brother and asked him to contact Trimble. Trimble again confessed to killing Renee and Dakota, this time to his brother. Upon hearing this information, Trimble’s brother told Trimble to remain in the house while he called the police.
Positano called 9-1-1 at 11:18 PM, presumably at Trimble’s request, in order to relay his demands to the police; she reported that Trimble had entered her home and would shoot her if police attempted to raid the apartment. She told the operator that Trimble had a “9-mm pistol with no safety.” Trimble took the phone from Po-sitano and declared, “I have got the hammer held back and the trigger pulled. So if the cops shoot me or even attempt to break in here, I will let go of the trigger and the innocent girl will die.” During the call, Positano asked Trimble, “could you not put the gun to my head?”
Meanwhile, police established a perimeter around Positano’s apartment and reconnected with Trimble on the phone through hostage negotiators, talking with Trimble about various topics. The last call culminated in Trimble’s telling Positano that she would be going home if the cops did not “come up here.” A few seconds later, Positano — with whom another negotiator had maintained phone contact-^ screamed “I’ve been shot” and started to gasp for breath. Shortly thereafter, around midnight, the authorities lost the phone connection. Apparently, the hostage negotiator did not hear the shouting or gasping for breath, because throughout the night the police continued to believe that Positano was alive. The next morning, however, the SWAT team raided the apartment, found Positano’s body, and arrested Trimble.
After being transported to jail, Trimble waived his Miranda rights and confessed to the three murders. Although he claimed that he did not remember killing Renee and Dakota Bauer, he admitted that he must have because “no one else was there.” He later asserted that because of a combination of sleep deprivation and drug addiction, he simply had lost control of himself. Trimble contended that he had not intended to kill Positano, but that the gun accidentally discharged when the police entered the apartment, startling him. Overwhelming evidence at trial, however, indicated that the police had entered' the apartment only once, when the SWAT team found Positano’s body and arrested Trimble. Police found the AR-15 assault rifle and a Sig Sauer 9-mm handgun at the Bauer and Positano residences, respectively. Police matched casings at the crime scenes to these two weapons. Trimble does not dispute that the apparent murder weapons belonged to him.
A grand jury indicted Trimble on three counts of aggravated murder, all with death specifications, as well as three counts of kidnapping, two counts of felonious assault, and one count of aggravated battery with firearm specifications. Trim-ble pleaded not guilty. At trial, the state presented extensive evidence of Trimble’s guilt, including the aforementioned confessions, forensic evidence, and eyewitness testimony. Trimble’s defense focused on why the killings occurred and suggested decreased culpability. The jury found Trimble guilty on all charges.
After the finding of guilt, the case proceeded to the penalty phase. In mitigation, Trimble introduced evidence that he suffered from bipolar disorder and drug and alcohol addiction, that he was a good and dependable worker, that he gave assistance to elderly members of his church and his mother, and that he was remorse
Trimble timely appealed. The Ohio Supreme Court denied relief on all grounds and affirmed Trimble’s death sentences. State v. Trimble,
In 2010, Trimble filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He raised six grounds for relief, only three of which are relevant for this appeal. First, he claimed that the court’s empaneling of a particular juror violated his right to a fair and impartial jury guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution. Second, he claimed that the court’s admission and display of firearms not used in the killings violated his Fourteenth Amendment due process rights. Third, he claimed that prosecutorial misconduct denied- him a fair and reliable sentencing hearing in violation of his Fourteenth Amendment rights. The district court granted Trimble’s petition as to his juror-bias claim and denied relief on all remaining grounds. The court certified an appeal on the juror-bias claim, the admission-of-weapons claim, and the prosecutorial-mis-conduct claim. The Warden appeals the district court’s grant of habeas relief on the juror-bias claim, while Trimble cross-appeals the district court’s denial of habeas relief on the other two claims.
II.
We review de novo a district court’s legal conclusions and mixed questions of law and fact, and review its factual findings for clear error. Lucas v. O’Dea,
III.
The district court granted Trimble habe-as relief because it determined that a particular juror was an “automatic death penalty juror.” The Warden contends that Trimble procedurally defaulted this claim or, in the alternative, the district court erred in its AEDPA analysis.
A.
During voir dire, the trial judge and counsel for both sides asked the juror in question, Juror 139, many questions about his views on the death penalty and the role of a juror. To start, Juror 139 affirmed to the trial judge that his views on the death penalty would not substantially impair his ability as a juror to perform his duty and that he could consider the evidence on the aggravating circumstances and mitigating factors. The prosecutor began his questioning of the juror by explaining the dual-phase capital sentencing structure in Ohio. Juror 139 affirmed that he understood how the process worked. Then, the following exchange took place:
Q. In other words, what I’m asking you, do you believe that just because you found him guilty in the trial stage that he’s automatically now subject to the death penalty?
A. If I find him guilty?
Q. At the trial stage do you now believe he’s automatically subjected to the ' death penalty?
A. Yeah.
Q. You do?
A. If he killed three people he should.
Q. Do you understand in Ohio the law is that you don’t make that decision at that time, do you understand that?
A. How is it? Yeah, I understand.
The prosecutor then asked Juror 139 about his personal opinion on the death penalty. The juror said that he thought “the penalty should be there” because “if you take a life why should you be allowed to live?” The prosecutor explained to him that “in Ohio, again the' law is that if you take a life you may be allowed to live” and explained the sentencing phase again. Juror 139 then answered “yeah” to several questions from the prosecutor as to whether he would follow the judge’s instructions on sentencing and whether he could vote for the death penalty.
The defense began its cross-examination of Juror 139 by following up on his personal views of the death penalty. Juror 139 noted that he had “never really thought about” his views on the death penalty because this “is the first time” he had ever been called to speak about them. He then volunteered that “if you’re guilty, without a reasonable doubt, then if you take somebody’s life your life should go — you shouldn’t be allowed to live either.” Further questioning by the defense on this point elicited the following exchange:
Q. And that is one of the things that I — I made a note of that you felt that, if*775 you take a person’s life you shouldn’t be able to live.
A. An eye for an eye, all that.
Q. That is your feeling?
A. Yeah.
Q. That is how you look at your position as a juror in this particular case?
A. Yeah. What goes around comes around.
Q. So if you were seated as a juror in this particular ease you would come into this whole process with that mind set, that is what you believe regarding the death penalty?
A. If he’s guilty.
After counsel for the defendant again detailed the two-step sentencing structure for Juror 139, the following exchange took place:
Q. After you have made that determination in the first stage, then you move to the second stage, you understand that?
A. Right. We found him guilty, now we go to the second, see which sentence he gets.
Q. Right.
A. If he knew what he was doing at the time, had a clear head, knew exactly, planned out, then he should get the death penalty. But if he was under the influence or something, or not quite right in the head, if you can prove that, then maybe it shouldn’t be so harsh. Either way is bad but then you get the prison time.
Finally, the prosecutor and defense counsel stopped asking questions and the trial judge asked a few questions just to “make sure”:
Q. You’re just about done. I just want to make sure. They have asked you a lot of long questions, hard to follow. Can you follow my instructions at the sentencing phase?
A. You mean—
Q. Whatever the Court would tell you the law is, can you follow the law if the Court would tell you what the law is, can you follow that?
A. Yeah. '
Q. Okay.
A. Whatever the law is, yeah.
At this point, the trial judge released Juror 139 from the courtroom.
Defense counsel immediately objected to Juror 139 as an automatic death penalty juror. The court overruled defense counsel’s objection, finding that “the juror indicated a willingness to follow the Court’s instructions to the law as provided,” and that “the juror indicated he will consider and weigh the factors in mitigation [and] require the State to prove beyond a reasonable doubt the aggravating circumstances.”
Each side had six peremptory challenges for the jury empaneling. The defense used five of its six peremptory strikes, but passed on using the sixth. After the jury was seated, the trial judge agreed to empanel four alternate jurors and gave each side two peremptory strikes for the alternate jurors. The defense used its two peremptory strikes for alternate jurors on two other jurors, causing Juror 139 to be substituted as the first alternate.
The jury as empaneled sat during the guilt phase and found Trimble guilty of the three murders. During the penalty phase, one of the twelve jurors became ill and was excused by the trial judge. Juror 139, as first alternate, replaced the ill juror as part of the jury for the penalty phase. The penalty phase jury subsequently recommended death sentences for the three murders.
On direct appeal to the Ohio Supreme Court, Trimble argued that ' the trial
B.
The Warden contends that Trimble procedurally defaulted his claim about Juror 139 because the Ohio Supreme Court enforced against Trimble its procedural rule that defendants must exhaust all peremptory challenges, and if they failed to do so any objection to a failure to excuse a juror for cause is waived. The procedural rule is encapsulated in State v. Getsy,
“A federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.’ ” Beard v. Kindler,
The underlying rule — that error in the denial of a challenge of a juror for cause cannot be grounds for reversal when the defendánt did not exhaust his peremptory challenges — is certainly firmly established and regularly followed in Ohio. See, e.g., State v. Jones,
As far as we can tell, this precise factual situation has arisen in only two Ohio cases. Of those two, however, the Ohio courts applied the rule in only one, and that case was unpublished. Compare State v. Wright, No. 00CA39,
We note that our decision not to defer to the Ohio Supreme Court’s application of its procedural rule in this case creates some uncertainty as to the appropriate standard of review given the seemingly inconsistent cases from this circuit on the topic of plain-error review and AEDPA deference. Along with its declaration of the procedural rule, the Ohio Supreme Court conducted a plain-error analysis of the juror-bias claim. The Warden submits that in Fleming v. Metrish,
We need not enter this debate, however, because we hold that under either standard of review, AEDPA deference or de novo, Juror 139 was not an automatic death penalty juror. Because he had been rehabilitated by the trial judge, the court committed no constitutional error in allowing him to sit on the penalty phase jury. Because the de novo standard is less deferential, we will analyze this claim under that standard.
C.
In a death penalty case, “a juror may not be challenged for cause based
Even without AEDPA, which would provide the Ohio Supreme Court’s adjudication with an extra layer of deference, this juror-bias claim must still pierce the “special deference” accorded to a trial court’s determination on a given juror’s impartiality. See White v. Mitchell,
Two of our cases serve as bookends to our analysis of this claim. On the one hand, in Williams v. Bagley,
On the other hand, in White,
Occupying the vast space between Williams and White is Bowling v. Parker,
Trimble argues that our case is not Williams. True, but it is also not White. Juror 139 never expressed doubts as to whether he could follow the law and never stated that it would be unfair to Trimble for him to sit on the jury. Although he personally believed in the death penalty in the abstract, there is no indication that he had already decided that the death penalty was appropriate in this particular case. Juror 139 was not relishing his participation in the imposition of Trim-ble’s death sentence because of some personal animosity toward Trimble. Unlike the juror in White, Juror 139 specifically said that he knew very little about Trim-ble’s case. White is a particularly egregious situation in which an individual desired to participate on a jury because she wanted to provide one of the twelve votes for death against a particular defendant. It evinces a true example of what Morgan forbids: a juror who would apply the death penalty in every case. Juror 139 is not such a juror. Compare Morgan,
Instead, what we have here is a juror who was obviously very confused about the dual-phase capital sentencing structure in Ohio. While he did initially state that he would automatically apply the death penalty, Bowling shows that such a statement by itself is not determinative of his suitability to serve on the jury. Juror 139 also seemed to conflate his own personal views of the death penalty with his service as a juror. But the end of the colloquy is telling. Juror 139 stated that “[i]f [the
While our own evaluation of the record is relevant, more relevant is the trial court’s determination that Juror 139 was rehabilitated. We will overturn this determination only if “the cold record alone is so extensive and so persuasive that it outweighs our presumptive deference.” See Franklin v. Anderson,
IV.
Trimble also contends that the Ohio Supreme Court unreasonably determined that the admission of guns owned by Trim-ble but not used in the commission of the murders did not deprive him of a fair trial. During the guilt phase, the trial court admitted into evidence nineteen firearms that Trimble kept in a locked gun safe in his basement but that were admittedly not used in the murders. The prosecution lined the firearms sequentially on two long tables that were placed near the jury box. Shortly after admitting the weapons, the court adjourned for lunch and removed the firearms prior to the afternoon sitting. Then, along with the other exhibits from the trial, the judge allowed the firearms to be brought to the jury room during deliberations in the guilt phase.
The Ohio Supreme Court rejected several of the state’s proffered reasons for the propriety of the admission of the weapons, including showing prior calculation and design, ready access to weapons, or familiarity with weapons. Trimble,
The Warden first argues that Trimble did not fairly present this claim to the state courts. Before seeking a federal writ of habeas corpus, a state prisoner must fairly present his claim to each appropriate state court by alerting that court to the federal nature of the claim. Baldwin v. Reese,
As for the merits, Trimble argues that the Ohio Supreme Court unreasonably applied clearly established Federal law from Payne v. Tennessee,
The Payne standard, however, is a general rule, and “evaluating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado,
Even if there were constitutional error, however, any error was harmless. A constitutional error that implicates trial procedures is harmless unless it had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson,
y.
Finally, Trimble contends that certain questions by the prosecutor during the penalty phase constituted prosecutorial misconduct. Trimble highlights three specific portions of this phase of the trial. First, the prosecutor attempted to elicit from Trimble’s mother that Trimble was discharged from the Air Force by court martial and sentenced to six months hard labor. Trimble’s mother, however, asserted that she did not know the circumstances surrounding his departure from the Air Force. Second, in questioning Trimble’s mother, the prosecutor attempted to admit evidence of domestic violence in Trimble’s previous marriage. Again, Trimble’s mother asserted that she did not know about any domestic violence in the relationship. Finally, failing to extract the evidence from Trimble’s mother, the prosecutor attempted to elicit from a clinical psychologist evidence of domestic violence in Trimble’s previous marriage. In response, the psychologist testified that there was evidence of violence in the relationship.
The Ohio Supreme Court analyzed each statement individually and concluded that there was either no error or that any error was harmless. The prosecutor’s questions to Trimble’s mother were harmless because they elicited nothing more than a negative response from her. Trimble,
The Warden once again argues that Trimble did not fairly present this claim to the state courts. Before the state courts, Trimble argued that the cumulative effect of prosecutorial misconduct during the mitigation phase deprived him of his right to a fair trial as guaranteed by the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. “A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’ ” Baldwin,
On the merits, Trimble contends that the Ohio Supreme Court’s determination on his prosecutorial-misconduct claim was an unreasonable application of Darden v.
Here, Trimble cites to no Supreme Court case besides Darden in support of his argument. Although the prosecutor’s questions may have been improper, no Supreme Court case authorizes this court to grant habeas relief for prosecutorial misconduct based on questions posed to witnesses about discharge from the military and prior domestic abuse, questions determined by a state court to be insignificant or harmless. We conclude that the Ohio Supreme Court’s judgment regarding this claim of prosecutorial misconduct is not an unreasonable application of federal Supreme Court precedent.
Even if there were constitutional error in this case, the error was cured. While we independently believe that any prosecutorial misconduct did not tip the scales against Trimble during the penalty .phase, the Ohio Supreme Court’s decision to reweigh the aggravating and mitigating factors definitively cures any potential error from the alleged prosecutorial misconduct. See Moore v. Mitchell,
YI.
For the foregoing reasons, we REVERSE the district court’s grant of habe-
Concurrence Opinion
concurring in part and dissenting in part.
The Sixth Amendment confers on defendants an absolute right to an impartial jury. Adherence to this constitutional guarantee is literally a matter of life and death in the context of a capital case, where a state may not impose a death sentence if even a single member of the empaneled jury was not impartial due to his or her views on capital punishment.
The issue concerning the “automatic death penalty” juror does not in this case turn on the deference that is rightfully owed to a trial court’s credibility determination, as neither party is questioning the juror’s sincerity respecting his views on the death penalty. The pertinent issue in this case is whether the juror, given the totality of his voir dire testimony, could reasonably be expected to fairly apply the law when asked to do so by the court. Supreme Court precedent instructs that a juror’s affirmative assurance alone, irrespective of credibility, is not dispositive, because “[i]t may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so.” Morgan v. Illinois,
BACKGROUND
James Earl Trimble, on the evening of January 21, 2005, senselessly killed his girlfriend, her minor son, and a complete stranger, altering irrevocably the lives of many others who endured the loss of their loved ones on that fateful night. Trimble was indicted on three counts of aggravated murder, each including a death penalty specification (e.g., murder of a child under 13 years of age, the killing of two or more people, murder as part of a prior calculation and design, and murder in connection with a kidnapping). Trimble’s trial was split into two segments: the guilt phase and the sentencing phase. In the first phase, Trimble was found guilty on all counts including the death penalty specifications. In the second phase, the jury was instructed to decide, by weighing the aggravating factors associated with each of the murders (ie., the specifications) against Trimble’s mitigation evidence, whether or not Trimble should be sentenced to death. The jury found that the aggravating factors outweighed the mitigating circumstances and accordingly voted for the death sentence. At issue in this appeal is whether one of the empaneled jurors during the sentencing phase of Trimble’s trial could serve as an impartial juror by following the law and fairly considering Trimble’s mitigation evidence.
Although the majority excerpts a few of the relevant passages from Juror 139’s testimony, the majority opinion fails to offer the full context and flow of his voir dire. A more detailed review is necessary because a reviewing court is required to “examine the [entire] context surrounding” the prospective juror’s questioning. Darden v. Wainwright,
At the outset, the district court explained Ohio’s bifurcated sentencing scheme to Juror 189. The judge asked if Juror 139 could vote for a death sentence if the aggravating factors outweighed the mitigation evidence, and Juror 139 responded, “Yes.” (App’x Vol. 5, Voir Dire Tr. — Part 8, at 1312.) He then asked if Juror 139 could instead vote for a life sentence, if the reverse was true, tó which Juror 139 responded, ‘Yeah.” (Id.) He also affirmed that he would, in general, be able to follow the judge’s instructions.
It was then the prosecutor’s turn to ask questions. He also began by explaining, for a second time, the separate phases of a death penalty trial in Ohio — first, the guilt phase, followed by the sentencing phase. Juror 139, again, initially said that he understood the process. (Id. at 1313 (“Yes, I understand that.”).) However, Juror 139’s responses to the prosecutor’s questioning offered the first indication that he might not be able to follow the law or the judge’s instructions, but would instead be an automatic death penalty juror. When Juror 139'indicated that he might be confused about the sentencing phase, the prosecutor asked directly whether Juror 139 thought that Trimble was “automatically ... subject to the death penalty,” if he was found guilty. (Id. at 1314-15.) As recognized by the majority, see Maj. Op. at 774, Trimble responded, “If I find him guilty,” “Yeah,” and “If he killed three people he should [get the death penalty].” (Id. at 1315.) Despite his unequivocal response to a direct question that indicated his misconception respecting his duties, Juror 139 again asserted that he understood that “in Ohio the law is that you don’t make [the death penalty] decision at that time,” ie., immediately as a result of finding the defendant guilty. (Id.)
The prosecutor thereafter explained to Juror 139 for the third time (the prosecutor’s second attempt) that in Ohio, sentencing is decided after the guilt phase of the trial. Juror 139 asked a number of questions that indicated his confusion. Yet, the prosecutor pressed forward stating, ‘You’re understanding that right one or the other [meaning life or death] and something that happens after the trial, okay?” (Id. at 1316.) Juror 139 assented that he understood that much. But immediately following this exchange, Juror 139 further demonstrated that he would be an automatic death penalty juror. When asked for his opinion on the death penalty, he acknowledged that it served a purpose and then, unprompted, he asked rhetorically, “Because if you take a life why should you be allowed to live?” (Id. at 1317.) The prosecutor responded by reminding Juror 139 that a person convicted of murder might be entitled to live under Ohio law. Juror 139 responded, by asking, “Depending on why [the defendant] did it[ — committed the murder]?” (Id.) It was plain from this exchange that Juror 139 remained confused and ignorant of his obligation to weigh mitigation evidence. For that reason, the prosecutor carefully explained to Juror 139 for the fourth time (his third attempt) that the death penalty was only appropriate if the jury had decided during the sentencing phase that the aggravating factors outweighed Trimble’s mitigation evidence. Juror 139, again, in very few words, indicated that he supposedly understood the information being conveyed to him by the prosecutor.
The prosecutor next told Juror 139 that it was Trimble’s “job ... to convince you to not vote for the death sentence and [he] ha[s] a right to present that evidence.” (Id. at 1318.) The judge sustained an
Next, it was defense counsel’s turn to ask questions. However, Juror 139’s responses to those questions plainly revealed his persistent ignorance with respect to a juror’s duty to consider mitigating evidence, and in unprompted remarks, he reaffirmed his preference for applying the death penalty to anyone who was found guilty of murder. In response to being asked whether he had ever been called on to discuss his views on the death penalty, he responded not by answering the question, but by clearly stating his view, “I just, if you’re guilty, without a reasonable doubt, then if you take somebody’s life your life should go — you shouldn’t be allowed to live either.” (App’x Vol. 5, Voir Dire Tr. — Part 9, at 1321.) This response constituted the third time that Juror 139 had made an unequivocal statement indicating that he would be an automatic death penalty juror. He followed up by confirming that his mindset as a juror would be “[a]n eye for an eye” and “[w]hat goes around comes around.” (Id. at 1322.) Juror 139 made clear in no ambiguous terms that Trimble deserved to die, so long as he was found guilty.
At this point, defense counsel explained to Juror 139 for the fifth time (his first attempt) that in Ohio a death penalty trial involved two stages, and that a jury, necessarily, could only decide whether Trimble should be sentenced to death after the jury had already found him guilty of aggravated murder with the death penalty specifications, and that the later determination regarding the penalty was separate and apart from Trimble’s guilt. The defense counsel meticulously walked through the guilt phase of the trial — explaining to Juror 139 that in order to find Trimble guilty on all counts, the jury would have to find that the prosecution met its burden of establishing each of the death penalty specifications: the killing of two or more people; that the murder was part of a prior calculation and design; and that one of the murders happened in the course of a kidnapping. Defense counsel thereafter explained that it was only at this point, after the jury had found Trimble guilty of aggravated murder with the death penalty specifications, that the jury could weigh those specifications against Trimble’s mitigation evidence and decide if he should be sentenced to death. When asked if he understood after each step of the explanation, Juror 139 simply replied, ‘Yeah,” or “Uh huh.” (Id. at 1322-25.) At the end of that dialogue he offered his understanding of process:
If he knew — what you guys are saying, if he already knew what he was doing, or whatever, then he should get the death penalty. But if he’s like for some reason off and whatever, then maybe just prison or something like that, is that what you mean?
(Id. at 1325.) It is evident from this statement that even after defense counsel’s thorough explanation — the fifth explanation that Juror 139 had received — Juror 139 continued to conflate the guilt and penalty phases. He failed to comprehend that mitigation evidence was distinct from potential affirmative defenses to aggravat
Defense counsel made a final attempt to resolve Juror 139’s misconceptions. He explained to Juror 139 for the sixth time (and at great length) the distinctions between the guilt and penalty phases of a capital trial — specifically identifying to Juror 139 what was so troubling about his previous explanation of the penalty phase. Defense counsel highlighted for Juror 139 that the jury would necessarily have to find that the murders were planned and purposeful prior to the penalty phase, if the jury was then being asked to weigh mitigation evidence in consideration of the death penalty. Juror 139 thereafter made a final attempt to explain his understanding with respect to whether he would be an automatic death penalty juror — that attempt failed just as clearly as had his earlier attempt at offering his understanding of his role on the jury. He stated:
If he knew what he was doing at the time, had a clear head, knew exactly, planned out, then he should get the death penalty. But if he was under the influence or something, or not quite right in the head, if you can prove that, then maybe it shouldn’t be so harsh. Either way is bad but then you get the prison time.
(App’x Vol. 5, Voir Dire Tr. — Part 9, at 1329 (emphasis added).) Defense counsel shortly thereafter concluded his questioning; presumably believing that he could easily have Juror 139 removed from the jury pool as an automatic death penalty juror.
At that point, the judge explained to Juror 139 for the seventh time the distinction between the two phases of the trial because he “just want[ed] to make sure” that Juror 139 truly understood the process. (Id.) He then asked whether Juror 139 knew that it was his obligation to follow the court’s instructions. Juror 139 replied affirmatively, just as he had at the very beginning of his voir dire testimony. The judge found that Juror 139’s testimony overall supported a finding that Juror 139 would consider the mitigation evidence and that he would follow the court’s instructions, and on those bases, the judge overruled defense counsel’s objection that Juror 139 should be excused for cause as an automatic death penalty juror. There is no reading of these facts under any standard of review that should lead a reasonable and objective person to conclude that Juror 139 would be able to faithfully execute his duties on the jury by impartially sitting in judgment and following the law, which would require him to consider the possibility of a life sentence even after he found that the murders were committed by an individual who was of a sound mind and who had planned the killings in advance.
DISCUSSION
I. Standard of Review
As an initial matter, it is worth addressing the standard of review. Despite the majority’s contentions, the law of this Circuit clearly commands that de novo review applies to a case such as this one, where the state court did not consider the claim on the merits because it only applied plain error review after incorrectly finding that the claim was procedurally defaulted.
Plain error review “is not equivalent to a review of the merits”; rather, it “is more properly viewed as a court’s right to overlook procedural defects to prevent manifest injustice.” Lundgren v. Mitchell,
A juror’s ability to impartially apply the law is a factual issue, Franklin v. Anderson,
II. Analysis
“Jurors who cannot apply the law are not impartial.” Franklin,
The majority frames this issue as concerning the “special deference” due to a trial judge’s credibility determinations, because only the trial judge is in the position to take note of a prospective juror’s “demeanor” and “body language.” Maj. Op. at 778-79. That contention is unpersuasive in the context of this case. Demeanor and body language are only relevant when the juror’s credibility is at issue, typically, because the testimony is inconsistent, the juror’s answers are ambiguous, or because the trial judge has indicated that credibility is an issue. None of those factors are present in this case. The trial judge did not invoke credibility as being at issue; he simply determined that Juror 139’s attempts to explain his understanding of the sentencing procedure, along with his affirmation that he would follow the judge’s instructions, were sufficient to overcome his statements indicating a clear preference for the death penalty. This determination, to credit certain snippets of testimony reflecting Juror 139’s willingness to follow instructions over his clear and unequivocal expression of his views on justice meaning “[a]n eye for an eye,” (App’x Vol. 5, Voir Dire Tr.- — Part 9, at 1322), does not reflect a credibility determination. See Morgan,
The majority is only able to reach its conclusion through its strained employment of out-of-context quotations from cases that it designates as the metes and bounds of Sixth Circuit death penalty jurisprudence. Relying on Bowling v. Parker,
In this ease, all of the evidence indicates that Juror 139 single-mindedly favored the death penalty and that he would possibly consider a life sentence only if the defense could prove that Trimble “was under the
The majority contends that the most important thing to consider is that the trial judge thought Juror 139 had been rehabilitated simply because he offered affirmative responses when asked whether he would consider mitigation evidence and whether he would follow the court’s instructions. However, Juror 139’s affirmative responses to rote questions are an insufficient basis alone to uphold the trial court’s judgment. See Darden,
Seeing no rational basis for overturning the district court’s judgment granting ha-beas relief, I respectfully dissent.
Notes
. The following statements are presented in chronological order.