Baze v. Parker

PHILIP PARKER, Warden, - BOGGS, Chief Judge. Petitioner Ralph Baze, Jr. was Kent ucky S tate Peni tent iary, - convicted Deputy Sheriff of the 1992 murders of Arthur Briscoe, whom he sh Sheriff Steven Bennett and ot in the back

Respondent-Appellee. - when they attempted to arrest him pursuant to an outstanding

- Ohio multiple-felony arrest warrant. The jury sentenced Baze

N to death. The Kentucky Supreme Court affirmed his

Appeal from the United States District Court conviction and sentence on direct appeal, and it denied relief

for the Eastern District of Kentucky at Ashland. in state post-conviction proceedings. Baze petitioned for

No. 01-00031-Henry R. Wilhoit, Jr., District Judge. federal habeas relief, pursuant to 28 U.S.C. § 2254, which the

United States District Court for the Eastern District of

Argued: December 10, 2003 Kentucky denied in a series of exhaustive opinions. For the

reasons elaborated upon below, we affirm the district court's

Decided and Filed: June 9, 2004 denial of Baze's petition.

Before: BOGGS, Chief Judge; and COLE and COOK, I

Circuit Judges. Ralph Baze lived in Powell County, Kentucky, in a

_________________ mountain hollow known as Little Hardwick's Creek, with his

wife. Some of his other relatives lived on another ridge of the

COUNSEL same mountain. His cabin was at the end of gravel road,

heavily wooded on both sides, approximately 1,000 feet up ARGUED: Timothy T. Riddell, PERCH & TOBY, the mountain, in a small clearing that made maneuvering a Lexington, Kentucky, for Appellant. David A. Smith, vehicle very difficult. By January 1992, the time of the OFFICE OF THE ATTORNEY GENERAL, Frankfort, shootings, Baze was a twice-convicted felon and was wanted Kent ucky, for Appellee. ON BRIEF: Timothy T. Riddell,

1

in Ohio for felonious assault of a police officer, jumping bail, arrived back first, followed by Sheriff Bennett. Both got out

receiving stolen property, and flagrant non-support. of their cruisers with their guns out and they came together on

the rear driver's side of Bennett's cruiser. Baze's wife Becky

On January 15, 1992, authorities from the Lucas County was yelling at them from the porch of the cabin, so that when Sheriff's Office in Toledo, Ohio notified the Powell County they turned to engage her, they had their backs to the woods authorities that they wished to extradite Baze on the felony where Baze was hiding. All agree that at that moment gunfire counts. At that time, Baze was in Ohio, and his wife, Becky began.

Baze, informed the police that she did not know where he was

when they came to arrest her husband in mid-January. She Baze testified that he moved out from behind a large stump

then phoned Baze to warn him that the police were looking and brush pile, unarmed, intending to surrender, but that

for him. Baze left Ohio for Michigan, where he bought a Briscoe shot him in the leg with a pistol. Wesley and Sophie

SKS assault rifle and ammunition, which he ultimately used McCarty supported Baze's version by testifying that Baze

to kill the two police officers. stood up without a gun. In contrast, Baze's son-in-law, Greg

Profitt, who was also at the house, testified that Baze shot

Baze returned to his brother-in-law's house in nearby Bath first, but he admitted that he could not distinguish between Co unty, Kentucky, on January 28 and decided to move to rifle and pistol fire. Becky Baze also testified that Baze shot Florida. He returned to his cabin on January 30 with his wife, first, causing Bennett to turn his head back to his right to see and his sibli ngs-in -law, W esley and S ophi e McCarty, where the gunfire was coming from. The policemen who intending to hold a yard sale to lighten their load and then to were driving up the road to lend support testified that the first leave for Florida that evening. Deputy Sheriff Briscoe heard 6-10 shots they heard were rifle fire.

that Baze was back in town and proceeded to Baze's cabin to

arrest him. When Briscoe arrived, Baze was inside; however, Briscoe and Bennett then turned to face the woods and took

he could hear Briscoe announce his intention to Becky to cover behind the police cruiser on the driver's side, with

arrest her husband. While Briscoe returned to his cruiser, Briscoe shooting over the hood and Bennett over the trunk.

Baze left the cabin through a trapdoor in the bedroom floor, For reasons that are unclear, Bennett moved around the rear

retrieved his SKS assault rifle from behind the cabin, and then of the cruiser and opened the back passenger door as if to get

walked around the cabin to inform Briscoe that he would not into the back seat, in fact crossing directly into Baze's line of

allow hi ms elf to be arrested. We sl ey McCarty intervened to fire. Thereupon, Baze shot him three times in the back. Baze

avoid a confrontation, during which Briscoe put his hand on then started to walk down the hill towards Briscoe, who

or near his holster. Becky grabbed Briscoe's arm, and Baze continued to shoot at Baze over the hood of the police cruiser

used the opportunity to leave the immediate area. Briscoe until he ran out of ammunition, and Baze was too close to

then left in his cruiser to recruit additional officers to effect give him time to reload. Briscoe then turned to attempt to

the arrest. escape and, after he had gone about ten feet, Baze shot him

twice in the back. Wesley McCarty described Briscoe as

Baze used the interim to gather his personal belongings, "staggering away" before he fell on his face. Baze then and 98 rounds of ammunition, and went uphill into the approached the fallen officer and, allegedly thinking that he woods. He later told the Louisville Courier-Journal that he might be reaching for his gun, shot Briscoe in the head at circled around to hide behind a stump behind the spot where point-blank range.

the police would have to leave their cars. Deputy Briscoe

Baze then picked up the weapons and ammunition and fled verdict form; 4) improper introduction of character evidence on foot to adjoining Estill County. He surrendered without and unrelated out-of-state charges; 5) refusal to introduce incident at 8 p.m. that evening at the home of the former Estill Baze's federal firearms sentence; and 6) cumulative effect of County Sheriff, where he received his Miranda warnings. errors.

Upon overhearin g a query over the radio as to whether the

arresting officer had the correct suspect, Baze responded: II

"You tell them that you got the right man. I'm the one that

killed them son-of-a-bitches." When reviewing a denial of habeas corpus relief, this court

reviews the district court's legal conclusions de novo and its

Baze was tried in Rowan County, convicted, and sentenced factual findings under a "clearly erroneous" standard. Skaggs to death in February 1994 for shooting the officers. The v. Parker , 235 F.3d 261, 266 (6th Cir. 2000). The Anti- Kentucky Supreme Court affirmed the sentence on direct Terrorism and Effective Death Penalty Act of 1996 (AEDPA) appeal in November 1997. Baze v. Commonweath , 965 governs the review of the state court decisions involved in S.W.2d 817 (Ky. 1997) ( Baze I ). The United States Supreme this case and mandates additional deference to state court Court denied certiorari in April 1998. Baze filed a motion to proceedings. Herbert v. Billy , 160 F.3d 1131, 1134 (6th Cir. vacate his sentence under Kentucky's post-conviction review 1998).

procedure, asserting, among other things, ineffective

assistance of counsel due to irregularities in the use of his In AEDPA, Congress provided that:

peremptory challenges. The state trial court denied the

motion to vacate without conducting an evidentiary hearing, An application for a writ of habeas corpus on behalf of a

a decision that the Kentucky Supreme Court affirmed in April person in custo dy pursuant to the judgment of a State

2000. Baze v. Commonweath , 23 S.W.3d 619 (Ky. 2000) court shall not be granted with respect to any claim that

( Baze II ). Certiorari was again denied, in February 2001. was adjudicated on the merits in State court proceedings

unless the adjudication of the claim--

Baze then filed a petition for a writ of habeas corpus in the

United States District Court for the Eastern District of (1) resulted in a decision that was contrary to, or an

Kentucky in April 2001. The district court denied a motion involved an unreasonable application of, clearly

for an evidentiary hearing on September 23, 2002, and denied established Federal law, as determined by the Supreme

th e habeas p etit io n fou r days later. The district court denied Court of the United States; or

a motion to alter or amend the judgment on December 23,

2002 but "in an abundance of caution" issued a certificate of (2) resulted in a decision that was based on an

appealability on all of the issues that Baze raised. Baze then unreasonable determination of the facts in light of the

filed an appeal with this court asserting twelve points of error. evidence presented in the State court proceeding.

Most salient for this opinion are his assertions of ineffective

assistance of counsel and improper limitations on his ability 28 U.S.C. § 2254(d).

to exercise his peremptory challenges. He also alleges denial A state court decision is "contrary to" Supreme Court

of due process because of claims of: 1) trial court interference precedent "if the state court arrives at a conclusion opposite

with presentation of a defense; 2) refusal to strike six jurors to that reached by [the] Court on a question of law," or "if the

for cause; 3) improper jury admonition, instructions, and state court confronts facts that are materially indistinguishable

from a relevant Supreme Court precedent and arrives at a that her job would affect her ability to be impartial, but then,

result opposite to" the Court's decision. Williams v. Taylor, upon further probing by the judge, changed her mind, stating

529 U.S. 362, 405 (2000). A state court decision involves an that she could listen to testimony and be fair. During the

"unreasonable appl icatio n" of clearly established Supreme subsequent individual voir dire , Ms. Perkins stated that she

Court precedent when it correctly identifies the governing had been a correctio ns officer for si x ye ars but that her job

legal standard but applies that standard in an objectively would not affect her judgment in the case. She also did not

unreasonable, as opposed to merely incorrect, manner. Id. at think she would feel pressure from her prison colleagues to

409-11. Furthermore, state findings of fact are presumed to render a particular verdict.

be correct unless the defendant can rebut the presumption by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The defense moved that she be struck for cause, both

Finall y, review is conducted in light of the law as it existed at because of her job knowledge about parole and sentencing

the time of the final state court decision, Teague v. Lane , 489 rules, and because she might be swayed by the remote

U.S. 288 (1989), unless an intervening constitutional decision possibility that she would meet Baze in prison, should he be

announces a "watershed" rule of criminal law with convicted but not sentenced to death. The court denied the

implications for the fundamental fairness of the trial motion, after questioning Ms. Perkins to make sure that she

proceeding. Caspari v. Bohlen , 510 U.S. 383, 396 (1994). was not intimidated by the theoretical possibility of meeting

Baze at some later date. Nothing in the record suggests that

Most of Baze's habeas claims are based on challenges to this court should not defer to the trial court's determination interpretations of state law and therefore this court may only that Ms. Perkins's responses were credible and that she could grant relief if his Fourteenth Amendment Due Process rights be impartial. 28 U.S.C. § 2254(e)(1); see Patton v. Yount , are implicated, an extremely high standard that Baze cannot 467 U.S. 1025, 1038 (1984).

meet. Lewis v. Jeffers , 497 U.S. 764, 780 (1990) (stating that

federal habeas corpus relief does not lie for errors of state After the voir dire , the court instructed counsel to submit

law). Therefore, we will consider Baze's clear constitutional their lists of peremptory strikes by 8:45 the next morning.

claim - ineffective assistance of counsel - first, and then Defense counsel conferred that night and eliminated nine

address the claims based on state law. potential jurors, Baze's statutory limit, including Ms. Perkins.

Mr. Ri ley, the lead counsel, described to the judge what Ineffective Assistance of Counsel happened then:

Baze argues on appeal that he was denied effective We picked the nine, put it on a piece of paper, and, left assistance of counsel when his lawyers negligently omitted the piece of paper with the other two individuals on the the name of a corrections officer from the list of peremptory defense team, with the instructions to write down the strikes, which resulted in the officer sitting on the jury . strikes. I didn't even look at them. They were late

getting here this morning. I grabbed the piece of paper

The events that resulted in Ms. Sharon Perkins, a from them, copied it, gave it - and, about the same time, corrections officer, sitting on Baze's jury are somewhat they noticed there was eight, we noticed there was eight. convoluted. Ms. Perkins approached the judge with another We had decided, as a team, not to ask for the ninth, corrections officer to bring to his attention their potential bias. because it was our mistake, and we screwed up. At that In response to the judge's questions, Ms. Perkins initially said time, your paralegal and the clerk came out, and, said

there was a ninth one . . . . So, we gave them the ninth U.S. 1025 (1999)). The Kentucky Supreme Court also held name. We will live by any ruling of the Court. I don't that the decision not to use the peremptory challenge against expect them to believe that it was an unintentional error, Ms. Perkins amounted to "trial strategy." It did not refer to but I tell you, it was an unintentional error, on our part. the specific circumstances of this case in its decision,

characterizing the appellant's argument as: "his trial counsel

Both the judge and the district attorney accepted the was constitutionally deficient in negligently failing to contention that the error was inadvertent, but the prosecution exercise a ninth peremptory challenge available to the immediately objected to amending the strike list to include defense." Baze II , 23 S.W.3d at 623. The court then simply Ms. Perkins. The judge initially decided to resolve the analyzed the claim under the law governing peremptory question by eliminating the final juror by lo tt ery.¹ At that challenges, rather than ineffective assistance of counsel. point in the proceedings, another potential juror, Willie

Wagoner, requested to be excused because his wife opposed Although the point was not argued in either brief, this court

the death penalty, although he did not. He feared, however, must first consider if we may review Baze's claim, given that

that his participation in the trial would "cause conflict . . . in it is procedurally barred under Kentucky law, as set down in

my home." The judge decided that he should be excused and Sanborn . Nevertheless, the Kentucky Supreme Court

proceeded "as if he [Wagoner] would be the juror that was addressed, albeit in summary fashion, Baze's claim on the

struck." In essence, therefore, the judge exercised Baze's merits. Baze II , 23 S.W.3d at 624. If a state court does not

final peremptory strike. Baze's lawyer responded: "We are expressly rely on a procedural deficiency, then a federal court

not crazy about giving up any of the jurors that we didn't may conduct habeas review. Caldwell v. Mississippi ,

strike, but, we will live with whatever the . . . [court 472 U.S. 320, 327 (1985); Bowling v. Parker , 344 F.3d 487,

decides]." The prosecution responded that "[I] will abide by 499 (6th Cir. 2003) (proceeding to consideration of the merits

the Court's ruling, but I will object to it." As a result, Ms. of petitioner's claims because the Kentucky Supreme Court

Perkins sat on the jury and ultimately voted with her fellow reviewed the ineffective assistance of counsel claims on the

jurors both to find Baze guilty and to impose the death merits, in spite of a procedural bar to review, and therefore

penalt y. the reliance on procedural default was not "unambiguous").

Subsequent discussion of the merits did not always cast a

In two paragraphs, the Kentucky Supreme Court considered doubt on the procedural bar, however. Simpson v. Jones , 238 and rejected Baze's ineffective assistance of counsel F.3d 399, 407-09 (6th Cir. 2000); Clifford v. Chandler , 333 argument related to the voir dire described above, on the F.3d 724, 728-29 (6th Cir. 2003), overruled in part on other grounds that the claim, litigated on its merits in Baze I , could grounds by Wiggins v. Smith , 123 S.Ct. 2527 (2003). Clifford not be resubmitted under the guise of ineffective assistance of held that when a state court relies on an independent counsel. Baze II , 23 S.W.3d at 624 (citing Sanborn v. procedural ground to deny relief, a discussion of the merits Commonwealth , 975 S.W.2d 905 (1998), cert. denied , 526 will not supersede the procedural bar to habeas relief.

Although it could be argued that the Kentucky Supreme

1

Under local court procedure, fourteen jurors hear all of the evidence Court relied on the procedural bar to dismiss Baze's claim of and then two are chosen by lottery as alternates, after the closing ineffective assistance of counsel, the district court held that arguments, and do not participate in the deliberations. Therefore, the claim was not procedurally defaulted and considered it on excusing extra jurors by lottery is a well-established practice in Kentucky

state courts. See also Ky. R. Crim. P. 9.36(2). the merits. The Commonwealth of Kentucky did not raise the

question of procedural default in its response brief to Baze's course should be followed." Strickland , 466 U.S. at 697.

appeal, but rather opposed the claim on the merits. The state Although the performance of Baze's counsel arguably fell

may waive a defense by not asserting it. Scott v. Collins , 286 below reasonable competence, Baze cannot show that he was

F.3d 923, 927-28 (6th Cir. 2002). Therefore, we also consider prejudiced by these deficiencies. Nothing in the record

Baze's ineffective assistance claim on the merits. suggests "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

AEDPA requires that a court considering a habeas petition been different." Strickland , 466 U.S. at 694. Even with a limit its analysis to the law as it was "clearly established" jury not entirely in line with Baze's preferences, the trial was under Supreme Court precedent at the time of the state court not unreliable or fundamentally unfair. Lockhart v. Fretwell , decision. 28 U.S.C. § 2254(d)(1). At the time of Baze II , the 506 U.S. 364, 372 (1993).

Strickland two-part test for determining ineffective assistance

of counsel was well-known, Strickland v. Washington , 466 Of the fourteen veniremen selected to hear the evidence

U.S. 668 (1984), and governed the analy sis of the claim. during trial, eleven, including Ms. Perkins, answered the

Miller v. Francis , 269 F.3d 609, 615 (6th Cir. 2001). We are questions about attitudes toward the death penalty without

unsure whether the Kentucky S upreme Court applied the significant elaboration, stating that they could impose it if

Strickland test in its discussion of Baze's ineffective warranted, as the Supreme Court required in Wainwright v.

assistance of counsel claim. Baze II , 23 S.W.3d at 624. We Witt , 469 U.S. 412, 424 (1985). One answered that she would

need not decide whether AEDPA deferential review should be "consider it less," but reaffirmed that she would decide on the

applied to the state court's decision in this respect because evidence. The Commonwealth unsuccessfully moved to

even if we were to review the claim de novo , Baze has not strike her for cause on the grounds that she would not

established that he was prejudiced by his counsel's consider the death penalty, and the record shows that she was

mishandling of the peremptory strike list. removed from a previous death penalty case jury through a

peremptory strike. Another juror stated that he would start by

Under Strickland , courts are required to determine whether thinking about the death penalty, but would consider the 1) the performance of the attorney fell below an objective range of penalties. The defense unsuccessfully objected to standard of reasonableness; and 2) the deficient performance him on the grounds of insufficient follow-up to his responses. prejudiced the defense. Strickland, 466 U.S. at 688, 691-92. Finall y, Baze's counsel interpreted a third juror's comment in A clerical error such as one at issue in this case does not give general voir dire to mean that she would only reject the death rise to automatic relief. Yarborough v. Gentry , 124 S. Ct. 1, 6 penalty if the crime were a crime of passion, which in (2003). Rather, the Sixth Amendment guarantees reasonable Kentucky is a non-death penalty offense. The defense did not competence, not perfect litigation. Ibid. (citing cases); move to have her removed for cause.

McQueen v. Scroggy , 99 F.3d 1302, 1315 (6th Cir. 1996)

(stating that an attorney "merely losing, being wrong, or On balance, therefore, the record reveals that eleven of the

miscalculating is not enough to free every person convicted jurors were neut ral o n t he death penalty (able to condemn a

of a crime"). guilty defendant to death but not impose the death penalty

automatically); two may have leaned slightly towards the

We do not need to address the question of competence, death penalty as the most proper sanction for murder, and one however: "[i]f it is easier to dispose of an ineffectiveness may have leaned in the other direction. Given that make-up, claim on the ground of lack of sufficient prejudice . . . that no plausible argument for prejudice can be made.

Baze argues that the trial judge prejudiced his case when he and then excused Wagoner, the record does not reveal who excused Juror Wagoner, who, after being qualified, the next juror would have been. The judge suspended approached the judge just before the panel was sworn in to individual voir dire after 29 jurors were qualified. Four state th at si tt in g on t he ju ry would cause difficulties in his additional jurors had made it to the second ju ry pool o f thi rty, marriage. Baze theorizes that Wagoner would have been but the record only contains their names. As a precaution, the disinclined to impose the death penalty in deference to his judge asked them to return the morning that the jury was wife's moral convictions against it. This assumption seated in case one or more jurors had second thoughts presupposes that Wagoner, to placate his wife, would have overnight, but once Wagoner had been excused and Perkins violated his oath as a juror to base his decision solely on the seated, evening out the numbers, these four extra potential evidence presented in court. Had he been willing to bend the jurors were excused without any inquiry into their rules, however, he would not have asked to be excused since qualifications to sit on the jury.

he could have avoided marital strife simply by following his

wife's wishes; his scruples indicate that he took the process Therefore, one is left with pure speculation on whether the

seriousl y, and therefore Baze's theory that Wagoner would outcome of the trial or the penalty phase could have been any

have voted against the death penalty is not convincing. different, an insufficient basis for a successful claim of

prejudice. McQueen , 99 F.3d at 1321 (stating that a

Wagoner seemed hesitant about the death penalty in the defendant cannot successfully claim constitutional error individual voir dire, stating that it was appropriate under simply because he might have been better off with a different "certain circumstances." Ironically, the defense wanted the jury). Although the procedure for removing Wagoner from judge to question Wagoner further before finding him the jury was somewhat improvised, it was constitutional. qualified because of the attorney 's experience that when a United States v. Mosely 810 F.2d 93, 96 (6th Cir. 1987) potential juror says he would impose the death penalty "in (citing cases for the rule that "the manner in which the certain circumstances," he means "in this case." The judge peremptory challenges are exercised is a matter of local declined to do so, finding Wagoner qualified based on his custom and traditionally has been left to the sound discretion responses in the individual voir dire. Nothing in the record of the district court"). Whatever errors Baze's lawyers even hints that Wagoner would have voted against the death committed, they did not prejudice his defense, and therefore penalty or that the outcome of the trial would have been his claim of ineffective assistance of counsel must fail. different had he remained. Even had Ms. Perkins been

included on the original strike list, it seems clear that the III

judge would have excused Wagoner as well. Therefore, Baze

would not have had the benefit of his sympathy , if any, in any Federal courts are highly circumscribed in their ability to

event. second-guess state supreme court rulings on state law in order

to grant habeas relief. Estelle v. McGuire , 502 U.S. 62, 67-68

Furthermore, Baze did not have a right to have a specific (1991). The Supreme Court has made clear that "federal juror decide his case, only that all jurors be qualified. habeas corpus relief does not lie for errors of state law." McQueen , 99 F.3d at 1328 (stating that "once the jury is Lewis , 497 U.S. at 780. In conducting habeas review, a qualified, any combination of twelve of the fourteen jurors is federal court is limited to deciding whether a conviction as valid as any other"). Had the judge agreed to allow the violated the Constitution, laws, or treaties of the United defense to exercise belatedly its last strike to remove Perkins, States. 28 U. S. C. § 2241(c); Rose v. Hodges , 423 U.S. 19, 22 (1975) (per curiam)). Habeas relief may be granted when a with his wife's family. According to Baze, his relatives had state court unreasonably applies Federal law, or a state court called in false reports to the police to harass him, and the feud is incorrect to such a degree that it implicates the defendant's had escalated to the point that he felt his life was in danger. right to a fair trial because an unreasonable determination of The feud fed into his underlying paranoia, resulting in his the facts tainted the final outcome. See Williams , 529 U.S. at belief that the officers' attempted arrest on an outstanding 412-13. Ohio warrant was just another dirty trick set up by his

relatives, and he therefore had to defend himself.

Baze argues that a Kentucky criminal rule requiring

simultaneous exercise of peremptory challenges deprived him The trial judge allowed some evidence of the feud to be

of his opportunit y to voluntarily and intelligently exercise introduced, but he determined that Baze could not base his

those challenges. Baze has no constitutional right per se to a defense on the incidents with his wife's family because the

set number of peremptory strikes. Ross v. Oklahoma , 487 two officers were not directly involved in the family

U.S. 81, 89 (1988) ("peremptory challenges are a creature of altercation, and Baze did not have a contentious relationship

statute and are not required by the Constitution."). He only with either of the victims. The Kentucky Supreme Court held

has a right to receive "that which state law provides." Ibid. that the trial judge ruled correctly that the feud was not

Under the Kentucky Rules of Criminal Procedure, relevant to the killings, and that he had not abused his

"[p]eremptory challenges shall be exercised simultaneously discretion by limiting the evidence of the intra-familial

by striking names from the list and returning it to the trial conflict. Baze I , 965 S.W.2d at 821.

judge." RCr 9.36(2). No juror can be challenged after being

accepted "unless the court for good cause permits it." RCr A fair opportunity to present a defense is a constitutional

9.36(3). In t hi s case, th e judge warned th e att orneys on two right. Crane v. Kentucky , 476 U.S. 683, 690 (1986) (citing

occasions that the list of peremptory strikes would be due at cases). Presenting relevant evidence is integral to that right.

a certain time and that the list could not be amended once Taylor v. Illinois , 484 U.S. 400, 408-09 (1988) (stating that

submitted. Baze has not asserted that the relevant rules are "[t]he need to develop all relevant facts in the adversary

unconstitutional in light of Swain v. Alabama , 380 U.S. 202 system is both fundamental and comprehensive"). In

(1965), the case upon which he relies. Because this is a claim particular, few rights are more fundamental than that of an

stemming from the application of state procedural rules, it is accused to present witnesses in his own defense. Chambers

beyond our purview on habeas review. McGuire , 502 U.S. v. Mississippi , 410 U.S. 284, 302 (1973) (citations omitted).

at 67-68. However, this right is not absolute. The defendant "must

comply with established rules of procedure and evidence Impermissible Interference with Right to Present a Defense designed to assure both fairness and reliability in the

ascertainment of guilt and innocence." Ibid. States have

Baze argues that the trial court interfered with his right to broad authority to promulgate rules that exclude evidence so put on a defense and therefore denied him his due process long as they are not "arbitrary" or "disproportionate to the rights. Kentucky law allows a defense to murder if the killer purposes they are designed to serve." United States v. acts "under the influence of an extreme emotional disturbance Scheffer , 523 U.S. 303, 308 (1998) (citing Rock v. Arkansas , [EED] for which there is a reasonable explanation or excuse." 483 U.S. 44, 56 (1987) (internal citations omitted)). KRS § 507.020(1)(a). To mount an EED defense, Baze Accordin gly, the Constitution leaves judges "wide latitude" wanted to introduce evidence that he was engaged in a feud

to exclude evidence that is only "marginally relevant." Because the statute does not define "extreme emotional

Crane , 476 U.S. at 689. disturbance," Kentucky law has considered a variety of

situations concerning who is eligible to present this defense.

Exclusion of evid ence only raises constitutional concerns By the time of Baze's trial, however, it was clear that the if it has "infringed upon a weighty interest of the accused." defendant had to point to a "triggering event," prompting a Scheffer , 528 U.S. at 308 (citations omitted). Only if "an reaction that was so "enraged," "inflamed," or "disturbed" as evidentiary ruling is so egregious that it results in a denial of to be uncontrollable, before he could present a defense under fundamental fairness [does] it . . . violate due process and thus the th eory.² McClellan v. Commonwealth , 715 S.W.2d 464, warrant habeas relief." Bugh v. Mitchell , 329 F.3d 496, 512 468 (Ky. 1986); Spears v. Commonwealth , 30 S.W.3d 152, (6th Cir. 2003), cert. denied sub nom. Bugh v. Bradshaw , 124 155 (2001) . Baze may have been distraught at the on-going S. Ct. 345 (2003) (stating that "[g]enerally, state-court feud with his wife's family, but he could not point to a evidentiary rulings cannot rise to the level of due process dramatic, isolated event in that conflict that could have caused violations unless they 'offend[ ] some principle of justice so him to lose temporary control of sense of right and wrong, rooted in the traditions and conscience of our people as to be thereby qualifyin g him for mit igatio n und er a EED th eory. ranked as fundamental.'") (internal citations omitted)); Ibid. (stating that a "triggering event" is required). Therefore, Estelle , 502 U.S. at 67 (rejecting the Ninth Circuit's reliance limiting his ability to present evidence on this issue neither on its own determination that evidence had been improperly undermined the fundamental fairness of Baze's trial nor admitted to justify habeas relief because "[s]uch an inquiry deprived him of any "weighty interest," and accordingly he . . . is no part of a federal court's habeas review of a state cannot establish any grounds for habeas relief on this issue. conviction").

Extreme Emotional Disturbance Instruction

In order to qualify for an extreme emotional disturbance

instruction under Kentucky law, the defendant must produce The same analysis undermines Baze's claim that the trial

"some definitive, non-speculative evidence" that the onset of court improperly instructed the jury that it could consider the

the extreme emotional disturbance was caused by a triggering mitigation defense of extreme emotional disturbance (EED)

event. Morgan v. Commonwealth, 878 S.W.2d 18, 20 (Ky. only if it found that Officer Briscoe shot first in the final

1994); see Patterson v. New York, 432 U.S. 197, 210 (1977) altercation with Baze. Baze claims that this qualifier rendered

(declining to "adopt as a constitutional imperative, operative the instruction unconstitutional, but his argument does not

countrywide, that a State must disprove beyond a reasonable survive scrutiny . "Extreme emotional disturbance is a

doubt every fact constituting any and all affirmative defenses temporary state of mind so enraged, inflamed, or disturbed as

related to the culpability of an accused"). Evidence of mere to overcome one's judgment, and to cause one to act

anger or hurt is not sufficient. Talbott v. Commonwealth, 968 uncontrollably from the impelling force of the extreme

S.W.2d 76, 85 (Ky. 1998). See Sanborn v. Commonwealth , emotional disturbance rather than from evil or malicious

892 S.W.2d 542, 551 (Ky. 1994) (holding that it was not purposes." Garland v. Commonwealth , 127 S.W.3d 529, 536

prejudicial error to refuse to allow the defense psychological n.4 (Ky. 2003) (quoting McClellan , 715 S.W.2d at 468-69)

expert to testify about a "triggering event" for which there

was no independent evidence).

2

See Eric Y. Drogin, To the Brink of Insanit y: "Extreme Emotional

Disturbance" i n Kentucky Law , 26 N . Ky. L. R ev. 99 (1999). (emphasis added). Kentu cky law requires a "triggering wholly insufficient for the accused defendant to claim the event," that is responsible for causing the emotional defense of extreme emotional disturbance based on a gradual disturbance. Sanford v. Commonwealth , 793 S.W.2d 112, victimization from his or her environment, unless the 115 (Ky. 1990). A triggering event is dramatic, creating a additional proof of a triggering event is sufficiently shown." temporary emotional disturbance that overwhelms the Ibid .

defendant's judgment, ibid. , such as the paradigmatic

discovery of a spouse in bed with a lover. See Spears, 30 The dissent describes at length the efforts of the Highleys

S.W.3d at 153, 155 (observing a tryst between wife and to induce the police to harass Baze, to accept the defendant's

another man sufficient for "triggering event"). characterization. Briscoe's appearance at Baze's cabin

therefore cannot be described as sudden or dramatic from

A triggering event is not synonymous with the common law Baze's point of view. Understanding that paranoia alone concept of heat of passion, and may extend over a period of cannot substitute for a triggering event, the district court still time, but its onset must be "sudden" and its effects allowed Baze to present an EED defense - if he could show "uninterrupted." Springer v. Commonwealth , 998 S.W.2d something out of the ordinary occurred in his on-going 439, 452 (Ky. 1999) (threat of child molestation could form relations with local law enforcement, namely that Briscoe basis for mother's EED defense, although the statement shot first. Baze argued at trial both that Briscoe shot first and "festered for a time" in the defendant's mind). Baze had been that Baze was put on edge by Briscoe reaching for his gun in Ohio and Michigan in the immediate period preceding the during his first trip to the cabin that day. The jury did not killings, so even if we accept his assertions of fear of the believe either story, but Baze received the opportunity to police and aggravation from the family feud, the build-up of argue his version of events, as the Constitution requires. these factors, upon which Baze relies for his EED defense,

was not uninterrupted. Garland, 127 S.W.3d at 536. Juror Challenges

The dissent argues that "although Briscoe's actions did not Baze also attacks the seating of individual jurors, but he constitute provocation in the textbook sense of the word, cannot point to any error, much less to one of constitutional Kentucky law imposes no categorical limitation on the types magnitude.

of events that may trigger EED," rely ing on McClellan v.

Commonwealth for support. (Dissent, p. 29). In a case As described above, a correctio ns officer sat on Baze 's ju ry.

decided after McClellan , but before the events of this case, Although empaneling law enforcement or corrections officers

the Kentucky Supreme court narrowed the circumstances is far from optimal, no per se rule exists disqualifying them

which a defendant can offer as the basis for an EED defense from jury service, unless state statute prohibits it, which is not

and reiterated the requirement that "the event which triggers the case in Kentucky. United States v. Wood , 299 U.S. 123

the explosion of violence on the part of the criminal defendant (1936) (holding that the Sixth Amendment does not

must be sudden and uninterrupted." Foster v. disqualify government employees from jury service); Woodall

Commonwealth , 827 S.W.2d 670, 678 (Ky. 1991) (citing v. Commonwealth , 63 S.W.3d 104, 118 (Ky. 2001) (holding

McClellan and other case law). The court explicitly stated that that employment at the Kentucky State Prison did not

extreme emotional disturbance is "not a mental disease or disqualify a penalty-phase juror because "there is no authority

illness." Ibid. (citing Wellman v. Commonwealth, 694 for the proposition that mere knowledge about parole

S.W.2d 696, 697 (Ky. 1985)). The court concluded: "[I]t is eligibility is a basis for challenge for cause"). In fact, at voir

dire, Baze's attorney stated that he had corrections officers on indicate that these two jurors were unqualified, but even if

juries all the time. Therefore, this court has no basis on which they were, Baze's contention would be without merit.

to hold that the presence of a prison employee on the jury Peremptory challenges are not a constitutional right, although

violated Baze's Sixth Amendment rights. the Supreme Court has held them to constitute an "essential

part of trial by jury ." Lewis v. United States, 146 U.S. 370,

Baze argues in his brief that another juror, Larry Knipp, 376 (1892). It is not a constitutional violation, therefore, if a should have been excluded because his brother-in-law was, on defendant has to use a peremptory strike to remove a juror occasion, Baze's jailer at the courthouse. Knipp indicated in who should have been removed for cause. United States v. the general voir dire that this relationship might influence his Martinez-Salazar, 528 U.S. 304, 315-17 (2000). attitude toward Baze, a concern he withdrew in the individual

interview. Since being a law enforcement officer is not a Baze's contention that juror bias denied him his right to a

per se di sq uali ficati on , t hen, lo gicall y, being a relative of one fair trial is without merit.

cannot mandate automatic exclusion. He apparently satisfied

both the judge and counsel that his relationship would not Imperfect Self Defense

cloud his ability to judge Baze fairly, so that Baze's right to

a fair trial was not compromised. For the same reasons, the Baze claims that the trial court's refusal to give the jury an

mere fact that an additional juror, James Padula, Jr., was instruction on imperfect self-defense violated his

friends with policemen did not warrant his exclusion from the constitutional rights. Challenging a jury instruction on

ju ry, as Baze asserts. McQueen , 99 F.3d at 1319-20 (being collateral review is a difficult undertaking: only if "the ailing

friends with two of the police officers in the case did not instruction by itself so infected the entire trial that the

disqualify a potential juror). resulting conviction violates due process," can this court grant

a writ. Henderson v. Kibbe , 431 U.S. 145, 154 (1977)

Valerie Utterback, another juror, had been personally (quoting Cupp v. Naughten , 414 U.S. 141, 147 (1973)). Far touched by crime: her sister-in-law had been murdered eleven from infecting the process, the jury instructions were correct. years before and she had two brothers serving time in prison.

Baze asserts that she equated "justice" with the imposition of Baze wanted to argue that Deputy Briscoe reached for his

the death penalty, because, when asked about her sister-in- own gun during his first visit to the cabin, thereby prompting

law's killing, she responded "I wanted to see justice done" Baze to fear for his life. Baze was willing to concede that this

and, in fact, the perpetrator was sentenced to death, although fear was irrational, but argued to the trial judge that the jury

he died in prison. This reads a great deal into a stock should be allowed to consider manslaughter, the result

response, especially given Utterback's assurances that she provided for under the Kentucky penal statute for a defendant

could be fair in assessing Baze's case. The judge found her who intentionally kills another in a reckless or wanton, but

explanation credible and nothing in the record would prompt genuinely held, belief that he needed to act in self-defense.

this court to second guess that determination. Shannon v. Commonwealth , 767 S.W.2d 548, 550 (Ky. 1988).

The Kentucky Supreme Court decided that the record did not

Baze asserts that he was forced to use two of his show that Briscoe had moved his hand toward his weapon on peremptory challenges to remove two jurors, Diana Lindsey his initial visit, and therefore Baze did not have any reason, and Noretta Bradt, from the panel, although he claims that wanton or not, to fear for his life, making the trial court's they should have been excused for cause. The record does not ruling correct in disallowing the imperfect self-defense claim. Baze I , 965 S.W.2d at 822. The testimony supports the their choice was between death and twenty years in prison, factual determination that Briscoe did not reach for his gun then Baze might have a constitutional claim. A jury might during his first visit to the cabin on January 30, and therefore sentence a defendant to death if its members thought that the Baze has not shown any improper interpretation of the facts only alternative punishment for a double murder of police that would cast doubt on the fundamental fairness of his trial. officers were a guaranteed twenty y ears in prison. It makes

no sense to argue, however, that the jury would have chosen

Furthermore, as the Kentucky Supreme Court carefully a lesser punishment (20 years) than the rejected, albeit explained, the concept of imperfect self-defense does not exist incorrect, option available to it (25 years), especially since it under Kent ucky law in the context of an arrest. The use of also did not choose the life sentence.

deadly force, whatever the perpetrator's state of mind, is not

justifiable when "[t]he defendant i s resis ti ng an arrest by a Habeas petitioners must show that a trial error of

peace officer." Ky. Rev. Stat. Ann. § 503. 060(1) (1999). If constitutional dimension "had substantial or injurious effect"

the police are using "more force than is reasonably necessary on the jury's verdict. Brecht v. Abrahamson , 507 U.S. 619,

to effect the arrest" then a suspect who resists arrest can 638 (1993) (quoting Kotteakos v. United States , 328 U.S. 750,

validly claim he acted in self-defense. Ky. Rev. Stat. Ann. 776 (1946)). In this case, the jury chose death over two other

§ 503.050 Kentucky Crime Commission Commentary (2003). options, including one that was stated more harshly than the

In that scenario, however, the suspect has a perfect defense. actual law provided, demonstrating its determination that

Therefore, if Briscoe had shot at Baze first when Baze was death was the appropriate penalty. See also Schad v. Arizona ,

unarmed and attempting to surrender, he would be entitled to 501 U.S. 624, 646-47 (1991) (explaining that the jury must be

an acquittal based on justified self-defense. The jury , in fact, able to consider lesser included offenses to prevent it from

received an instruction to that effect. However, the jury being forced into an all-or-nothing choice between capital

found implicitly that Baze initiated the gunfire, and so he falls murder and innocence, which would diminish the reliability

under § 503.060(1), which precludes any claim of self- of a guilty verdict). The situation here meets the Schad

defense as justification for resisting arrest if the officer is requirement. Baze's jury could have sentenced him to life, a

using reasonable force. Therefore, this court has no grounds middle option between 20 (or 25) years in prison and death,

on which to grant habeas relief because, far from tainting the but did not choose to do so. Therefore, the incorrect jury

trial, the jury instructions were proper. form did not have an injurious effect on the jury's verdict and

habeas relief is not warranted.

Improper Jury Form

Admonition on Validity of the Ohio Arrest Warrant

The form that the jury received when deliberating on

Baze's punishment incorrectly reflected the Kentucky law of Baze claims that the trial judge's admonition regarding the

the time: the form stated that the minimum punishment was legal irrelevance of Baze's belief that he was not wanted in

life without possibility of parole for 25 y ears as opposed to Ohio violated his constitutional rights because a defendant

the correct standard of 20 years before the possibility of has a right to explain why he acted as he did. Baze was able

parole. The form stated correctly that the jury could also opt to testify that he shot the officers because he thought that they

for a life sentence. Baze claims that the incorrect verdict form had no right to arrest him. It defies common sense to assert

given to the jury violated his due process rights. Had the that anyone who thinks they are being falsely arrested has the

mistake been the opposite, that is that the jurors were told that right to use deadly force to thwart b eing taken i nt o cus to dy.

The trial judge was only acting responsibly in clarifying to the Identification of the Ohio Felony Charges

jury that "the law is that a person may be lawfully arrested by

a law officer, without a warrant, upon reasonable information Baze complains that informing the jury of the nature of the

that the accused stands charged in the courts of another state Ohio charges against him violated his constitutional right to

. . . ." In essence, Baze was allowed to explain to the jury that a fair trial. He asserts that presenting the jury evidence of

he acted on an incorrect assumption of the law, but it is alleged previous violent acts "undoubtedly tipped the balance

axiomatic that "ignorance of the law is no excuse." toward guilt during the jurors' three days of deliberation."

Therefore, the trial judge's admonition did not violate Baze's Appellant Br. at 81. Although perhaps plausible speculation,

due process rights. Baze provides no citation to support his assertion that

revealing the nature of the charges violated Kentucky's Rule Character Evidence of Evidence 401. The trial judge admonished the jury that the

Ohio charge was not relevant to Baze's guilt in the killing of

The coroner testified at trial that neither Briscoe or Bennett the two policemen. Nor does Baze offer any way around the were aggressive or "gung-ho" police officers. Baze fact that a federal court conducting habeas review may not, as complains that he was not allowed to rebut this assertion by a basic rule, revisit state court decisions. Estelle, supra ; introducing evidence that 1) Deputy Briscoe had once shot Crane, 476 U.S. at 690 (citing Chambers v. Mississippi , 410 out the tires of a suspect in an effort to apprehend him; U.S. 284, 302 (1973)). The Kentucky Supreme Court found 2) when approaching the suspect, he stated "do you want to the issue to be without merit, Baze I , 965 S.W.2d at 821, and meet your Maker?"; and 3) Baze knew about the incident and there the matter must rest.

therefore it colored his reaction to Briscoe's attempt to arrest

him. The Kentucky Supreme Court ruled that Baze had Mitigating Evidence: Baze's Federal Firearms Conviction

failed to show that the incident was relevant to his claim of

self-defense. Baze I , 965 S.W.2d at 824-25. Nothing in the Baze attempted to introduce evidence to the jury during the

record suggests that was an unreasonable conclusion that sentencing phase that he had received a 20-y ear sentence on

would implicate Baze's due process rights. In fact, the a federal firearms charge, which would run consecutively to

Commonwealth explained that Briscoe shot out the tires to any prison sentence the jury would impose. At the time of

stop the suspect from fleeing at 100 mph in a stolen car. sentencing, however, his firearms conviction was on appeal,

Appellee Br. at 86. In this scenario, "do you want to meet and thus the trial judge refused to inform the jury about it

your Maker?" is more an expression of admonition, along the because his sentence could be overturned. Baze's theory is

lines of "are you crazy?" than a threat, rendering the that he could have avoided the death penalty if the jury

statement irrelevant to Baze's self-defense claim. Given at concluded that the additional firearms conviction would

least two plausible readings of the comment, the Kentucky ensure that he would never get out of prison. However, if the

Supreme Co urt d id not d eny Baze's due process rights by jury's "insurance sentence" were to be reduced or vacated, the

affirming the trial judge's evidentiary ruling. jury woul d have determi ned his mu rder penalt y on the basis

of a false premis e. Therefore, it was n ot enti rely clear whether there was mitigation or not.

The dissent argues that Baze's Eighth Amendment rights

were violated because "the jury had no way to directly sentence him to life in prison for the tragic killings of the two isolation may require reversal when taken together. Under officers." (Dissent, p. 38) The verdict form, however, AEDPA, however, a court may only grant habeas relief based allowed the jury to sentence Baze to any number of years they on misapplication of Supreme Court law. Bailey v. Mitchell , chose; to "confinement in the penitentiary for life;" to 271 F.3d 652, 655 (6th Cir. 2001). Because Baze cannot "confinement . . . without benefit of probation or parole until establish any errors to cumulate and because his theory that he has served a minimum of twenty-five y ears" or "death." errors can be considered in the aggregate depends on non- We agree with the district court that, had the jury wished to Supreme Court precedent, this claim is also without merit. spare Baze's life, yet keep him permanently behind bars, it

could have done so by selecting the "confinement for life" IV

option. Had the jury been skeptical that a life sentence would

stick, it could have sentenced Baze to a three-digit term of For the foregoing reasons, we AFFIRM the district court's

years for each murder under its discretion to stipulate a denial of Baze's petition for a writ of habeas corpus.

specific prison sentence.

Kentucky juries are guided by detailed statutory guidelines

as to aggravating and mitigating circumstances in deciding

the penalty in a capital case. Commonwealth v. Eldred , 973

S.W.2d 43, 46 (1998). An independent sentence that might

reassure a jury that the defendant will spend his natural life in

prison is not on the list of mitigating circumstances that must

be considered. KRS § 532.025(2)(b). The basic rules about

restricting redundant and irrelevant evidence apply in capital

sentencing hearings. Skipper v. South Carolina , 476 U.S. 1,4

(1986) (stating the "well-established" rule that a defendant

has a right to introduce all relevant mitigating evidence). The

jury had a direct way to keep Baze in prison for life; it was

not error to withhold evidence of a potential, contingent,

indirect, route to the same result. Fed. R. Evid. 403.

Cumulation of Errors

Baze argues in his brief that even if the eleven errors he

asserts are considered to be harmless, their cumulative effect

taints the trial to the extent that his due process rights were

violated. This analysis fails, however, because Baze is unable

to point to any individual errors in the trial, with the exception

of the harmless error related to the jury form. Furthermore,

Baze relies on United States v. Parker , 997 F.2d 219 (6th Cir.

1993), for the proposition that errors that are harmless in

____________________________________________ emotional disturbance." McClellan v. Commonwealth , 715

S.W.2d 464, 468 (Ky. 1986) (emphasis added). Indeed, the

CONCURRING IN PART, DISSENTING IN PART EED defense "is not restricted to circumstances which would

____________________________________________ constitute provocation in the ordinary meaning of the term . . .

it is possible for any event, or even words, to arouse extreme

R. GUY COLE, JR., Circuit Judge, concurring in part and mental or emotional disturbance." Gall v. Commonwealth , dissenting in part. Because Baze admitted that he shot and 607 S.W.2d 97, 108 - 09 (Ky. 1980), overruled on other killed Officers Bennett and Briscoe, his constitutional right to grounds , Payne v. Commonwealth , 623 S. W. 2d 867 (Ky. present a defense at trial pertaining to his mental state and 1981).

mitigating evidence at sentencing were of the utmost

importance. Although I agree with many of the majority's Second, although the shootings did not instantaneously

conclusions, I respectfully dissent as to my colleagues' follow Briscoe's arrival, EED's "onset may be more gradual

conclusions on the EED defense at trial and the presentation than the "flash point" normally associated with sudden heat

of mitigating evidence at sentencing. of passion." McClellan , 715 S.W. at 468. So long as nothing

interrupted the triggering event, Kentucky law recognizes that A. Due Process Right to Present a Defense the EED remains viable.

At trial, Baze asserted that he believed Briscoe showed up Third-and most importantly in our case-Kentucky EED at his residence to arrest him falsely and at the behest of the law measures whether the source of the defendant's alleged Highleys, who Baze claimed had repeatedly harassed him and EED "is reasonable under the circumstances as he believed previously used the police do so. In rejecting Briscoe's them to be ." McClellan , 715 S.W.2d at 468 (emphasis arrival as a possible trigger of EED, the majority added). That we (or most people, for that matter) would have asserts-without authority -that "[a] triggering event is perceived certain events differently does not mean that Baze's shocking and dramatic, such as the paradigmatic discovery of defense fails as a matter of law. To the contrary, the defense a spouse in bed with a lover." This assertion, however, calls upon the jurors to "place themselves in the actor's misapprehends Kentucky law at the time of the shootings. position as he believed it to be at the time of the act." Gall , Although a discrete event must trigger the EED, that event 607 S.W.2d at 108. In other words, the jury must have a need not be as shocking and dramatic as the majority chance to view Briscoe's arrival through Baze's eyes. suggests, it may overcome the defendant gradually, and it

must be measured from the perspective of the defendant. Evaluated through this time-honored legal framework, the

availability of the EED defense to Baze becomes apparent,

First, although Briscoe's actions did not constitute and the denial of it a clear violation of Baze's constitutional provocation in the textbook sense of the word, Kentucky law right to present a complete defense. The trial judge's imposes no categorical limitation on the types of events that unconstitutional denial of Baze's EED defense is based upon may trigger EED. As held by the Kentucky Supreme Court the: (1) improper restrictions on his right to present evidence; long before the shootings in our case, "a reasonable and (2) erroneous instructions to the jury. explanation of extreme emotional disturbance is not limited

to specific acts of provocation by the victim but may relate to Had he been allowed to present the relevant evidence

any circumstance that could reasonably cause an extreme available to him, Baze would have illustrated to the jury his

perception of the events on the day of the shooting-a events could become credible and its effect on his emotions

perception that was critical to understanding the source of his reasonable.

claimed EED. Baze asserted that he saw Briscoe's arrival as

the work of the Highleys, who had repeatedly harassed him in Baze's prior experience with the police was relevant not

the months leading up to the shootings, including providing only to show the general link in his mind between the

the police false accusations of criminal wrongdoing by Baze. Highleys harassment and police action, but also because one

But the trial judge limited evidence of the family feud to only of the prior fabrications by the Highleys involved out-of-state

to a general affirmation that it existed. Any time he asked a warrants-the initial basis for Baze's arrest on the day of the

feud-related question, defense counsel was required by the shootings. During the previous Highley-instigated traffic

court to instruct the witness to answer "[w]ithout going into stop, the officers had checked for out-of-state warrants and

any details...." Even when he did allow feud-related had told Baze that the law-enforcement computer disclosed

evidence-such as Baze's motivation for building a trap-door no outstanding charges. This information would certainly

in his home-the trial judge admonished the defense to omit have made Baze more likely to believe that his impending

any discussion of the specific events that underlay the dispute. arrest on outstanding charges was a lawless act of familial

score-settling rather than a legitimate exercise of police

No matter how many defense witnesses were able to utter auth orit y, and thereby contributed to the inflammation of his the words "family feud," the most relevant and dramatic passions upon Briscoe's arrival. To the contrary, Baze was details-those involving the Highleys bringing the police into allowed to testify only to his general belief that there were no the fray to put Baze in danger of phy sical harm-were out-of-state warrants against him. Again, evidence that this nowhere to be found. The jury was prevented from hearing information came from the same police department now evidence-including th e testi mo ny of a police officer-that seeking to arrest him would have bolstered the believability on a prior occasion, the Highleys falsely told the police that of Baze's perception and the reasonableness of the resulting Baze was driving drunk, had nearly run someone off the road, distress.

was armed and dangerous, and was a fugitive with out-of-

state warrants. According to the excluded testimony, this The relationship in Baze's mind between the Highleys, the

false information from the Highleys led police officers to stop police, the impending arrest, and the threat of violence also

Baze's car, aim their guns at him, and threaten to shoot him interacted with another important contextual clue kept away

if he moved. Further, both Baze and the police officer would from the jury: Baze's growing paranoia. Although a mere

have expressed their beliefs that it was the Highleys' ongoing mental disturbance does not suffice to set forth a

allegations that instigated the stop. This testimony, in defense of EED, it was well-established by the Kentucky

concrete terms, would have illustrated the link Baze perceived Supreme Court that "an underlying mental disease may be

between the police and the Highleys, and why he therefore considered by a jury in making its determination of whether

might have perceived Briscoe as an agent o f the Hi ghleys a defendant's explanation or excuse for his alleged 'extreme

who could put Baze's life in danger. Instead, Baze was emotional disturbance' is reasonable under the circumstances

allowed to testify only in general terms to his suspicion that as he believed them to be." McClellan , 715 S.W.2d at 468.

the Highleys had provoked this latest encounter with the The trial judge, however, prohibited the defense's psychiatric

police. Yet it is only when placed in the context of this prior expert from testifying that the ongoing feud "was just feeding

showdown with the police that Baze's perception of the his paranoia. As it continued, [Baze] became more and more

paranoid and more concerned about the safety of himself and his family." This context would have further allowed the expression of admonition, along the lines of 'are you crazy.'" jury to assess how Baze might have interpreted the events on Again, th at may be on e way of understanding such an the day of the shooting and how these events produced a in terrogatory, but it is hardly the only one. The jury genuine fear for his well-being that produced severe distress. reasonably could have found that Baze was less prone than

the majority to interpret Briscoe's question in this manner.

The trial judge's rationale for the exclusion of this

evidence-that the feud did not involve the murder If the jury credited the above evidence, it could have

victims-was expressly contradicted by the Kentucky concluded that when Briscoe arrived at his residence to arrest

Supreme Court well before Baze's trial took place. As noted him, Baze believed: (1) that he was being falsely arrested;

above, in McClellan , 715 S.W.2d at 468, the court held that (2) because Briscoe was using his authority as a police officer

"a reasonable explanation of extreme emotional disturbance to torment Baze at th e Highl eys behest; and (3) that the police

is not limited to specific acts of provocation by the victim but generall y, and Briscoe in particular, might turn violent when

may relate to any circumstance that could reasonably cause an executing the arrest. A reasonable jury certainly could have

extreme emotional disturbance." Baze's EED defense determined that Baze reasonably felt extreme distress when

depended on placing the officers' arrival in the context of the confronted with these circumstances.

ongoing family feud and his relatives' prior use of the police

to harass him. The proper question was whether the events, Even if the trial judge had admitted every piece of evidence

as Baze perceived them, reasonably placed him under severe that Baze proffered, the jury instructions themselves would

emotional distress-not whether the victim "asked for it." have clearly trampled on Baze's constitutional right to present

a complete defense. Following Baze's testimony, the trial

Finall y, the trial judge excluded evidence that Baze might judge told the jury that Baze's belief in the lawfulness of the have understood Briscoe's presence at his home as a threat to attempted arrest was legally irrelevant. Yet this instruction his physical safety. Baze was prohibited from testifying misunderstood the EED defense, which requires the jury to about reading a newspaper article which reported that while measure the defendant's emotions as the defendant himself making an arrest, Briscoe shot out the tires of the arrestee's reasonably felt them. Baze's belief that there were no such car, pointed his weapon at the suspect, and asked him if he charges would contribute to the "circumstances as he believed "want[ed] to meet [his] maker." Baze's testimony would them to be," namely that Briscoe's arrival at his residence to have emphasized the danger that he felt during Briscoe's arrest him was another instance of the police doing the attempt to arrest him, and also would have provided the lens Highleys bidding.

through which he interpreted Briscoe's subsequent actions.

The trial judge instructed the jury that it could find that

The majority justifies the exclusion of this evidence by Baze acted under EED only if it found that Briscoe fired the dwelling on details of Briscoe's prior incident that were first shot. In so doing, the trial judge prevented the jury from unlikely to have been known to Baze. It first points out that considering Baze's reaction-in light of his understanding of "the Commonwealth explained that Briscoe shot out the tires the circumstances-to Briscoe's arrival. The instruction also to stop the suspect from fleeing at 100 mph in a stolen car." kept the jury from considering whether, Baze may have That may have been the case, but the majority does not believed that Briscoe had fired or was about to fire. explain how Baze woul d have learned of th is . S im il arly, the

majority interprets "do you want to meet your maker?" as "an

Granted, under the common law "heat of passion" standard, tense police incident initiated by the Highleys and the article the passage of several minutes between Briscoe's arrival and he had read about Briscoe-Baze might have perceived his Baze's turn to violence would have exhausted any claims of wife's outcry as a warning that Briscoe was about to turn EED. But because the Kentucky Supreme Court expressly violent towards him, and Baze in fact testified that he contemplates that EED may percolate more gradually, a believed that Briscoe had tried to shoot him in the back. A reasonable jury could have concluded that Briscoe's reasonable jury could have found that a perceived imminent arrival-and all of the conclusions that Baze drew from it, threat of violence at the hands of the police-which Baze given the circumstances as he understood them-was enough believed was the product solely of the Highleys' vendetta to inflame Baze's passion, even if it did not produce a split- against him-could reasonably and severely disturb an second reacti on . To use th e majorit y's analogy, Briscoe's average person, let alone a paranoid one. arrival may not have been analogous to Baze catching his

wife in bed with a lover, but probably was analogous t o, say, B. Mitigating Evidence

Baze observing his wife and another man check into a motel.

The majority also errs in rejecting Baze's Eighth

The majority argues that because Baze had previously been Amendment claim: that he was deprived of his right to harassed by the police at the behest of the Highleys, present mitigating evidence by the exclusion of evidence "Briscoe's appearance at Baze's cabin therefore cannot be about his pending twenty-year prison term on federal described as sudden or dramatic from Baze's point of view; weapons charges. On the question of mitigating evidence, the if anything, it was routine and annoying." Under this logic, Supreme Court has been resolute: "the sentencer may not the majority would consider a husband's beating his wife for refuse to consider or be precluded from considering any the second time to be merely "routine and annoying" because relevant mitigating evidence ." Skipper v. South Carolina , the victim should be used to it by now. Of course, the 476 U.S. 1, 5, (1986) (emphasis added). This includes opposite is true: the first beating, or in this case the second evidence "that the defendant would not pose a danger if instance of police harassment would reasonably make spared (but incarcerated)." Id.

someone even more upset than the first instance. The second

time, the victim knows that the first incident was not isolated. The majority contends that because this conviction was still

In any event, Briscoe's arrival would have been more pending on appeal, "it was not entirely clear whether there

disturbing to Baze than the prior incident of harassment, was mitigation or not." But this is precisely the ty pe of

because this time his arrest was assured. inquiry that the Supreme Court has left for the jury, which

could have been told about both the sentence and the appeal.

Even if Briscoe's arrival itself was not a triggering event And the possibility of an additional twenty-year sentence under Kentucky law, an even more sudden and dramatic makes it less likely that Baze would ever return to the streets, stimulus awaited Baze. Becky Baze testified that when her and in any event would make him much older and presumably husband walked away from Briscoe, she saw Briscoe putting less dangerous if he did. Of course, Baze bore the risk that his hand near his holster. Believing that Briscoe was going to the jury would conclude that a not-yet-final sentence was too shoot her husband, Becky hollered and grabbed Briscoe's flimsy a basis upon which to assume Baze's additional arm. Baze similarly testified that after he turned away from incarceration. But the jurors also might have factored it into Briscoe, "everyone started hollering, 'Run!'" Again, given their calculus, given that an assessment of future Baze's view of the circumstances-including both the prior dangerousness is in herent ly an uncertain and probabilistic enterprise. Cf. Johnson v. Texas , 509 U.S. 350, 368 (1993) consciousness that can only be understood from a clinical (upholding instructions to jury to consider whether there was perspective, not from a lay perspective." Unlike Alley -in " a probability that [the defendant] would commit criminal which the evidence might affirmatively confuse all but the acts of violence that would constitute a continuing threat to most technically informed-the mitigating evidence in this society" (emphasis added)). case requires no such expertise to consider. A lay person is

perfectly capable of understanding that the conviction would

Recent cases from our sister circuits are particularly not be final until after the appeal.

instructive in this regard. In Paxton v. Ward , 199 F.3d 1197,

1211 (10th Cir. 1999), the court reviewed the constitutionality That Baze was facing an extra twenty y ears in prison was

of the state trial court's "refusal to admit a court order stating particularly relevant because the jury had no way to directly

that [the defendant] had been cleared in hi s wife's d eath by a sentence him to life in prison for the tragic killings of the two

polygraph examination." The trial court had kept out the officers. If the jury spared Baze's life, its next most

results because state law prohibited the admission of restrictive option was to impose a sentence of twenty-five

polygraph evidence due to concerns about its reliability. The years to life. Finally, the trial judge excluded evidence that

court held that the refusal to admit this evidence constituted Baze might have understood Briscoe's presence at his home

a clearly unreasonable application of the Supreme Court's as a threat to his physical safety. Baze was prohibited from

Eighth Amendment jurisprudence, noting that whatever the testifying about the newspaper article which reported that

reliability concerns that the use of a polygraph test might raise while making an arrest, Briscoe shot out the tires of the

in a normal criminal proceeding "[t]he Supreme Court has arrestee's car, pointed his weapon at the suspect, and asked

been exceedingly cautious to ensure that a person found guilty him if he "wante[ed] to meet [his] maker." Baze's reading

of a capital offense is given every opportunity to present this would have added to the danger that he felt during

potentially mitigating evidence that might form the basis for Briscoe's attempt to arrest him, and also would have provided

a sentence less than death." Id. at 1214 (internal quotations the lens through which he interpreted Briscoe's subsequent

omitted). The Ninth Circuit reached the same decision in an actions. The jury's perception of Baze's future

identical case-notwithstanding the state's concerns about the dangerousness-and the chance that he could be back on the

polygraph's reliability-noting that "under controlling United street sooner than it would want-may very well have

States Supreme Court authority, relaxed standards govern the motivated the jury to sentence him to death.

admission of mitigating evidence during the penalty phase of

a death penalty trial." Rupe v. Wood , 93 F.3d 1434, 1439 (9th These shootings were brutal. But constitutional errors

Cir. 1996). infected both Baze's conviction and sentence of death.

Accordingly, I respectfully dissent.

Although the trial court retains some discretion to exclude

flagrantly unreliable or confusing evidence, this is not a case

in which this discretion was called for. In Alley v. Bell , 307

F.3d 380 (6th Cir. 2002), we upheld the exclusion from the

sentencing phase of a videotape of the defendant answering

questions while under hypnosis. There, however, there was

evidence in the record that "people can lie under hypnosis,

and ... the hypnotic state produces different levels of