Appendix — Parker v. Gall
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IN THE
Supreme Court of the United States
PHIL PARKER, WARDEN,
Petitioner
versus
EUGENE WILLIAMS GALL, JR.,
Respondent
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
ALBERT B. CHANDLER III
Attorney General of Kentucky
RICKIE L. PEARSON
Assistant Attorney General
IAN G. SONEGO
Assistant Attorney General
Counsel of Record
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
(502) 696-5342
APPENDIX
Item
Page
Opinion, United States Court of Appeals,
Sixth Circuit, October 30, 2000 ................
Judgment, United States Court of Appeals,
Sixth Circuit, October 30, 2000 ................
Order, United States Court of Appeals,
Sixth Circuit, February, 2001 .................
Judgement, United States District Court,
Eastern District of Kentucky, January 23,1991 ...
Opinion and Order, United States District Court
Eastern District of Kentucky, January 23,1991 ...
Opinion and Order, United States District Court
Eastern District of Kentucky, March 19,1991 ....
Opinion and Order, United States District Court
Eastern District of Kentucky, September 21, 1994 .
Magistrate’s Report and Recommendation,
United States District Court
Eastern District of Kentucky, April 29, 1987 .....
Opinion, Supreme Court of Kentucky,
SMMUNEET UE ood ees
137-187
188-192
193-200
201-229
230-269
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0379P (6th Cir.)
File Name: 00a0379p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EUGENE WILLIAMS GALL, JR.,
Petitioner-Appellant,
Nos. 91-5502;
v.
a 94-6376
PHI. PARKER, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 87-00056—William O. Bertelsman, District Judge.
Argued: November 3, 1999
Decided and Filed: October 30, 2000
Before: MARTIN, Chief Judge; JONES and GUY, Circuit
Judges.
COUNSEL
ARGUED: Erwin W. Lewis, Edward C. Monahan,
DEPARTMENT OF PUBLIC ADVOCACY, Frankfort,
Kentucky, for Appellant. Rickie L. Pearson, ASSISTANT
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
ON BRIEF: Erwin W. Lewis, Edward C. Monahan,
DEPARTwiscNT OF PUBLIC ADVOCACY, Frankfort,
Kentucky, for Appellant. Rickie L. Pearson, Ian G. Sonego,
l
i
2 Gallv. Parker Nos. 91-5502; 94-6376
ASSISTANT ATTORNEY GENERAL, Frankfort, Kentucky,
for Appellee.
JONES, J., delivered the inion of the court, in which
MARTIN, C. J., joined. G » J. (pp. 112-131), delivered a
separate opinion concurring in part and dissenting in part.
OPINION
OVERVIEW
tragedy, anger and outrage over hideous acts trated, a
fair and constitutional trial takes place. Constitutionally fair
trials do not occur whenever a judge, jury and litigants go
Nos. 91-5502: 94-6376 —) Galtv. Parker 3
through the formal process of presenting arguments and
examining witnesses. For a trial to be constitutionally sound
requires far more: it is a trial where the prosecutor must prove
all elements of a crime beyond a reasonable doubt in order to
convict; where the prosecutor adheres to certain rules of
conduct that guarantee a fair trial and a proper consideration
of the defendant’s theories and supporting evidence; where
the jurors consider only evidence adduced by the parties and
that a defendant has had an opportunity to rebut; and where a
defendant enjoys the right to cross-examine adverse
witnesses. When a state contemplates imposing the ultimate
penalty, a constitutional trial requires jury selection
procedures that avoid seating a jury predisposed to a death
sentence, and also allows each individual juror to give effect
to any mitigating evidence. It follows then that the issues
raised do not lend themselves to summary treatment.
After painstakingly reviewing each of the issues raised and
the extensive trial record, and minutely examining the
relevant governing authorities, we agree with Gall that
substantial errors occurred. The key issues contested at trial
that we treat below involved Gall’s mental condition, and
specifically whether he was competent to stand trial, whether
he was legally insane at the time of the crime, and whether he
was under extreme emotional disturbance when he committed
the crime. Unfortunately, an array of complicating
circumstances—high publicity, Gall’s own actions, trial court
mistakes, overzealous prosecutorial tactics combined with
inexcusable oversights, and poor defense advocacy at various
stages—introduced errors into both the guilt and penalty
phases of Gall’s trial, as well as into his direct appeal in the
state courts. Although we reject a number of Gall’s
arguments, we find some of the errors to have been
sufficiently egregious so as to violate fundamental
constitutional rights and protections.
4 Gall v. Parker Nos. 91-5502; 94-6376
I.
A.
On April 27, 1978, a Boone County grand jury indicted
Gall for the rape and murder of Lisa Jansen. In a two-phase
trial, the Commonwealth presented considerable evidence that
of the crime became the trial’s central issue. On September
30, 1978, the jury found Gall guilty of murder while engaged
in the commission of rape. Finding no mitigating
circumstances, the jury recommended the death penalty on
October 2, and the trial court entered judgment accordingly on
Gall directly appealed the conviction on numerous grounds,
but the Kentucky Supreme Court affirmed his conviction. See
Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1980) (Gall J).
Gall’s petition for a writ of certiorari was denied on March 9,
1981. See Gall v. Kentucky, 450 U.S. 989 (1981). Gall
subsequently sought post-conviction relief in State court
through a RCr 11.42 motion, but the Kentucky Supreme
Court denied his various claims for collateral relief. See Gall
v. Commonwealth, 702 S.W.2d 37 (Gall Il). In July 1986,
Gall filed a habeas corpus petition with the District Court of
the Eastern District of Kentucky, raising twenty-five
assignments of error. The magistrate recommended that the
petition be dismissed, and on January 23, 1991, the district
court denied the petition. On March 19, 1991, the district
court denied Gall’s motion to alter or amend that judgment.
Gall appealed this denial on April 18, 1991.
B.
The Kentucky Supreme Court provided a detailed account
of the facts at issue:
| At about 7:35 a.m. on April 5, 1978, Lisa Jansen, a
| 12-year-old schoolgirl, left her home in suburban
| Cincinnati, Ohio, for school. She was missed very shortly
| thereafter when she failed to arrive at the home of a
Nos. 91-5502; 94-6376 Gallv. Parker 5
friend she had planned to meet on the way and it was
ascertained that she had not gone directly to school. At
about 9:25 a. m. that mo Mrs. Connie Puckett,
while driving her automobile along Kentucky Highway
16 from Verona, Kentucky, to her home in Walton,
Kentucky, noticed a red jacket lying on the side of the
highway near the intersection of Stephenson-Mill Road.
She st and retrieved it, thinking that probably it
belonged to one of the students attending the elementary
school at Verona. She was positive that the jacket had
not been there when she passed the same place a few
minutes earlier on her way to Verona. Upon ——-
her trip homeward she ed an open schoolboo
lying in the road, stopped and picked it up. It bore the
name of Lisa Jansen, and when Mrs. Puckett arrived back
in Walton she telephoned the school at Verona. The
school principal advised her that no one by the name of
Lisa Jansen was enrolled there, but later in the day he
called back and told Mrs. Puckett that a television
newscast had reported a Lisa Jansen as missing. Mrs.
Puckett then ott her discovery of the jacket and
schoolbook to the Cincinnati police.
The distance from Lisa's home in Ohio to the Kentucky
state line at Cincinnati was 10.9 miles, and from the state
line southward via Interstate 75 to the place near
Stephenson-Mill Road where her body was found the
next moruing is 22.6 miles. Gall resided at Hillsboro,
Ohio, about 45 miles the other side of the Jansen home.
At about 10:15 a. m. on April 5, 1978, a man later
identified as the appellant, Gall, entered a small
store at the crossroads village of Gardnersville, 17 miles
or so by public roads from the vicinity of Stephenson-
Mill Road (which consists of a loop leading off and then
back to Highway 16), and robbed the storekeeper and her
customers at the point of a .357-gauge magnum
stainless-steel revolver. The storekeeper, who was
familiar with this type of weapon, observed from the
exposed portions of the magazine that it was loaded with
6 Gall v. Parker Nos. 91-5502; 94-6376
n. Subsequent labora tests established that a
Pallet removed from Theopert S person had been
from the revolver found in I's automobile.
Shortly following his arrest Gall, by reason of his
police record, became a Suspect in connection with the
c with several counts of rape and armed robbery in
institution at Lima, O , after which he entered a plea of
guilty to those charges and spent five years in a state
penitentiary at Lebanon, Ohio. He was 31 years of age at
the time of Lisa Jansen's murder.
Gall I, 607 S.W.2d at 100-01 . After his arrest and throughout
The period covered by his purported amnesia coincided with
the time of Lisa Jansen’s killing.
Nos. 91-5502; 94-6376 Gallv. Parker 7
C.
Because Gall = numerous aspects of his trial, we
will describe in detail the most important elements of that
proceeding before addressing his arguments.
;..
The question of Gall’s yr ms to stand trial emerged
repeatedly throughout pre-trial proceedings and the trial itself.
The day after Gall was arraigned and indicted, the trial court
appointed Dr. Robert Noelker, a clinical psychologist, to
assess Gall’s competence to stand trial. Simultaneously, the
Commonwealth hired Dr. Lee Chutkow, a psychiatrist, to
determine Gall’s legal com . Dr. Noelker first
examined Gall on April 13, 1978. After his intment by
the court, he continued to examine and observe Gall up to and
throughout the fall trial. Dr. Chutkow examined Gall on
April 30, 1978.
Dr. Noelker presented his views on Gall’s competence at a
hearing on May 26, 1978. First, Dr. Noelker reported that
intelligence tests showed Gall’s verbal en to be “in
the extreme high end of superior range of deve a J.A.
at 872. Other tests showed Gall to be “a severely disturbed,
Sschiauphated pence ee Pca te
“schi ic paranoid type” personality di most
severe psychological disorder that can be diagnosed. J.A. at
873-74. Nevertheless, Dr. Noelker concl that due to
Gall’s remission from his disorder, he was “absolutely
convenced” (sic) that he was competent to stand trial. J.A. at
875. At the hearing, Dr. Noelker also testified that Gall
claimed to have no recollection of his activity at the time of
the murder. He further stated that such amnesia is rare in
personality disorders of Gall’s type, but that he had not yet
concl whether Gall had been in an amnesic state for the
period in question. The Commonwealth placed into evidence
two reports by Dr. Chutkow, who also concluded that he was
legally competent. J.A. at 1537. Both Dr. Chutkow’s report
and Dr. Noelker’s testimony described a joint attempt to
assess the veracity of Gall’s claim of amnesia. When they
8 Gall v. Parker Nos. 91-5502; 94-6376
to perform the i , Gall refused
pw Ke dfwen, Eoarteaiota g, the trial
court issued an finding Gali competent to stand trial.
On September 13, 1978, the trial court held another pre-
trial hearing on Gall’s competence. Dr. Noelker again stated
that Gall “was definitely competent and has been on ev
occasion that I have seen him.” J.A. at 904. He no ;
however, that Gall was “less together” and “more anxious” on
recent visits than he had been previously. J.A. at 904.
On September 23, 1978, after several days of voir dire, Gall
informed the trial court judge that he desired to “take a more
active role in (his) defense as far as uestioning and cross-
examining [] witnesses.” J.A. at 635. Ina hearing outside of
the jury’s presence, Gall stated that he understood he would
mages his insanity defense by taking part in the trial. Dr.
oelker testified that although he believed Gall remained
competent, recent developments—primarily Gall’s desire to
represent himself—were bringing Gall “very close” to
incompetency due to an inability to “assist counsel rationally
in preparing and carrying out his own defense.” J.A. at 910.
On observing Gall’s behavior at trial, Dr. Noelker notified
Gall’s counsel that he believed Gall was no longer ae.
The trial court once again called a hearing, where Dr. Noelker
testified that Gall was no longer “capable of rationally
participating in his own defense and/or assisting his attorneys
in preparing or conducting his defense.” J.A. at 915. He
concluded Gall “hafdt disassociated himself from this
trial and [] is —"s in it much more as the attorney
than the Defendant,” J.A. at 915, adding that Gall’s
of competence was “deceiving.” J.A. at 918.
Although he had an “excellent” ability to understand the
pr ings taking place and the seriousness of their potential
ee me OO at * late them relative to
himself” because he now believed he was a defense attomey.
J.A.at921. Recent psychological tests confirmed this finding
of incompetence, Dr. Noelker stated.
Nos. 91-5502; 94-6376 Gallv. Parker 9
At this hearing, Gall explained to the trial judge that he did
not agree with his counsel’s “insanity only” defense strategy,
and requested that the trial continue. He believed the best
trial approach was to challenge the circumstantial evidence
against him, creating a reasonable doubt as to his guilt. J.A.
at 926, 930. The trial judge tentatively concluded that Gall
was “extremely capable of assisting his counsel.” J.A. at 936.
Nevertheless, he ordered another psychiatrist to examine Gall
that evening.
The ‘following day, Dr. Kenneth Lanter, a psychiatrist,
testified that lie ong a his Bor sine boy rg to
“participate at any degree [in] his defense.” J.A. at 842.
deccitealy, Dr. Lanter found that Gall appreciated his
available legal defenses (including the insanity defense);
understood the roles of the judge, lawyers and jurors in the
trial; appreciated the seriousness of the proceedings and
possible penalties against him; and exhibited above-average
intelligence. J.A. at 841-45. After hearing this testimony, the
trial judge once again concluded that Gall was “qualified
mentally and emotionally,” was “capable of assisting his
counsel and [wa]s able to participate rationally in his own
defense.” J.A. at 853. The trial proceeded accordingly.
y 3
As the district court found below, the Commonwealth’s
circumstantial evidence against Gall was “overwhelming.”
J.A. at 25. This evidence included: evidence placing Gall
near the area where the victim’s body was found around the
time of the murder; ballistics tests from Gall’s gun matching
the bullets recovered from the bodies of Jansen and the police
officer; red nylon carpet fibers from the car Gall was driving
matching the red nylon fibers found on the victim’s clothing;
matching tire tracks from Gall’s car and the tracks taken from
the area where the victim’s body was recovered; matching
blood type between the semen stains on the front seat of
petitioner’s car and the samples from the victim’s body; and
a matching hair and blood type between a long hair recovered
from Gall’s car and the victim’s hair.
SE ee ae oS ey
10 Gall v. Parker Nos. 91-5502; 94-6376
3.
Due to this strong evidence, the insanity defense and Gall’s
claim that he was under an extreme emotional disturbance at
the time of the mre emerged as critical aspects of the trial.
Dr. Noelker testified before the jury that Gall was legally
insane on April 5. Dr. John Toppen, another psychiatrist,
reached the same conclusion in a deposition entered into
evidence. The prosecution rebutted this testimony by
presenting a WP ra and written transcript of Dr.
Chutkow’s testimony regarding Gall’s mental conditicn.
Arresting officers and eyewitnesses also testified that Gall
appeared calm and “normal” when they observed him during
and after the 10:15 a.m. store robbery in Gardnersville.
Because these assessments form a crucial part of Gall’s
appeal, we will address them in detail.
First, Dr. Noelker testified before the jury that Gall suffered
from a psychotic disorder—“the most severe type of
personality disorder that we know.” J.A. at 956. Dr. Noelker
testified that psychotic disorders of the type Gall suffered are
“commonly characterized . . . by a loss of contact with
reality[,] by an inability to control one’s behavior or thinking,
by delusions, hallucinations, by grandiosity and by
gages affect of the circumstances he is under.” J.A. at
956. Dr. Noelker reached his conclusion after conducting
rsonal examinations and interviews with Gall, examining
is troubled past and extensive history of mental illness
(including Gall’s prior impriconment and institutionalization),
and performing an assortment of tests. An out-of-state firm
that conducted a blind assessment of Gall’s test results agreed
with his finding, and recommended administering psychotic
medicine. This bevy of data led Dr. Noelker to conclude that
Gall suffered from chronic paranoid schizophrenia, J.A. at
969, and that he was extremely dangerous and likely to act in
a similar manner in an uncontrolled environment. J -A. at 962.
He further stated that this type of schizophrenia was
incurable, although Gall’s behavior only periodically
exhibited “the manner [in which] he is accused of acting in
this instance.” J.A. at 969-70. Dr. Noelker also repeated the
Nos. 91-5502; 94-6376 Gallv. Parker 11
observations he had made to the trial court that Gall’s
behavior at trial exhibited the type of “disassociation [that] is
commonly found in schizophrenia.” J.A. at 978. Looking at
Gall’s history, Dr. Noelker also found that Gall had “blotted
out his actual knowledge” of sexual crimes he had committed
in 1970, consistent with his purported amnesia in this case.
J.A. at 967-68. Considering all these factors, Dr. Noelker
testified that he had “absolutely no question in [his] mind”
that Gall lacked substantial capacity to conform his conduct
to the requirements of the law on April 5. J.A. at 982. The
criminal acts he committed were “the result of a severe
personality disturbance.” J.A. at 982. The severity,
permanence and destructiveness of Gall’s disorder also
prompted Dr. Noelker to recommend that Gall “never be
a to hecome a free member of [] society again.” J.A.
at ,
Gall’s counsel also introduced into evidence the deposition
of Dr. John Toppen, a psychiatrist who examined Gall on
September 25, 1978. Dr. Toppen concluded that Gall had
“schizophrenia of a paranoid type and chronic in nature,”
which he categorized as “severe, certainly in terms of his
dangerousness to others.” J.A. at 1207-08. Dr. Toppen
further testified that Gall was in a psychotic paranoid
schizophrenic state when he committed the rape and killing
on April 5, 1978, and therefore lacked capacity to conform his
behavior to the requirements of the law. J.A. at 1211-12.
Testifying on behalf of the Commonwealth, Dr. Chutkow
stated that he did not believe that Gall was suffering from
acute paranoid schizophrenia on April 5. Dr. Chutkow also
believed that Gall could at times comply his behavior to the
requirements of the law. J.A. at 321. He stated that these
conclusions were based on Gall’s account of the events of
April 5 that he remembered, which showed thai “[h]e was
thinking realistically” and showed none of the “classical
symptoms of schizophrenia.” J.A. at 319. Moreover, on the
day of the examination, “[Chutkow] received nothing from
him . . . indicative of schizophrenic symptoms, nor did he
have them . . . after he was arrested and put in jail.” J.A. at
12. Gall v. Parker Nos. 91-5502; 94-6376
319. Further, Dr. Chutkow believed that Gall’s claim of
amnesia was simply a conscious decision to remain silent
about the hours preceding his arrest. J.A at 354.
The peculiar circumstances of Dr. Chutkow’s testimony
warrant close scrutiny. The record is clear that Dr. Chutkow
testified by videotape rather than in open court without any
explanation oi showing that he was unavailable. The
prosecution provided no reason for Dr. Chutkow’s absence,
and at oral argument for this appeal, stated only that it could
not recall the reason Dr. Chutkow did not deliver live
testimony. In fact, Dr. Chutkow gave the deposition on
ge 28 in the same courthouse where the trial took
place.
Furthermore, Dr. Chutkow acknowledged that the purpose
of his 90-minute examination of Gall months before had been
simply to determine if Gall was competent to stand trial, and
not if he was legally sane on April 5, 1978. J.A. at 325. As
Dr. Chutkow himself stated at the trial deposition and a 1989
deposition conducted for this habeas petition, the brief, one-
time session in which he assessed "s competency to stand
trial in no way approximated the scope, duration and intensity
of investigation required to assess a person’s legal sanity. Not
- only did Dr. Chutkow not believe he had investigated Gall’s
sanity, he did not consider himself to have been testifying as
to Gall’s sanity. J.A. at 411 (“I did not conduct an
examination on his sanity.”); J.A. at 412, 413, 414 (“I would
have been quite aware if there was a question about Sanity,
and they didn’t ask me that.’); J.A. at 413 (“I really was not
aware that [sanity] was the background of the questioning.”);
J.A. at 426 (stating that it “would not have been proper to
make an opinion on his sanity”); J.A. at 427 (stating that he
believed the hearing’s purpose was to determine competency);
J.A. at 435-38 (denying that he stated Gall was insane).
"The 1989 deposition elaborated on Dr. Chutkow’s testimony in
significant detail. Dr. Chutkow concluded that his “dialogue” with Gall
in April 1978 “was sufficient for [determining] co but not for
sanity.” J.A. at 412. First, he described the vast difference between
Nos. 91-5502; 94-6376 Gallv. Parker 13
Rather, consistent with the purpose of his examination of Gall
in April, he believed the questions were aimed at eliciting his
views on Gall’s competency to stand trial, and nothing more.
Il.
This court reviews de novo a district court’s refusal to grant
a writ of habeas corpus. See McQueen v. Scroggy, 99 F.3d
1302, 1310 (6th Cir. 1996). We review the district court’s
findings of fact for clear error. See id. Given the complexity
of this case, our review, of necessity, must be explicit.
Primary or historical facts found by state courts are
“presumed correct and are rebuttable only by clear and
convincing evidence.” Mapes v. Coyle, 171 F.3d 408, 413
(6th Cir. 1999). District court findings of fact based upon its
review of state court records or written decisions receive
plenary review. See Caldwell v. Russell, 181 F.3d 731, 735
(6th Cir. 1999). Determinations of federal law, or
determinations involving mixed questions of fact and law,
receive de novo review. See Mapes, 171 F.3d at 413. State
competency and sanity exams, both in the substance of the examinations
and in their length and scope J.A. at 364-385, underscoring the
inadequacy of the competency exam he conducted in determining Gall’s
sanity. (Indeed, he ee — a competency test to
determine sanity “would not have proper.” J.A. at 426). For instance,
while he testified that a typical sanity exam takes from six hours to
hundreds of hours, J.A. at 375, Dr. Chutkow testified that he examined
Gall for only 90 minutes. J.A. at 387; only a fraction of those minutes
were spent recounting the events of April 5, which Dr. Chutkow had
testified would have been vital to assessing sanity. J.A. at 387-88. Upon
reflection, Dr. Chutkow stated that a full sanity examination would have
taken him from two to four weeks. J.A. at 400. Further, Dr. Chutkow
testified that his conclusions as to Gall’s hoary | were not based on
information (such as prior iatric or medical history) that is vital to
such assessments, because he never received that information until after
the trial was complete. J.A. at 397.
14 Gall v. Parker Nos. 91-5502; 94-6376
court interpretations of state law generally bind the federal
reviewing court. See Caldwell, 181 F.3d at 738.364
Before addressing the merits of his claims, we examine
whether Gall has mhensed his state remedies, which he must
do to gain habeas relief. See Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994). With one exception, Gall presented the
Kentucky courts with every constitutional claim that he
raised before the district court and this Court. While Gall
never asserted in state court the Confrontation Clause claim
that he has argued below and before this Court, we agree with
the Commonwealth that he procedurally defaulted on that
claim because, without cause, he failed to bring it either on
his direct appeal or state postconviction petition. See infra.
Because the exhaustion requirement “refers only to remedies
still available at the time of the federal petition . . ., it is
satisfied ‘if it is clear that [the habeas petitioner’s] claims are
now procedurally barred under [state] law.” Gray v.
Netherland, 518 U.S. 152, 161 (1996) (citation omitted); see
also Rust, 17 F.3d at 160 (stating that because “no remedy
exists” in state court for petitioner’s constitutional claim, “no
exhaustion problem exists”). Thus, Gall has exhausted all
State remedies available to him.
Hil.
Gall challenges a aumber of aspects of the guilt phase of his
trial.
A. Legal Competence
Gall argues that his due process rights were violated
because he was not competent to stand trial, having lacked
sufficient contact with reality to understand the proceedings
or cooperate with his attorneys. Gall further argues that the
= These standards of review apply because Gall filed his petition for
habeas review before April 1996. After that date, the new reviewing
standards ushered i
in by the Antiterrorism and Effective Death Penalty
Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996), apply.
Nos. 91-5502; 94-6376 Gall v. Parker 15
trial court violated due process by allowing him to represent
himself at trial.
A state court’s determinations on the merits of a factual
issue are entitled to a presumption of correctness on federal
habeas review. See Demosthenes v. Baal, 495 U.S. 731, 725
(1990). A federal court may not overturn such determinations
unless it concludes that they are not fairly supp<ited by the
record. See id. This deferential review applies when a habeas
en a state court’s determination of competence.
See id.
l.
The Commonwealth argues that the record fairly supports
a conclusion that Gall was competent to stand trial and to
represent himself. We agree.
A criminal defendant may not be tried unless he is
competent. See Godinez v. Moran, 509 U.S. 389, 396 (1993).
To be competent for trial, a defendant must have “sufficient
present ability to consult with his lawyer with 1 reasonable
degree of rational understanding” and must have “a rational
as well as factual understanding of the proceedings against
him.” Jd. (quoting Dusky v. United States, 362 U.S. 402
(1960)); see United States v. Ford, 184 F.3d 566, 580 (6th
Cir. 1999); United States v. Murphy, 107 F.3d 1199, 1203
(6th Cir. 1997). Godinez clarified that the level of
— needed to waive counsel is the same as that
n to stand trial. See 509 U.S. at 399. Cf United States
v. Harlan, 480 F.2d 515, 517 (6th Cir. 1973) (rejecting
contention that “the test for competency to plead guilty should
be more stringent than the test for competency to stand trial”).
In addition to this competence requirement, a trial judge must
also find that a defendant’s waiver of counsel is knowing and
voluntary. See Godinez, 509 U.S. at 399. This determination
centers on whether the defendant actually understands the
significance and consequences of a particular decision and
whether the decision is uncoerced. See id. at 401 n.12; see
also United States v. McDowell, 814 F.2d 245, 250 (6th Cir.
1987) (stating that judge’s duty is to ensure that the right to
16 Gall v. Parker Nos. 91-5502; 94-6376
open’”). There is no constitutional oe that a
SS ees hearing and inquiry.
mr be pesvane § inauilag Geeta aaa f the
stic inin su of the
waiver from the record as a whole. See id, at 249.
2.
The record supports the trial judge’s conclusion that Gall
was neon ewe to stand trial. The court held a number of
separate hearings solely devoted to the question of Gall’s
co ce. At the May 26 hearing, both Dr. Noelker and
Dr. Chutkow concluded that Gall was legally competent, and
the trial court issued an order to that effect. On September
13, at another pre-trial hearing, Dr. Noelker again testified
that Gall was competent. On September 23, after Gall asked
to represent himself, Dr. Noelker again stated that he
believed—but less decidedly so—that Gall was competent.
Finally, after the trial had begun, Dr. Noelker informed the
trial court that he believed Gall was no longer competent to
stand trial due to a relapse in his condition. Hearing this
conclusion, the trial judge questioned Dr. Noelker
extensively. He then questioned Gall, discussing trial strategy
and —s why Gall was resisting the insanity defense.
From these discussions, the judge concluded:
[M]y own personal assessment is that Mr. Gall has
exhibited quite clearly to me an understanding of the
nature and the proceedings and the seriousness of the
proceedings and A personal belief is that he is
extremely capable of assisting his counsel.
J.A. at 936. Nevertheless, the judge ordered an additional
examination of Gall by Dr. Lanter. Dr. Lanter testified the
next my Ey: he, too, found Gall fully competent to stand trial.
J.A. at 840-53. After this testimony, the trial judge made his
final decision that Gall was competent:
Gentlemen, having heard... the testimony of Doctor
Lanter, the testimony of Dr. Noelker and of course the
Nos. 91-5502; 94-6376 Gallv. Parker 17
testimony of Mr. Gall, the Court is of the opinion that the
Defendant, Mr. Gall[,] understands very well the nature
and consequences of the proceedings against him, he is
qualified mentally and emotionally and is capable of
assisting his counsel and is able to participate rationally
in his own defense.
J.A. at 853. From this record, it is clear that the trial court
understood the Dusky standards for competence and carefully
ensured that they were met. Because its conclusion is fairly
supported by the record, we defer to it.
Likewise, we hold that the tnal court undertook a
satisfactory inquiry before permitting Gall to serve as co-
counsel in his own defense. First, the court’s determination
that Gall was competent to stand trial also rendered Gall
competent to waive his right to counsel. See Godinez, 509
U.S. at 397-98. Moreover, the court labored to ensure that
Gall made this pivotal choice knowingly and voluntarily.
After Gall requested permission to ask questions of witnesses,
the trial judge held a hearing with both Gall and counsel.
Under questioning by the judge, Gall stated the following:
that he realized his was a murder trial and that “death is a
possible penalty in this case;” that his counsel ha{ explained
to him that his “taking an active part in [the] trie. could very
well resolve in [his] loosing [sic] this trial;” that he
understood that his “taking part in this trial ciuuld be very
dangerous to any defense” that he may have had; that he
understood that taking part in the trial was ccunter to the
advice of his attorneys; and that he understood that his
counsel had raised an insanity defense, and that his
participation in the trial might prejudice that defense. J.A. at
636-37. After the trial began, the judge held another hearing
outside the presence of the jury. Once again, both defense
counsel and prosecution questioned Gall about his
comprehension of the proceedings before him, their possible
consequences, and the role of all persons involved. Gall then
explained that his decision to represent himself stemmed from
a disagreement with his defense team as to trial strategy, and
that he considered himself as capable as his attorneys at
18 Gall v. Parker Nos. 91-5502; 94-6376
examining witnesses. J.A. at 645-47, 657-59. After hearing
this testimony, the judge concluded:
[My i ion is that Mr. Gall’s choice or decision . . .
to take charge of his Own case is made intelligently and
competently and understandingly and knowingly. He
certainly has been advised of the possible consequences
and I feel confident that he understands that.
J.A. at 858.
Once again, we believe that the record shows that the trial
court properly ensured that Gall actually understood the
significance and consequences of his decision to represent
himself and that his decision was not coerced. See Godinez,
choice is made with eyes open.”” Faretta v. California, 422
U.S. 806, 835 (1975) (citation Omitted). Although the
decision to represent himself may not have been in Gall’s best
interest, the record fairly supports the conclusion that Gall
was competent to make that choice, and that he did so
knowingly and voluntarily.
Gall contends that his conviction violated due process
under Jn Re Winship, 397 U.S. 358 (1970), because the
Commonwealth did not establish beyond a reasonable doubt
one element of murder under Kentucky law. Specifically, he
argues that to show murder, the Commonwealth needed to
prove an absence of extreme emotional disturbance beyond a
reasonable doubt. Gall contends that the Commonwealth
presented no evidence on that element, and that his conviction
Nos. 91-5502; 94-6376 Gallv. Parker 19
In reviewing an ofa state jury’s factual finding on an
element of a offense, this Court asks “whether, after
viewing the in the light most favorable to the
any rational trier of fact could have found the
sesentiel choments of the ettene tovend 6 senaduible doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[Tyjhe
assessment of the ae of witnesses is beyond
the scope of review.” lup v. Delo, 513 U.S. 298, 330
(1995). The mere existence of sufficient evidence to convict
defeats a petitioner’s claim. See id.
1.
Under Winship, due process is only satisfied if the
prosecution proves every element of a charged offense beyond
a reasonable doubt. See 397 U.S. at 364; see also Apprendi
v. New Jersey, 2000 WL 807189, at *8 (2000) (stating that
reliance on the reasonable doubt standard ‘reflects
profound judgment about the way in which law d be
enforced and justi ay ice administered’” (quoting Winship, 397
U.S. at 361-62). While the fundamental rule of Winship is
clear, the logical prior question is more complex: whether the
ingpedions Se question is fact an element of the criminal
licating Winship. If it is such an element, then the
state “many ant ot the burden of proof to the defendant.”
Patterson v. New York, 432 U.S. 197,215 (1977) (interpreting
Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)); see also
Carter v. Jago, 637 F.2d 449, 454 (6th Cir. 1980) (“[O]nce
the elements of a crime are defined by the legislature, each
element must be proven beyond a fas Ast doubt by the
State.”). On the other hand, if an ingredient of a crime is not
an element of the offense and does not negate an element,
aa 4 Bere not licated, and a state law can
the b ote that factor onto the
lig ey Pomng 432 197 at 210 (stating that a
state need not disprove all affirmative defenses da
231 35 (1987 lding Ohio law shifting burden of pr ied
- o law of proving
self-defense, long determined Ohio courts to be an
affirmative defense, onto the defendant); United States v.
Nos. 91-5502; 94-6376 Gallv. Parker 21
Jago, 637 F.2d at 455. Winship is violated when the state has
shifted the burden of proof for an ingredient that it has
defined as an element of the crime, or for a defense that
negates a element.” See Mullaney, 421 US. at 701-
02; Jago, 637 F.2d at 455-56 Acme, 9 that “presumptions of an
element are clearly unconstitutional}
2.
Applying the Jackson standard of review, we conclude that
Gall’s due process rights have been violated. We do so
because the Commonwealth’s showing of the absence of
extreme emotional disturbance (“EED”)}—an element of
murder in Kentucky at the time —was so lacking that no
rational trier of fact could have found the required elements
of the crime beyond a reasonable doubt. See Jackson, 443
U.S. at 319. Moreover, in casting aside this ent in Gall
I, the Kentucky Supreme Court violated the clear dictates of
the Winship-Mullaney framework.
a.
Applyin ying the Winship-Mullaney inquiry, we find that the
absence of EED was an element of murder under Kentucky
law for purposes of Gall’s trial and appeal. Effective on
“Cases of this are often complicated by several factors. First, an
tngualiath Gon umaiig ba beh ania a charged crime and of a
defense, or the presence of a defense can arguably negate a required
per sent iu , Rhodes v. Brigano, 91 F.3d 803, 808 (6th Cir. 1996)
( i]f an affirmative defense bears a necessary relationship
wan lene charged offense, the burden of proof of that defense
te placed on the defendant) ny Ke sepa Sl Thomas v. Arn,
704 F.2d 5, 875 (6th Cir. 1983) ( that negating self-
defense is a required Auusbandrthinten tae moon ee
of cum adiienieg Gb cungien Gitnition
and an element. See Ap , 2000 WL 807819; United Stones ; sn
526 U.S. 227 (1999); Imandarez- Torres v. United States, 523 U.S. 224
(1998); McMillan v. Pennsylvania, 477 U.S. 79 (19 . We are not faced
with such complexities here because we find that for the years relevant to
Gall’s crime, trial and Kentucky law clearly treated the absence of
EED as an element the murder statute.
oa
22 Gall v. Parker Nos. 91-5502; 94-6376
January 1, 1975, Kentucky’s new murder statute provided that
a person is guilty of murder when:
(a) With intent to cause the death of another person, he
causes the death of such person or of a third person:
except that in any prosecution a _— shall not be
guilty under this subsection i € acted under the
nee of extreme emotional disturbance for which
viewpoint of a person in the defendant’s situation under
the circumstances as the defendant believed them to be.
However, nothing contained in this section shall
constitute a defense to a prosecution for or preclude a
conviction of manslaughter in the first degree or any
other crime... .
Ky. Rev. Stat. Ann. § 507.020(1)(a) (emphases added).
extreme emotional disturbance is an element of the offense of
murder.” Edmonds y. Commonwealth, 586 S.W.2d 24, 27
interpretation retroactively, revérsing convictions and
ordering new trials for acts that had occurred in 1976 and
1975, tively. In Bartrug vy. Commonwealth, 568
S.W.2d 925 (1978), a defendant objected to the trial court’s
including EED as part of the reasonable doubt jury
instruction. The court rejected this challenge, Stating that
“[tJhe legislature ciearly intended the osecution to bear the
risk of non-persuasion” on Ebi:, and that Bartrug’s argument
would shift the burden of Persuasion onto the defendant.
Id. at 926. “This we can not do because the language of the
Nos. 91-5502; 94-6376 Gall v. Parker 23
statute makes the Absence of ‘extreme emotional di ance’
an essential element of the offense of murder.” Jd.
With the statute and precedent in place, Gall’s prosecutors
understood their duty to show an absence of EED, announcing
that they intended do so in the voir dire and attempting to do
so in their closing argument. Equally telling, the trial court
instructed the jurors of this burden, informing them that they
must find beyond a reasonable doubt that “when the killing
occurred, Eugene Gall was not acting under the influence of
extreme emotional disturbance.” J.A. at 1563.” The trial
court also demonstrated that absence of EED was an element
the prosecution was required to prove when it rejected
defendant’s directed verdict motion. J.A. at 1560.
Finally, the Kentucky Supreme Court in Gall J said nothing
to undermine its clear statements from the two prior years that
EED was an element of murder under the new statute.
Indeed, the court noted several times that the Commonwealth
shouldered the burden of proof on the element, that its burden
entailed proof beyond a reasonable doubt, and that when a
defendant has presented evidence of EED, a murder
instruction was required to include the negating of EED. See
Gall I, 607 S.W.2d at 108-09 & n.5.° The following year, the
5The court clarified the distinction further, noting that a jury can only
convict for murder if it concludes that a defendant “did not act “under the
influence of extreme emotional disturbance.”” Jd. Conversely, it would
be improper to frame the instructions so that a jury is “required to believe
[a defendant] acted ‘under the influence of extreme emotional
disturbance’ . . . to trigger the mitigating element.” /d.
Sindeed, while the dissent attacks the majority opinion for misreading
Kentucky caselaw at the time, it concedes that “the trial judge . . .
proceeded in a manner consistent with what the majority contends was the
then-existing law” when instructing the jury. Post at 124.
7 We recognize, of course, that a state’s lacing the burden on the
prosecution to prove a particular circumstance beyond a reasonable doubt
does not necessarily render that circumstance an element of the crime.
See Engle v. Isaac, 456 U.S. 107, 120-21 (1982); Allen v. Redman, 858
24 Gall v. Parker Nos. 91-5502; 94-6376
court expressly reiterated its prior holdings, stating that “[t]he
absence of ‘extreme emotional disturbance’ is an essential
element of the offense of murder, and the legislature intended
the Commonwealth to bear the risk of nonpersuasion on this
element of mitigation.” Henley v. Commonwealth, 621
S.W.2d 906, 908 (Ky. 1981).
This interpretation was consistent with the text of the
Statute. First, the legislature included the absence of EED in
its affirmative definition of murder. See Ky. Rev. Stat. Ann.
§ 507.020; cf: Allen v. Redman, 858 F.2d 1194, 1199 (6th Cir.
1988)(stating that “[s]anity is nowhere mentioned in
[Michigan’s] definition” of assault with intent to murder).
Moreover, the legislature made clear in several other ways
that the absence of EED, so prominently included in the
affirmative definition, was not a technical defense to murder
that the statute required defendants to prove. First, pursuant
to Winship, the statute provides that “[{t]he Commonwealth
has the burden of proving every element of the case beyond
a reasonable doubt,” but that this “does not ire disproof
of any element that is entitled a ‘defense,’” y. Rev. Stat.
Ann. § 500.070; notably, the statute does not list absence of
EED as such a defense. See Ky. Rev. Stat. Ann. §§ 501.070-
090 & 503.020 (listing different types of mistake, duress,
intoxication and justification as defenses). Gall itself stated
that EED was not a “‘defense’ within the technical meaning
of that term as used in the Kentucky Penal Code,” even if
evidence of EED operated as a defense in that it mitigated
murder to manslaughter. 607 S.W.2d at 108. Similarly, the
statute also states that “[t]he defendant has the burden of
proving an element of a case only if the statute which contains
that element provides that the defendant may prove such
element in exculpation of his conduct.” Ky.Rev. Stat. Ann.
F.2d 1194, 1197-98 (6th Cir. 1988). But in light of the clear decisions
from the prior two terms that the absence of EED was an element of
murder for which the prosecution bore the burden of proof, the Gall J
Court’s repeated assertions that the prosecutor must prove absence of
ae beyond a reasonable doubt indicated its clear adherence to those
oldings.
Nos. 91-5502; 94-6376 Gallv. Parker 25
§ 500.070(3). Yet again, the statute does not include absence
of EED as an instance where a defendant may prove
exculpation. See, e.g., Ky. Rev. Stat. Ann. § 504.020(3)
(providing that a defendant may show legal insanity to
exculpate conduct). Thus, both in its description of the
elements of murder and in not greg iene 4 as a defense
or element of exculpation as defined therein, the statute
established that absence of EED was an element of murder.
We further note that the Kentucky statute was unique
among those that inc ted the Model Penal Code’s
formulation for EED. Statutes introduced EED in one of
three ways. First, a number explicitly described EED as an
affirmative defense to first degree murder. See Conn. Gen.
Stat. § 53a-54a; Haw. Rev. Stat. § 707-702(2); Mont. Code
Ann. § 45-5-103; N.Y. Penal Law § 125.27(2); Or. Rev. Stat.
§ 163.115. Others provided EED as a mitigating
circumstance and as part of their definition of manslaughter,
but did not mention EED in their definition of murder. See
Ark. Code Ann. §§ 5-4-605 & 5-10-104; Del. Code Ann.
§ 641; N.H. Stat. Ann. § 630:2, Utah Code Ann. § 76-5-
205.5. This is how the Model Penal Code pr it be
introduced. See Model Penal Code § 210.3(1)(b). North
Dakota introduced EED as a circumstance “et, murder,
class AA felony, to murder, ciass A felony. See N.D. Cent.
Code § 12.1-16-01. Additionally, some states explicitly
placed the burden on defendants to prove EED by a
pr of the evidence. See, e.g., 11 Del. Code Ann.
§ 641. No statute other than Kentucky’s incorporated the
Model Penal Code formulation for EED directly into its
definition of murder without also grating there or elsewhere
that it was an affirmative defense.
8 , , . —
Along these lines, the dissent in Patterson fretted that the majori
opinion would allow » logisiature to shift the burden of persuasion wid
respect to any factor in a criminal case, “so long as it is careful not to
mention the nonexistence of that factor in the statutory language that
defines the crime. The sole requirement is that any references to the
factor be confined to those sections that provide for an affirmative
defense.” 432 U.S. at 223 (Powell, J. dissenting). Kentucky did just the
26 Gall v. Parker Nos. 91-5502; 94-6376
b.
Despite the judge’s instruction ihet the emmment needed
to show the of EED beyond a reasonable doubt and
the jury’s verdict that he was guilty, Gall maintains that the
prosecution failed to adduce evidence in of the
absence of EED” element, and that the Kentucky Supreme
Court applied an unconstitutional standard in reviewing this
sufficiency claim. After closely scrutinizing the record, we
must agree.
Even under Jackson’s highly deferential standard of review
for sufficiency of the evidence, we find that the
Commonwealth did not meet its burden of showing an
absence of EED beyend a reasonable doubt. First, Gall made
an affirmative showing of EED. Although it would be almost
ten ? a before the Kentucky Supreme Court would ecisely
de EED, cases preceding Gall’s trial had ided that a
pore of @ severe psychotic disorder was sufficient to
establish EED. See, eg. Edmonds, 586 S.W.2d at 26-27
(finding evidence of EED due to defendant’s “bizarre
uannee” resulting from psychoneurotic condition and
medication); Ratliff, 567 S.W.2d at 309 (concluding that
evidence of EED possibly existed due to testimony that the
defendant was “very ro chotic”); see also McClellan v.
Commonwealith, 715 S.W.2d 464, 468 (Ky. 1986) (overruling
holding in Ratliff that mental illness, 8 | alone,” is
sufficient to establish ores Henley, 621 S.W.2d at 909
(stating that both Ratliffand Edmonds found EED instructions
due: to, testimony about defendants’ ive
mental illnesses). Gall / did not overrule or amend Ratliff
Opposite—expliciitly mentioni the nonexistence of EED in the statutory
language that defines the crime and failing to mention LED wae
a ive defensse.
a showing of severe mental illness sufficed to present evidence of EED.
We address this argument infra.
Nos. 91-5502; 94-6376 Gall v. Parker 27
and Edmonds on this point, but accepted their centrai premise.
See 607 S.W.2d at 109 (noting that chronic paranoid
schizophrenia had been characterized as an extreme emotional
disturbance in the record); id. (assuming “that a mental
disorder, whether or not it amounts to legal insanity, may
constitute a reasonable ‘ggplanation or excuse’ for extreme
emotional disturbance”).
Moreover, we find that Gall clearly met the requirement of
Ratliff and Edmonds, having introduced the testimony of Dr.
Noelker and Dr. Toppen that he suffered from a severe
psychotic disorder, and, specifically, from chronic paranoid
schizophrenia. Moreover, Dr. Noelker stated explicitly to the
jury that Gall was in a state of “extreme emotional
disturbance” on April 5. J.A. at 982-83. Dr. Noelker’s
conclusions were based on Gall’s history of severe mental
disorders and the tests and interviews Dr. Noelker had
-administered since the crime, as well as circumstantial
evidence of Gall’s “ ive and very bizarre behavior” on
the day of the m . J.A. at 1014. For example, Dr.
Noelker stated, “I [can] not explain Mr. Gall’s behavior on
that morning in question . . . except in terms of extreme
mental disorder. ... [T]his defendant had no reason to [] rush
helter-skelter about, throwing clothes, belongings, books and
whatever all over the highway.” J.A. 1014-15.
‘The dissent argues that the Gall / Court distinguished Raulif. In
fact, it was in the context of a separate challenge by Gall that the Gall /
Court distinguished Ratliff. As discussed in n. 18, infra, Gall argued that
the trial court erred by not reading the portion of the EED instruction that
required the jury to examine EED under a_ subjective
io g the circumstances as the defendant believed them
to be. The Court distinguished Ratliff because Ratliff had testified about
her perception of the circumstances around her, while Gall had not.
Hence, the court concluded, the latter portion of the EED instruction was
appropriate to Ratliff’s case, but not to Gall’s. Co to the dissent’s
implicit ion, the court did not indicate Ratliff, was
istingui from Gall because Ratliff involved “initiatin
circumstnaces” that Gall had not shown, and that Gall had therefore failed
to provide evidence of EED.
28 Gall v. Parker Nos. 91-5502; 94-6376
Meanwhile, the Commonwealth failed to rebut this showing
of EED—in fact, it does not even claim to have done so in the
brief it filed with this Court. Dr. Chutkow was the state’s
prime witness on Gall’s mental state. To begin with, the gist
of his testimony was that Gall was competent to stand
trial—indeed, the sole purpose of his only examination of
Gall had been to determine Gall’s . In Buchanan
v. Kentucky, 483 U.S. 402 (1987), all nine members of the
Supreme Court recognized the fundamental distinction
between an examination into a defendant’s competency to
stand trial and his mental condition at the time of the criminal
acts in question. See id. at 423 n.20 (noting that a defendant’s
legal competency was a “very different issue” from his mental
condition bearing on EED); id. at 431-32 (noting that an
examiner’s examination for the urpose of assessing a
defendant’s mental condition in the ‘here and now” was
irrelevant to the defendant’s mental condition when the
killin ee J., dissenting). Dr. Chutkow also
stated his belief that Gall did not have one particular form of
paranoid schizophrenia on the wt of the :rime and could at
times oy the criminality of his conduct. J.A. at 308-56,
1535. But Dr. Chutkow at no point disputed the showing that
Gall suffered from a psychotic disorder sufficient to constitute
an EED. In fact, for several reasons, his testimony failed to
rebut in any way the evidence that Gall suffered from EED
while committing the killing.
First, Dr. Chutkow’s testimony was narrow, failing to
overcome crucial statements made by Dr. Noelker and Dr.
Toppen. For example, he stated only that he could not find
symptoms of acute paranoid schizophrenia before the onset
of Gall’s claimed amnesia and that ic believed that Gall was
legally sane. He did not testify that Gall had no mental
disorder whatsoever, nor that he did not suffer from an EED
at the time of the killing. Indeed, Dr. Chutkow acknowledged
that he could not rule out Gall having chronic
schizophrenia—the v form that Dr. Noelker had
diagnosed. J.A. at 334-36. He also acknowledged that Gall’s
behavior during his “POW incident” might suggest a variety
of conditions, including depression, peyehotic behavior. or
Nos. 91-5502; 94-6376 Gallv. Parker 29
disassociation, even if that behavior did not characterize acute
schizophrenia. J.A. at 345. In his habeas sition, Dr.
Chutkow again emphasized the narrowness of his videotape
testimony, stating: “I made no statement about him being
insane. I said he only was not suffering from acute
schizophrenia just prior to the period of amnesia on the
commission of the crime.” J.A. at 438. But simply lacking
acute schizophrenia did not rebut Gall’s strong evidentiary
showing that he was under an EED at the time of the killing.
Additionally, Dr. Chutkow stated several times that he had
no basis to know Gall’s mental state at the time of the killing.
For instance, he stated that he had “no knowledge” as to
Gall’s mental state after the “time from which he claims
amnesia,” J.A. at 335-36; that he did not know Gall’s
condition for a “gap of approximately two or three hours,”
J.A. at 350-51; and that “[flor a certain interval of time”
before the murder, he did not know Gall’s feelings, sensations
or judgments. J.A. at 355. Importantly, Dr. Chutkow also
acknowledged that because he had never considered the more
extensive data that Dr. Toppen and Dr. Noelker examined, he
could not challenge their conclusions that Gall suffered from
chronic paranoid schizophrenia. J.A. at320, 350-51. Finally,
not only did Dr. Chutkow never contradict Dr. Noelker’s
statement that Gall suffered from EED in committing the
killing (he was never asked a question on the presence or
absence of EED), Dr. Chutkow yr ara acknowledged that
because Gall had a background of diagnosed schizophrenia,
he “could have been” in a “state of exacerbation” at the time
of the crime. J.A. at 352. In sum, none of Dr. Chutkow’s
statements countered Dr. Noelker’s definite conclusions that
Gall suffered from chronic paranoid schizophrenia and was
under EED at the time of the killing. While Jackson instructs
us to give the jury full responsibility to resolve extant
conflicts in the testimony in the prosecution’s favor, see 443
U.S. at 319, Dr. Chutkow’s testimony failed to contradict the
central aspects of Gall’s showing of EED.
Nor do we think that the lay testimony adduced at trial was
sufficient to create a conflict over Gall’s showing of EED.
30 Gall v. Parker Nos. 91-5502; 94-6376
The district court relied in part on the testimony of officers
and witnesses present at the later robbery that Gall “
quiet, not excited, not nervous, and had steady hands and a
normal voice” to conclude that the Commonwealth had
introduced sufficient evidence on Gall’s ne J.A. at 26.
This included the testimony of one witness, Jo Wynn, that
during the robbery, Gall seemed “nice [and] normal” and did
not appear nervous. J.A. at 1287."° Although this Circuit
does not apply a per se rule barring lay testimony from
creating an issue of fact as to a defendant’s state of mind, see
United States v. Smith, 437 F.2d 538, 540-41 (6th Cir. 1970),
we have long been skeptical of such lay testimony. In Smith,
we stated that lay testimony as to mental state lacks probative
value when a witness’s “direct knowledge of the defendant is
brief and superficial.” Jd. at 41. We also noted that
a statement that the witness never observed an abnormal
act on the part of the accused is of value if, but only if,
the witness had prolonged and intimate contact with the
accused. i ea is nothing to show po these
witnesses € capacity—as an expert might—to
make valid psychological judgments on the basis of these
relatively brief contacts.
Id. at 541 (internal quotation marks and citation Omitted). In
holding the State’s lay evidence insufficient to raise a factual
issue over Smith’s sanity, the Smith Court reasoned that there
was no indication that the lay witnesses were trained to make
“the kind of psychiatric evaluations necessary to answer
intelligently the questions” regarding sanity, and that there
was also no evidence “to indicate that either of these
witnesses, in observing appellant, was concerned with his
sanity or competence.” Jd. at 540. Following similar logic,
Kentucky courts have long allowed lay witnesses to testify as
"While they use this evidence to state that there was a genuine issue
before the jury on Gall’s sanity, neither the district court nor the
enon wry mr sdosien Lennard pr ey rp ace
argument no evidence was present is showing e
suffered from EED at the time of the killing.
Nos. 91-5502; 94-6376 Gall v. Parker 31
to their opinion of a defendant’s mental state, but have
consistently emphasized the need for a sufficient basis on
which that witness can form her opinion. See Brown v.
Commonwealth, 934 S.W.2d 242, 248 (Ky. 1996)(noting
longtime precedent that lay witnesses can testify as to a
defendant’s sanity when ““by association and observation
[they] have had an opportunity to form an opinion as to the
sanity of a person’”) (quoting Abbott v. Commonwealth, 55
S.W. 196, 198 (Ky. 1900)); Wiseman v. Commonwealth, 587
S.W.2d 235, 238 (Ky. 1979)(describing the potential
relevance of “lay witnesses testifying as to the customary
conduct of an accused” in the jury’s assessment of a
defendant’s mental state); Jewell v. Commonwealth, 549
S.W.2d 807, 811 (Ky. 1977) (“‘The judgment of a person’s
intimate friends and acquaintances as to his soundness of
mind is therefore always com t in cases of this
character.’”) (quoting Abbott, 55 S.W. at 198).
In this case, the lay evidence in question suffers
shortcomings equivalent to that in Smith. First, the lay
witnesses observed Gall not as he committed the crime in
question, but as he committed a robbery at least one hour, and
s several hours, after the killing of Lisa Jansen.
Second, these witnesses observed Gall for a matter of several
minutes at most. As in Smith, their observation that he did
not abnormal to them in those brief moments carries
no probative weight as to the absence of EED. See 437 F.2d
at 540-41; see also United States v. Burks, 547 F.2d 968, 970
(6th Cir. 1977) (stating that lay testimony that defendant did
not appear “‘enemadl” by persons “who had very limited
opportunity to observe” him had little value), rev'd on other
grounds, 437 U.S. 1 (1978). Third, the Commonwealth
introduced no evidence Suggesting that any of these witnesses
had the capacity to determine if Gall was either insane or
under EED. Indeed, even if they believed he
“normal” on the surface, these witnesses clearly lacked the
capacity to determine if Gall suffered from the type of
disorder that Gall’s expert witnesses diagnosed, or that he was
under EED at the time of the killing several hours earlier.
a ee ee
32. Gall v. Parker Nos. 91-5502; 94-6376
Moreover, notwithstanding the fact that Dr. Noelker
of both EED and insanity te Coo ane evidence
0 insanity, at
trial that because Gall an to flee the scene of the
Dalene be must have been sane not under EED. We
rejected just gic in a prior case, conc “‘an
fool faced with fear and foreboding can flee and ide Suc
is the nature of even a wild beast.’ Stacy v. Love, 679 F.2d
109, 1214 (6th Cir. 1982) (citation omitted). Thus, flight
alone does not amount to evidence of sanity or lack of EED.
Finally, we also do not find that the Commonwealth’s
cross-examination of Dr. Noelker elicited contradictions of
his statements under direct examination. The Commonwealth
asked a number of questions ne to show that Dr. Noelker
did not talk to key witnesses of Gall’
5, or examine other key pieces of information, before reaching
his conclusions as to Gall’s mental state. J\A. at 993-1001.
claimed amnesia prevented him from rendering an opinion
based on the variety of other available data he had studied.
J.A. at 1011, 1016, 1034. He proceeded to describe that data
y hams ;
at 1017. The cross-examination ended with Dr. Noelker
assuring the prosecutor that “any competent mental health
professional who has reviewed all of the data that I reviewed
— [] and should come to the same conclusion.” J.A. at
1034.
Reflecting the weakness of its overall evidence, the
Commonwealth’s closing argument also failed to offer a
viable argument regarding the absence of EED. It merely
offered the erroneous proposition that the defense’s failure to
prove an insanity defense also meant that the prosecution had
Nos. 91-5502; 94-6376 Gallv. Parker 33
succeeded in shouldering its burden of proving the lack of
EED. J.A. at 1590-91. discussing the elements to be
proved beyond 2 reasonable doubt, the prosecutor elaborated
fn detail on the abundance of evidence linking Gall to the
murder. In contrast, the Commonwealth failed to point to any
evidence showing an absence of EE ly, it is clear,
ee eee none. J.A. at
Thus, even when we make all inferences in the
Commonwealth’s favor, we can not conclude that a rational
trier of fact would find an absence of EED beyond a
reasonable doubt at the time Gall killed Lisa Jansen. At no
point did the Commonwealth rebut Gall’s showing that he
suffered from chronic oid schizophrenia at the time of
the killing. Neither did the Commonwealth counter Dr.
Noelker’s explicit statement that Gall was under EED when
he committed the crime. Instead, not only did Dr. Chutkow
state that he had no basis to contest Dr. Noelker’s findings,
but he ree tree oe that wer disorders, bilities’ her ye
paranoid schizophrenia, were distinct ibilities t
Gall could have been in a state of sxnatiatien. Neither did
the one-time, surface-level observations by the lay witnesses
create a dispute over Gall’s mental state. Because even when
viewing the evidence in a light most favorable to the
Commonwealth, a rational trier of fact could not have found
one of the elements of murder beyond a reasonable doubt,
Gall’s conviction for murder violated due process.
Cc.
Finally, we agree with Gall that when faced with this
qu estion, the Kentucky Supreme Court read _ the
ommonwealth’s murder statute in a way that violated
Winship. On his direct state , Gall alleged that the
Commonwealth had not satisfi ie tendon of preel an the
absence of EED. The Gall I Court nded that there was
“not a shred of evidence to suggest [Gall] was acting
under the influence of an emotional disturbance . . . , except
for the evidence that he suffered from a mental illness from
34 Gall v. Parker Nos. 91-5502; 94-6376
illness could ise evidence of EED and
of EED was an of murder that the
dispro
/ Court held that Gall’s evidence was not sufficient to place
that burden on the Commonwealth.
There is much to be said for the proposition that an
emotional disturbance inhering in a mental illness is not
the kind of an emotional dtuthonen
extreme emotional disturbance, it was incumbent upon
the trial court to require the negating of that factor in its
instruct‘on on m , which was done. That is not to
say that once the issue is raised (by evidence sufficient to
ground a reasonable doubt) the Commonwealth must
meet it with countervailing evidence. Unless the evidence
raising the issue fof emotional disturbance] is of such
probative force that otherwise the defendant would be
entitled as a matter of law to an acquittal on the higher
charge (murder), the prosecution is not required to come
forth with negating evidence in order to sustain its
burden of proof. Otherwise it would never be possible to
convict a defendant of murder if there were no
eyewitnesses and if, for example, he testifies that he
acted in self-defense, or was intoxicated out of his mind,
or was acting under the influence of extreme emotional
disturbance.
607 S.W.2d at 109 (emphasis added) (citation omitted). In
other words, the Court announced, even though Gall
presented evidence sufficient to require a jury instruction that
the absence of EED had to be established beyond a reasonable
doubt, the prosecution did not in fact have to prove its
absence beyond a reasonable doubt.
Nos. 91-5502; 94-6376 Gall v. Parker 35
Given that the absence of EED was an element of murder
under Kentucky law—a principle of law that Gall J accepted
and that the Kentucky Supreme Court would not overrule for
several years—this portion of Gall J directly violates |
Mullaney and In re Winship. The Gall I regime shifted the
burden to defendants to produce evidence of EED “of such
probative force that... the defendant would be entitled as a
matter of law to an acquittal.” Jd. Without that showing, a
defendant is presumed to have acted in the absence of EED.
Stated differently, the “absence of EED” element drops out of
the state’s required burden unless a defendant affirmatively
shows EED, even if the defendant has presented sufficient
evidence to raise a reasonable doubt about the absence of
EED. This is exactly the type of burden-shifting proscribed
by Mullaney; indeed, the two cases are markedly similar. In
Mullaney, Maine had affirmatively shifted the burden of proof
of “heat of passion” to the defendant—requiring that malice
aforethought “was to be conclusively implied unless the
defendant proved by a fair preponderance of the evidence that
he acted in the heat of passion on sudden provocation.” 421
U.S. at 686. The Court found this to be a clear Winship
violation. We find that the Gall J Court, by requiri be
defendant to offer evidence “of such probative force that
otherwise [he] would be entitled as a matter of law to an
acquittal on the higher charge” places an equally weighty
burden on that defendant, and thus violates due process.
Moreover, the Mullaney Court rejected several of Maine’s
arguments with reasoning that is relevant to this case. First, it
stated that the proof of an element that distinguishes between
murder and manslaughter implicates Winship as much as an
element that distinguishes guilt from innocence. See id. at
697-98. Second, it rejected arguments identical to those made
by the Gall J Court that the burden-shifting is necessary
because of the difficulties the prosecution faces in “proving
a negative”:
No doubt this is often a heavy burden for the prosecution
to satisfy. The same may be said of the requirement of
proof beyond a reasonable doubt of many controverted
~~
36 Gall v. Parker Nos. 91-5502; 94-6376
facts in a criminal trial. But this is the traditional burden
Nor ie ok System of criminal justice deems essential...
or is urement of proving a negative unique in
our porate criminal jaiegeutnen Maine itself
uires the prosecution to prove the absence of seif-
dalonse beyond a weasendhicdoae Satisfying this
burden .. . is identical to the burden involved in negating
the heat of passion on sudden provocation. Thus, we
discern no unique hardship on the prosecution that would
justify requiring the defendant to carry the burden of
proving a fact so critical to criminal culpability.
Id. at 701-02 (citations omitted).
A close look at Patterson—in many ways the mirror image
of this case—further illustrates the Mullaney violation here.
In Patterson, the Court reviewed the way in which New York
had adopted the same Model Penal Code EED provision into
its law. Like most other states, see Supra n. 3, the New
York code explicitly provided that EED was an affirmative
defense to murder, and then tasked defendants with + geen,
EED by a preponderance of the evidence. See N.Y. Penal
Law § 125.27(2); 432 U.S. at 205-06. Because the state had
not deemed EED an element of the crime, and because a
showing of EED did “not serve to negative any facts of the
crime which the State is to prove in order to convict of
murder,” New York could permissibly shift the burden onto
defendants to show EED. /d. at 206-07. The Court
explained,
in revising its criminal code, New York provided the
affirmative defense of extreme emotional disturbance... .,
but it was willing to do so only if the facts making out
the defense were established by the defendant with
sufficient certainty. The State was itself unwilling to
undertake to establish the absence of those facts nd
a reasonable doubt, perhaps fearing that proof would be
too difficult ....
Id. at 207. In stark contrast, Kentucky mn sor established
EED as an element of murder, and “clearly intended the
Nos. 91-5502; 94-6376 Gall v. Parker 37
prosecution to bear the risk of non-persuasion.” Bartrug, 568
S.W.2d at 926. The very logic allowing the New York
statutory scheme to pass constitutional muster in Patterson
rm) renders unconstitutional the burden-shifting regime of
all I.
Finally, although the Commonwealth could argue (it does
not do so here) that the Gall J regime comports with the
statement in Mullaney that the government only bears a
burden of proof “when the issue is properly presented in a
homicide case,” 421 U.S. at 704, that argument would ring
hollow. The Court elaborated in Hankerson v. North Carolina
that Mullaney “does not forbid States from requiring the
criminal defendant to present at least some evidence to raise
a factual issue with t to heat of passion or self-defense.”
432 U.S. 233, 237 a (1977) (emphasis added). But this
irement of “some evidence” is far less onerous than the
high burden of proof Kentucky placed on defendants in Gall
I. The Gall J Court itself made this distinction clear, rejecting
Gall’s proposition that once the issue is raised “by evidence
sufficient to create a reasonable doubt,” the Commonwealth
- must rebut it with countervailing evidence. Rather, only
when the evidence raising the issue “is of such probative force
that otherwise the defendant would be entitled as a matter of
law to an acquittal on the higher charge (murder)” must the
prosecution negate the evidence to sustain its burden of proof.
607 S.W.2d at 109. Thus, while the court found Gall’s
evidence sufficient to merit an instruction on the need to
negate that factor, it was insufficiently weighty to require the
Commonwealth to rebut the factor as part of its burden of
proof. See id. This higher threshold of Gail J directly
contravened the distinction Mullaney drew between merely
requiring that a defendant “present some evidence with
respect to the fact at issue” and requiring that “he must
affirmatively establish that fact.” See 421 U.S. at 1891 n. 31
(emphasis added).
In short, the regime the Gail J Court constructed in response
to Gall’s evidentiary review was itself constitutionally infirm
under Mullaney. The court should have adhered to Kentucky
38 Gall v. Parker Nos. 91-5502; 94-6376
law at the time and addressed head-on whether the
rosecution met its burden to show the absence of EED
Covend a reasonable doubt. In averting this review, the
Kentucky Supreme Court violated due process.
3.
In contrast to even the prosecutor’s and trial judge’s reading
of Kentucky law at the time, not to mention the Kentucky
Supreme Court’s clear interpretation of the murder statute,
J = 0 Guy’s dissent contends that the absence of EED was
not an element of murder, and that our conclusion that it was
“is most clearly erroneous.” Post at 114. It also argues that
we “compound[]” our error by finding that mental illness
equates with EED for purposes of the Kentucky murder
Statute. See id. After carefully considering the dissent’s
points and underlying reasoning, we lly disagree
with both assertions. Indeed, we find the dissent’s reasoning
to rest on an anachronistic reading of Kentucky law—based
on the Kentucky Supreme Court’s explicit and non-retroactive
re-interpretation of the Commonwealth’s murder statute in the
years after its Gall J decision.
i)
At the risk of repeating our earlier discussion, we first
address the dissent’s contention that negating EED was not an
element of murder. The dissent explains that “nothing in the
Statute suggests that negating extreme emctional distress is an
element of the crime of murder,” a proposition we believe is
belied by the text of the statute, its clear variation from the
other states that adopted the same Model Penal Code murder
provision, and, most importantly, the binding interpretation of
the highest court in the Commonwealth up until 1985. Post
at 115. Further, the dissent points to cases such as Wellman
v. Commonwealth, 694 S.W.2d 696 (Ky. 1985), Buchanan v.
Kentucky, 483 U.S. 402 (1987), and Coffey v. Messer, 945
S.W.2d 944 (Ky. 1997) to argue that ~je applied a more
refined analysis of EED, and that its absence was not an
element of murder even at the time of Gall’s conviction and
appeal. Rather, EED comprises what the dissent terms a
memes
Nos. 91-5502; 94-6376 Gallv. Parker 39
““defense’ or mitigation exception.” Post, at 115. Third, the
dissent attacks what it believes to be the illogical results of
our reading of the law: namely, the “absurdity” of having to
prove the absence of EED in al/ cases. While the em
treatment of EED is perhaps more logically sound and
workable, we simply can not agree that the dissent’s reading
reflects the law applicable to Eall’s case; indeed, the Gall /
opinion itself did not apply the law the dissent describes. A
thorough review of the evolution of Kentucky EED caselaw
reveals this.
Following the Commonwealth’s incorporation of the Model
Penal Code language into its definition of murder in 1974, the
first Kentucky Supreme Court cases to explore its meaning
were Edmonds, Ratliff, and Bartrug. As stated supra, all
three opinions stated without condition or exception that the
failure to act under the influence of an EED was an element
of the offense of murder. See, e.g., Edmonds, 586 S.W.2d at
27. This was evident from the “language of the statute,”
where “[t]he legislature clearly intended the prosecution to
bear the risk of non-persuasion” on this element. Jd. Under
this reading, any showing of EED required the reading of that
element as part of the murder instruction, as well as the
reading of a first degree manslaughter instruction. See id. at
27. If the jury has a reasonable doubt “as to whether [a
defendant] was acting under the influence of extreme
emotional disturbance, it will not find him guilty of murder
but shall find him guilty of first-degree manslaughter.” Jd.
Gall I, as we explained supra, did not alter this reading,
although it tasked defendants for the first time with presenting
evidence “of such probative force that otherwise the
defendant would be entitled as a matter of law to an acquittal
on the higher charge.” 607 S.W.2d at 109. Further, in 1981,
the Kentucky Supreme Court still adhered to its earlier
holdings that the absence of EED was an “essential” element
of murder for which the “legislature intended the
Commonwealth to bear the risk of nonpersuasion.” See
Henley, 621 S.W.2d at 908 (citing Bartrug, 568 S.W.2d 925
(1978)). Making the point as clear as possible, the court
recited the definition of murder in a way that included
40 Gall v. Parker Nos. 91-5502; 94-6376
absence of EED as a clear element: “Murder, under the
Statute, is an intentional killing where the defendant is not
acting under the influence of extreme emotional disturbance.”
Id.; see also Hayes v. Commonwealth, 625 S.W.2d 583, 584
(Ky. 1982)(“KRS 507.020 defines murder as death caused by
intentional or wanton conduct in the absence of extreme
emotional disturbance.”). Importantly, these cases also relied
on ges of Gall J, indicating that the new Gall / burden-
shifting regime coexisted with the continuing notion that
absence of EED was an element of murder.
This interpretation would soon change. In Wellman, a 1985
case on me the dissent heavily relies, the Kentucky
Supreme Court articulated in the plainest of terms that, prior
to Gall, absence of EED had indeed been an element of
murder, and that Gall had not formally changed that
interpretation, although it had perhaps signaled that the
change was imminent.
We are continually beset with arguments founded upon
“extreme emotional disturbance” despite the articulation
of its meaning and impact in [Gail /}. It is our opinion
that the principal cause of this problem is the failure of
this court, in Gall, to specifically overrule those portions
of Ratliff, Bartrug and Edmonds /] which declare that
e absence of extreme emotional distress is an essential
element of the crime of murder and require the
Commonwealth to prove such absence. . . . To the extent
that such cases declare absence of extreme emotional
distress to be an element of the crime of murder, they are
expressly overruled.
Wellman, 694 S.W.2d at 697 (emphasis added). The court
proceeded to explain that B cs presence of extreme
emotional distress is a matter of evidence, not an element of
the crime.” Jd. A year later, the court further explained that
Wellman “clariflied] that absence of extreme emotional
disturbance is not an element of the crime of murder which
the Commonwealth must affirmatively prove.” Matthews v.
Commonwealth, 709 S.W.2d 414, 421 y. 1986). Moreover,
ETA ne LOTR Si Renee Ee eT See
Nos. 91-5502; 94-6376 Gallv. Parker 41
the United States Supreme Court, looking only at
Wellman and Gail in light of Wellman, concluded that EED
was an affirmative defense, not an element of murder. See
Buchanan v. Kentucky, 483 U.S. 402, 408 & 408 n.8 (1987).
Later cases have more routinely labeled EED as a defense to
murder, see, e.g., Foster v. Commonwealth, 827 S.W.2d 670,
678 (Ky. 1991 ),githough the precise role of that defense still
appears in flux.
This line of cases illuminates the flaw in the dissent’s |
contention that the absence of EED was not an element of
murder at the time of Gail J. Its reliance on Wellman is in
error because that case explicitly overruled the cases holding
that the absence of EED was an element of murder—and
those were the very cases in place when Gall’s trial and
appeal occurred, and that Gall I and Henley left in place.
Only in Wellman did the Kentucky Supreme Court establish
that the absence of EED is not an element of murder, and as
we — infra, we can not apply that holding retroactively
to Gall’s conviction and appeal. Equally unavailing is the
dissent’s reliance on Buchanan, since that case relied on
Wellman to conclude that EED was an affirmative defense.
In sum, the dissent’s conclusion that the absence of EED was
not an element of murder is based on caselaw that postdated
Gall’s conviction and appeal, and, it appears, that resulted
from the dramatic shift that Gall J triggered due to its clear
Mullaney violation. The caselaw applicable to Gall’s case
was Clear that the absence of EED was indeed an element of
murder.
*2Most recently, in Coffey v. Messer, 945 S.W.2d 944, 945-46 (Ky. |
1997), the court explained that although it has “occasionally described |
EED as a mitigating circumstance, e.g., Gail 1, 607 S.W.2d at 108 . .. it
is, in fact, a defense to the extent that its presence precludes a conviction
of murder.” The Coffey court further explained that “once evidence of
EED is introduced, the absence thereof becomes an element of the offense
of murder.” /d at 946.
42 Gall v. Parker Nos. 91-5502; 94-6376
ii)
For similar reasons, we also y% nem gd with the
dissent’s — re tive definition of ,» and its
a t that a specific predicate vocation must trigger
EED. Specifically, the dissent Kentucky law to have
distinguished between EED and mental illness or disease thai
amounts to insanity. “The facts surrounding the murder are
surrounding defendant's mental disease or defect are key to
the insanity defense.” Post at 124. (emphasis added),
According to the dissent, only when a predicate provocation
is found to have triggered the killing must the prosecution
negate a showing of EED. Agia. while the dissent’s
tu
First, however, it is important to understand the intent of
the Model Penal Code estas when they introduced the
concept of EED. The ALI Commentary explains that the
“provision includes the common-law doctrine of provocation
but is not so limited in its scope.” ALI, Model Penal Code
and Commentaries, § 210.3, at 53-54. How far the rovision
intended to move from the common law was less than clear,
however. The Commentary itself acknowledged that it was
moving into uncharted waters. The rovision, it explained,
“sweeps away the rigid rules that limited provocation to
certain defined circumstances. Instead, it casts the issue in
phrases that have no common-law antecedent and hence no
accumulated doctrinal content.” Jd. at 61. “This development
reflects the trend of many modem decisions to abandon
preconceived notions of what constitutes adequate
i
Nos. 91-5502; 94-6376 Gallv. Parker 43
provocation and to submit that question to the jury’s
deliberation.” Jd. It further noted that when setting out that
the reasonableness of the defendant’s action be assessed from
the viewpoint of a person in the actor’s situation, “the word
‘situation’ is designedly ambiguous.” /d. at 62. “There thus
will be room for interpretation of the word ‘situation,’ and
that is precisely the flexibility desired.” Jd. The ALI added
that it sought for courts and juries to focus far more closely on
mental infirmities:
[The provision] places far more emphasis than does the
common law on the actor’s subjective mental state. It
also may allow an inquiry into areas which have been
treated as part of the law of diminished responsibility or
the insanity defense.
Id. at 54. In a separate publication, the Code’s primary author
echoed the ALI Commentary, stating that the new provision
permitted a reduction to manslaughter “on the basis of a
standard much broader than the concept of provocation as
developed at the common law.” Herbert Weschler,
Codification of Criminal Law in the United States: The Model
Penal Code, 68 Colum. L. Rev. 1425, 1446 (1968). “The
purpose was explicitly to give full scope to what amounts to
a pers in mitigation based upon mental or emotional trauma
of significant dimensions, with the jury asked to show
whatever empathy it can.” Jd.
Given the intentional ambiguity of the Model Penal Code,
states — different approaches in defining EED. Some
added additional specificity within the statutes themselves.
See, e.g., N.D.C.C. 12.1-16-01 (noting that “[a]n extreme
emotional disturbance is excusable . . . if it is occasioned by
substantial provocation, or serious event, or situation for
which the offender was not culpably responsible”); N.H. Stat.
Ann. § 630:2 (requiring “the influence of extreme emotional
disturbance caused by extreme provocation”). Most states,
however, left the ambiguous language of the MPC unchan
allowing courts to shape the precise meaning of ;
Several state courts read the new language to eliminate any
44 Gall v. Parker Nos. 91-5502; 94-6376
provocation requirement, ing certain ings of mental
disease to be eefficient tahoe Tan New York Court
of Appeals, for instance, found that “tremendous advances
ay an eenaleay eines 1881" had primarily led to the new
EED defense. People v. Patterson, 347 N.E.2d 898, 908
or a ), aff'd 432 U.S. 197 (1977). Therefore,
the common W provocation and immediacy prongs for the
“heat of passion” defense were no longer required under New
York law; rather, “[t]he purpose of the extreme emotional
disturbance defi
York’s EED affirmative defense required a defi t only to
show a “mental infirmity not arising to the level of insanity”).
Connecticut also adopted Patierson’s reasoning, holding that
the defense “does not require a provoking or triggering
event.” State v. Elliot, 411 A.2d 3, 7 (Conn. 1979).
Faced with the ambiguity of the new murder statute," the
Kentucky Supreme Court waited more than a decade before
it developed a precise substantive definition of EED. At the
time of Gall’s trial it had yet to lay down a clear definition,
and at the time of his appeal, it had stated merely “that we
know it when we see it.” Edmonds, 586 S.W.2d at 27.
Despite this ambiguity, the early cases indicated that the court
agreed with New York and Connecticut that certain mental
14, : ‘ .
The Commentary accompanying the introduction of the new
provision into Kentucky law stated that the EED provision abandons the
common law uirement “that the killing occur in ‘sudden heat if
passion’ upon ‘ provocation.”” Ky. St. § 507.030. comm. EED
do et ne which would constitute eetpener ‘in
ordinary meaning o term, i. an injury, injustice or affront
perpetrated by the deceased upon the actor.”” Id (quoting Mode! Penal
Code, § 201.3). “In other wards, it is ible for any event, even words,
Sere ame mental or emetl disturbance, as that phrase is used
Nos. 91-5502; 94-6376 Gallv. Parker 45
impairments were sufficient to show EED, and that no
additional showing of a triggering event was necessary.
The Court in both Ratliff and Edmonds pointed to the
spate defendants’ psychological maladies as warranting
EED instructions, failing to require the “triggering” event the
dissent would demand. In Ratliff, the court that “[t}he
record is replete with evidence of an emotional disturbance.”
567 S.W.2d at 309. It immediately elaborated that “[t]wo
expert psychiatrists testified that appellant suffered from
schizophrenia-paranoid type. Both experts agreed that she
was very likely psychotic at the time of the shooting and was
unable to comprehend what was occurring.” Jd. The court
then described the defendant’s delusion about the
circumstances around her, based on her own testimony that
fellow townspeople, including the store clerk whom she shot,
were conspiring against her. See id. The opinion further
pointed out that Ratliff had been visiting a local care center
for treatment of her mental condition for some time prior to
the shooting. See id. While the dissent suggests that this
discussion “clearly” shows that the Ratliff court was treating
Ratliff's own “delusion” of the victim’s conspiracy against
her as the required “predicate provocation,” the opinion
itself makes no statement of the sort. Rather, it focuses more
on Ratliff’s psychological disposition as described by expert
witnesses and manifested by her delusions. The opinion
noted, in fact, that “the situation presented was one which in
the past would have been labeled as wilful murder with a
defense of insanity.” Jd. Only three years later, the Kentucky
Supreme Court itself interpreted Ratliff to have found that an
EED instruction “was mandated because two psychiatrists
testified that the defendant was ‘very likely’ psychotic at the
time she committed the homicide.” Henley, 621 S.W.2d at
909. Without mentioning the “triggering” delusion that the
dissent now emphasizes, the Henley Court chevacterized the
evidence. of Ratliff's mental condition as “definitive,
*5.The only act that Ratliff claimed the victim committed was that she
“locked at me as if she was going to pull my hair.” Jd. at 309.
ee a ee ee ee
46 Gall v. Parker Nos. 91-5502; 94-6376
nonspeculative evidence” of EED. Jd. And as the dissent
points out, three dissenting Justices in Ratliff protested just
this aspect of the decision, ae OM evidence only
showing that Ratliff was sufferin m a severe mental
disease, without more, was not cient to qualify as EED.
See id. at 310 (Jones, J., dissenting). While this minority
view did not prevail at the time (as it would in later years), it
helps clarify that the majority was, treating Ratliff’s mental
illness as sufficient to show EED.
Again in Edmonds, the Kentucky Supreme Court relied
primarily on psychological evidence to find that an EED
instruction was nece. . The court explained that Edmonds
had previously been hospitalized for a psychoneurotic
condition, and that prior to his alleged killing of a 23-year old
woman with whom he was infatuated, he had been taking a
self-prescribed and self-compounded medication (a mixture
of sodium bromide or alcohol and potassium bromide) that
led him to “blank out” and act in a “bizarre manner.” 586
S.W.2d at 26. The court then explained that due to continual
jealousy and his delusion that she was seeing another man,
Edmonds shot her. See id. While the dissent once again casts
Edmonds’s “delusion” as the required triggering predicate for
an EED instruction, see post at 120, the Edmonds Court itself
Suggests that this was not the case. Indeed, the court flatly
rejected the Attormey General’s argument that the EED
instruction was not necessary because EED derived from the
“heat of passion” defense (which required provocation).
Instead, the court stated that
[w]e find it unnecessary to define extreme emotional
disturbance. It is suffice to say that we know it when we
see it. In the present case, we see sufficient evidence to
justify a submission of the issue to the jury.
dissent points out that the d between the majority
and dissent in Ratliff did not involve wheder Hiiaiiees an ebeeenn of the
crime of murder. We agree. The majori plainly stated that the absence
of EED was an element of murder, and dissent did not disagree with
is point.
|
|
Nos. 91-5502; 94-6376 Gallv. Parker 47
Id. And once looking back on the case three years
later, the Hi Court assessed that the instruction was
ee the wee be feeb tse ne mere
namely, “[t}he appe hospitalized several
mtg ene praca nd sone
he had been scant then ana and self-concocted
licate provocation triggering a response from
y his mental state.
peerage pny ee - evidence of yoy that of mt under the
i not reject s t
dissent’s rationale thet Gall did not olla 0 “00
predicate.” Rather, the Court stated that
there is not a shred of evidence to suggest that he was
ra wneylregmme ndinrnmtns =: ter mer
pares cxthanen Get to ented Gan saute
Stones lean ech Geatenvensid bane tend tentitens
find, that he was insane.
607 S.W.2d at 109."” While the court then staed that “there
[was] much to be said for the tion that an emotional
disturbance inhering in mental i = is nat de Lied of
stating that Gall had failed to present evidence, the Gall J Court
because Gall had not presented evidence of such probative that he
was entitled to acquittal as a matter of law. Because this burden-shifting
was unconstitutional under Mullaney, we owe this finding no deference.
4
—eK
———EEE memes
:
;
)
|
48 Gall v. Parker Nos. 91-5502; 94-6376
emotional disturbance by the statute,”
a eng at emer neta Recount tmaton
Rather, for the of the appeal, the court “[a]ssum|
that a mental di , whether or not it amounts to |
insanity, may constitute a reasonable ‘ ion or excuse’
that there was no hard-and-fast provocation requirement, the
court stated that the trial court’s decision to omit the latter
half of the EED instruction was proper because there was “no
evidence to me that the appellant’s motivation involved
any ‘belief on hi with regard to the circumstances that
the al emotional disturbance.” Jd;"" see also
Gall II, 702 S.W.2d at 43 (“{U)nlike the case where
emotional disturbance has been precipitated by some event or
circumstance that the defendant believed to exist, there was
no evidence that Gall was motivated by any ‘belief on his
part with to the circumstances that induced the alleged
emotional di -"). Importantly, rather than holding
event mat Ghat be hens wiitence shout 2 precipitating
event meant that he had not made a showing of EED and was
therefore not entitled to an instruction, the Court merely
found that the language of the EED instruction could be
altered to accommodate that fact. Had Kentucky law
followed the approach to EED the dissent describes, none of
this discussion in Gall J would have been necessary. But the
decisions in Edmonds and Ratliff, which remained good law
after Gail J, luded the court from simply casting the
evidence aside in the manner the dissent’s analysis now
proposes.
Finally, the most telling evidence of the understanding of
— —. Gall J is —— direction the Kentucky
upreme adopted in subsequent years, acting upon the
skepticism it first expressed in Gail ] regarding the loose
18 - . ail ie
Gall has separately challenged this instruction as a violation of due
was in light of the factual circumstances of the crime, and did not
“by itself so infect the entire trial that the ing conviction violates due
process.” Cupp v. Naughten, 414 U.S. 141, 1 » (1973).
Nos. 91-5502; 94-6376 Gall v. Parker 49
definition of EED. See generally Eric Y. Drogin, To the
Bring of Insanity: “Extreme Emotional Disturbance” in
Konecly Law 26 N. * L. Rev. 99, 110 (1999) (explaining
that beginning with Gall, the 1980s “witnessed an inevitable
reaction to the rulings of the nature of Ratliff and Edmonds”).
While Henley and Hayes, 625 S.W.2d at 586 (implying that
evidence that defendant suffered from paranoid sc i
was evidence of EED), adhered to Ratliff and Edmonds, in
Wellman, in addition to overruling the statements in Ratliff
and Edmonds that EED comprised an element of murder, the
Kentucky Supreme Court also for the first time held that
mental illness was not alone sufficient to show EED. It held
that there must also be “probative, tangible and independent
evidence of initiating circumstances, such as provocation at
the time of his act which is contended to arouse extreme
emotional disturbance.” 694 S.W.2d at 697. One year later,
the Kentucky ——— Court elaborated further, disavowing
its statement in nds that “we know it when see it,” and
choosing instead to define EED precisely. See McClellan v.
Commonwealth, 715 S.W.2d 464, 467 (Ky. 1986). First, it
cited Wellman for the proposition that “[e]}xtreme emotional
disturbance is something different from insanity or mental
illness.” Jd. at 468. It then explicitly overruled Ratliff,
concluding that the Ratliff Court had “indicated that extreme
emotional disturbance was akin to a lesser: defense of
insanity” and had suggested that a showing of mental illness
or insanity, “standing alone,” was sufficient to establish EED.
Id. \t then proceeded to set out a precise definition of EED
that included the ition that EED “is not a mental
disease in itself.” Jd. Rather, EED “is a temporary state of
mind so enraged, inflamed, or disturbed as to overcome one’s
judgment, and to cause one to act uncontrollably from the
impelling force of the extreme emotional disturbance.” /d.
Importantly, later Kentucky decisions held that this new
definition of EED was to be applied prospectively, and not
retroactively. See Smith v. Commonwealth, 734 S.W.2d 437,
449 (Ky. 1987). Later cases have also clarified even further
that there must be a “triggering” event for there to be EED,
and that that event must be “sudden and uninterrupted.”
Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991);
50 Gall v. Parker Nos. 91-5502; 94-6376
see also Cecil v. Commonwealth, 888 S.W.2d 669, 673 (Ky.
1994) (discussing the need for a “‘triggering’ event”).
While these later standards indeed resemble the dissent’s
conception of EED, also show that that conception did
not emerge until after 1 I. Through Gall J and the early
1980s, as McClellan, Henley, Ratliff and Edmonds illustrate,
a showing of serious mental illness (and in several instances,
a showing of paranoid schizophrenia) had been sufficient to
meet the ambiguously defined EED. Because Gall made such
a showing, he was entitled to the due process protections of
Winship and Mullaney.
ili)
Finally, we wish to articulate the reasons that the dissent’s
retroactive Se pon of Kentucky Supreme Court decisions
that overruled the clear precedent governing Gall J would be
improper. First, by applying the more m definition of
EED to Gall’s case, the dissent would directly contravene the
Kentucky Supreme Court’s own determination that the new
definition of EED in McClellan was to be applied
prospectively. See Smith, 734 S.W.2d at 449. It was
McClellan that overruled Ratliff's conclusion that mental
illness, standing alone, could comprise evidence of EED, but
Smith made clear that this refined definition was not to be
applied retroactively. We must defer to this state
determination.
More generally, applying cases such as Wellman and
McClellan to Gall’s case would defy the underlying se
of habeas review. The task of a habeas court under 754 is
to assess the constitutionality of a state court conviction.
Even with respect to questions of federal constitutional law,
habeas review is constrained by robust principles of finality
and non-retroactivity. See generally T; eague v. Lane, 489 U.S.
288 (1989). Principles of comity and finality equally
command that a habeas court can not revisit a state court’s
interpretation of state law, and in particular, instruct that a
habeas court accept the interpretation of state law by the
highest state court on a petitioner’s direct appeal. See, e.g.,
Nos. 91-5502; 94-6376 Gallv. Parker 51
Mullaney, 421 U.S. at 691 (“[W]e accept as binding the
Maine Supreme Court’s construction of state homicide law.”);
Gryger v. Burke, 334 U.S. 728, 731 (1948) (stating that
because the petitioner alleges only that a state trial court
misinterpreted state law, and that because that court’s action
was affirmed by the highest court in Pennsylvania, the court
was not wered to adopt a different view of state law);
Norris v. Schotten, 146 F.3d 3 14, 328 (6th Cir. 1998) (stating
that a habeas court should not revisit an issue of state law, and
that doing so is “especially inappropriate” when the state law
issue was resolved on direct ); Johnson v. Rosemeyer,
117 F.3d 104, 113 (3d Cir. 1997) (“In habeas cases [], district
courts act after the state court has decided the state law and
applied it to the same record that is before the habeas court.
To permit federal courts to speculate about the direction state
law may take in the face of an authoritative final decision of
a state court in the same case would directly interfere with the
state’s ability to decide the meaning of its own law.”) (citation
omitted) . It is against this baseline of binding state law, and
the facts of the case at hand, that we review de novo a state
court’s resolution of whether Gall’s conviction violated our
Constitution. See generally Bute v. Illinois, 333 U.S. 640,
670 (1948) (“It is our province to decide whether the practice
of the Illinois court in these cases, although admittedly in
conformity with the law of Illinois, was so clearly at variance
with [due process] that these sentences must be clearly
invalidated.”). While a habeas court may consult intervening
state decisions in instances where those decisions clarify or
illustrate the law that was applied in the petitioner’s own case,
see, e.g., Cole v. Young, 817 F.2d 412, 421-22 (1987)
(examining intervening Wisconsin decisions to comprehend
state law applicable to petitioner), or decisions that correct
other courts’ misinterpretations of that law, see Duffy v. Foltz,
804 F.2d 50, 54 (6th Cir. 1986)(deferring to Michigan
Supreme Court’s conclusion on the role of the insanity
defense, which conflicted with a prior Sixth Circuit
interpretation of Michigan law); Glenn, 635 F.2d at 1188
(deferring to intervening Ohio Supreme Court decision that
illustrated that a district court’s interpretation of Ohio law had
been incorrect), it would defy the fundamental framework of
52 Gall v. Parker Nos. 91-5502; 94-6376
habeas review to apply intervening state precedent that
explicitly overruled the state law applied in a petitioner’s
case.
A simple example demonstrates this point. Jackson v.
Virginia requires that habeas courts examine whether a
rational trier of fact could have found a defendant guilty
beyond a reasonable doubt, and instructs that such a review be
made “with explicit reference to the substantive elements of
the criminal offense as defined by state law.” 443 US. at 324
n.16. Suppose that a habeas petitioner, convicted at a time
when three elements were required under state law, argues
that the prosecution failed to prove the third element. Review
under Jackson would be meaningless if a habeas court were
retroactively to apply later state cases removing that third
element and explicitly overruling the precedent applied in
petitioner’s case. Yet this is precisely what the dissent’s
approach proposes that we do.
Moreover, constitutional due process would be violated by
casting aside Kentucky Supreme Court holdings establishing
the absence of EED as an element of murder in favor of later
cases overruling those precedents, particularly when the
Kentucky Supreme Court itself applied those early cases 1) to
Gall’s case, 2) to cases heard both before and after Gall I, and
3) to crimes that took place before and after Gall’s. No less
than in Mullaney itself, applying Wellman’s conclusion that
absence of EED was not an element of the crime (when Gall
J and even later cases accepted that crucial premise) would
effectively shift the burden of proof on an element onto Gall,
with the only difference being that the Mullaney violation
would occur at the collateral review stage. The Supreme
Court since Mullaney has cautioned that a state must not be
allowed to “manipulate its way out of Winship.” Jones, 526
U.S. at 240; see also Mullaney, 421 US. at 691 n.11
(cautioning that a state-court interpretation of state law can be
re-examined when it be pe to be an obvious subterfuge to
evade consideration of a federal issue”)(citation omitted).
Applying the fundamentally new conception of EED outlined
in later cases such as Wellman to Gall’s collateral review
Nos. 91-5502; 94-6376 Gall v. Parker 53
would allow the Commonwealth to avert Winship in just that
way.
Finally; retroactively applying the later Kentucky cases to
Gall’s habeas petition would also violate the non-retroactivity
principle articulated in Bouie v. Columbia, 378 U.S. 347
(1964). While the ex post facto clause precludes state
legislatures from retroactively altering the definition of
crimes, see California Dep't of Corrections v. Morales, 514
U.S. 499, 504 (1995); Collins v. Youngblood, 497 U.S. 37, 43
(1990), the Bouie Court held that state supreme courts are
“barred by the Due Process Clause from achieving precisely
the same result by judicial construction.” Bouie, 378 U.S. at
353-54; see also Dale v. Haeberlin, 878 F.2d 930, 934 (6th
Cir. 1989) (stating that “‘a state supreme court is barred by
the due process clause from achieving by judicial construction
a result which a state legislature could not obtain by
statute””)(quoting Jordan v. Watkins, 681 F.2d 1067, 1079
(Sth Cir. 1982)). Thus, just as in the ex post facto context, the
heart of the Bouie analysis is scrutinizing the definition and
construction of the criminal act, see id., and ascertaining if the
construction by the later court decision was foreseeable by the
defendant in question. See Bouie, 378 U.S. at 354
(concluding that the change in law was “unexpected and
indefensible by reference to the law which had been expressed
prior to the conduct in issue”)(citation omitted). If the new
interpretation was in fact unforeseeable, if it was applied to
events occurring before its enactment, see Weaver v.
Graham, 450 U.S. 24, 29 (1981), and if the interpretation
disadvantages the offender affected by it, see id., then Bouie
and Dale instruct that due process is violated just as the ex
post facto clause would be. Although a decision can render
a “disadvantage” in a number of ways, see Collins, 497 U.S.
at 43, 52, the elimination of an element of a crime is the
quintessential disadvantage that can not be applied
retroactively. See Carmell v. Texas, 120 S.Ct 1620, 1632-33
(2000)(noting that “retrospectively eliminating an element of
the offense” violates the ex post facto clause); Collins, 497 ©
U.S. at 43 (explaining that the original understanding of the
Ex Post Facto Clause was that “[l]egislatures may not
54 Gall v. Parker Nos. 91-5502; 94-6376
retroactively alter the definition of crimes”). Moreover, a law
that alters the proof necessary to convict a defendant also
violates the ex post facto clause. See Wilson v. Yaklich, 148
F.3d 596, 606 (6th Cir. 1998) (noting that laws affecting the
“degree of proof necessary to establish ilt” implicate the
ex post facto clause) (quoting Hopt v. Utah, 110 U.S. 574,
589-90 (1884)); Murpy v. Sowders, 801 F.2d 205, 207 (6th
Cir. 1986) (stating that laws violate the ex post facto clause
when they “alter the degree, or lessen the amount or measure,
of the proof which was made necessary to conviction when
the crime was committed”).
These standards make clear that the Kentucky Supreme
Court’s explicit alterations of its interpretation of EED in
cases such as Wellman and McClellan can not be applied to
Gall’s case. These later cases achieved two things: they held
that absence of EED was not an element of ben and they
made a defendant’s task saiggerag” more ge oe by
introducing a precise “triggering” predicate was
articulated in neither the statute nor prior caselaw. Both cases
explicitly overruled prior caselaw. Applying these new rules
to Gall’s case would clearly violate Bouie. Under the most
reasonable reading of the statute’s plain text—that absence of
= was . element of the crime, nore no mention
whatsoever of the “triggering” irement that developed in
later cases, and with legislative history suggesting a move
away from the precise provocation requirement of the “heat
of passion” elemen ¢ new conception of EED introduced
by the later cases changed the law in ways that were
unforeseeable at the time of the acts Gall committed. Beyond
the statute itself, Kentucky Supreme Court’s earliest
interpretations of the statute, its decision to apply this reading
retroactively to cases that occurred shortly after the statute
came into effect (and prior to Gall’s offense), and its explicit
acknowledgment that the later cases were directly overruling
the prior cases, all support this view. It is also clear that the
retroactive lication of those cases would substantially
disadvantage Gall, both by removing an element of murder,
and by making Gall’s burden of showing EED substantially
more difficult.
RE
Nos. 91-5502; 94-6376 Gall v. Parker 55
In the alternative, one could reason that the face of the
statute was sufficiently unclear that at the time of Gall’s
crime, it could be interpreted either as establishing absence of
EED as an element (as the state courts initially believed), or
as a defense or matter of evidence (as the courts later
believed, and as the dissent now believes). When faced with
a considerable ambiguity on a facet as critical as a potential
element of a crime, a court may rule that such a statute is void
for vagueness or, in certain circumstances, it may add a
clarifying gloss to that statute and apply it prospectively. But
it would once again violate due process to apply that added
and unforeseen precision retroactively. See generally
Lanzetta v. New Jersey, 306 U.S. 451, 456-67 (1939)(stating
that the New Jersey Supreme Court improperly applied its
interpretation of a vague statute against defendants because
“{iJt would be hard to hold that, in advance of judicial
utterance upon the subject, they were bound to understand the
challenged provision according to the language later used by
the court”); United States v. Salisbury, 983 F.2d 1369, 1380
(6th Cir. 1993)(finding it inappropriate to cure a vague statute
and apply the new construction retroactively to conduct prior
to the holding). Cf Marks v. United States, 430 U.S. 188,
195 (1977)(holding that because a federal obscenity statute
was vague and sweeping, a Court decision relaxing
constitutional standards on First Amendment protection of
obscenity could not be applied retroactively).
In sum, due to constrictions imposed by Kentucky law, the
underlying purpose of habeas review, as well as due process
limitations articulated in Mullaney and Bouie, we decline the
dissent’s invitation to apply cases and conceptions of EED
that overruled critical premises governing the Gall J decision
to Gall’s collateral attack of that decision. Rather, we will
adhere, as we must, to the Kentucky Supreme Court’s
conception of EED that preceded the dramatic changes
marked by Wellman and McClellan, a conception that the
56 Gall v. Parker Nos. 91-5502; 94-6376
Gall I court applied to Gall’s _— as well as to crimes that
occurred both before and after the crime in this case.
C. Sufficiency of Evidence of Insanity
Gall next argues that his due process rights were violated
because the evidence clearly showed that he was insane.
Because we hold that Gall can not bring. this argument on
habeas review, we do not reach its merits.
A state prisoner is entitled to relief under 28 U.S.C. § 2254
only if he is held “in custody in violation of the Constitution
or laws or treaties of the United States.” A challenge to a
conviction must therefore do more than pose a question of
State law, for such a challenge alleges no deprivation of
federal rights and does not merit habeas relief. See Engle v.
Isaac, 456 U.S. 107, 119 (1982); see also Estelle v. McGuire,
502 U.S. 62, 67-68 (1991) (“[I}t is not the province of a
federal habeas court to reexamine state-court determinations
on state-law questions.”). With this requirement, the
dichotomy discussed supra between elements and non-
elements of a criminal act again plays an important role.
Challenges to evidence pertaining to an element of an offense
rais¢ constitutional due process concerns under In Re Winship
and are thus reviewable on habeas review. On the other hand,
challenges to evidence on non-elements do not generally
implicate Jn Re Winship, and are not reviewable through a
§ 2254 petition. See Engle, 456 U.S. at 119-22 (refusing to
review an argument pertaining to an affirmative defense). An
alternative way to gain habeas review is to show that a
"Gall also argues that the decision in Gall J violated Bouie v.
Columbia, 378 U.S. 347 (1964) by retroactively applying new legal
standards against him. Because we have found that the decision violated
due process by contravening Mullaney, we need not address Gall’s Bouie
argument.
7 The dissent misinterprets our opinion as holding that “Gall was
insane when the crime was committed 22 years ago.” We in fact do not
address this issue.
Nos. 91-5502; 94-6376 Gall v. Parker 57
defense raised fully “negates an element” of a crime; a state
must then disprove that defense as part of its burden of proof.
See id. at 122. A contention that a state failed to disprove this
type of defense raises a colorable constitutional claim
appropriate for habeas review. See id.
In Kentucky, however, sanity is not an element of murder,
and insanity does not negate an element of murder. We thus
can not review this claim. First, Kentucky law does ~of
include sanity as an element of murder. Unlike the EED
element, § 507.020 does not indicate that absence of sanity is
a required element of murder. The statute also places the
burden of proving legal insanity squarely on a defendant’s
shoulders. See Ky. Rev. Stat. Ann. § 500.070 (placing burden
of proof onto defendants whenever the statute provides that
the defendant may prove the element of a case “in exculpation
of his conduct”); Ky. Rev. Stat. Ann. § 504.020 (stating that
a defendant “may prove {legal insanity] in ex tion of
criminal conduct”).” Consistent with the statute, Kentucky
courts have consistently concluded that sanity is not an
element of murder, that insanity is a defense, and that the
burden of proving insanity rests with the defendant. See, ¢.g.,
Hayes, 625 S.W.2d at 586; Brewster v. Commonwealth, 568
S.W.2d 232, 234 (Ky. 1978); Wainscott v. Commonwealth,
562 S.W.2d 628, 631 (Ky. 1978). This case is thus no
different than Duffy v. Foltz, 804 F.2d 50, 54 (6th Cir. 1986),
where this Court held that because sanity was not an element
of the relevant crimes under Michigan law, Duffy’s claim that
there was insufficient P tage of sanity did not raise a federal
constitutional issue. See also Redman, 858 F.2d at 1200
(stating that there were no cognizable grounds for habeas
relief “[bjecause under Michigan law sanity is not an
element” of the charged offenses).
24Gall presents a dubious argument when he asserts that
§ 500.070(3) “says that insanity remains an ‘element.’” Gall’s Br.(II) at
119. The cited provision discusses “element({s] of the case” which
defendants have to prove, one of which is insanity. Ky. Rev. Stat. Ann.
§ 500.070(3) (emphasis added). This is c not a suggestion that
insanity or other defenses are elements of the offense.
58 Gall v. Parker Nos. 91-5502; 94-6376
We also reject Gall’s alternative argument that we can
review the question of sanity because showing the absence of
sanity wholly negates the element of intent, placing the
burden back on the Commonwealth to prove sanity beyond a
reasonable doubt. Kentucky courts have consistently held that
an insanity defense does not negate an element of the crime,
and that a showing of insanity does not shift the burden of
proving sanity onto the Commonwealth. See, e.g., Edwards,
554 S.W.2d at 383. Gall points to no cases showing
otherwise. Because Gall’s argument does not raise ‘a
constitutional issue, it is not subject to habeas review.
D. Sitting a “Tainted” Juror
Gall next argues that in rejecting his challenge for cause of
one juror (“Barton”), the trial court violated his right to an
impartial jury under the Sixth and Fourteenth Amendments.
The question of whether a trial court has seated a fair and
impartial jury is a factual one, involving an assessment of
credibility. See Patton v. Yount, 467 US. 1025, 1038 (1984).
On review, this court inquires “whether there is fair
support in the record for the state courts’ conclusion that the
jurors [] would be impartial.” /d.; see United States v. Smith,
748 F.2d 1091, 1094 (6th Cir. 1984). We find that there was
fair support in the record for the trial court’s decision.
1.
The Supreme Court recognizes two substantive standards
that apply to juror challenges. Gall primarily relies on the
standard announced in Marshall v. United States, 360 U.S.
310 (1959), in which the Supreme Court presumed prejudice
for jurors who learn of prior criminal histories through news
sources. But as this Court stated in Haney v. Rose, 642 F.2d
1055, 1058 (6th Cir. 1981), the decision in Marshall “was
expressly based on the Supervisory power of the Supreme
Court” over federal courts, and was not “constitutionally
compelled.” The standard that is required when a habeas
petitioner is attacking a state court conviction is more
demanding;“[f]ederal courts will not presume unfairness of
EEO
Nos. 91-5502; 94-6376 Gallv. Parker 59
constitutional magnitude in the absence of particularly
egregious circumstances.” Jd.
The Supreme Court’s decision in Murphy v. Florida, 421
U.S. 794 (1975), outlined the contours of this inquiry.
Despite the requirement of fairness and impartiality,
“[qJualified jurors need not [] be totally ignorant of the facts
and issues involved. . . . ‘It is sufficient if the juror can lay
aside his impression or opinion and render a verdict based on
the evidence presented in court.’” Jd. at 799-800 (quoting
Irvin v. Dowd, 366 U.S. 717, 723 (1961)). A juror is not
properly seated if at voir dire, he exhibits such hostility
toward a defendant “as to suggest a partiality that could not be
laid aside.” Jd. at 800. The Murphy Court and this Court have
outlined different factors to be weighed in making such a
determination, including: the nature of the information the
juror knew; how probative the information was as to a
defendant’s guilt; when and how they learned of that
information; the juror’s own estimation of the relevance of
that knowledge; any express indications of partiality by a
juror; whether the broader atmosphere in the community or
courtroom was “sufficiently inflammatory,” id. at 802; and
the steps taken by the trial court in neutralizing this
information. See id.; Haney, 642 F.2d at 1059-60 (finding
that jurors were impartial); Goins v. McKeen, 605 F.2d 947,
952-54 (6th Cir. 1979) (concluding that jurors’ exposure to a
newspaper article on the second day of trial rendered the trial
fundamentally unfair).
Analyzing these factors, we believe that the record fairly
supports the trial court’s conclusion that Barton was
impartial. Barton acknowledged at voir dire that he had read
about Gall and his alleged crime in the Kentucky Post. J.A.
at 206-07. From that article, Barton stated that he knew Gall
was from Hillsboro; that Gall had “been accused of similar
offenses previously[;] that I was somewhat upset or disturbed
that the State Policemen were involved in this to the point that
it could have cost another life;” and that Gall had children of
his own. J.A. at 207-08. He also stated that he had read that
Gall was on parole for one of his past offenses. J.A. at 209.
60 Gall v. Parker Nos. 91-5502; 94-6376
Despite this knowledge, Barton repeatedly assured defense
counsel that this information did not affect his feelings toward
Gall or how he would approach the trial. See J.A. at 207-08
(“No, I don’t think so once the actual evidence is presented.
I don’t know how much stock can be put in the Kentucky Post
as far as forming an opinion.”); J.A. at 209 (stating that his
prior knowledge would not make him more inclined to find
Gall guilty). Barton likewise assured the judge of his ability
to look at the evidence neutrally and lay aside what he had
read or heard. Finally, after overruling Gall’s motion to strike
Barton, the judge instructed him that if he were selected as a
juror, he could not discuss what he had learned prior to trial
with the jury.
Given this colloquy, this case is analogous to Murphy and
Haney, where jurors were not sufficiently partial to warrant
reversal. Overall, the voir dire of Barton “indicates no such
hostility” toward Gall “as to suggest a partiality that could not
be laid aside.” Murphy, 421 US. at 800. First, Barton made
no statement as sedbhamatie as that by the Murphy juror who
admitted that “his prior impression of petitioner would
dispose him to convict,” id. at 801—a statement that the
Supreme Court found insufficient to warrant reversal. Second,
as in Haney, Barton learned of the information before trial,
while Goins involved the “stricter standard” to be applied
when prejudicial information was obtained during trial. 642
F.2d at 1059. Third, the information that Barton described on
the record did not appear to be inherently prejudicial or
unduly probative of petitioner’s guilt, particuladty considering
Barton’s explicit skepticism of the Kentucky Post and
assurances that he was not unduly influenced by that
information. See id.; cf. Goins, 605 F.2d at 953 (involving
newspaper article discussing defendant’s plea to a lesser
included offense, as well as defendant’s involvement in
another aggravated murder case). While not dispositive, see,
e.g., Murphy, 421 U.S. at 800; Goins, 605 F.2d at 953, such
juror assurances are certainly one of the factors a trial judge
can consider in determining whether that juror “can lay aside
his impression or opinion.” /rvin, 366 U.S. at 723; see Smith,
748 F.2d at 1094-95 (relying in part on juror’s reassurances).
7
Nos. 91-5502; 94-6376 Gallv. Parker 61
Finally, unlike in Goins, the trial judge took a
steps” to assure Barton would be i
not to discuss what he had learned with other jurors.
The factor that most strongly supports Gall’s argument is
that Barton knew of Gail’s parole status, adding a potentially
mers oe one | piece of information about the crime. We do
not believe factor alone outweighed the other indicia of
Barton’s impartiality. In sum, there is le support in the
record for the trial court’s conclusion that could sit on
the jury.
E. Impartial Jury
Gall further argues that other factors combined to deny him
his right to an jury. Specifically, he that
widespread ial publicity, the court’s refusal to change the
trial venue, its failure to sequester the jurors during voir dire,
and the evidence from voir dire thatthe publicity “pervaded”
the venire, engendered a partial jury and a ly
unfair trial. The Commonwealth counters that the jury venire,
and the ultimate panel selected, were sufficiently impartial.
In essence, Gall argues that this Court should presume that
the trial was unconstitutionally prejudiced, as courts are
required to in those cases where an inflammatory, circus
atmosphere — both the courthouse and the surrounding
communi g., Sheppard v. Maxwell, 384 U.S. 333,
358 (1966 ‘Gawoweg a “carnival here at trial,” with
intense media coverage and presence in courtroom, and a
lack of adequate jury instructions), Estes v. Texas, 381 U.S.
532 (1965) (involving a “circus atmosphere,” with the press
mary be pte tne Rideau v. Louisiana, 373 U.S.
723 (1963) (presuming prejudice when televised interview of
defendant’s confession from prison had been widely aired);
Irvin, 366 U.S. at 725-28 (involving extensive prejudicial
accounts in the media, and where 90% of the venire and eight
of twelve jurors believed the defendant was guilty to the
trial). This Court in DeLisle clarified that courts d only
presume prejudice in those cases where the “
atmosphere in the community or courtroom is sufficiently
62 Gall v. Parker Nos. 91-5502; 94-6376
inflammatory.’” 161 Pp pa, ae Murphy, 421 U.S.
at 802). Overall, such a trial must “entirely lacking in the
solemnity and sobriety to which a defendant is entitled in a
system that subscribes to any notion of fairness and rejects the
verdict of a mob.” Murphy, 421 U.S. at 799.
In contrast to those extrao ina ees
court must presume prejudice, with a lower degree o
judice—even those with a good deal of trial
gs
despite some factual similarities to cases like Shep, and
Irvin. See. e.g., Nevers, 169 F.3d at 367-68; isle, 161
F.3d at 385-88; Brofford v. Marshall, 751 F.2d 845, 848-52
os Cir. 1985); Jenkins v. Bordenkircher, 611 F.2d 162 (6th
ir. 1979).
This case exhibits many, but not all, of the aspects of trials
so pervaded with unfairness that courts presume prejudice.
We have concluded that other due process violations occurred
in this trial, and also that the introduction of extraneous
evidence into the jury’s deliberations worked actual prejudice
into the penalty phase of Gall’s trial. We need not make the
difficult determination of whether we Ought to presume
prejudice as well.
F. Prosecutorial Misconduct
Gall argues that a host of prosecutorial statements and
tactics violated his constitutional rights. The alleged
instances of misconduct include: the violation of Gall’s night
to remain silent by hasizing his failure to testify;
misrepresentation of evidence; prejudicial statements and
Nos. 91-5502; 94-6376 Gallv. Parker 63
actions depriving Gall a fair determination of sanity; and a
host of other actions that appealed to the passions and
prejudices of the jury. Gall argues that these improprieties
rendered the proceeding fundamentally unfair.
Although Gall’s counsel did not object to these infractions
at trial, we are not barred from hearing these claims. A
habeas court only adheres to a state procedural bar when the
last state court rendering a reasoned judgment on the matter
has stated “clearly and expressly” that its judgment rests on
that procedural bar. Boyle v. Million, 201 F.3d 711, 716 (6th
Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 735
(1991)). In this case, the Kentucky Supreme Court addressed
and rejected Gall’s allegations of prosecutorial misconduct on
their merits. See, e.g., Gall I, 607 S.W.2d at 110 (“To be
mercifully brief, we ) A not find in this record any conduct by
the prosecuting attorney that could be said to have been
inconsistent with Gall’s right to a fair trial.”). This issue is
therefore not barred from review.
1. Fifth Amendment Claim
A defendant’s Fifth Amendment right against self-
incrimination protects him from several types of government
misdeeds. First, once a defendant exercises his right to
silence after being read his Miranda rights, that post-arrest
silence cannot be used to his detriment at tnal. See Doyle v.
Ohio, 426 U.S. 610, 618 (1976); United States v. Williams,
665 F.2d 107, 109-10 (6th Cir. 1991). Second, the prosecution
is forbidden from commenting on a defendant’s decision not
to testify at trial. See Griffin v. California, 380 U.S. 609, 615
(1965); Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir.
1978). While direct comments about a decision to remain
225 amples Gall mentions include: failing to ask Dr. Chutkow to
conduct a sanity exam on Gall and to provide him with the full
information he needed to make such a determination; an inappropriate
cross-examination of Dr. Noelker and improper closing argument; and
—— the jurors that Gall would go free if found not guilty for reason
of insanity.
64 Gall v. Parker Nos. 91-5502; 94-6376
silent or not to testify are clearly prohibited, indirect
comments require a more probing analysis. See Lent v. Wells,
861 F.2d 972, 975 (6th Cir. 1988). Such comments warrant
reversal only when they are “manifestly intended by the
prosecutor as a comment on the defendant's failure to testify
or were of such a character that the jury would naturally and
reasonably take them to be comments on the failure of the
accused to testify.” Bagby v. Sowders, 894 F.2d 792, 797-98
(6th Cir. 1990). A court should not find manifest intent from
such comments if some other explanation for the prosecutor’s
remarks is equally plausible. See Lent, 861 F.2d at 975. This
occurs, for instance, when the comment is “a fair response to
a claim made by defendant or his counsel.” United States v.
Robinson, 485 U.S. 25, 32 (1988).
Harmless error analysis applies to Fifth Amendment
violations. This “extremely narrow” standard requires
reversal only when the state can “demonstrate beyond a
reasonable doubt that the error did not contribute in any way
to the conviction of the defendant.” Eberhardt v.
Bordenkircher, 605 F.2d 275, 278 (6th Cir. 1979).
Gall points to two occasions where the Commonwealth
improperly referred to his silence at trial. First, an officer
testified that Gall “wouldn’t talk” after making several
statements after his initial arrest. J.A. at 63. Second, the
Commonwealth indirectly referred to Gall’s silence when it
stated to the jury: Gall “sits in this courtroom as you have
heard the testimony and he has lied to his parents in every
instance and told them he didn’t do it. The man has not even
acknowledged his wrong, his fault, his crime, he denies them.
He denies them to this day.” J.A. at 1635.
Despite Gall’s contentions, we need not address the
question of whether these statements contravened the Fifth
Amendment because they comprised harmless error. As
discussed supra, there was little dispute over whether Gall
committed the crime; the heart of this trial was whether he
was emotionally disturbed or legally insane when he did so.
Because these references are not material to that issue, even
Nos. 91-5502; 94-6376 Gall v. Parker 65
if violative of his Fifth Amendment rights, they were harmless
error.
2. The Closing Argument
In examining alleged prosecutorial misconduct on habeas
review, this Court can only provide relief “if the relevant
misstatements were so egregious as to render the entire trial
fundamentally unfair to a degree tantamount to a due process
violation.” Caldwell, 181 F.3d at 736 (citing Donnelly v.
DeChristoforo, 416 U.S. 637, 643-45 (1974)); see also
Darden v. Wainwright, 477 U.S. 168, 181 (1986). In assessing
whether the error amounts to a constitutional deprivation, the
court must view the totality of the circumstances. See Hayton
v. Egeler, 555 F.2d 599, 604 (6th Cir. 1977). We must first
determine if the comments were improper. See Boyle, 201
F.3d at 717. We then must determine if the comments were
sufficiently flagrant to warrant reversal by looking to four
factors: 1) the likelihood that the remarks would mislead the
jury or prejudice the accused; 2) whether the remarks were
isolated or extensive; 3) whether the remarks were
deliberately or accidentally presented to the jury; 4) whether
other evidence against the defendant was substantial. See id.;
United States v. Carroll, 26 F.3d 1380, 1385-87 (6th Cir.
1994). Because defense counsel did not object to almost any
of the statements made, plain error analysis is required. See
Blandford, 33 F.3d at 709; United States v. Morrow, 923 F.2d
427, 432 (1991).
a.
We agree that the Commonwealth’s closing argument was
laced with improper, prejudicial statements. First,
prosecutors cannot make appeals to their own personal beliefs
and opinions. See Caldwell, 181 F.3d at 737 (stating that a
prosecutor cannot “express a personal opinion concerning the
guilt of the defendant or the credibility of trial witnesses”);
Carroll, 26 F.3d at 1387-88 (noting the impropriety of the
government conveying “a conviction of personal belief
regarding the witness’s veracity”). Courts frown upon such
statements for two reasons:
66 Gall v. Parker Nos. 91-5502; 94-6376
such comments can convey the impression that evidence
not presented to the jury, but known to the prosecutor,
supports the es om against the defendant and can thus
jeopardize the defendant’s right to be tried solely on the ©
basis of the evidence presented to the jury; and the
prosecutor’s opinion carries with it the imprimatur of the
Government and may induce the jury to trust the
ee judgment rather than its own view of the
evidence.
United States v. Young, 470 U.S. 1, 18 (1985); see also
Caldwell, 181 F.3d at 737 (stating that personal appeals
exceed “the legitimate advocate’s role by improperly inviting
the jurors to convict the defendants on a basis other than a
neutral independent assessment of the record proof’).
Despite this prohibition, throughout his closing argument
the prosecutor improperly expressed his personal belief about
crucial matters before the jury. For instance, the prosecutor
declared in closing that he was “not [] convinced that [Gall]
isn’t just a mean, shrewd, criminal.” J.A. at 1591. He again
voiced his personal belief when he stated that “I think you can
probably be skeptical of” the results of intelligence and
psychiatric tests. J.A. at 1584. He echoed this tactic once
again when he asked if Gall’s explanation of schizophrenia
“stretched” the jury’s “powers of reasoning? It certainly does
mine.” J.A. at 1586. Similarly, he clearly expressed his
personal belief about the credibility of key witnesses. Of Dr.
Noelker, the doctor who had thoroughly examined Gall, the
prosecutor stated that “I have known him for along time and
I know he is [a fine man].” He then declared that Dr. Noelker
was “a man of compassion” whose beliefs “slant{] his
opinions which he gives [and] his concliisions that he draws.”
J.A. at 1583. “He is a man I believe who believes he is
Standing in . . . between Eugene and his ultimate destiny and
I believe that weighs heavily on him. ...” J.A. at 1583. He
also stated that “I thought” ts of Dr. Noelker’s and Dr.
Toppen’s testimony were nheadlirateinadl really unique.” J.A.
at 1581. Finally, the prosecutor summed up his assessment of
Gall’s psychiatric witnesses and evidence by stating:
Nos. 91-5502; 94-6376 Gall v. Parker 67
[Y]ou don’t have to believe these guys. You know what
it reminds me of? It reminds me of the three blind men
who were taken out and they were asked to identify an
elephant. One grabbed the trunk, one grabbed the tail,
one grabbed the leg and you can imagine the bizarre
opinions which they got back on how an elephant looked.
J.A. at 1589.7
Next, the Commonwealth mischaracterized crucial
evidence and testimony pertaining to Gall’s showing of EED
and insanity. Misrepresenting facts in evidence can amount
to substantial error because doing so “may profoundly
impress a jury and may have a significant impact on the jury’s
deliberations.” Donnelly, 416 U.S. at 646. This is particularly
true in the case of prosecutorial misrepresentation because a
23We cannot — the dissent’s reasoning that these egregious
comments were harmless because a jury would appreciate that a
prosecutor had no special expertise in the field of mental illness. This
reasoning not only would create a new and unjustifiable exception to what
is otherwise clear misconduct, but it completely mis the
impropriety here. The prosecutor not only expressed his personal opinion
casting doubt on the expert testimony, but he went so far as to assert that
he had personal knowledge of the key expert witness in Gall’s favor, and
that based on his knowledge, the jury should doubt that expert’s
testimony. In other words, the prosecutor not only offered his opinion
oe he bolstered that opinion by explicitly referring to his
knowledge of the witness’s character and motivations. This hd gong
what the Young Court warned a when it cautio that a
prosecutor’s expressing his perso liefs — to the jury “that
evidence not presented to the jury, but known to the prosecutor, supports
the charges against the def t,” and may therefore “induce the jury to
trust the Government’s judgment rather than its own view of the
evidence.” 470 U.S. at 18. Moreover, as explained infra, the gist of the
prosecutor’s argument was not that the jury should believe that he had
special expertise regarding mental illness, but the inverse: that the jury
uld ole not to take yaar pee ccaien nerd
seriously an insanity defense was simply an act o
a guilty defendant. As he summarized, “When itis that bad folks, itis a ]
over.” J.A. at 1579-80. In short, he was calling on the jury to heed his
expertise as a government prosecutor and simply dismiss the insanity
defense out of hand.
68 Gall v. Parker Nos. 91-5502; 94-6376
jury generally has confidence that the prosecuting attorney is
faithfully observing his obligation as a representative of a
sovereignty, whose interest “in a criminal prosecution is not
that it shal win a case, but that justice will be done.” Berger
v. United States, 295 U.S. 78, 88 (1935). Nonetheless, the
prosecution was particularly irresponsible when summarizing
Dr. Noelker’s testimony, which clearly lay at the heart of the
case. For instance, he stated that Dr. Noelker “told” the jury
that “remission [] means [Gall] is legally feigning,” J.A. at
1585. In examining the record, we find that to be a distorted
construction of a vital portion of Dr. Noelker’s testim = 8
The prosecutor also suggested that Dr. Noelker mere y
thought it was “possible” that Gall suffered from EED, J.A.
at 1589, when Dr. Noelker definitively stated that Gall
suffered from such a disturbance. Indeed, as discussed supra,
Dr. Noelker’s statement that Gall was under EED was a
crucial issue of the case, one which the Commonwealth had
not otherwise rebutted. It was Dr. Chutkow, the state’s own
witness, who stated that it was possible that Gall was in a
“state of exacerbation” the morning of the killing. Finally, in
cross-examining Dr. Noelker, the prosecution on several
occasions suggested that Dr. Chutkow disagreed with Dr.
Noelker’s conclusion that Gall was legally insane, J.A. at
1032-34, when Dr. Chutkow clearly stated both on direct
examination and cross-examination that he could not
challenge Dr. Noelker’s conclusions because he did not have
the wealth of data that Dr. Noelker had. J.A. at 320, 350-51.
These comments and misrepresentations comprised part of
a broader strategy of improperly attacking Gall’s insanity
defense by criticizing the very use of the defense itself. rather
than addressing its evidentiary merits head on. Courts have
long castigated prosecutors when their efforts to rebut an
insanity defense constitute no more than an attack on the
rationale and purpose of the insanity defense itself. As the
Supreme Court of Florida articulated:
We believe that once the legislature has made the policy
decision to accept insanity as a complete defense to a
crime,
Nos. 91-5502; 94-6376 Gallv. Parker 69
it is not the responsibility of the prosecutor to place that issue
before the jury in the form of repeated criticism of the defense
in general. . . . To do so could only helplessly confuse the
jury. The insanity defense is a policy question that has
plagued courts, legislatures, and governments for decades. It
is unnecessary to similarly plague []juries.
Garron v. State, 528 So.2d 353, 357 (Fla. 1988). See also,
e.g., People v. Wallace, 408 N.W.2d 87, 91 (Mich. Ct. App.
1987) (finding reversible error because a prosecutor argued
against the insanity defense generally); State v. Percy, 507
A.2d 955, 958 (Vt. 1986) (finding improper and prejudicial a
prosecutor’s comments that the insanity defense constituted
a “mere attempt to escape justice”). Indeed, the Kentucky
Supreme Court stated only months before the Gall trial that
trials “must conform to the principle that insanity is a defense,
and the defendant must be allowed to prove it in accordance
with the accepted rules of evidence.” Jewell v.
Commonwealth, 549 S.W.2d 807, 812 (Ky. 1977), overruled
on other grounds by Payne v. Commonwealth, 623 S.W.2d
867 (Ky. 1981). Courts also frown upon prosecutorial tactics
that, in an effort to rebut a defendant’s evidentiary showing of
insanity, simply make “know-nothing appeals to ignorance”
rather than present testimony countering the defendant’s
showing in an evidentiary rigorous way. United States v.
Brawner, 471 F.2d 969, 1004 (D.C. Cir. 1972) (criticizing as
improper prosecutorial comments disparaging an ex
witness’s tests showing mental disease as “just blots of ink”).
In its closing, the Commonwealth used just such highly
prejudicial tactics. Rather than attacking Gall’s insanity
evidence by pointing to counter-evidence that Gall was sane,
the Commonwealth simply assaulted the very use of the
defense. As he began addressing the issue, the prosecutor
compared the insanity defense to other possible defenses.
Other defenses, he emphasized, require “facts,” but an
insanity defense “is all contained in the skull of the
defendant.” J.A. at 1579.
70 Gall v. Parker Nos. 91-5502; 94-6376
That is the last line of defense. That is like taking an M1
Rifle and lying in your back yard waiting for the
Russians to come. When it is that bad folks, it is all
over. . . . Now I want to review this cranial defense
within the skull of the Defendant ....
J.A. at 1579-80. He later reminded the jury not to be
“hoodwinked into the defense of insanity,” J.A. at 1592.
Further, his comments were peppered with the type of “know-
nothing appeals to ignorance” that deprive defendants of their
right to a fair consideration of their insanity defense. For
instance, the Commonwealth mocked Dr. Noelker’s use ofa
“House, Tree, Person Test” to show insanity as opposed to the
Commonwealth’s evidence ofa “smoking gun.” J.A. at 1591-
92. He asked: “[i]sn’t that a convenient time to go into a
[schizophrenic state]?” J.A. at 1584. And, similar to the
elephant analogy, he analogized Dr. Noelker’s description of
the long-term evolution of Gall’s mental state to a simple
hypothetical: “If my wife were pregnant eight years ago and
she was pregnant one month now, does that mean she was
pregnant in March? That is what Dr. Noelker is telling you.”
J.A. at 1585. At the same time, the prosecutor minimized the
testimony of Drs. Noelker and Toppen that Gall could appear
both calm and sane to an “untrained observer” even if
examinations and tests revealed that he was insane or severely
mentally ill: “He may look sane, but folks, he isn’t. Now they
are telling us folks, ‘you can’t look and judge for yourself.””
J.A. at 1581. He then argued to the jury that because Gall
appeared intelligent at trial, he must be sane, and must have
been sane on April 4. The tone of these statements was
similar to the rhetorical approach the prosecutor took in cross-
examining Dr. Noelker and Dr. Toppen, in which he assaulted
2 3080 Fig as an inexact discipline where doctors, a lying
subjective standards “within themselves” can reac polar
opposite conclusions in examining the same individual, J.A.
at 984-88, 1221-23, and belittled the tests Dr. Noelker had
used in diagnosing Gall. J.A. at 1024 (“Now here is a little
one here that I think the jury ought to see. This is one of
those little psychological tests.”).
Nos. 91-5502; 94-6376 Gallv. Parker 71
Finally, the prosecution’s most egregious misconduct was
warning that Gall would go free if found not guilty for reason
of insanity. During his closing, the prosecution stated: “Now
folks are we going to turn [Ga i loose on society by reason of
insanity[?]” J.A. at 1588-89. Seconds later, he Tasaetet: Gall
“cannot escape the ends of justice by retreating within the
safety of his own skull!” J.A. at 1589. At another point, the
Commonwealth stated that if the jury were to believe Dr.
Toppen’s testimony, “then turn him loose.” J.A. at 1581.
These statements contravened several related rules of conduct.
First, they once again detracted from a fair consideration of
Gall’s insanity defense by introducing — rospect that such
a determination would lead inevitabl l’s release. See
Guidroz v. Lynaugh, 852 F.2d 832, 37-38 (Sth Cir. 1988);
United States v. Jackson, 542 F.2d 403, 411 (7th Cir. 1976);
United States v. Birrell, 421 F.2d 665, 666-67 (9th Cir. 1970);
Evalt v. United States, 359 F.2d 534, 546 (9th Cir. 1966);
United States v. Lane, 725 F. Supp. 936, 942 (N.D. Ill. 1989).
Second, the comments violated the cardinal rule that a
prosecutor cannot make statements “calculated to incite the
passions and prejudices of the jurors.” United States v.
Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991); see Stumbo v.
Seabold, 704 F.2d 910, 912 (6th Cir. 1983) (decryin
prosecutorial misconduct which “prejudice[s] and inflame(s}
the jury”). Eliciting the image of turning Gall loose on society
by finding him insane is perhaps the paradigm example of
such impropriety—calling on jurors’ emotions and fears
rather than “the evidence and law of the case.” United States
v. Gainey, 111 F.3d 834, 836 (11th Cir. 1997).
In sum, facing Gall’s considerable evidence of insanity and
EED, counsel for the Commonwealth chose not to rebut that
evidence directly.”” Instead, he expressed his personal belief
as to the weakness and partiality of Gall’s expert witnesses’
- as discussed infra, no one examined Gall’s mental
Indeed, as
condition on behalf of the Commonwealth to determine if he was sane on
the day of the crime. Dr. Chutkow only examined Gall to see if he was
competent to stand trial. This perhaps explains the prosecutor’s need to
resort to improper tactics in attacking Gall’s insanity defense.
72 Gall v. Parker Nos. 91-5502; 94-6376
testimony, and he mischaracterized crucial aspects of that
testimony. He di the very use of an insanity defense
as the “last line of defense” and the “M1 Rifle”; he belittled
j ls used to such a
the doctors’ testifying Gall’s
pe tie 1B blind rors “asked to me Pla
elephant”—“you can imagi izarre opinions which they
got back.” J.A. at 1589. He then pleaded with the jury not to
let Gall loose through the insanity defense. In addition to
having no doubt that these tactics were improper, we find that
they easily satisfy the criteria of “flagrancy” laid out in Boyle.
They clearly misled the jury and prejudiced Gall’s defense of
insanity. The comments were not accidental or isolated,
permeating the Commonwealth’s closing argument as well as
other portions of the trial. And they involved the central
issue of the case. Moreover, as explained infra, the total
strength of the evidence rebutting Gall’s insanity defense was
weak at best, not to mention i ly presented. After a
close review of the record, we find that the Commonwealth’s
misconduct was sufficiently egregious to render the entire
trial fundamentally unfair.
Finally, we respectfully disagree with the dissent’s
conclusion that this prosecutorial misconduct is acceptable
when viewed “against the backdrop of the nature of the
insanity defense in this case.” The dissent explains that,
given the strong circumstantial evidence tying Gall to the
crime, as well as Gall’s clear history of mental illness, the
insanity defense was the central issue of the case. It is
therefore understandable, the dissent explains, that “the
prosecutor would bring out his heaviest artillery and direct it
at the insanity defense.” We no doubt agree that Gall’s sanity
was central to this trial, and we, no less than the dissent,
would oe = oe to bring out “heavy artillery”
against that defense. e also agree that persuadin g the jury
that there is a difference between a mental disease and legal
insanity was a “legitimate goal.” But because ours is a system
of law, the arsenal available to a prosecutor to achieve that
legitimate goal is limited to arguments rooted in properly
introduced evidence and testimony rather than words and
Nos. 91-5502; 94-6376 Gall v. Parker 73
tactics designed to inflame passions, air unsubstantiated
prosecutorial beliefs, and downplay the legitimacy ofa legally
recognized defense. Here, unfortunately, having failed to
present an expert who had actually examined Gall to assess
his sanity, the prosecutor’s barrage against Gall’s insanity
defense comprised largely “foul blows” having little to do
with cognizable facts or evidence. If we are to take at all
seriously the Kentucky legislature’s decision to provide
insanity as a defense to murder, we can not countenance the
prosecutor’s highly improper methods to overcome that
defense in this case.
G. Sixth Amendment Confrontation Rights
Gall argues that he was denied his Sixth Amendment right
to confront the witnesses against him because he was not
present at the depositions of Dr. Toppen and Dr. Chutkow,
and because Dr. Chutkow’s testimony was presented by
videotape when there was no showing t he was
constitutionally unavailable. The Commonwealth counters
that Gall failed to raise that claim in the state courts, and that
it is therefore procedurally defaulted.
In Kentucky, a party can bring one collateral attack
pursuant to RCr 11.42; all claims not brought on the direct
appeal or in that collateral challenge are generally defaulted.
However, under RCr 60.02, a defendant can raise a challenge
not brought in his RCr 11.42 motion if the errors involved
were “unknown and could not have been known to the party
by the exercise of reasonable diligence and in time to have
been otherwise presented to the court.” Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
Additionally, a new 11.42 motion can be filed “upon a ground
which was not known, or reasonably discoverable at the time
the first motion was made.” Gilliam v. Commonwealth, 652
S.W.2d 856, 858 (Ky. 1983). Gall argues here that he meets
these exceptions because the error pertaining to the videotape
deposition did not become clear until Dr. Chutkow testified
in preparation for the district court’s habeas hearing. We,
however, agree with the Commonwealth that this is a dubious
74 Gall v. Parker Nos. 91-5502; 94-6376
argument given Gall’s active presence and awareness
throughout the trial. Because the error was likely known and
certainly was reasonably discoverable, and because Gall failed
to raise his Confrontation Clause claim on either his direct
on - in his RCr 1 1.42 motion, the claim was procedurally
efaulted.
A habeas petitioner can only overcome procedural default
in two instances. First, he can “demonstrate cause for the
procedural default and actual prejudice resulting from the
alleged constitutional error.” Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994). Alternatively, a defendant can show that
failure to consider the claim will result in a fundamental -
eae of justice. See Coleman, 501 U.S. at 750; Rust, 17
F.3d.at 162 (stating that showing cause and prejudice is not
required if defendant makes an “extraordinary case whereby
a constitutional violation resulted in the conviction of one
who is actually innocent”). We must examine Gall’s claim to
see if either of these exceptions is met.
1.
We find that the use of Dr. Chutkow’s videotaped
deposition did indeed violate the Confrontation Clause. In
particular, the facts at trial implicate this Court’s holding that
unless there is a showing of constitutional unavailability, the
defendant enjoys a right to confront and examine crucial
witnesses “before the jury in open cous.” Stoner v. Sowders,
997 F.2d 209, 212 (6th Cir. 1993). Just as in Stoner,
2S eversing a conviction where a witness’s testimony was
unnecessarily presented to the jury through a vid deposition rather
than live testimony, this Court in Stoner emphasized that “the deposition
is a weak substitute for live testimony, a substitute that the Sixth
Amendment does not countenance on a routine basis.” Jd at 213. Despite
the possible efficiencies of taped depositions, “[t]he Constitution does not
allow us to so water down the explicit requirement of live testimony in
criminal cases,” 997 F.2d at 213:
A prosecutor will often prefer to offer deposition testimony
because the witness need not be secured for trial and need not be
subject to the vicissitudes of cross examination before the
Nos. 91-5502; 94-6376 Gallv. Parker 75
constitutional error occurred here because Dr. Chutkow
testified by videotape rather than in open court without any
showing by the Commonwealth that he was constitutionally
unavailable. See id. at 212. The prosecution provided no
reason for Dr. Chutkow’s absence, and at oral argument for
this appeal, stated only that it could not recall the reason Dr.
Chutkow did not deliver live testimony.
Moreover, the violation did not simply surpass harmless
error; it also resulted in actual prejudice to Gall because it
“worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.” Rust,
17 F.3d at 161 (citation omitted). As in Stoner, “[t}here is no
doubt that the guilty verdict . . . was substantially influenced
<a [this videotape testimony.” Id. at 213-14. This case
hinged on Dr. Cl Chutkow’s testimony. Dr. Noelker had
meget, Se eee
Chutkow’s testimony
meet Fires Seow af Senansledduimesdaategtes
showing of insanity. J.A. at 318, 321 (stating that Gall could
tenses ly his behavicr to the requirements of the law).
At other poms in the trial, the Commonwealth directly
asserted that Dr. Chutkow had disagreed with Dr. Noelker’s
conclusion that Gall was legally insane. J.A. at 1032. Indeed,
the Commonwealth its re-cross-examination of Dr.
Noelker by ween Me Dr. Chutkow’s testimony with
dramatic flair; when Dr. Noelker stated on redirect that any
competent mental health professional who had reviewed his
data would reach the same oo p= on Gall’s sanity, the
prosecution rose to ask a si question: “Except Dr.
Chutkow?” J.A. at 1035. Simi 4 vias pleadings be ore the
district court, the Commonwealth pointed repeatedly to Dr.
Chutkow’s testimony to ge ts argument that it had
presented evidence that was sane. J.A. at 437-39
[T]he jury and the j never actually see the witness.
Te wince net conibonaedlin ae the courtroom situation. The
immediacy of a living person is lost.
Id
76 Gall v. Parker Nos. 91-5502; 94-6376
(quoting excerpts from Attorney General’s memezandum of
law that “Chutkow’s testimony went far beyond merely
addressing » “Chutkow testified as to wiy he did
not believe was insane,” and “Chutkow did not think
Gall was insane before or after the crime”). And in its brief
filed with this Court, the Commonwealth dubs Pr. Chutkow
= anon expert rebuttal witness.” Commonwealth’s Br.
at 24.
But while Dr. Chutkow’s rebuttal was the thin reed
standing between acquittal based on insanity and a death
sentence, he had not in fact conducted an examination of
Gall’s sanity. Furthermore, as explained supra, while the
*Dr. Chutkow"s habeas deposition and a series of letters between
the prosecution and Drs. Noelker and Chutkow illustrate how events
unfolded such that Dr. Chutkow was the Commonwealth’s sole witness
as to Gall’s mental state even he had never actually examined
Gall’s sanity. On May 4, 1978, Dr. wrote the ion that
after a 90-minute examination, he had concluded that was competent
for trial. J.A. at 1535-36. OT ee Kew again wrote the prosecution on
May 5, explaining that Gali had re undergo a j
examination, but concluding that he was still competent. J.A. at 1537.
Dr. Chutkow made no mention in either letter as to whether Gall was
legally sane or insane at the time of the crime. As he later testified, this
was because the examination he conducted had only sought to determine
Gall’s competency. J.A. at 398.
memory, “I cannot
state.” J.A. at 1539. Nev
; regarding Gall’s
, prepared to do so. J.A. at 403. He also had received
no additional information between the time of his initial letters and the
June 12 letter that would have assisted him in making a sanity
ination, and never examined Gall after the initial competency
examination. J.A. at 405.
Nos. 91-5502; 94-6376 Gallv. Parker 77
Commonwealth proffered him as their so-called “insanity
expert rebuttal witness” and used his testimony accordingly,
Dr. Chutkow believed merely that he was testifying at a
“competency hearing,” and that his answers ae | addressed
Gall’s com . This belief arose because he had only
examined Gall for competency purposes, because he was
taped in isolation rather seated in front ofa live uy, and
because of the nature of the prosecutor’s questions. J.A. at
413, 424, 427. Based on this testimony, it is beyond doubt
that his presence at trial would have corrected that
misperception, making it clear that the Commonwealth was
placing him in a far more central role than he realized at the
time—if for no other reason than the fact that juries do not
determine issues of competency, but resolve the fundamental
Responding to the prosecution’s June 8 letter, Dr. Noelker
ized that given the claimed amnesia and Gall’s complicated
profile, he had not yet reached a conclusion as to Gall’s mental state, and
that assessing his sanity would be difficult. He explained, however, that
by using various sources of information and by examining Gall further,
7 _ ae be able to provide an opinion on Gall’s mental state by the time
oO ;
After seeing Gall on 10 occasions and reviewing his previous mental!
history and hospitalization records, Dr. Noelker wrote to the court on
September 19. He explained his belief that Gall was legally insane on the
ao April 5, and that his behavior that morning was “primarily
contro by a “highly psychotic” act that was likely the end-product of
a chronic and severe psychopathological disorder. J.A. at 1545. He
further suggested that Gall never be considered for release to the open
community.
One day later, the Commonwealth prosecutor forwarded Dr.
Noelker’s letter to Dr. Chutkow, explaining that the conclusions therein
“makes it absolutely essential that we use you as a witness during the
course of this trial to rebut his anticipated testimony.” J.A. at 1546. Dr.
Chutkow, despite receiving the letter, testified that he did not respond to
the letter, did not meet with to discuss the trial or Gall’s
7 ame oY eh ee
a ic history that was described in Dr. Noelker’s report
that would have been necessary to draw conclusions as to Gall’s sanity.
J.A. at 407-10. Nonetheless, he was soon thereafter deposed on
videotape, and that testimony was played at trial for the jury.
78 Gall v. Parker Nos. 91-5502; 94-6376
wonnad opportunity to challenge the only evidence the
ommonwealth had put forth regarding Gall’s sanity. There
is thus no question that the violation bore a dramatic impact
on the outcome of the trial, rendering actual prejudice to
Gall’s defense.
The dissent fundamentally misunderstands the role Dr.
Chutkow’s testimon layed in this case. With the benefit of
Dr. Chutkow’s later deposition, the dissent appreciates
the fact that Dr. Chutkow himself intended his testimony only
to address competency, and thus believes his testimony served
“‘little value” in the trial. But the jury did not view Dr.
Chutkow’s words in light of his later deposition, as we do
now. The prosecutor’s questions and Dr. Chutkow’s
responses were sufficiently ambiguous that the jury would
very likely have concluded that Dr. Chutkow had Stated that
Gall was legally sane. J.A. at 318, 321. Later courts certainly
believed that to be the case: the Gall / Court, relying on Dr.
Chutkow’s rebuttal testimony, concluded that “there was a
Gall was insane. For instance, on Cross-€xamination, the
Prosecution peppered Dr. Noelker with questions about the
possibility that two psychiatrists can disagree over a person’s
mental condition, J.A. at 984-86, and closed the cross-
examination by emphasizing that Dr. Noelker’s conclusion
that Gall was insane was “in dispute with your brother Dr.
Chutkow.” J.A. at 1032. See also J.A.at 1034 (responding to
Dr. Noelker’s final statement on redirect--that any competent
mental health professional who had reviewed the data oe had
would reach the same conclusions on Gall’s sanity-by asking,
“Except Dr. Chutkow?”).
Nos. 91-5502; 94-6376 Gall v. Parker 79
While the dissent may not appreciate the critical role Dr.
Chutkow’s testimony played in the trial, the prosecution has
emphasized his testimony as to sanity from the time of the
trial through this . The leiter the prosecutor wrote to
Dr. Chutkow on September 20, 1978 emphasized Dr.
Chutkow’s critical role: “it [is] absolutely essential that we
use you as a witness during the course of this trial to rebut
[Dr. Noelker’s] anticipated testimony” that Gal
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