Irick v. Bell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0168p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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BILLY R. IRICK,

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Petitioner-Appellant,

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No. 01-5638

v.

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RICKY BELL, Warden, Riverbend Maximum

Respondent-Appellee. --

Security Institution,

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Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 98-00666—Curtis L. Collier, Chief District Judge.

Argued: December 11, 2008

Decided and Filed: May 12, 2009

Before: SILER, BATCHELDER, and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: C. Eugene Shiles, SPEARS, MOORE, REBMAN & WILLIAMS, Chattanooga,

Tennessee, for Appellant. James E. Gaylord, OFFICE OF THE ATTORNEY GENERAL,

Nashville, Tennessee, for Appellee. ON BRIEF: C. Eugene Shiles, SPEARS, MOORE,

REBMAN & WILLIAMS, Chattanooga, Tennessee, Howell G. Clements, CLEMENT &

CROSS, Chattanooga, Tennessee, for Appellant. James E. Gaylord, OFFICE OF THE

ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

BATCHELDER, J., delivered the opinion of the court, in which SILER, J., joined.

GILMAN, J. (pp. 16-22), delivered a separate opinion concurring in part and dissenting in

part.

1

No. 01-5638 Irick v. Bell Page 2

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. Billy Ray Irick is on Tennessee’s death

row for the rape and murder of seven-year-old Paula Dyer. Irick appeals the district court’s

dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argues that

prosecutors failed to provide defense counsel with a statement of the victim’s mother, in

violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the prosecutor committed

misconduct during closing argument in the trial’s penalty phase. Finding merit in neither

argument, we AFFIRM.

I.

In April 1985, Irick was living with Kenneth Jeffers in Kenneth’s mother’s home in

Knoxville, Tennessee. On the morning of April 15, Irick got into an argument with

Kenneth’s mother, and she chased him out of the house with a broom, telling him not to

return. Later that day, around noon, Kenneth drove Irick to Irick’s former workplace so he

could pick up his final paycheck. Kenneth then took Irick to a convenience store, where

Irick bought a quart of beer. After picking up Darrell Easterly, a mutual friend, the men

went to the home of Kathy Jeffers, Kenneth’s estranged wife. A couple of hours later,

Kenneth picked up Kathy’s children from school and took Easterly home. He later drove

Irick to a nearby store so Irick could buy a second quart of beer, and the two then returned

to Kathy’s house.

That evening, around 9:00 p.m., Kenneth left to run some errands and visit some

friends. Kathy put the children, including her daughter Paula, to bed and began getting ready

for work. She noticed that Irick was on the back porch muttering to himself. Before she left,

Kathy spoke with Irick for a few minutes in the kitchen. He “seemed mad” about the

argument with Kenneth’s mother and said that he could not hitchhike to Virginia that night

as he wanted to because Kenneth had asked him to “watch the kids.”

Kathy, who did not have a telephone in her home, briefly left the house to use a

nearby pay phone to try to call Kenneth. When she could not reach him, she returned and

No. 01-5638 Irick v. Bell Page 3

assured Irick that she would send Kenneth to her house to watch the children. She then left

for work, arriving at the truck stop restaurant where she was a waitress at about 10:30 p.m.

Kenneth came into the truck stop at about the same time, and she told him that she had “a

bad feeling” about leaving Irick with the children and that she wanted Kenneth to go to the

house and stay with the children instead. Kenneth laughed off her concern and promised that

he would go check on them later.

Around midnight, Irick knocked on the door of Kathy’s elderly neighbor, Wallace

Bailey. When Ms. Bailey refused to open the door, Irick implored: “Well, it’s an

emergency. I want to use the phone. Paula is bleeding. I can’t get her to wake up and

breathe, and I want to use your phone.” Ms. Bailey put the telephone on the porch, and Irick

called Kenneth, telling him: “Kenny, come home. It’s Paula. I can’t wake her up.” After

the call, Ms. Bailey watched Irick walk back to Kathy’s house, where he kicked a bucket and

a little dog sitting on the porch, and then punched the porch post, saying loudly “Damn.”

Bailey asked Irick why he did not call an ambulance, and Irick responded in a subdued

voice: “I think it’s too late for that.”

When Kenneth arrived at Kathy’s house, he found Irick standing at the front door.

Kenneth ran up the front steps to see Paula lying on the living room floor, blood between her

legs. He wrapped the child in a blanket, carried her to his car, and sped to the hospital.

After laboring for 45 minutes to resuscitate Paula, hospital personnel declared her dead at

approximately 1:15 a.m. An autopsy would later reveal that Paula had been raped vaginally

and anally, then asphyxiated. That afternoon, a police officer found Irick hitchhiking on an

interstate entrance ramp. In a recorded conversation with police and also in writing, Irick

confessed to raping and murdering Paula.

A jury found Irick guilty of felony murder and two counts of aggravated rape.

Following the penalty phase of the trial, the jury returned a death sentence based on four

aggravating circumstances: 1) the victim was less than 12 years of age and the defendant

was 18 years of age or older; 2) the murder was especially heinous, atrocious, or cruel in that

it involved torture or depravity of mind; 3) the murder was committed for the purpose of

avoiding, interfering with, or preventing Irick’s lawful arrest or prosecution; and 4) Irick

committed the murder while he was engaged in committing the felony of rape.

No. 01-5638 Irick v. Bell Page 4

The Tennessee Supreme Court affirmed Irick’s convictions and sentence on direct

appeal. Irick then sought post-conviction relief in the state courts. Although both the trial

court and the appellate court found the fourth aggravating circumstance — the felony murder

aggravator — invalid, they found the error harmless beyond a reasonable doubt and denied

relief. In 1999, Irick filed a federal habeas petition in the Eastern District of Tennessee,

raising 19 claims. The district court granted the warden’s motion for summary judgment,

dismissed the petition, and denied the application for a certificate of appealability. We

granted Irick a certificate of appealability on the two issues now before us.

II.

We review de novo the district court’s legal conclusions in granting or denying a

petition for a writ of habeas corpus; we review its factual findings for clear error. Slaughter

v. Parker, 450 F.3d 224, 232 (6th Cir. 2006) (citing Smith v. Hofbauer, 312 F.3d 809, 813

(6th Cir. 2002)). Here, the district court granted summary judgment to the warden and made

no findings of fact; our review, therefore, is entirely de novo. And because Irick filed his

habeas petition in 1999, the provisions of the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”) apply. Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999) (AEDPA

applies to petitions filed after April 24, 1996).

AEDPA prohibits us from granting a state prisoner’s habeas petition unless the state

court’s decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States; or . . . was

based on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

“A state court decision is ‘contrary to’ clearly established Federal law if the state

court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question

of law or if the state court confronts facts that are materially indistinguishable from a

relevant Supreme Court precedent and arrives at a different result.” Slaughter, 450 F.3d at

232 (quoting Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005) (internal quotations

omitted)). A state court decision unreasonably applies federal law “if the state court

identifies the correct governing legal principle from the Supreme Court’s decisions but

unreasonably applies that principle to the facts.” Id. (citing Williams v. Taylor, 529 U.S.

No. 01-5638 Irick v. Bell Page 5

362, 407-08 (2000)). “[A] federal habeas court may not issue a writ under the unreasonable

application clause ‘simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously or

incorrectly.’” Bell v. Cone, 535 U.S. 685, 694 (2002) (quoting Williams, 529 U.S. at 411).

“‘[T]he question under AEDPA is not whether a federal court believes the state court’s

determination was incorrect but whether that determination was unreasonable — a

substantially higher threshold.’” Owens v. Guida, 549 F.3d 399, 404 (6th Cir. 2008)

(quoting Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939 (2007)).

“Where the state court disposes of a Federal constitutional claim with little-to-no

articulated analysis of the constitutional issue, this circuit applies a modified form of

AEDPA deference.” Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008) (citations

omitted). Under this modified-AEDPA standard, we “conduct[ ] a ‘careful’ and

‘independent’ review of the record and applicable law, but [we] cannot reverse ‘unless the

state court’s decision is contrary to or an unreasonable application of federal law.’” Vasquez

v. Jones, 496 F.3d 564, 570 (6th Cir. 2007) (quoting Maldonado v. Wilson, 416 F.3d 470,

476 (6th Cir. 2005) (other citation omitted)). In other words, we must “focus on the result

of the state court’s decision, applying” AEDPA deference to the result reached, not the

reasoning used. Harris v. Stovall, 212 F.3d 940, 943 n.1 (6th Cir. 2000).

III.

A. Brady Claim

The day after Paula’s murder, Knoxville detectives interviewed Kathy Jeffers about

Irick’s behavior the night before:

Q: And so, you went to work at Hagaman’s, and then the next time you

saw your husband, where was that at?

A: He came in, I was getting ready to go to the phone. The girl I

worked with, Donna, was there with me. I was going to call and see if he

was at the other truck stop and tell him to go home, that Bill was drunk and

talking crazy . . .

Q: Bill called you?

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A: No. I went down early for a reason, to find Kenny and ask him to

go home and stay with the kids. But he walked in the door of Hagaman’s . . .

Q: Bill was drunk when you left home?

A: I had to find somebody to stay with the kids.

Q: Yeah, but Bill was intoxicated when you left?

A: He wasn’t drunk drunk, but he was well on his way.

At trial Kathy testified on direct examination that she had seen Irick drinking beer

from a quart bottle and that he had been talking to himself. When asked if Irick was

intoxicated when she left for work, Kathy answered: “No, I noticed more his being mad than

anything else.” Kathy further testified that Irick was able to talk coherently and walk

without stumbling. During his closing argument in the penalty phase, the prosecutor stated:

“I anticipate that the defense is going to suggest that he was acting under the influence of

alcohol or marijuana. Where’s the proof of it? . . . No one has ever said he was intoxicated.”

Irick argues that under Brady v. Maryland, 373 U.S. 83, the prosecution was

obligated to turn Kathy’s statement over to the defense and that their failure to do so

deprived him of his Fourteenth Amendment right to due process. In Brady, the Supreme

Court held “that the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id. at 87. “‘There are three

components of a true Brady violation: the evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or inadvertently; and prejudice must have

ensued.’” Owens, 549 F.3d at 415 (quoting Strickler v. Greene, 527 U.S. 263, 281-82

(1999)). A defendant is prejudiced when there is “a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting United States v. Bagley,

473 U.S. 667, 682 (1985)).

Kathy’s statement that Irick was “drunk and talking crazy” on the night of the

murder is favorable to him, Irick argues, for several reasons. First, Irick contends that

“evidence of intoxication may be admitted to negate the intent to commit the felony

underlying the felony murder charge.” Second, he argues that “[e]vidence of intoxication

No. 01-5638 Irick v. Bell Page 7

and/or mental illness was also clearly important in the penalty phase to show his actions as

an aberration when viewed in the context that [Irick] was a trusted member of the Jeffers

family prior to this incident.” Third, Irick argues that he could have used Kathy’s statement

to impeach her after she testified that he seemed “mad” rather than intoxicated. Finally, Irick

contends that if his attorneys had seen Kathy’s statement that he was “talking crazy,” they

“would have more thoroughly investigated [Irick’s] underlying mental condition . . . and

found that [Irick] had experienced several psychotic episodes just prior to the incident.”

On Irick’s appeal from the state trial court’s denial of his habeas petition, the

Tennessee Court of Criminal Appeals did not specifically address his claim that the

prosecution suppressed Kathy’s statement to police. In his brief to that court, Irick addressed

only some of the evidence he believed had been suppressed; for the rest, including Kathy’s

statement, he referred the court to his state petition for post-conviction relief, which

originally had been filed in the state trial court. The Court of Criminal Appeals did not hold

that Irick had forfeited his Brady challenges to the unbriefed evidence. In fact, that court

discussed some of that evidence (but not Kathy’s statement). See Irick v. State, 973 S.W.2d

643, 655-56 (Tenn. Crim. App. 1998).

On these facts, modified-AEDPA review is appropriate because in rejecting Irick’s

Brady challenges to the evidence it specifically addressed, the Tennessee Court of Criminal

Appeals appears also to have rejected his challenge to Kathy’s statement. We recognize,

however, that this is a close case, and we have conducted the careful and independent review

that is required under such circumstances. Even assuming arguendo that Kathy’s statement

is favorable to Irick and was suppressed by the prosecution, the state court’s decision that

Irick was not prejudiced by its suppression was not contrary to or an unreasonable

application of federal law. Indeed, even if we reviewed this issue de novo as our dissenting

colleague says we should, our conclusion would be no different.

1. Evidence of Irick’s intoxication could not have negated his

intent to commit rape.

Irick argues that he could have used Kathy’s statement to prove that he was

intoxicated and thus unable to form the intent to commit aggravated rape, the predicate crime

for his felony-murder conviction. Under Tennessee law, evidence of intoxication may be

admitted “to negate the intent required in committing the felony underlying a felony murder

No. 01-5638 Irick v. Bell Page 8

charge.” Wiley v. State, 183 S.W.3d 317, 333 (Tenn. 2006) (citation omitted). “Voluntary

intoxication is never a justification for a crime but its existence may negate a finding of

specific intent.” State v. Adkins, 653 S.W.2d 708, 713 (Tenn. 1983) (emphasis added)

(citation omitted). Prior to Tennessee’s adoption of the Criminal Sentencing Reform Act of

1989, “the offense of aggravated rape was a ‘general intent’ crime, for which a culpable

mental state was necessary, but easily inferable from the conduct which comprises the

offense.” Dykes v. Compton, 978 S.W.2d 528, 530 n.2 (Tenn. 1998) (citations omitted); see

also Walden v. State, 156 S.W.2d 385, 387 (Tenn. 1941) (“In the crime of rape no intent is

requisite other than that evidenced by the doing of the acts constituting the offense.”

(citations omitted)). The statute under which Irick was convicted, Tenn. Code Ann. § 39-2-

603 (1979), defined aggravated rape as the “unlawful sexual penetration of another”

accomplished under certain aggravating circumstances — in this case, the penetration of a

child less than 13 years of age. See Dykes, 978 S.W.2d at 530. Whether Irick was drunk or

not, the fact that he sexually penetrated Paula Dyer is itself sufficient to prove the requisite

mens rea. Even if Kathy Jeffers’s statement could have established Irick’s intoxication, it

could not have negated his intent to commit aggravated rape, and thus could not have

undermined his felony murder conviction.

2. There is no reasonable probability that Irick’s sentence would

have been different had he introduced Kathy Jeffers’s statement

in the penalty phase.

Irick argues that Kathy’s statement would have shown that his actions on the night

of April 15, 1985, were an “aberration” from his true character as a trusted family friend.

At trial Kathy testified that before the night of Paula’s murder she had often let Irick babysit

her children because she trusted him and had a relationship with him “like brother and

sister.” That night, however, he was “really angry” and acted “like he was wanting to strike

out at something,” and she “had never seen him like that before.” Kenneth also testified that

Irick previously had been good to the children. The jury heard Kathy testify that Irick had

been drinking and was talking to himself before she left for work, and they heard Kenneth

testify about the amount of alcohol Irick had purchased that day. The jury thus heard

evidence about Irick’s past treatment of the Jefferses’ children, about his drinking two quarts

of beer over the course of the day, and about his strange behavior that night. Kathy’s

statement that Irick was “drunk and talking crazy” would have been, at best, cumulative of

No. 01-5638 Irick v. Bell Page 9

this other evidence, and we cannot say that the fairness of the penalty phase was undermined

by its absence.

3. There is no reasonable probability that the verdict would have

been different had Irick used Kathy Jeffers’s statement to

impeach her trial testimony.

During the trial’s guilt phase, Kathy testified that she could not tell that Irick was

intoxicated on the night of the murder; she said she “noticed more his being mad than

anything else.” Irick argues that he could have impeached her with her statement to police

that Irick was “drunk and talking crazy.” Although Irick could have used the statement to

try to impeach Kathy’s credibility, we cannot say there is a reasonable probability that he

would have been acquitted had he done so. Even in her interview with police, when asked

if Irick was intoxicated, Kathy qualified her earlier comment that he was “drunk” by

explaining that he was not “drunk drunk, but he was well on his way.” So, both in her

statement and in her trial testimony, Kathy refused to affirm that Irick was “intoxicated.”

And her statement that Irick was “well on his way” to being drunk was not inconsistent with

her testimony that Irick was angry and talking to himself but still able to talk coherently and

walk without stumbling.

4. Irick’s argument that Kathy Jeffers’s statement would have led

his counsel to uncover favorable evidence of his mental

condition is procedurally barred.

Had his counsel seen Kathy’s statement that Irick was “talking crazy,” Irick

contends, they would have further investigated his mental condition and discovered that he

had demonstrated a pattern of disturbing behavior prior to the murder. In support of this

contention, Irick points to affidavits sworn in 1999 from Kenneth Jeffers’s family members.

Ramsey Jeffers, Kenneth’s father, stated that “sometime immediately before April 15, 1985”

he found Irick in the hallway of his home carrying a machete and threatening to kill Kenneth.

Linda Jeffers, Kenneth’s mother, stated that she saw Irick chase a school-age girl down the

street with a machete because he did not like her looks. Cathy Jeffers, Kenneth’s sister,

stated that Irick had told her that he had been “talking with” and “taking instructions from”

the devil and that “the only person that tells me what to do is the voice.” Irick suggests that

uncovering this information would have led him to mount a successful insanity defense or

at least would have provided mitigating evidence for the penalty phase.

No. 01-5638 Irick v. Bell Page 10

Irick did not present this argument to the state courts. In fact, the Jefferses’ affidavits

were not signed until after all state proceedings had ended. A federal habeas petitioner

“must first exhaust the remedies available in state court by fairly presenting his federal

claims before the state court; the federal court will not review unexhausted claims.” Murphy

v. Ohio, 551 F.3d 485, 501 (6th Cir. 2009) (citing Smith v. Ohio Dep’t of Rehab. & Corr.,

463 F.3d 426, 431 (6th Cir. 2006)). “A federal court will not review claims that were not

entertained by the state court due to . . . the petitioner’s failure to raise those claims in the

state courts while state remedies were available . . . .” Id. (citing Lundgren v. Mitchell, 440

F.3d 754, 763 (6th Cir. 2006)). Because Irick did not present this issue to the Tennessee

courts, he is barred from raising it here.

Moreover, granting Irick habeas relief based on this argument would require us to

accept a cascade of entirely speculative premises: had his counsel seen Kathy’s statement

that he was “talking crazy” the night of the murder, they would have launched an

investigation into his mental condition that they otherwise would not have undertaken; his

attorneys would have interviewed Kenneth’s family, something they would not have done

absent this investigation; they would have called these or other witnesses, perhaps experts,

to the stand; and the jury would have accepted their testimony and acquitted Irick or

withheld the death penalty. We cannot say that either singly or together these premises

amount to a reasonable probability that Irick’s verdict or sentence would have been different.

B. Prosecutorial Misconduct

Irick argues that the prosecutor committed three forms of misconduct during closing

argument in the penalty phase. First, he argues that the prosecutor advocated general

deterrence as a basis for imposing the death penalty. Second, he argues that the prosecutor

expressed his personal beliefs regarding the effectiveness of the death penalty as a general

deterrent. Third, he contends that the prosecutor implied that Irick had previously committed

acts similar to the offense for which he was on trial.

In an evaluation of alleged prosecutorial misconduct the “correct inquiry is whether

the improper comments or actions ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’” Slagle v. Bagley, 457 F.3d 501, 515 (6th Cir.

2006) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). We use a two-part test

No. 01-5638 Irick v. Bell Page 11

to determine whether the state court reasonably applied the federal standard in holding that

prosecutorial misconduct did not render Irick’s trial fundamentally unfair. Id. First, we

determine whether the prosecution’s conduct was improper. Id. at 516. If it was, we then

consider four factors to decide whether the improper acts were flagrant, thus requiring

reversal: “(1) whether the evidence against the defendant was strong; (2) whether the

conduct of the prosecution tended to mislead the jury or prejudice the defendant; (3) whether

the conduct or remarks were isolated or extensive; and (4) whether the remarks were made

deliberately or accidentally.” Id. We have recognized that “the Supreme Court has clearly

indicated that the state courts have substantial breathing room when considering

prosecutorial misconduct claims because ‘constitutional line drawing [in prosecutorial

misconduct cases] is necessarily imprecise.’” Id. (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 645 (1974)).

1

1. General Deterrence

In his rebuttal closing argument in the penalty phase, the prosecutor told the jury:

[W]ith your verdict, you make a statement about things whether you

realize it or not. You will make a statement about the value of Paula’s

life. You will make a statement about what this man did and your

willingness to tolerate it. You will make a statement to everybody else

out there what is going to happen to people who do this sort of thing.

Some of you may believe that punishment is a deterrence. Some of you

may not. I don’t know. I personally believe that it is. . . . [T]here comes

a time in society when we have a right to defend ourselves. I suggest to

you that it is more than a right to defend ourselves in this kind of a

situation where there is a child involved. We have a duty to defend . . .

our families, and our homes and our children. That is what this case is

about.

On direct review, the Tennessee Supreme Court held that “[u]nquestionably, any

argument based on general deterrence to others has no application to either aggravating

or mitigating circumstances” and “is inappropriate at a sentencing hearing.” State v.

Irick, 762 S.W.2d 121, 131 (Tenn. 1988). That court nonetheless held that the

prosecutor’s comments were “moderate at most” and did not warrant reversal. Id.

1

Because the prosecutor expressed his personal belief in the context of making a general

deterrence argument, we will consider the two together.

No. 01-5638 Irick v. Bell Page 12

We are not convinced that the prosecutor’s general deterrence argument was

improper. At the time of the Tennessee Supreme Court’s decision, the United States

Supreme Court had never held that appeals to general deterrence are impermissible in

sentencing arguments. In fact, several of our sister circuits had explicitly held

otherwise.2 See, e.g., Davis v. Kemp, 829 F.2d 1522, 1527 (11th Cir. 1987) (“Arguments

by the prosecutor that the death penalty serves as a deterrent are proper.” (citation

omitted)); Brooks v. Kemp, 762 F.2d 1383, 1407 (11th Cir. 1985) (en banc), vacated on

other grounds, 478 U.S. 1016 (1986), reinstated, 809 F.2d 700 (11th Cir.1987) (“In

deciding whether to impose the death penalty in a particular case, it is appropriate for a

jury to consider whether or not the general deterrence purpose of the statute would be

served thereby.” (citation omitted)); Coleman v. Brown, 802 F.2d 1227, 1239 (10th Cir.

1986) (“[C]omments concerning the penological justifications for the death penalty, i.e.,

retribution, incapacitation, and general deterrence, are appropriate.” (citations omitted));

Welcome v. Blackburn, 793 F.2d 672, 679 (5th Cir. 1986) (providing that “[w]hile the

prosecutor’s closing argument touched on the prospect of general deterrence, it also

emphasized [the defendant’s] actions and the jury’s responsibility to make a sentencing

determination that applied the death penalty to [the defendant’s] individual case” and did

not render the trial fundamentally unfair (citation omitted)).

As for the prosecutor’s comment that he “personally believe[d]” the death

penalty was a deterrent, “[i]t is well established that the personal opinion of counsel has

no place at trial.” United States v. Collins, 78 F.3d 1021, 1039 (6th Cir.1996) (citation

omitted). Even so, in this case the prosecutor did not vouch for a witness, personally

2

The dissent cites two of this court’s decisions to show “that, in this circuit, general-deterrence

arguments are disfavored.” Dissenting Op. at 21 (emphasis in original). In United States v. Solivan, 937

F.2d 1146, 1150-53 (6th Cir. 1991), we held that it was improper for a prosecutor, during closing argument

in a trial’s guilt phase, to suggest to the jury that a community drug problem would continue if they did

not convict the defendant. The danger, we held, was that the jury might render a verdict of guilty based

on their desire “to end a social problem” instead of their decision that the individual defendant was guilty

beyond a reasonable doubt of the crime charged. Id. at 1153. That case is distinguishable from the

situation here, where Irick had already been convicted and defense counsel had conceded that at least one

aggravating factor had been established. And in Byrd v. Collins, 209 F.3d 486, 538-39 (6th Cir. 2000),

we held that the petitioner had failed to raise and that “we need not consider” his claim that the prosecutor

impermissibly argued that the jury “should impose the death penalty on Petitioner in order to fulfill their

societal duty.” We went on to note that, in any event, it was “not clear that [the prosecutor’s] comment

was even improper, and it certainly [did] not render Petitioner’s entire trial fundamentally unfair.” Id. at

539. These cases do not establish that the prosecutor’s statements here were improper under our caselaw.

No. 01-5638 Irick v. Bell Page 13

comment on the credibility or weight of the evidence, or suggest that he had personal

knowledge of facts not before the jury. He simply acknowledged that there were

differences of opinion on the efficacy of capital punishment as a deterrent and shared

where he stood in the debate.

Even if the general-deterrence line of argument was improper, it was not flagrant.

First, the evidence against Irick in the penalty phase — proof of aggravating

circumstances — was strong. Indeed, defense counsel acknowledged to the jury that it

would be “foolish” for him to argue that the prosecution had not proven at least one

aggravating circumstance beyond a reasonable doubt: the fact that Paula Dyer was under

13 years of age and that Irick was 18 years of age or older. Second, the prosecutor’s

comments did not tend to mislead the jury or prejudice Irick. The mere fact that a

comment was improper does not itself establish prejudice. If it did, there would be no

need for a two-step inquiry. In light of the gruesome facts of Paula’s murder and the

overwhelming evidence of aggravators, Irick has not shown how the prosecutor’s appeal

to deterring others or protecting families has prejudiced him. Third, the comments were

limited to the rebuttal portion of the prosecutor’s closing and did not make up an

extensive part of his argument. Fourth, although the remarks were deliberate rather than

accidental, the balance of these factors leads us to agree with the state court that any

impropriety here was “moderate at most.”

2. Prior Bad Acts

Also in his penalty phase rebuttal, the prosecutor stated:

Should we be surprised to hear these people get up here today and say,

“When Billy Irick is angry or moody, he wants to hurt something. He

wants to hurt somebody.” We knew that, didn’t we? We knew that, on

April 15, 1985, he was upset. It doesn’t appear to us to be anything

significant, does it? But it just doesn’t suit Billy Ray Irick, so he is

moody, and he is grumbling. He is talking under his breath. Things

aren’t going his way.

And he takes it out on a seven year old child. We knew that about Billy

Irick before Ms. Lunn or Dr. Tennison ever hit that witness stand. What

we didn’t know is he has been doing it for a long time.

No. 01-5638 Irick v. Bell Page 14

Irick argues that the prosecutor was suggesting Irick had previously committed violent

crimes other than the ones for which he was on trial.

The Tennessee Supreme Court found that the prosecutor seemed “to make

reference to the testimony of certain of the witnesses who indicated defendant had a

tendency to behave violently toward others on occasion.” Irick, 762 S.W.2d at 132.

This finding is not an unreasonable determination of the facts. The context of the

prosecutor’s statement was that Irick had a tendency to hurt “somebody” or “something”

when he was angry or did not get his way.

Nina Lunn, a licensed social worker, met with Irick when he was a child patient

at the Mental Health Center of Knoxville and Eastern State Mental Hospital. In an

intake report taken in 1965, Lunn described Irick as “overly aggressive” and “difficult

to manage,” and noted that he “mistreats animals.” Lunn told the jury that “during that

period of time when [she] worked with [Irick]” he showed “patterns of behavior” in

which he would become “very moody” and “more aggressive, if not, you know,

attacking of the staff and those kinds of things.”

Dr. Clifton Tennison, Jr., a psychiatrist, testified that his examination of Irick left

him with “a strong diagnostic impression” that Irick had an anti-social personality

disorder. Dr. Tennison described personality disorders generally as “long-term,

maladaptive, fixed, deep-ingrained responses to stress in the environment.” He

described anti-social personality disorder as being characterized by “an unwillingness

or an inability to take into account the rights of other people.”

Part of the defense theory at sentencing was that, in raping and murdering Paula,

Irick tragically but temporarily deviated from his nonviolent character. In closing

argument defense counsel stated:

Billy has been able to stay out of trouble with the law as an adult. I think

that is important. I think that shows some hope that Billy is not all bad.

I mean, he was able to go for a number of years and not even get arrested

for even a misdemeanor that involves moral turpitude.

No. 01-5638 Irick v. Bell Page 15

On the day of the murder Irick had lost his job and home, had been drinking, and may

have smoked some marijuana, defense counsel noted. In response, the prosecutor

pointed to Lunn’s and Tennison’s testimony and argued that Irick had a long history of

aggressive behavior and an ingrained tendency to please himself at the expense of others.

Under this interpretation of his statement, which the state court reasonably adopted, the

prosecutor did nothing wrong.

Even if the comment was somehow improper, it was not flagrant. As explained

above, the evidence against Irick was overwhelming. Because the prosecutor’s reference

to Irick’s “doing it for a long time” was at worst vague, it did not tend to mislead the jury

or prejudice Irick. The comment was isolated, and its context shows that the prosecutor

did not intend to suggest that Irick had committed other, uncharged crimes.

Finally, the allegedly improper comments did not, in the aggregate, render Irick’s

trial fundamentally unfair. Any cumulative effect was minimal, given the mountain of

evidence against him. See Slagle, 457 F.3d at 523-28 (15 improper comments, even

when taken together, did not render trial unfair). The state court reasonably applied

federal law in holding that the statements did not call for habeas relief.

IV.

For the reasons stated above, we AFFIRM the district court’s judgment.

No. 01-5638 Irick v. Bell Page 16

__________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

__________________________________________________

RONALD LEE GILMAN, Circuit Judge, concurring in part and dissenting in

part. I agree with the majority that Billy Ray Irick’s conviction is free of constitutional

error. Nonetheless, I write separately on this issue because I believe that the majority

has applied the wrong standard of review to Irick’s Brady claim. In my view, that claim

should be reviewed de novo. Even under the de novo standard, however, I reach the

same conclusion as the majority on the Brady issue.

I cannot agree, however, that Irick’s death sentence passes similar constitutional

muster. In particular, the prosecutor’s improper closing argument at the penalty phase

of the case—urging the jury to sentence Irick to death in order “to defend ourselves, . . .

our families, . . . our homes, and our children”—went beyond the pale and “so infected

the trial with unfairness” as to make the resulting sentence a denial of due process. See

Darden v. Wainwright, 477 U.S. 168, 181 (1986); Lundgren v. Mitchell, 440 F.3d 754,

778 (6th Cir. 2006) (noting that where prosecutorial misconduct occurs during the

sentencing phase of a capital case, the Darden inquiry becomes “whether the

constitutional error influenced the jury’s decision between life and death”). I address

below both the standard of review regarding the Brady issue and the merits of the

prosecutor’s improper closing argument.

I. IRICK’S BRADY CLAIM

Only one piece of evidence that was excluded at Irick’s trial is relevant to this

appeal: Kathy Jeffers’s statement that Irick was “drunk and talking crazy” on the night

of the murder. Because I agree with the majority’s conclusion on this Brady claim, I

concur in the result reached in Part III.A. of the majority opinion. I disagree, however,

with the majority’s application of AEDPA deference to Irick’s Brady claim.

The majority acknowledges that “the Tennessee Court of Criminal Appeals did

not specifically address [Irick’s] claim that the prosecution suppressed Kathy’s statement

No. 01-5638 Irick v. Bell Page 17

to the police.” (Maj. Op. at 7) As the majority explains, Irick did not brief his Brady

challenge to the exclusion of this particular piece of evidence to that court, but instead

incorporated the argument by reference to his postconviction petition filed with the state

trial court. (Id.) The Tennessee Court of Criminal Appeals did not even allude in its

opinion to the existence of the argument.

Nevertheless, the majority applies “modified AEDPA review” because, in its

view, “in rejecting Irick’s Brady challenges to the evidence it specifically addressed, the

Tennessee Court of Criminal Appeals appears to have also rejected his challenge to

Kathy’s statement.” (Id.) The majority thus attempts to fit the present case—where a

constitutional claim apparently fell through the cracks during the state-court

postconviction proceedings—into this circuit’s line of “modified AEDPA deference”

caselaw. See, e.g., Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008) (“Where the

state court disposes of a Federal constitutional claim with little-to-no articulated analysis

of the constitutional issue, this circuit applies a modified form of AEDPA deference.”).

But the “modified AEDPA deference” line of cases, in my opinion, treads a

precarious path in light of the Supreme Court’s decisions in Rompilla v. Beard, 545 U.S.

374 (2005), and Wiggins v. Smith, 539 U.S. 510 (2003). In these two cases, the Supreme

Court applied de novo review to the prejudice prong of ineffective-assistance-of-counsel

claims under Strickland v. Washington, 466 U.S. 668 (1984). The Court did so because

the state courts in both Rompilla and Wiggins had held that counsel’s assistance was not

ineffective, and therefore had not reached the prejudice prong of the Strickland test.

Rompilla, 545 U.S. at 390 (“Because the state courts . . . never reached the issue of

prejudice, . . . we examine this element of the . . . claim de novo . . . .”); Wiggins, 539

U.S. at 534 (conducting a de novo review of the Strickland prejudice issue under the

same circumstances). This circuit thus applies more deference to state courts in

modified-deference cases like Hawkins, where the state court denied the constitutional

claim without providing any indication that it had even considered the claim, than did

the Supreme Court in Rompilla and Wiggins, where the state courts provided a thorough

analysis of at least the first prong of the relevant claim. The inconsistency in this

No. 01-5638 Irick v. Bell Page 18

approach strikes me as troublesome at best, and I conclude that applying de novo review

to perfunctory state-court conclusions in cases like Hawkins would align more closely

with the Supreme Court’s decisions.

Moreover, even if the modified-AEDPA-deference standard might be appropriate

in some cases, this is not such a case. In Hawkins and other modified-AEDPA-deference

cases, the state courts articulated a conclusion on the constitutional issue—albeit without

undertaking rigorous analysis. See Hawkins, 547 F.3d at 547 (“[I]f appellant’s

arguments are considered on the merits, appellant has failed to satisfy his burden of

establishing ineffective assistance under . . . [Strickland].” (quoting State v. Hawkins,

612 N.E.2d 1227, 1234 (Ohio 1993) (alteration in original)). Here, in contrast, the state

court did not even mention the “drunk and talking crazy” statement that is the subject of

the Brady claim now before us. Under these circumstances, I conclude that the

constitutional claim should receive de novo review. See, e.g., Dyer v. Bowlen, 465 F.3d

280, 284 (6th Cir. 2006) (“When a state court fails to address the petitioner’s federal

claim, we review the claim de novo.”); Maples v. Stegall, 340 F.3d 433, 437 (6th Cir.

2003) (“Where, as here, the state court did not assess the merits of a claim properly

raised in a habeas petition, the deference due under AEDPA does not apply.”).

Application of de novo review, however, brings me to the same conclusion

reached by the majority’s “careful and independent review” of the record and applicable

law. (Maj. Op. at 7) As the majority thoroughly explains, introduction of the “drunk and

talking crazy” statement would not have undermined the intent element of Irick’s

conviction. (Maj. Op. at 8) I thus part ways with my colleagues on this issue only in my

belief that AEDPA deference does not apply to implied “conclusions” that the state court

never made. Where we must assume that the state court rejected a particular claim

because the state court is silent, I believe that we should review the claim without any

deference, modified or otherwise. See Maples v. Stegall, 340 F.3d at 437.

No. 01-5638 Irick v. Bell Page 19

II. PROSECUTORIAL MISCONDUCT AT THE PENALTY PHASE

I turn now to Irick’s claim that the prosecutor’s general-deterrence argument

introduced fundamental unfairness into the penalty phase of the trial. The final three

paragraphs of the prosecutor’s rebuttal closing argument at the penalty phase read as

follows:

But what about other people? Because, with your verdict, you make a

statement about things whether you realize it or not. You will make a

statement about the value of Paula’s life. You will make a statement

about what this man did and your willingness to tolerate it. You will

make a statement to everybody else out there what is going to happen to

people who do this sort of thing. Some of you may believe that

punishment is a deterrence. Some of you may not. I don’t know. I

personally believe that it is. I will tell you why, and this is not an

original thought. But I have heard this comment made, and I guess it all

depends on how you are turned [sic]—how you look at the world.

Someone said that the death penalty is, sort of, like a lighthouse. You

don’t know how many ships have been saved by its beacon. You can’t

count that. You only know the ones that disregarded its warning. Those,

you count. Those are the Billy Ray Iricks.

I know this is a hard decision, ladies and gentlemen, but there comes a

time in society when we have the right to defend ourselves. I suggest to

you that it is more than a right to defend ourselves in this kind of

situation where there is a child involved. We have a duty to defend

ourselves, a duty to defend our families, and our homes, and our children.

That is what this case is about. And our law is now being entrusted into

your care. Thank you.

These final words from the prosecutor were improper for a number of reasons.

To start with, they were deliberately made despite Irick’s preargument request that the

court instruct the prosecutor not to make a general-deterrence argument. Moreover, the

argument is misleading because general deterrence has nothing to do with the proper

weighing of aggravating and mitigating circumstances. The Tennessee Supreme Court

agreed that the prosecutor’s argument in the present case was improper for this reason,

stating that “[u]nquestionably, any argument based on general deterrence to others has

no application to either aggravating or mitigating circumstances. Argument of this

nature is inappropriate at a sentencing hearing.” State v. Irick, 762 S.W.2d 121, 131

No. 01-5638 Irick v. Bell Page 20

(Tenn. 1988). In my view, the majority oversteps its role by second-guessing the

Tennessee Supreme Court’s explicit conclusion on this question of state law. See

Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008) (“We must accept as valid a state

court’s interpretation of the statutes and rules of practice of that state.” (citing Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991)).

The majority cites cases from three of our sister circuits to support its contention

that appeals to general deterrence might be appropriate at the sentencing phase of a death

penalty case. Although federal cases are not relevant in light of Tennessee’s

unambiguous conclusion that the prosecutor’s argument was improper, I note that, in this

circuit, general-deterrence arguments are disfavored, especially where, as here, the

argument is “calculated to inflame passion and prejudice.” See, e.g., United States v.

Solivan, 937 F.2d 1146, 1150-53, 1155 (6th Cir. 1991) (holding that a prosecutor’s

entreaty in closing argument to convict a defendant in order to “send a message and

strike a blow to the drug problem” was “a single misstep so destructive to defendant’s

right to a fair trial that it constitute[d] reversible error.”); cf. Byrd v. Collins, 209 F.3d

486, 539 (6th Cir. 2000) (holding that a prosecutor’s comment that jurors “should

impose the death penalty . . . in order to fulfill their societal duty” was not improper

because the prosecutor “d[id] not ask the jury to send a message to other potential

murderers or robbers”).

Finally, the prosecutor expressed his personal belief in the effectiveness of

general deterrence. But “prosecutors are prohibited from expressing their personal

opinion as to . . . the appropriateness of the death penalty.” Bates v. Bell, 402 F.3d 635,

644 (6th Cir. 2005). The reason for this rule is that “[j]urors are mindful that the

prosecutor represents the State and are apt to afford undue respect to the prosecutor’s

personal assessment.” Id.

Despite its clear holding that the prosecutor’s closing argument was improper,

the Tennessee Supreme Court concluded that the argument did not reach the level of

reversible error for the following reasons: “The comments were moderate at most. The

trial court correctly and positively instructed the jury in reference to aggravating and

No. 01-5638 Irick v. Bell Page 21

mitigating circumstances. Defendant did not challenge the sufficiency of the evidence

of his guilt. The evidence was devastating against him and was supplemented by his

own confession.” Irick, 762 S.W.2d at 131.

This brief justification for finding the prosecutorial misconduct harmless is, in

my opinion, so unpersuasive as to be unreasonable. See Williams v. Taylor, 529 U.S.

362, 409 (2000) (“[A] federal habeas court making the ‘unreasonable application’

inquiry should ask whether the state court’s application of clearly established federal law

was objectively unreasonable.”). First of all, the comments were not “moderate.” They

were an extended emotional appeal for the jurors to protect themselves and the

community at large from persons of Irick’s ilk, and they came at the very end of the

state’s argument, with no chance for rebuttal by the defense. Nor did the trial court’s

jury instructions cure the taint, since they were devoid of any indication that the jurors

should disregard the prosecutor’s improper appeal to an irrelevant consideration in their

decision as to whether Irick should live or die. Finally, the fact that Irick did not

challenge the overwhelming evidence of his guilt for the underlying crime has no

bearing on the jury’s proper role in weighing the mitigating factors presented at the

sentencing phase of his trial.

Irick’s crime was indeed a heinous one that the jury could well find deserved the

death penalty. But how confident can we be that, in the absence of the prosecutor’s

improper appeal to general deterrence, not a single juror would have considered the

mitigating circumstances presented—Irick’s lack of any prior felony conviction, his

history of mental impairment, his close relationship with the victim’s family, and his

remorse—and decided that life without parole was the appropriate punishment for Irick?

As the Supreme Court said in Caldwell v. Mississippi, 472 U.S. 320, 341 (1985), if the

court “cannot say that [the prosecutor’s comments] had no effect on the sentencing

decision,” then the jury’s decision “does not meet the standard of reliability that the

Eighth Amendment requires.”

There is no doubt in the present case that the prosecutor’s final words to the jury

were, as acknowledged by the Tennessee Supreme Court, “inappropriate.” The sole

No. 01-5638 Irick v. Bell Page 22

question then is whether this inappropriate conduct “influenced the jury’s decision

between life and death.” Lundgren v. Mitchell, 440 F.3d 754, 778 (6th Cir. 2006). The

prosecutor in this case injected an improper consideration—the death penalty’s alleged

effectiveness to deter other heinous murders of young children—into the balance

between aggravating and mitigating factors. A juror could hardly be expected to ignore

this powerful emotional appeal to an irrelevant factor, especially in the absence of an

appropriate instruction from the court.

Because I believe that there is a reasonable probability that at least one juror

would have reached a different outcome as to Irick’s sentence in the absence of the

prosecutor’s misconduct, I conclude that the state court’s ruling to the contrary was an

unreasonable application of federal law as declared by the Supreme Court. See Bell, 402

F.3d at 649 (“If a habeas court is in ‘grave doubt’ as to the harmlessness of an error, the

habeas petitioner must prevail.”); Skaggs v. Parker, 235 F.3d 261, 271 (6th Cir. 2000)

(“[A] petitioner need not prove by a preponderance of the evidence that the result would

have been different, but merely that there is a reasonable probability that the result

would have been different.” (citing Williams, 529 U.S. at 371)). I would therefore grant

Irick’s petition for a writ of habeas corpus as to his death sentence, conditioned on the

state of Tennessee retrying the penalty phase of the case without the taint of the

prosecutor’s general-deterrence argument.