Smith v. Bradshaw

(6th Cir.1987)). Thus, is had left her home.5 there Coulter of light the scant of Guilmette’s had probability the a reasonable his was even guilt, counsel’s ineffectiveness challenge the match of the expert an heard it prejudicial more could otherwise Guilmette’s footprints, or even heard two have been. prosecution’s the cross-examine counsel discrepancies be- witness on the expert Thus, I dissent. respectfully the would photographs, the tween acquitted Guilmette.

have prejudice is farther claim of

Guilmette’s of the by prosecu- weakness

supported the Court has ex- tion’s case. The SMITH, Petitioner-Appellant, Steven that “a verdict or conclusion plained record weakly supported by the is more BRADSHAW, Margaret Respondent- by than to have affected errors likely been Appellee. overwhelming support.” record one No. 07-4305. 2052; Strickland, Carter, F.3d Clinkscale Appeals, Court of United States Cir.2004). eyewitness identi- McCormick’s Circuit. Sixth Guilmette, the solid evi- fication of July Argued: 2009. crime, linking to the dence Guilmette Filed: Decided and Jan. 2010. tentative, at trial. especially We weak “ Rehearing Rehearing En Banc expressed ‘grave our repeatedly have Denied March 2010. reliability concerning the of reservations ” Clinkscale, testimony.’ eyewitness Foltz, (quoting at 445 Blackburn v. plane doorway. to of the How- majority have foot cross the 5. The asserts could ever, entry footprint important the in the Law has an caveat: an found even without this doorway kicking object stay because in door without tends to motion un- in motion in 512), entering "impossible” (supra at is as upon less an external Similar- acted force. to, using Law, opposed apparently, crowbar to ly, every Third for ac- under Newton’s open a unclear what force door. It is on equal opposite reaction. tion there is an certainly door, here, this made. It is basis assertion is applied person when a kicks a As record, per- anything on in the so not based equal opposite the door an force in the sends unrecog- haps it is based some heretofore kicker, on leg acting up of the direction my species judicial notice nized of based on provided force” in the First "external colleagues’ experience kicking in extensive Thus, essentially kicker Law. unfortunately doors. I cannot comment on bounce due to the on his back reverse force observation, veracity having not their body part no of him would cross the so that opportunity statistically in a had the to kick threshold, falling through than rather forward my lifetime. sufficient set doors in door, majority suggests physi- as the is a cal, certainty. legal, If I were take notice of information out- However, just as I have no basis from record, look to side of I would Sir Isaac Motion, judge majority's which assertion be- Newton’s Laws of with which I am experience kicking in cause I have little doors, marginally high physics. school familiar from my rely real I have no basis to according correctly, If I recall Newton’s Law, understanding physics at issue because object stay an tends First in motion Thus, physicist. judge, I am a I look support provides This some for the motion. making solely in the person to the evidence record in majority’s reasoning that when kicks my legal the circumstances leg gives way, determinations: at a and the door his door picture footprint regarding disputed person’s should continue in the momentum kick, necessarily causing on the threshold. direction of the Background

I. 28,1998, September living On Smith was girlfriend, Keysha Frye, with his and her Ashley young daughters, two-year-old two evening, Autumn. and six-month-old That he, Frye, Smith drank three beers while and the children visited a friend. theOn home, way bought twelve-pack drank one in car. beer and Once back Frye’s apartment, Frye put at Smith and bed, the children to then watched televi- Frye sion had sex. and went to bed p.m., stayed up around but 11:00 Smith drinking. a.m., approximately

At 3:22 Smith woke Frye by placing body Autumn’s naked Frye next to her. realized that Autumn breathing was not and accused Smith of Wilhelm, Joseph E. ARGUED: Federal her; killing Smith threw an alarm clock Office, Cleveland, Ohio, Public Defender’s that Frye and said she was not dead. Wille, Appellant. for L. Charles Office of quickly body Ashley took Autumn’s and General, Columbus, Attorney the Ohio neighbor’s apartment, screaming that Ohio, Appellee. for BRIEF: Joseph ON had baby. Smith killed her Smith fol- Wilhelm, E. Federal Public Defender’s Of- lowed, exclaiming that any- he “didn’t do fice, Cleveland, Ohio, Appellant. for thing” asking “why and fucking was she Wille, Charles L. Office Ohio Attor- lying,” neighbor but the did not let him in. General, Columbus, Ohio, ney Appellee. later, A short while neighbor another ob- bag served Smith throw a trash in the BATCHELDER, Before: Judge; Chief dumpster say and heard Smith that he did GILMAN, and BOGGS and Circuit anything leaving. not do and that he was Judges. neighbor This convinced Smith leave. BOGGS, J., delivered the arrived, police they When the no saw court, BATCHELDER, C.J., in which signs entry Frye’s apartment, of forcible GILMAN, 527-30), joined. (pp. J. they and found the television on and ex- delivered a separate concurring opinion. tremely They loud. discovered Autumn’s pink baby sleeper under the coffee table OPINION jeans and Smith’s cutoffs and near the They couch. also found whitish-colored BOGGS, Judge. Circuit material, later pieces determined to be Steven is an diaper, Smith Ohio inmate sen- shredded scattered on the floor in area, tenced to raping murdering death for and piles same and of Autumn’s hair affirm baby. a six-month-old We the dis- were found police on coffee table. The trict court’s denial of a writ of garbage bag habeas also retrieved a from the corpus. dumpster outside trash that contained a t-shirt, torn and ten ions and on baby diaper, pink sleeper. her No semen was found. empty beer cans. testimony Smith officer, an offered the Smith board- approached

When exclaimed, certified it, toxicologist support “I forensic didn’t do I his preemptively intoxication it”; police defense. The he smelled of tested didn’t do alcohol Smith’s blood-alcohol level at 11:00 swayed forth while At a.m. on speaking. back and station, September approximately told seven police detectives hours arrested, after he was beers as 0.123%.The night. that he had drunk four that toxi- cologist Frye result, testified based on this gone He that he and had stated Smith’s blood-alcohol level would midnight bed at and that he awakened have been at possibly high least 0.36%and as by Frye, accusing killing who was him of as later, p.m. September 0.60% 11:30 changed Autumn. A month 28. Smith also offered evidence that he telling con- drank story, police he had beers, many as night, fifteen beers that nine awoke sumed he and, that he was an alcoholicwho drank believing heavily at 3:25 a.m. downstairs Autumn, frequently blacked out. something wrong car- putting ried her He also upstairs. denied guilty found Smith as charged dumpster. trash in the and him sentenced to death. The Ohio Supreme Court affirmed Smith’s convic- charged with aggravated was tion and State v. appeal, sentence on direct killing a raping murder for and child under Smith, trial, Ohio St.3d 780 N.E.2d 221 of thirteen. At age the coroner (2002), Appeals and the Ohio Court de- performed autopsy who exten- testified petition nied his postconviction for sively, review. using autopsy photographs and petition The district court denied Smith’s that explained slides. He Autumn died a for writ habeas corpus. ap- from compression asphyxia and trau- blunt peals, a having ap- received certificate of injuries ma to the head. The to her head (1) pealability on four claims: that cheek, forehead, on her the abrasions prosecutor improperly commented on his that she lying chin indicated on (2) testify; failure to the penalty- her and that her had been abdomen face phase jury misleading; instructions were pillow. forced into a Contusions to her (3) constitutionally that counsel was inef- they subject buttocks indicated that were object failing fective for to the mislead- pressure weight from the of another ing penalty for instructions and not re- person. bruising and Other abrasions re- instructions; (4) questing clarifying vealed that Autumn had resisted the at- that the trial court should have instructed tack. She also suffered subarachnoid and included the lesser offense of hemorrhages retinal consistent with shak- involuntary manslaughter. baby impact syndrome, indicating en restrained, she had been and she II. Standard of Review head, hair from the back of missing her suggesting forcefully that the attacker court has “adjudi had When state Furthermore, it. her cated ... grasped clitoris was the merits” of defendant’s red, claim, vagina may only grant her was ten times normal we a writ of habeas baby age, corpus size if for her there was the state court decision “was anus, contrary to, all hemorrhage her indicative of or involved an unreasonable of, application clearly Au- attempted penetration. Additionally, established Federal law, by Supreme blood was found on cush- tumn’s two seat determined Court,” or “was based on an unreasonable state courts regularly do not enforce light determination of the facts in contemporaneous objection Ohio’s rule is presented pro “squarely the State court precedent. foreclosed” our 2254(d). Bradshaw, § ceeding.” adju An U.S.C. Nields v. 482 F.3d Cir.2007) contrary dication on the merits is to clear (holding that Ohio’s state courts ly if, established law “applied Court for have not contemporaneous its ob- example, the “state applies jection court a rule unevenly rule and inconsistently” governing contradicts the law set regard prosecutorial misconduct claims). [Supreme forth Court] cases.” And he cannot excuse his default 362, 405-06, Taylor, Williams v. 529 U.S. through the ineffectiveness of counsel be- 146 L.Ed.2d 389 cause he cannot show that counsel’s failure adjudication An on the object merits unreason to this one thereby comment— ably applies Supreme if, Court law drawing attention to it—was deficient. example, Mitchell, “the state court identifies the Lundgren 774- (6th Cir.2006) governing legal correct rule ... but unrea (“[A]ny single failure to sonably applies partic it to the facts of object closing arguments] [to usually can- ular prisoner’s state case.” Id. 120 not be said to have been error.... [De- application S.Ct. 1495. The must be “ob fense counsel must so consistently fail to unreasonable,” jectively merely objections, incor use despite numerous and clear 409-10, 120 rect. Id. at so, S.Ct. 1495. When doing reasons for that counsel’s failure adjudication a state court’s on the reasonably merits is cannot have been said to have contrary either to or an ap unreasonable part been of a trial strategy or tactical choice.”). plication clearly established precedent, Court we “must then resolve Misleading IV. Jury Instructions

the claim without the deference AEDPA requires.” Quarter otherwise v. Panetti We address Smith’s second and man, 930, 953, 127 2842, 551 U.S. S.Ct. 168 third together claims because both relate (2007). L.Ed.2d 662 to the penalty-phase jury instructions. Smith’s second claim is that penalty the III. Prosecutorial Misconduct instructions violated Caldwell v. Mississip Smith’s first claim pros 320, is that the pi 2633, 472 U.S. 105 S.Ct. 86 improperly ecutor commented on fail (1985), L.Ed.2d 231 they because “affirma testify ure to during guilt phase the by tively jury] misled regarding [the its role telling jurors themselves, the to ask “[d]id the sentencing process,” Romano v. accident, claim Oklahoma, [Smith] 1, 9, he didn’t do 512 U.S. 114 S.Ct. purpose?” (1994). this on See 129 1 law, L.Ed.2d Under Ohio Griffin Califor nia, 609, 615, 380 U.S. 14 jury must unanimously recommend the (1965). L.Ed.2d 106 proce thus, This claim is penalty; death solitary juror “a may durally defaulted: object Brooks, counsel failed to prevent” it. State v. 75 Ohio St.3d trial, to the comment at (1996). and the state court 661 N.E.2d Smith procedural enforced the bar reviewing contends that wrongly the instructions the claim for plain error. Sey suggested See jury that the required to Walker, mour v. reject penalty unanimously, death rath Cir.2000). er than to unanimously. choose it

Smith asserts that we should not This claim is also procedurally de enforce his default. But his claim that the faulted. object Counsel did not to the was also not sug- Smith’s counsel inef wrongly instructions given. an failing request enforce fective for to additional court did not that the state gests instruction, juror” “solitary to which Smith because it did not dis- ” bar procedural law, Brooks, was entitled under Ohio ‘plain “in terms of error.’ claim cuss this if jury-instruc- N.E.2d at 1042. Even Smith’s counsel the several reviewing After failing request for was deficient for preserved had claims that Smith tion instruction, cannot the re- additional show stated: “As for appeal, the court that the jury probability instruc- reasonable instruction regarding maining arguments to a outcome: the objec- an would have led different tions, did not raise since Smith adequately informed analysis”; given it instructions as tion, plain-error apply we alia, Thus, prevent jury single claim. rejected, inter this then bar, an additional penalty, see the death and thus procedural the court enforced instruction would not have told the at 557. Seymour, F.3d anything already it did not know. claim that his coun third is object failing ineffective for sel was Lesser-Included-Offense Instruction Y. misleading instructions as penalty claim that Smith’s final is the trial court an additional instruction requesting for not refusing to instruct erred solitary juror could stating that a explicitly involuntary manslaughter. In capital penalty. the death See Strickland prevent cases, requires Beck v. Alabama 668, 687, 104 S.Ct. Washington, 466 U.S. noncapital be instructed on a lesser- Although the 80 L.Ed.2d 674 if, if, offense “the evi included claim on the mer rejected court this state permit jury rationally dence would its, it de novo because Smith we review guilty find of the lesser [the defendant] argues that it excuses the default also greater.” him of acquit offense and Yanai, 501 claim. See Girts v. his second 625, 635, 447 U.S. (6th Cir.2007). (“[Cjounsel (1980) (internal quotation L.Ed.2d 392 a failure to raise ineffective for cannot be omitted). explained Beck marks merit.”). The instruc an issue that lacks unquestionably the evidence estab “when impose “You shall the death tions stated: guilty that the defendant is of a lishes unanimously only you all 12 sentence if of serious, violent offense—but leaves some penalty appropri the death is find [that an that respect with to element doubt ate], impose one of the life You shall of justify capital would conviction of a you if 12 verdicts all do imprisonment give jury failure to the the fense—the unanimously pen find the death [that not in option’ convicting of a lesser ‘third added). (emphasis alty appropriate]” is inevitably offense would seem to cluded unmistakably jury the This informed of an unwarranted convic enhance the risk endorsed penalty the death must be tion.” Id. S.Ct. 2382. juror that one could every juror, and thus law, involuntary Bagley, v. 492 Under Ohio prevent it. Hartman Cf. (6th Cir.2007) 347, (rejecting manslaughter is a lesser included offense 362-65 F.3d murder, instruction, distinguished by aggravated the an identical claim about Camp to kill. v. unanimously agree the lack of intent State you ... cannot “[I]f 339, bell, N.E.2d 349 appropriate], is ... 69 Ohio St.3d penalty that the [death sentence]”). that the trial court Smith contends [impose then a life you will jury instructed the on involun instructions or the should have aspect No other of the because, while there clarity. tary manslaughter forms undermined this verdict analysis, also is well that Smith more but fails.1 It overwhelming evidence was that a lesser-included-offense Autumn, evidence of established and killed the raped required is not where the facts instruction allow a voluntary intoxication would strongly so intent to of a murder indicate whether jury reasonably to doubt rational rationally kill could not have kill state court intended to her. The he as to a reasonable doubt the defendant’s merits, carefully this claim on the denied See, Evans, e.g., Hopper v. intent. recounting injuries and conclud- Autumn’s 72 L.Ed.2d could that no reasonable have ing (1982) the (denying Beck claim where her, kill found Smith did not intend testimony that he defendant’s evidence brutality the given and duration during victim in the back an shot crime. any robbery “affirmatively negated armed contends that the state court’s he did not claim that intend to kill an contrary is both unrea- decision to and victim”); Campbell Coyle, v. application argues He sonable of Beck. Cir.2001) (holding 543-44 that the de- contrary that the decision is to Beck be- Beck claim fendant’s failed because not, fact, the court did in determine cause and location of the five number victim’s reasonably a rational whether “compelled stab wounds reasonable kill; rather, doubted his intent to he have possessed [defendant] find that rejected that the court his claim maintains kill,” despite strug- intent to evidence of a because he did not only provide Parker, also gle); Slaughter see specific of a intent to molest Autumn and (6th Cir.2006) (rejecting F.3d 236-38 sup- the evidence because was sufficient Beck claim the alternative because port argument verdict. This fails. the victim bludgeoned “facts [that court pro- noted that Smith had not the head and stabbed five foreclose times] any evidence of vided an intent that [the the conclusion acted defendant] Also, rather molest than to kill. intent”); any with mental state other than never admitted that he molested her. Bell, Abdus-Samad And, while the state is court’s (6th Cir.2005) (rejecting a Beck claim ideal, plainly it did not the verdict review the alternative because fact that “[t]he [the for the sufficiency of the evidence: pistol shot the victim with a defendant] rule, properly the court it recited Beck’s impossi- five to six times makes it virtually applied relied three cases that properly accidental”). killing ble to find Beck, analysis and its is consistent This law reflects view case the sensible “pre- Beck. Smith has failed to rebut matter, general as a violent repeated sumption that state and follow courts know conclusively proves conduct to kill. intent law,” Visciotti, v. 537 U.S. Woodford death reflects Autumn’s such conduct: 24, 19, 357, 154 L.Ed.2d 279 minutes, thirty violently ten to Smith (2002) curiam). (per raped baby, during a six-month-old which Smith’s argument baby that the state time the resisted the attack and unreasonably requires forcibly applied by forcing court Beck Smith subdued her her Cir.1988) (same), reject we 1. Because on the grounds Smith's claim overruled on other merits, Collins, by we need not recognized decide whether harmless as Vanderbilt v. 994 189, (5th Cir.1993), apply review can Gerlaugh error to Beck claims. Com- 195 v. F.2d with Gibson, Stewart, (9th Cir.1997) Hogan pare 1312 n. 197 F.3d 1031 129 (10th Cir.1999) not); (holding (applying it does that Brecht's harmless error standard to (5th claim). Lynaugh, Cordova 838 F.2d a Beck hair, only to or frighten in the back intended ripping out her pillow, a face into her, deadly Campbell, physically In it was not causing and blunt wound. shaking Compared head. struggle to her that an assailant in a impossible force trauma from overwhelming proof of intent strike five in the chest while might wounds brutality, persistent directed but, such only Judge to disable as intending evidence, which was intoxication Smith’s showed, ably there a con- Gilman’s testimony that he any not connected impossible clusion need not be to be unrea- intent, any does not to form was too drunk Similarly, 260 F.3d at 543-44. sonable. him rationally acquit of allow in Slaughter wounds delivered in Bagley, Palmer v. aggravated murder. Cf. in principle could have been Abdus-Samad Cir.2009) (6th Fed.Appx. 99-100 intending flailing inflicted assailant jury could not rational- (concluding “that a action, only minatory but there was no defendant] that lacked ly [the have found theoretically possible evidence that this sit- kill each victim” intent specific occurred, just uation our case there is in the head at were shot twice where both from could rea- no evidence which “execution-style,” despite the range, close sonably draw conclusion severely he was evidence that defendant’s outrage, killing. intended some but not LSD, from alcohol intoxicated the evidence showed not particular, struggle, and his testimo- there had been simple asphyxiation, might theory which kill vic- not intend to ny that he did only by weight have been caused Smith’s tims). Therefore, say cannot the state we baby on the in the course of a pressing was unreasonable. court’s decision Instead, directly rape. may compared usefully be case Smith’s trauma to showed blunt the head and previous two the cases cited baby impact syndrome, shaken indicative fundamental claim is Smith’s paragraphs. purposefully applied. force of lethal reasonably leap make the that a to the conclu- from his obvious intoxication if And even the state court’s kill Autumn did not intend to sion that he unreasonable, analysis under Beck were And, certainly physically or Frye. it is analyze claim we would under de that he did not harbor logically impossible review, novo 551 U.S. at Panetti intent, fact because the ultimate such an reject it evi because his S.Ct. inferred, only be rather than intent can as a dence of intoxication was insufficient ever known. negate intent to kill. matter of state law to However, seeks from a what Smith re A lesser-included-offense instruction is faith, not an inferential leap would be a only where “the facts of the case quired on evidence. We note leap based laws the State warrant such an and the contend, through his own did not Black, instruction.” Hill v.

testimony any type or other of circumstan- Cir.1990) added); (emphasis cf. evidence, that he intended moles- tial Reeves, 88, 95-99, Hopkins v. 524 U.S. tation, killing. position but not His basic (1998) (holding L.Ed.2d 76 that no molestation occurred. always was instruction requires that Beck are lesser included offenses crimes that above, equally it was In the cases cited Florida, law); Spaziano v. 468 under state physically logically or true that it was not 3154, 447, 456-57, 104 S.Ct. 82 no intent to kill. impossible that there was (1984) (holding that a lesser- L.Ed.2d 340 impossible that a Hopper, it was not was not re- included-offense instruction that struck the victim gunman firing a shot kill “[o]nly state-law fendant’s intent quired when lesser offense’s where run). of limitations had defendant so intoxicated as be statute mentally anything.”2 unable to intend may states Egelhoff, Under Montana v. Otte, 555, State v. Ohio St.3d of volun regulate when—or if—evidence 711, (1996). Thus, be- N.E.2d even specific intent. tary negate intoxication can (not here) claim lief a made that 518 U.S. rape, intended but not mur- agree with our L.Ed.2d 361 We der, justify would not the instruction. circuits unanimous sister apparently rejected court request The state Smith’s on vol Egelhoff, Beck claims based given instruction, voluntary-intoxication for a untary negates intoxication that intent will concluding the evidence demonstrat- sat fail unless evidence of intoxication ed that at [some]thing” he “intend requirements negat the state law isfies time of murder. Smith’s claim See, Mullin, ing e.g., intent. Spears holding that this was error was not certi- (10th Cir.2003) (apply 1244-45 appeal, fied for and the state court’s ing Oklahoma’s rule that the defendant holding therefore forecloses his Beck must be “so that his mental intoxicated law, claim: as a matter of state Smith’s were that the intoxi abilities overcome or intoxication could not create prevented acting him cation from reasonable doubt as to his kill. intent to malice”); Lee, Skipper v. 238 F.3d 414 (4th (Table), *5 WL Cir. Nonetheless, agreement we note our 2000) (applying North rule that Carolina’s with the state court’s conclusion. As we produce the defendant must “substantial above, explained the facts of the crime support evidence which would conclusion demonstrate Smith could “intend judge he was so intoxicated [some]thing.” So do his immedi- actions that he could not form a deliberate and ately and after before the murder. Smith premeditated kill”); intent to Goodwin v. apparently enough up aware to: turn Johnson, 132 F.3d 191-92 Cir. on the the volume television to out drown 1997) (holding that of [Texas] “the laws cries; baby sleeper Autumn’s remove her our finding foreclose violation on Beck her apart diaper; carry body tear her the basis [of] evidence of [the defendant’s] mother; her upstairs to have conversa- voluntary intoxication” Texas does because neighbors tions with the police, and the voluntary not allow to negate intoxication deny responsibility for her re- death intent); Lewis, Clabourne v. peatedly; up clean the evidence (9th Cir.1995) (explaining 1379-81 that in away. murder and throw it These are evaluating Beck claims on intoxi based aimless uncontrolled actions anof cation, the court must “first consider incapable “intending] any- individual Arizona recognizes whether intoxication as Otte, thing.” 660 N.E.2d at 720-21 Cf. premeditation a defense to the element of (finding that the defendant “so was not murder”). first-degree as to mentally intoxicated be unable conviction, because, At the time of anything” alia, Ohio intend inter he voluntary law allowed up intoxication to turned volume television cries, “create reasonable to” the de- doubt as drown out the victims’ he shot them 2. Effective October eliminated determining Ohio into consideration in the exis- voluntary specific intoxication as a defense to tence of a mental state that of a is an element 2901.21(C) § See intent. Ohio Rev.Code offense.’’). criminal (“Voluntary may intoxication not be taken scene); head, guilt a verdict of of a lesser included the crime er in and he left the offense, Tillman, 1682, non-capital and the evi- [where] at 2000 WL *3 State a 1999) supported dence would have such ver- (Ohio (rejecting a re- App. Dec. at 100 S.Ct. 2382. dict.” U.S. voluntary-intoxication instruc- for quest case, Beck, in petitioner Gilbert was able to ride where the defendant tions robbery in an accom- a with participated physical acts “complet[e] the a bike and 629-30, at 2382. Beck plice. Id. S.Ct. necessary part getting for his aboard kill maintained that he never intended to vehicle,” absconding with [the victim’s] victim, accomplice and that his unex- assault of the and where defendant’s the man after pectedly struck and killed cognitive “the wherewithal victim indicated him to a chair. Id. Beck had bound vehicle’s owner understand that to getting away to impediment as an stood charged The state Beck with intentional Adkins, crime”); State killing during robbery, the course of a 1997) (Ohio Feb.ll, App. at *3 WL judge precluded by the trial a state voluntary-intoxi- (rejecting request a instructing jury statute from as to the because, although the instructions cation felony offense of lesser-included murder. give to was too intoxicated defendant at 2382. After Beck Id. arrest, police upon to he had statement death, pun- convicted and sentenced car, have a conversa- been able drive upheld ishment was the Alabama Su- tion, mur- gun retrieve a before the preme Court. Id. 100 S.Ct. 2382. der). Supreme The United States Court re- versed, for a identifying “proce- the need

VI. Conclusion safeguard” dural that would “afford[ ] court’s denial a less drastic alternative than the AFFIRM the district We choice between conviction of the offense of habeas relief. 633, 637,

charged acquittal.” Id. at GILMAN, LEE Circuit RONALD In particular, 100 S.Ct. 2382. the Court concurring. Judge, recognized that unquestionably when the evidence estab- (prosecutorial I concur in Parts III mis- guilty lishes that the defendant is of a conduct) (misleading jury instruc- and IV serious, violent offense—but leaves some tions) of the lead without reserva- respect doubt with to an element that Ohio law at the time tion. Because state capital justify would conviction of of- severely conviction restricted give fense—the failure to the consideration of his intoxication evi- convicting on a option” “third lesser rendering it point unhelpful dence to the inevitably included offense would seem Smith, reluctantly join I also Part V the risk of an unwarranted (the instruction). to enhance lesser-included-offense conviction. separately express my I con- But write Supreme regarding cerns the Ohio Court’s Id. at S.Ct. 2382.

analysis of the issue of the lesser-included- the need to Beck therefore identifies jury instruction under Beck v. Ala- offense jurors option” with this “third provide bama, polar-opposite results: order to avoid two L.Ed.2d 392 on a “belief convicting a defendant based Beck, guilty that the defendant is of some seri- Court held that punished,” be or penalty may imposed not be ous crime and should the death acquitting guilty defendant based on the permitted is “not to consid- where the 528 Second, that, crime, sum Supreme defen the Ohio Court

belief “whatever his injuries not death.” Id. at 642- and the testi dant does deserve marized Autumn’s although both 100 2382. And of mony injuries S.Ct. in a scant few about those undesirable, are these two outcomes conclude that had the sentences to “that a “fundamental concern” Beck is Smith, intent to kill. 780 N.E.2d at 228. convinced that the defendant had so, held that there was doing the Court crime but not con committed some violent sufficient evidence to reach this conclusion. a crime guilty capital vinced that he was reject (“Consequently, id. we Smith’s See capital vote for a convic might nonetheless purpose argument that evidence only if the was to set the tion alternative analysis a lacking.”). But a Beck is not punishment free with no at all.” defendant sufficiency-of-the-evidence inquiry. Hyatt Arizona, 624, 646, 501 111 Schad v. U.S. Branker, 162, 174 v. 569 F.3d Cir. (1991). 2491, 115 L.Ed.2d 555 2009) (“A challenge question Beck does not argu- evaluating appellate When prosecutor presented evidence whether the to an involun- ment he was entitled capi to a conviction of a sufficient sustain (which, un- tary manslaughter instruction offense.”); Gibson, Hogan tal v. murder, charge aggravated does like (10th Cir.1999) (observing kill), require showing a of an intent to “requires Beck a court to consider whether Supreme misapplied the Ohio Court Beck there is sufficient evidence to warrant in respects. in two The Court first noted structing on a lesser included of that, contention, contrary to Smith’s “he fense, not whether there is sufficient evi presented indicating no evidence at trial greater dence to warrant conviction on the assault, sexually that he intended to rather offense”). Smith, kill, than Autumn.” State Supreme The Ohio Court conducted no Ohio St.3d 780 N.E.2d (The assertion, analysis lead echoes this to consider whether evidence any stating present that Smith did not permit would a reasonable to find evidence “that he intended molesta- rape that Smith intended Autumn (Lead 525)) Op. proof tion.” at Lack of Instead, kill and not to her. the Court however, defendant, from the is irrelevant solely focused its attention on whether the a reviewing under Beck because court’s finding supported evidence analysis is limited whether the evidence Autumn, thereby kill intended to overlook- supports giving as whole of such an ing duty its to consider whether the evi- Evans, Hopper instruction. See 456 dence cast “some doubt” as to Smith’s 605, 611, L.Ed.2d Beck, intent kill. See U.S. at (1982). Moreover, the defendant 100 S.Ct. 2382. obligated present criminal case is never trial, in presented And the evidence any Hynes, evidence. United States v. First, my opinion, exactly did that. there (6th Cir.2006) (approving highly was evidence that Smith was intoxi- stating use of a instruction cated, which in turn would have made him prove has no burden to “[defendant consequences ag- less aware of of his present any innocence or to evidence or to gressive behavior on a six-month-old child. testify”). The Ohio Court thus proof during indicates the course improperly implied that Smith bore the evening, at least providing exculpatory burden of Smith consumed intent, regarding his Beck in fact ten cans of beer. He had a blood-alcohol whereas imposes no such burden. level of .123 when he was tested that, by necessary implication, conclusion more than seven hours after police would indicate a lack of intent to kill. evidence, a upon Based this incident. testified at trial toxicologist board-certified Finally, contrary to the Ohio level would have that Smith’s blood-alcohol conclusion, injuries Court’s Autumn’s are high as as possibly at least .36 and been trying keep as consistent with Smith shortly midnight. Other wit- .60 before quiet they any purported are with her known to testified that Smith was intent to take her life. Autumn nesses suffered injuries to the side of her head who had blacked out on and had heavy be a drinker bruising eyes. around her Dr. Marvin past. Key- occasions in the Both several Platt, performed the coroner who the au- (Autumn’s Frye sha mother Smith’s topsy, testified at trial that Autumn died neighbors and one of her testi- girlfriend) asphyxia from and blunt trauma to the night that on the of the incident and fied Injuries to her head. head and abrasions following day, early morning hours the forehead, cheek, chin, on her he sur- Moreover, “very was drunk.” offi- Smith mised, lying indicated that Autumn was they observed Smith reported cers her stomach and that her face had been an- swaying back and forth while he was pillow. forced into a He also observed that shortly they after swering questions their Autumn suffered subarachnoid and retinal Frye’s at house. A reasonable arrived hemorrhages shaken-baby consistent with juror could thus conclude from this evi- syndrome, which indicated that an effort too intoxicated to dence that Smith was had been made to restrain Autumn. Al- consequences realize the fatal of his ac- though interpretation one of testimony this tions. deliberately is that Smith suffocated Au- in pillow, tumn another reasonable inter- addition, there was no evidence to pretation unintentionally is that Smith kill any that Smith had motive to show weight crushed Autumn with the of his witnesses, Multiple including Autumn. body asphyxiation during and causéd her girlfriend sister and a former rape. of nature the course of child, had a testified that whom Smith injuries Autumn’s thus do not necessitate a of children good Smith had taken care kill finding of deliberate intent to on the when he had been around them. Further- part of Smith. more, Frye many had on occasions en- particularly significant I the fact find Autumn and trusted Smith to watch both jurors with the issue grappled Ashley, while two-year-old daughter, her following intent the close of the evidence. Frye any at work. The absence During penalty phase, submit- why kill Au- evidence as Smith would following question to the court: “If ted the question tumn further calls into the conclu- mind, right we feel was not [Smith] sion that he intended to kill her. enough give not to him is reason alone according Smith also made no effort to conceal a death sentence to the law”? jurors, Instead, question This indicates that body Autumn’s after she died. weighing on their of the evidence based body upstairs took Autumn’s to the trial, at had as to wheth- presented doubts Frye, bedroom he shared with and he capacity er Smith had the mental to devel- Frye placed body Autumn’s next to op the intent to kill Autumn at the time of Autumn bed. Smith also denied that rape. interpret A dead. reasonable did to view the indicating these actions as The lead declines Autumn, perspective, asserting from this not realize that he had killed to support argument that the facts Autumn’s murder “conclu toxication that he kill, intended Au rape, and sively proves pre intent to kill” so as to Otte, tumn. See State Ohio St.3d any juror’s clude reasonable doubt as to (1996) 660 N.E.2d (permitting (Lead 524) Op. intent. But the voluntary-intoxication defendant to raise a upon eases lead relies “only defense where the defendant was so support present that assertion all scenar mentally intoxicated as to be unable to markedly from circum ios different anything” intend and thus “create a rea Hopper stances in the instant case. In v. ability sonable doubt as to his to form the Evans, 605, 613, 456 U.S. 102 S.Ct. specific charged intent essential to the fel (1982), 72 L.Ed.2d example, for (citation ony.” quotation internal petitioner admitted to shooting the victim omitted)). marks The facts before us during in the back an course of armed Smith, despite demonstrate that his intoxi robbery. petitioner Campbell in v. cation, clearly something intended of a (6th 531, 535, Coyle, 260 F.3d Cir. (Indeed, criminal nature. Smith concedes 2001), stabbed his victim with a knife at appeal rape that he intended to Au Similarly, least four in Slaughter times. tumn.) And, by as opinion, noted the lead Parker, (6th 450 F.3d 237-38 Cir. upheld Court has similar 2006), petitioner bludgeoned the victim interpretations state-law against pro due in the head and stabbed her five times in challenges. cess See Egelhoff, Montana v. chest, “including a stab wound that 37, 56, 518 U.S. 116 S.Ct. penetrated five inches into her chest and (1996) L.Ed.2d (holding that a Mon (Citation omitted.) pierced her heart.” tana providing voluntary statute in Bell, And Abdus-Samad v. 420 F.3d toxication could not be considered when (6th Cir.2005), petitioner shot determining a defendant’s mental state did the victim five or six times. process); not violate due see also Goodwin Johnson, The above scenarios sharp stand con- Cir. 1997) (holding in light Egelhoff, of trast to the present circumstances of the “the laws of the state finding foreclose our case, where there is no evidence conclu- a Beck violation on the basis that evidence sively kill, demonstrating an intent to such of voluntary Goodwin’s intoxication could repeated stabbings shootings. or There have allowed reasonable to convict is in fact no indication that Smith used him of the lesser-included offense of mur kind, weapon any petitioners unlike the der”). the cases relied upon opin- the lead sum, ion. I believe there is “some Without Smith’s intoxication argu- doubt,” Beck, strongest, ment —the in my opinion, see dem- onstrating his lack of intent to Mil—the Smith’s intent to kill Autumn in remaining evidence would not permit light intoxication, of his extreme his lack of reasonable to find that Smith intend- Autumn, motive to kill taking his Autumn’s rape Therefore, ed Autumn. de- body Frye incident, after the and the my spite disagreement with the Ohio Su- injuries. nature of Autumn’s preme I analysis, Court’s concur with the Smith, Unfortunately however, opinion’s lead conclusion that Smith is not analysis above is grant insufficient entitled to habeas relief. because, Smith habeas relief as the lead opinion correctly notes, Ohio law at the

time of effectively precluded his conviction

Smith from relying on in-

Case Details

Case Name: Smith v. Bradshaw

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 19, 2010

Citation: 591 F.3d 517

Docket Number: 07-4305

Court Abbreviation: 6th Cir.