Appendix — Yanai v. Girts (No. 07-1452)
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Supreme Cou
prame Court, U.S.
07145 2MAY 19 2008
a OFFICE OF THE CLERK
No.
Hun the Supreme Court of the Cuited States
CHRIS YANAI, Warden,
Petitioner,
a
ROBERT GIRTS,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APPENDIX
THOMAS R. WINTERS
Acting Attorney General of Ohio
WILLIAM P. MARSHALL*
Solicitor General
*Counsel of Record
STEPHEN P. CARNEY
Deputy Solicitor
MICHAEL L. STOKES
Assistant Solicitor
THELMA THOMAS PRICE
Assistant Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax
Counsel for Petitioner
Chris Yanai, Warden
No.
Jn the Supreme Court of the Anited States
CHRIS YANAI, Warden,
Petitioner,
Vv.
ROBERT GIRTS,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APPENDIX
THOMAS R. WINTERS
Acting Attorney General of Ohio
WILLIAM P. MARSHALL*
Solicitor General
*Counsel of Record
STEPHEN P. CARNEY
Deputy Solicitor
MICHAEL L. STOKES
Assistant Solicitor
THELMA THOMAS PRICE
Assistant Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax
Counsel! for Petitioner
Chris Yanai, Warden
TABLE OF CONTENTS
Appendix A: Opinion, United States Court of
Appeals for the Sixth Circuit, September 5,
Appendix B: Order Denying Rehearing En
Banc, United States Court ef Appeals for the
Sixth Circuit, February 19, 2008
Appendix C: Opinion and Order, United
States District Court for the Northern
District of Ohio, Eastern Division, July 12,
Appendix TD): Opinion, Eighth Appellate
District Court of Appeals, June 12, 1997............. 1l4a
Appendix E: Trial Transcript: Excerpt of
Prosecutor’s Initial Ciosing Statement
Appendix F: Trial Transcript: Excerpt of
Defense Counsel's Closing Argument
Appendix G: Trial Transcript: Excerpt of
Prosecutor’s Final Closing Argument
APPENDIX A
RECOMMENDED FOR FULL-TEXT
PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0359p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT GIRTS,
Petitioner-Appellant,
7
CHRIS YANAI, Warden,
Respondent-Appellee.
No. 05-4023
Appeal from the United States District Court
for the Northern District of Ohio at. Cleveland.
No. 02-00264—Kathleen McDonaid O'Malley,
District Judge.
Argued: June 6, 2007
Decided and Filed: September 5, 2007
Before: MARTIN, BATCHELDEF, and CLAY,
Circuit Judges.
COUNSEL
ARGUED: Hope E. Redmond, THOMPSON HINE,
Cleveland, Ohio, for Appellant. Thelma T. Price,
OFFICE OF THE ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Hope E.
Redmond, Robert F. Ware, THOMPSON HINE,
Cleveland, Ohio, for Appellant. Bruce D. Horrigan,
OFFICE OF THE ATTORNEY GENERAL,
Cleveland, Ohio, for Appellee.
CLAY, J., delivered the opinion of the court, in
which MARTIN, J., joined. BATCHELDER, J.
(p. 16), delivered a separate dissenting opinion.
OPINION
CLAY, Circuit Judge. Petitioner Robert Girts
appeals the district court’s denial of his petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner argues that his conviction for aggravated
murder violated his Fifth and Sixth Amendment
rights because the prosecution improperly
commented on his right to remain silent during
closing argument, and his trial counsel was
ineffective in failing to object to the prosecutor's
statements. For the reasons that follow, we
REVERSE the district court’s decision, conditionally
GRANT the writ of habeas corpus petition, and
REMAND this case to the district court.
BACKGROUND
Procedural History
On February 9, 1993, Petitioner was indicted
for aggravated murder, under Ohio Revised Code
(“O.R.C.”) § 2903.01, by a grand jury in Cuyahoga
County, Ohio. At the ensuing trial, Petitioner
testified in his defense. Petitioner was convicted of
aggravated murder by a jury in the Cuyahoga
County Court of Common Pleas (“trial court’) on
June 3, 1993. The Ohio Court of Appeals, Eighth
District (“Eighth District”) reversed the conviction.
State v. Girts, No. 65750, 1994 WL 393678, at *12
(Ohio Ct. App. 8th Dist. July 28, 1994) (holding that
“(t]he state’s questioning [on cross-examination] .. .
was not founded in good faith and materially
prejudiced the defense”). The case was re-tried before
a different judge. Petitioner did not testify during the
second trial.
During the second trial, the prosecution made
three statements concernirg Petitioner’s failure to
testify in his closing argument. The prosecutor
stated:
Again these xzre his words. And the
words that you heard from chese folks
supplied by him are unrefuted, and they
are uncontroverted. here has been no
evidence offered to say that these people
are incorrect. None at all.
(J.A. 1284). The prosecution asserted that “with
respect to the source [of the cvanide]. the defendant
had no less than three occasions to tell the police
4a
that he had ordered the cyanide.” (J.A. 1285) Last,
the prosecutor stated:
Ladies and gentlemen, we don’t have to
tell you how it was introduced into her
system. We know that it was ingested.
And there is only one person that can tell
you how it was introduced, and that’s the
defendant.
(J.A. 1287) Petitioner’s counsel did not object to the
prosecutor’s statements. Petitioner was again
convicted of aggravated murder by a jury on August
9, 1995.
Petitioner filed two notices of appeal with the
Eighth District challenging his conviction. The two
appeals were consolidated, and the Eighth District
affirmed the trial court’s judgment on June 12, 1997.
Petitioner filed a motion for reconsideration with the
Eighth District, which was denied on July 24, 1997.
State v. Girts, 700 N.E.2d 395 (Ohio Ct. App. 8th
Dist. July 24, 1997). On July 25, 1997, Petitioner
filed a pro se motion for leave to appeal which the
Ohio Supreme Court denied on October 15, 1997.
State vu. Girts, 685 N.E.2d 237 (Ohio 1997).
Petitioner’s motion for reconsideration was denied on
December 10, 1997. State v. Girts, 687 N.E.2d 299
(Ohio 1997).
On January 22, 1996, Petitioner filed an
application for post-conviction relief with the trial
court alleging ineffective assistance of counsel, which
w?s denied on November 27, 1997. The Eighth
| strict affirmed the trial court’s decision on
December 4, 2000. Petitioner appealed to the Ohio
Supreme Court, but the motion for leave to appeal
was denied.
Petitioner filed a petition for a writ of habeas
corpus in the United States District Court for the
Northern District of Ohio on February 12, 2002.
Petitioner maintained that his “due process rights
and [| ] right to a fundamentally fair trial were
violated when the prosecutor improperly commented
on Petitioner’s right to remain silent,” and that he
was denied effective assistance of counsel. (J.A. 10) A
magistrate judge issued a _ report and
recommendation on May 29, 2003, recommending
that the writ of habeas corpus petition be denied.
Petitioner filed objections to the report and
recommendation. On July 12, 2005, the district court
found that the prosecutor improperly commented on
Petitioner's right to remain silent and that trial
counsel was ineffective in failing to object to the
prosecution's statements, but held that Petitioner
failed to show prejudice and denied the petition for
writ of habeas corpus. See Girts uv. Yanai, No.
02CV0264, 2005 WL 1637862, at *1 (N.D. Ohio July
12, 2005). Petitioner filed a timely notice of appeal on
August 3, 2005.
Il. Substantive Facts
This Court relies on the facts as they were
found by the state appellate court on direct review.
See, e.g., Bell v. Bell, 460 F.3d 739, 743 (6th Cir.
2006); see also 28 U.S.C. § 2254(e)(1) (‘In a
proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a
factual issue made by a State court shall be
presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness
by clear and convincing evidence.”). In this case, the
facts as stated by the Ohio Court of Appeals are as
follows:
... [DJefendant and decedent lived in a
house that adjoined the funeral home
where defendant worked as a funeral
director and embalmer. On the morning
of September 2, 1992, defendant and
several others began driving back from
Chicago to Parma after having assisted
in moving defendant’s brother. Decedent
remained at home, being scheduled to
work at noon that day. When she did not
arrive at work on time, a coworker
telephoned the funeral home and
expressed her concern over decedent’s
unusual tardiness. A funeral home
employee noticed decedent’s car in the
driveway, so he checked the house. The
employee found the screen door open and
called into the house. When decedent
failed to respond, he entered the house
and discovered her body slumped over in
the bathtub.
The police found no evidence of foul play
nor any obvious sign of suicide. A razor
floating on the bath water, a hot curling
iron resting on a nearby dressing table,
and the couples’ dog roaming in the yard
led the police to conclude that decedent
had died suddenly while bathing.
Because the police could not readily
determine a cause of death, they
transported the body to the coroner's
office for an autopsy.
During the autopsy, the coroner's office
noted no obvious cause of death. The
coroner did find an undigested meal of
pasta salad in decedent's stomach, and
recognized lividity or reddening of the
skin which would typically be found in a
person exposed to carbon monoxide.
Carbon monoxide testing, however,
showed no significant levels. The coroner
listed no cause of death.
Around September 20, 1992, defendant
telephoned the police and told them that
he had found a note, hand-written by
decedent, which might explain her death.
The undated note stated, “I hate
Cleveland. I hate my job. I hate myself.”
Defendant explained that he found the
note underneath some papers in his brief
case. He told police that decedent had
been despondent over their recent move
to the Cleveland area. She had difficulty
finding work and worried that she had a
weight problem. Defendant also told the
police that decedent suffered three
miscarriages and had been trying to
come to grips with the thought that she
might not be able to bear children.
At about the same time, the coroner
ordered department toxicologists to
perform additional tests on body fluids
taken from decedent, specifically asking
them to detect the presence of any
poisons. An initial test for the presence of
potassium cyanide had to be discarded
when the toxicologist discovered that
reagents used in the testing process had
been compromised. New reagents were
obtained and the toxicologist obtained a
positive result for cyanide at about twice
the minimum lethal dose. The coroner
verified this result by asking the
Franklin County Coroner’s Office to test
for the presence of cyanide by using a
different methodology. The Franklin
County Coroner’ obtained virtually
identical results. The coroner then listed
the cause of death as homicide.
The police returned to defendant’s house
and executed a search warrant, pointedly
telling defendant that they were looking
for cyanide or other poisons. Defendant
cooperated with the search, but the
police found nothing. The police
questioned the funeral home operators
about the possible use of cyanide in the
embalming process, but found no
evidence that the funeral home had
received cyanide from any of its
suppliers. A funeral home director later
recalled a conversation with defendant in
which they discussed how the police
investigated funeral home _— supply
shipments for deliveries containing
cyanide and defendant said, “That is not
where I got it from.”
The evidence did not show that the police
had any suspects until they broadcast a
plea for assistance with a television
crime watch service. As a result of that
broadcast, defendant’s commanding
officer in the Army reserves came
forward in January 1993 with
information that she had sent defendant
two grams of potassium cyanide. She
explained that defendant knew that she
worked as a chemist in her civilian job
and that in the spring of 1992, he asked
her if she could supply him with a small
amount of cyanide for use in controlling
groundhogs on _ his’ property. The
commanding officer did not immediately
send the cyanide. She later discovered
that defendant had left his business card
on her desk. A notation on the card, in
defendant's handwriting stated, “Thank
you for your help.” In the lower corner of
the card defendant wrote “KCN,” the
chemical abbreviation for potassium
cyanide. ‘The card reminded _ the
commanding officer of defendant’s
request, so she sent “a couple of grams”
of cyanide to the funeral home address
listed on defendant’s business card. The
commanding officer explained that she
came forward with the information after
learning that defendant’s wife had died
as a result of cyanide poisoning.
When confronted with evidence that he
had obtained cyanide, defendant told the
police that he had used the cyanide to
control groundhogs on the property. A
funeral home employee, however,
insisted that he had no knowledge of a
groundhog problem, and_ produced
records showing that squirrels were the
only pest control problem on_ the
property. The city pest control officer
stated that he had no complaints about
groundhogs. A representative from a pest
control company conceded that cyanide
might have been used for pest control
well in the past, but that in ten years of
business, she had not used any products
containing cyanide.
Other persons came forward with
information that soon corroborated police
suspicion on defendant. A_ business
associate recalled a conversation in
which defendant abruptly interrupted
her to ask if she could show him the
measurement of a gram. When the
business associate asked why he needed
this information, defendant said that he
needed to measure some medicine for his
dog’s food. Defendant’s veterinarian,
however, stated that he prescribed no
medication for the dog that would
require any kind of measuring.
A colleague at the funeral home
described a conversation in which he said
that defendant had told him that
decedent committed suicide. When the
colleague wondered how decedent could
procure cyanide, defendant responded
that “she probably got it down on West
25th Street where she worked because
she came in contact with a lot of low
lifes.” In a subsequent conversation, the
colleague again wondered how decedent
could have obtained the cyanide, and this
time defendant said, ‘Someone at the
coroner's office probably spilled some of it
because they keep it there.”
Another funeral home colleague testified
that when the ambulance came to
transport decedent's body, defendant
yelled to the drivers that they should
take the body to Parma General
Hospital. The police learned that
defendant had previously worked for The
Lorain County Coroner. His experience
there would teli him that all deaths
occurring without any known natural
cause would ordinarily be investigated by
the coroner’s office, which ordinarily
performed more complete autopsies than
hospitals.
The police also began to question
decedent’s motivation to commit suicide.
Several close friends told the police that
they had spoken with decedent shortly
before her death and found her in good
spirits. The friends found nothing
unusual about her behavior and noted
that decedent was looking forward to
moving into a house she and defendant
recently purchased. One friend did,
however, say that she had met with
defendant shortly before decedent’s
death and he told her that decedent was
depressed about living in Cleveland. This
statement contradicted the friend’s
perceptions. Just three days before her
conversation with defendant, the friend
spent the weekend with decedent and
defendant and found nothing unusual
about decedent’s demeanor.
The state settled on two factors
motivating the murder. First, it
discovered that defendant had had a
fitful affair with another woman who
would not continue the affair as long as
defendant remained married. Defendant
and the woman first became involved for
a short period in 1980, but the woman
broke off the affair because she had
discovered defendant lying about his
marital status with a previous wife. The
affair resumed briefly in either 1985 or
1986, but ended shortly by mutual
agreement. It resumed again in February
1°92. Defendant told the woman that he
was married, but that he and his wife
were divorcing and expected to finalize
the divorce in July 1992. The intimate
portion of their relationship ended in late
May i992, although they remained in
contact for several iu*re months.
Defendant stipulated that he was not a
party to any divorce action.
Defendant called this woman. shortly
after decedent’s death and informed her
that decedent had died from an
aneurysm. ‘They spoke twice thereafter
and, in the early part of October 1992,
the woman received an early morning
telephone call from defendant in which
he said, “Miss Bethea, this is Robert
Girts. We'll have to put the decorating of
my house on hold. Something really
bizarre has happened.” When the woman
asked what happened, defendant replied,
“I'm being investigated for my wife's
death.” He then hung up. The woman
found this conversation unusual because
defendant had never referred to her as
“Miss” and because, while she had
worked as an interior designer, she had
not discussed decorating the interior of
defendant’s house.
The woman then called the police and
informied them of her conversation with
defendant. Defendant telephoned her
late that evening. When he heard that
she had telephoned the police and that
they wuuld be coming to question her, he
said there was no harm in her doing
design work for him and she should “be
brief’ during questioning.
The second motivating factor arose from
defendant's financial status. Defendant
stipulated that he had received just over
$50.000 as proceeds from life insurance
policies taken on decedent’s life. The
state tied this money to defendant’s
purchase of a house and his desire to
invest $10,000 and become a silent
partnex in another funeral home.
Defendant's case consisted primarily of
evidence showing that he had been in
Chicago at the time of decedent's death
(a fact the state did not dispute) and
expert testimony rebutting the state's
findings relating to the manner and
cause of death.
Defendant’s sister-in-law testified that
she ate from a bowl of pasta salad she
had found in defendant’s refrigerator and
sulfered no ill effects.
Defendant’s expert testified that he
would have listed the cause of death as
“undetermined” because in his opinion
the level of cyanide found in decedent’s
body did not correspond with the classic
signs of cyanide poisoning that he would
have expected to find. The expert
testified that cyanide basically poisons
all the cells in the body to the point
where they cannot use oxygen. Because
the cells cannot use oxygen, the blood
becomes superoxygenated, thus giving
the body its reddish appearance. The
cyanide victim can breathe, but
nonetheless experiences the sensation
and effects of asphyxiation. The onset of
cyanide poisoning is marked by dizziness
or faintness with rapid _ breathing.
Convulsions, palpitations, or seizures
may follow before the victim falls into a
coma and dies.
The outward indicia of cyanide ingestion
include burning around the mouth and
throat area. uniform lividity of other
major internal organs, petechiae or small
bleeding points usually found in the
stomach, involuntary release of both
urine and fecal matter, and collection of
fluid in the lungs. Of these signs, only
the lividity and collection of fluid in the
lungs were present. The expert thought
that the lividity and collection of fluid,
however, could be explained by other
factors, such as the immediate
refrigeration of the body after being
taken from warm water.
Girts, 700 N.E.2d at 400-02.
DISCUSSION
Standard of Review
“In a habeas corpus proceeding, this Court
reviews the district court’s legal conclusions de novo
and its factual findings for clear error.” Miskel uv.
Karnes, 397 F.3d 446, 451 (6th Cir. 2005) (citation
omitted).
Il. Legal Framework
Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), a writ of habeas corpus
petition may be granted if a state court decision:
was contrary to, or timvolved’= an
unreasonable application of, clearly
established Federal law, as determined
by the Supreme Court of the United
States; or [ ] resulted in a decision that
was based on an_ unreasonable
determination of the facts in light of the
evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d). The Supreme Court has found
that
A state-court decision involves an
unreasonable application of {Supr2me]
Court[ ] precedent if the state court
identifies the correct governing legal rule
from thf[e] [Supreme] Court’s cases but
unreasonably applies it to the facts of the
particular state prisoner’s case. Second, a
state-court decision also involves an
unreasonable application of thie}
[Supreme] Court’s precedent if the state
court either unreasonably extends a legal
principle from our precedent to a new
context where it should not apply or
unreasonably refuses to extend that
principle to a new context where it
should apply.
Williams v. Taylor, 529 U.S. 362, 407 (2000) (citation
omitted); see also Early v. Packer, 537 U.S. 3, 7-8
(2002); Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.
2003).
“A federal court is generally barred from
considering an issue of federal law arising from the
judgment of a state court if the state judgment ‘rests
on a state-law ground that is both ‘independent’ of
the merits of the federal claim and an ‘adequate’
basis for the [state] court’s decision.” Frazier uv.
Huffman, 343 F.3d 780, 790 (6th Cir. 2003) (quoting
Harris v. Reed, 489 U.S. 255, 260 (1989)); see also
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
“In general, a federal court may not consider a claim
for habeas corpus relief if the claim was procedurally
defaulted in state court-—1.e., if the last state court to
render a judgment in the case rejected the claim
because it was not presented in accordance with the
state’s procedural rules.” Hargrave-Thomas _ uv.
Yukins, 374 F.3d 383, 387 (6th Cir. 2004) (citing
Harris, 489 U.S. at 262).
“A procedurally defaulted claim may be
considered in federal habeas corpus proceedings only
if the petitioner either shows ‘cause’ for his failure to
comply with the state’s procedural rules and
‘prejudice’ resulting from the alleged violation of
federal law or shows that the federal court’s refusal
to consider the claim will result in a ‘fundamental
miscarriage of justice.” Id. (quoting Coleman,
501(C)3 U.S. at 750). “The district court’s application
of the ‘cause and prejudice’ rules must be reviewed
de novo.” /d. (citing Lucas v. O'Dea, 179 F.3d 412,
416 (6th Cir. 1999).
To determine whether a claim has been
procedurally defaulted, this Court apples a four-part
test:
First, the court must determine that
there is a state procedural rule that is
applicable to the petitioner's claim and
that the petitioner failed to comply with
Second, the court must
19a
decide whether the state courts actually
enforced the state procedural sanction . .
.. Third, the court must decide whether
the state procedural forfeiture is an
“adequate and independent” state ground
on which the state can rely to foreclose
review of a federal constitutional claim . .
.. Once the court determines that a state
procedural rule was not complied with
and that the rule was an adequate and
independent state ground, then the
petitioner must demonstrate .. . that
there was “cause” for him to not follow
the procedural rule and that he was
actually prejudiced by the _ alleged
constitutional error
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)
(footnotes and citations omitted) (formatting and
emphasis added); see also Deitz v. Money, 391 F.3d
804, 808 (6th Cir. 2004) (same). In the instant case,
since Petitioner concedes that “the first two prongs of
the foregoing test are satisfied,’ only the last two
prongs of the test will be discussed below. (Pet. Br. at
21)
Ill. Procedural Default
A. Adequate and Independent State
Ground
This Court has found that “a _ procedural
default does not bar consideration of a federal claim
on either direct or habeas review unless the last
state court rendering a judgment in the case ‘clearly
and expressly’ states that its judgment rests on a
state procedural bar.” Harris, 489 US. at 263
(citation omitted). To constitute an “adequate and
independent state procedural rule,” a rule must be
“firmly established and regularly followed,” and
cannot rely on federal law. Smith v. Ohio Dep't of
Rehab. & Corrs., 463 F.3d 426, 431 (6th Cir. 2006).
“(I]f it fairly appears that the state court rested its
decision primarily on federal law, this Court may
reach the federal question on review unless the state
court’s opinion contains a plain statement that [its]
decision rests upon adequate and independent state
grounds.” Harris, 489 U.S. at 261 (internal quotation
marks and citations omitted); see also Clinkscale v.
Carter, 375 F.3d 430, 450 (6th Cir. 2004); Bowling v.
Parker, 344 F.3d 487, 498 (6th Cir. 2008).
In Clinkscale, a case where the state court
decision did not clearly and expressly indicate
reliance on a state procedural rule, this Court found
that
fallthough the decision unquestionably
mention|ed] [the state procedural rule]
and its requirements, it also
emphasize|d| and relie[d] upon the fact
that [petitioner's] ineffective assistance
claim had already been raised on direct
appeal.
375 F.3d at 442. This Court held that “ijt [was]
unclear on what ground. or grounds, the |state]
court's judgment rested,” and that “[uJnder th[ose]
circumstances, [this Court] [is] unable to say that the
[state court] decision ‘clearly and expressly states
that its judgment rests on a state procedural bar.”
2la
Id. (quoting Harris, 489 U.S. at 263). The Court
concluded that the claim was not procedurally
defaulted and addressed the merits of the claim.
Similarly, in Bowling, this Court found that
“Itlhe language used by the [state court] in its
opinion revealfed] that it did not clearly rely on
[petitioner’s] procedural default to dismiss the claims
raised in his supplemental motion.” 344 F.3d at 498.
“After noting that the claims were raised only in the
struck supplemental pleadings, the [state court in
Bowling] . . . consider[ed] the merits of those claims,
stating, ‘Notwithstanding that his supplemental
motion was struck by the trial court, in the interest
of judicial economy we will review the seven
additional claims of ineffective assistance of counsel
raised in the motion.” Jd. (citation omitted). This
Court found that the state court opinion was
ambiguous and vague with respect to the procedural
bar, and proceeded to consider the petitioner’s claims
on the merits. The Court found that “there must be
unambiguous state-court reliance on a procedural
default for it to block our review.” Id. (citing Gall v.
Parker, 231 F.3d 265, 321 (6th Cir. 2000); see also
Harris, 489 U.S. at 266 n.13 (noting the fact that
“the state court clearly went on to reject the federal
claim on the merits” makes it less clear that the
state court actually relied on the procedural bar). If
“the adequacy and independence of any possible
state law ground is not clear from the face of the
[State court’s] opinion,” this Court “|may] presume
that there is no independent and adequate state
ground for [the] state court decision.” Coleman, 501
U.S. at 735 (internal quotation marks and citations
omitted).
22a
In the instant case, Eighth District’s opinion
appears to be ambiguous. While the judgment
appears to rest on a state procedural bar, see Girts,
700 N.E.2d at 413-14, the court expressly found that
a federal constitutional right was involved and cited
Griffin v. California, 380 U.S. 609 (1965), for the
proposition that “the state may not comment on an
accused’s failure to testify at trial,” Girts, 700 N.E.2d
at 413 (citations omitted). As in Clinkscale and
Bowling, it is not clear whether the opinion expressly
states that the judgment is based on an adequate
and independent state law ground. However, we do
not have to make a determination with respect to the
adequacy and independence of a possible state law
ground because Petitioner conceded at oral argument
that the state court conducted only a plain error
review of the underlying claims. This concession is
significant. This Court has found that “plain error
review [by a_ state appellate court] does not
constitute a waiver of state procedural default rules.”
Seymour v. Walker, 224 F.3d 542, 557 (2000)
(citation omitted). Petitioner attempts to distinguish
this case from Seymour arguing that. unlike
Seymour, this case involves a federal constitutional
claim. Even assuming arguendo that the claims in
Seymour were exclusively based on Ohio substantive
law, the proposed distinction between federal and
state claims is unsupported by case law. Petitioner
cannot point to case law that supports distinguishing
between claims based on state substantive law or
federal constitutional law. Simply put, there is no
exception to Seymour tor cases concerning federal
constitutional claims. Since Petitioner conceded that
the state court performed a plain error review, in
light of Seymour, we cannot find a waiver of the state
procedural default rules. Therefore, we find
23a
Petitioner's underlying due process claim to be
procedurally defaulted.
B. Cause and Prejudice
This Court has found that a procedural default
may be overcome by “demonstrat{ing] cause for the
[procedural] default and actual prejudice as a result
of the alleged violation of federal law, or
demonstrat[ing] that failure to consider the claims
will result in a fundamental miscarriage of justice.”
Smith v. Ohio Dep't of Rehab. & Corrs., 463 F.3d at
431 (internal quotation marks and citation omitted);
see also Ege v. Yukins, 485 F.3d 364, 378 (6th Cir.
2007). For the reasons set forth below, we find that
Petitioner meets the cause and prejudice exception to
the procedural default because his trial counsel was
ineffective in failing to object to the prosecution’s
statements during closing argument.
The Prosecutor’s Statements
In this case, the prosecutor made _ three
statements during closing argument about
Petitioner's failure to testify. In pertinent part, the
prosecutor stated:
Again these are his words. And the
words that you heard from these folks
supplied by him are unrefuted, and they
are uncontroverted. There has been no
evidence offered to say that these people
are incorrect. None at all.
(J.A. 1284) (emphasis added). This comment points
directly to Petitioner's failure to testify and suggests
to the jury that Petitioner had an affirmative
obligation to refute witness testimony. The
statement suggests that the exercise of the Fifth
Amendment right to remain silent negatively
impacted the evidence presented at trial — namely,
witness testimony went “unrefuted” and
“uncontroverted.”
The prosecutor also stated that “with respect
to the source fof the cyanide], the defendant had no
less than three occasions to tell the police that he had
ordered the cyanide.” (J.A. 1285) (emphasis added).
Again, this statement focused on Petitioner’s Fifth
Amendment right to remain silent.
Last, the prosecutor stated:
Ladies and gentlemen, we don’t have to
tell you how it was introduced into her
system. We know that it was ingested.
And there is only one person that can tell
you how it was introduced, and that’s the
defendant.
(J.A. 1287) (emphasis added). As the district court
noted, this “statement is anything but a comment on
the evidence.” (J.A. 1230) By indicating that
Petitioner was the “only one person” who could
explain the crime to the jury, the prosecutor
highlighted the fact that Petitioner did not testify,
and attached a negative connotation to the exercise
of the Fifth Amendment right to remain silent.
The prosecutor's three statements were
improper, misleading and highly prejudicial because
they implied that Petitioner was obligated to testify
25a
and to speak to the police. In the words of the district
court, the prosecution cannot “take the deficiencies
in its own case, which the defense has every night —
indeed, every obligation — to point out, and utilize
those deficiencies against ([Petitioner].” Jd.
Nevertheless, trial counsel failed to object to the
prosecutor's improper statements during closing
argument. The failure to object to the improper and
prejudicial statements constitutes ineffective
assistance of counsel.
2. Ineffective Assistance of Counsel
“When a convicted defendant complains of the
ineffectiveness of counsel’s assistance, the defendant
must show that counsel’s representation fell below
an objective standard of reasonableness.” Strickland
v. Washington, 466 U.S. 667, 688 (1984); see also
Keith v. Mitchell, 455 F.3d 662, 682 (6th Cir. 2006);
United States v. Foreman, 323 F.3d 498, 503 (6th Cir.
2003). “The defendant must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability
is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694; see also
Keith, 455 F.3d at 682: Foreman, 323 F.3d at 503.
“In order to avoid second-guessing tnial
counsel's strategic decisions, review of counsel's
performance is highly deferential. Foreman, 323 F.3d
at 503. “[A] court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged action
26a
might be considered sound trial _ strategy.”
Strickland, 466 U.S. at 689 (internal quotation
marks and citation omitted). “A reviewing court must
judge the reasonableness of counsel’s actions on the
facts of the defendant’s case, viewed from counsel's
perspective at the time,” Higgins v. Renico, 470 F.3d
624, 631-32 (6th Cir. 2006), and “strategic choices
must be respected if they were made after thorough
investigation of law and facts relevant to plausible
options,” id. at 632 (internal quotation marks and
citations omitted). “[A] defendant has the burden of
proving, by a preponderance of the evidence, that
‘counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed’ the
defendant by the Sixth Amendment,” id. (quoting
Strickland, 466 U.S. at 687). “Unless the accused
receives the effective assistance of counsel, a serious
risk of injustice infects the trial itself.” United States
v. Cronic, 466 U.S. 648, 656 (1984) (internal
quotation marks and citation omitted).
Under Strickland, Petitioner must establish
prejudice to bring a successful ineffective assistance
of counsel claim. 466 U.S. at 688. “[Petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Jd. Petitioner must
demonstrate that “counsel’s errors were serious
enough to deprive [him] of a proceeding the result of
which was reliable.” Glenn v. Tate, 71 F.3d 1204,
1210 (6th Cir. 1995). “(T]he prejudice prong is
satisfied if there is a reasonable probability that at
least one juror would have struck a different
balance.” Hamblin v. Mitchell, 354 F.3d 482, 493 (6th
27a
Cir. 2003) (internal quotation marks and citation
omitted). Prejudice may be presumed “if petitioner’s
counsel ‘entirely fails to subject the prosecution’s
case to meaningful adversarial testing[.]” Millender
uv. Adams, 376 F.3d 520, 524 (6th Cir. 2004) (quoting
Cronic, 466 U.S. at 659).
In this case, trial counsel’s failure to object
allowed the prosecutor’s improper and prejudicial
statements to reach the jury uncontested and
without the proper admonition from the trial court.
This inaction simply cannot be characterized as
litigation strategy. There was no conceivable benefit
to be derived from failing to challenge the
prosecutor’s improper statements. “[T]he prejudice
resulting from [counsel’s] lawyering is [ ] patent.”
Groseclose v. Bell, 130 F.3d 1161, 1170 (6th Cir.
1997). “[Counsel’s] performance was so inept as to
amount to a constructive denial of counsel, relieving
[Petitioner] of the need to show prejudice.” Jd. If trial
counsel had raised an objection, the trial court would
have reprimanded the prosecutor and issued a
prompt curative instruction to the jury. In turn, the
jury would have heard from the judge that the
prosecutor's comments called for an improper and
impermissible negative inference for Petitioner's
exercise of his Fifth Amendment rights. Certainly, if
an objection had been raised to the prosecutor’s first
statement, the prosecutor would not have been
permitted to continue to overstep with subsequent
comments. Trial counsel’s failure to _ object
exacerbated the prejudicial effect of the prosecutor's
statements. We find that there is a strong likelihood
that at least one juror would have changed his mind
if the improper and prejudicial statements would not
have been made, especially because the prosecutor
28a
presented weak and limited evidence at trial. Trial
counsel clearly rendered ineffective assistance of
counsel by failing to object to the prosecutor’s
statements. !
This Court has recognized that ineffective
assistance of counsel may be used to satisfy the
“cause” prong of the procedural default exception.
See, e.g., Hofbauer, 228 F.3d at 708-09; see also Ege,
485 F.3d at 378. Attorney error may constitute cause
if it rises to the level of constitutionally ineffective
assistance of counsel. Gravley v. Mills, 87 F.3d 779,
785 (6th Cir. 1996); see also Bell, 460 F.3d at 761
(noting that “attorney error can only be considered
' In this case, the state court found that the prosecutor’s
statements were not improper or prejudicial and that “nothing
in the record suggests that, but for thef{ } [improper
prosecutorial] comments, the verdict would clearly have been
different.” (J.A. 1240) Although the district court found that the
statements were prejudicial. the court deferred to the state
court’s conclusion and denied the writ of habeas corpus petition.
(J.A. 1240) Case law clearly indicates that this Court does not
give deference to a state court’s conclusion that Strickland was
not violated if the state court improperly concludes that the
prosecutor’s statements were not prejudicial. When a state
court fails to “recognize[ ] the clear predicate problem itself, the
trial court’s conclusion that [trial counsel] did not violate
Strickland by failing to object to that problem is . . . inherently
flawed.” Washington v. Hofbauer, 228 F.3d 689, 705 (6th Cir
2000). Since the state court found that the prosecutor's
statements were not improper or prejudicial, it failed to
recognize the “predicate problem itself.” Jd. Indeed, “[tjo
characterize [the state court’s] conclusion as an ‘objective
reasonable’ application of Strickland would be to dilute our
review under the AEDPA to a generous apology for the clearest
of errors.” Jd. The district court erred in deferring to the state
court's finding.
29a
cause if the error meets the threshold of ineffective
assistance of counsel in violation of the Sixth
Amendment”). Because trial counsel’s failure to
object rises to the level of ineffective assistance of
counsel, Petitioner has established “cause” to
overcome the state procedural bar. Petitioner has
also established “prejudice” to overcome the state
procedural bar. As discussed above, trial counsel’s
failure to object prejudiced Petitioner and aggravated
the prejudicial effect of the prosecutor’s improper
and highly prejudicial statements. Ege, 485 F.3d at
379. Since Petitioner presents a successful ineffective
assistance of counsel claim, and has established
cause and prejudice to overcome the state procedural
bar, we will address the merits of the Petitioner’s
claims below.
IV. The Prosecutor’s Statements Violated
Petitioner’s Fifth Amendment Rights and
Were Sufficiently Flagrant to Warrant
Reversal of Petitioner’s Conviction
Despite Trial Counsel’s Failure to Object
The prosecutor's improper statements
constitute prosecutorial misconduct because
Petitioner's silence cannot be used against him as
substantive evidence. In Combs v. Coyle, a police
officer questioned defendant at the scene of a crime,
and defendant told the police officer to “talk to my
lawyer,” the prosecution commented on defendant's
silence during closing argument:
Talk to my lawyer. ‘alk to my lawyer.
Does that sound like someone who's so
intoxicated he doesn’t know what is
going on? Isn't that evidence that he
realizes the gravity of the situation and
at this time gave that particular
comment or response to [the police
officer]?
205 F.3d 269, 279 (6th Cir. 2000) (citation omitted).
This Court recognized that
[tlhe Supreme Court has given the
privilege against self-incrimination a
broad scope, explaining that “[iJt can be
asserted in any proceeding, civil or
criminal, administrative or _ judicial,
investigatory or adjudicatory; and it
protects against any disclosures that the
witness reasonably believes could be
used in a criminal prosecution or could
lead to other evidence that might be so
used.”
Id. (quoting Kastigar v. United States, 406 U.S. 441,
444-45 (1972)). This Court expressly found that the
Fifth Amendment “is not limited to persons in
custody or charged with a crime” and that the
privilege “may also be asserted by a suspect who is
questioned during the investigation of a crime.” Id.
at 283 (quoting Coppola v. Powell, 878 F.2d 1562,
1565 (ist Cir. 1989)); see also Wainwright uv.
Greenfield, 474 U.S. 284, 295 n.13 (1986) (finding
that “silence does not mean only muteness; it
includes the statement of a desire to remain silent as
well as of a desire to remain silent until an attorney
has been consulted”). The Court indicated that “[i]n a
prearrest setting as well as in a postarrest setting, it
is clear that a potential defendant’s comments could
provide damaging evidence that might be used in a
criminal prosecution.” Combs, 205 F.3d at 283. As in
Combs, in the instant case, “the use of a defendant's
prearrest silence as substantive evidence of guilt
violates the Fifth Amendment’s privilege against
self-incrimination.” Jd.; see also Ohio v. Leach, 807
N.E.2d 335, 340-41 (Ohio 2004) (holding “that the
use of |[defendant’s] pre-arrest silence in the state’s
case-in-chief as substantive evidence of guilt subverts
the policies behind the Fifth Amendment”) (emphasis
in original).
In this case, the prosecutor's improper
statements were “sufficiently flagrant to warrant
reversal of [Petitioner’s] conviction despite his
counsel’s failure to object ... at trial.” (Pet. Br. at 39)
This Court employs a two-part test to determine
whether prosecutorial misconduct warrants a new
trial. United States v. Carter, 236 F.3d 777, 783 (6th
Cir. 2001) (citing United States v. Carroll, 26 F.3d
1380, 1385-87 (6th Cir. 1994)). “Under this approach,
a court must first consider whether the prosecutor’s
conduct and remarks were improper,” and “then
consider and weigh four factors in determining
whether the impropriety was flagrant and thus
warrants reversal.” Jd. (citing Carroll, 26 F.3d at
1387). The four factors which this Court considers
include:
(1) whether the conduct and remarks of
the prosecutor tended to mislead the jury
or prejudice the defendant; (2) whether
the conduct or remarks were isolated or
extensive; (3) whether the remarks were
deliberately or accidentally made; and (4)
whether the evidence against’ the
defendant was strong.
Id. (citing Carroll, 26 F.3d at 1385); see also Boyle v.
Million, 201 F.3d 711, 717 (6th Cir. 2000); United
States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996).
“When reviewing challenges to a_ prosecutor's
remarks at trial, [this Court] examine[s] the
prosecutor’s comments within the context of the trial
to determine whether such comments amounted to
prejudicial error.” Carter, 236 F.3d at 783 (citing
United States v. Young, 470 U.S. 1, 11-12 (1985)). If
“defense counsel made no_ objection to the
prosecutor's statements at trial, this court will
review for plain error only.” Jd. (citing Collins, 78
F.3d at 1039). Nevertheless, “prosecutorial
misconduct may be so exceptionally flagrant that it
constitutes plain error, and is grounds for reversal
even if the defendant did not object to it.” Jd.
(quoting Carroll, 26 F.3d at 1385 n.6).
., The Prosecutor’s Statements Were
Prejudicial
“The first [flagrancy] factor focuses on the effect of
the improper arguments at issue; namely whether
they were misleading or otherwise prejudicial to the
defendant.” United States v. Modena, 302 F.3d 626,
635 (6th Cir. 2002). This Court has found that
prosecutorial statements may have a “great[{ |
potential for misleading the jury,” Carter, 236 F.3d
at 786, and impacting jury deliberations “because a
jury generally has confidence that a prosecuting
attorney is faithfully observing his obligations as a
representative of a sovereignty,’ id. at 785-86
(quoting Hofbauer, 228 F.3d at 700).
Instead of proffering evidence that directly
connected Petitioner to his wife’s death, the
prosecutor told the jury that Petitioner was the “only
one person” who could explain his wife’s death. The
prosecutor’s comments were prejudicial because they
concerned central issues in the case — namely, how
Petitioner's wife allegedly ingested cyanide; how
Petitioner allegedly obtained the cyanide; and what
Petitioner allegedly said about his wife’s death.
Since trial counsel did not object to the
statements, the prosecutor was not admonished for
the comments. See, e.g., United States v. Galloway,
316 F.3d 624, 633 (6th Cir. 2008) (finding that court’s
admonition expressing specific disapproval of
prosecutor's improper comment is_ sufficient to
constitute curative instruction). Although the jury
was instructed on Petitioner’s Fifth Amendment
right, a routine jury instruction at the conclusion of
the trial is not sufficient to cure a prosecutor's
improper comments. See, e.g., Carter, 236 F.3d at 787
(holding that general instruction given at the end of
trial, rather than when comments were made, did
not cure misconduct). The trial court failed to provide
a prompt, curative instruction in response to the
highly prejudicial statements. Therefore, we find
that there is very strong likelihood that prosecutor's
prejudicial statements misled the jury.
a The Prosecutor’s Statements Were
Not Isolated
This Court is charged with considering
“whether the improper arguments made by the
prosecutor were isolated” in nature. United States v.
34a
Modena, 302 F.3d 626, 635 (6th Cir. 2002). This
Court has found that “fiJt only takes a_ single
comment... to remind a jury that the defendant has
not testified and to fix in the jurors’ minds the
impermissible inference that the defendant has not
testified and to fix in the jurors’ minds the
impermissible inference that the defendant is guilty
merely because of his exercise of that right.”
Eberhardt v. Bordenkircher, 605 F.2d 275, 279 (6th
Cir. 1979) (finding that even a “[rjelatively brief and
[un]repeated comment” may have prejudicial effect if
a judge does not give a strong and timely curative
instruction); see also United States v. Smith, 500
F.2d 293, 297 (6th Cir. 1974). Thus, while a single
improper comment may be sufficient to create a
constitutional violation, the frequency = and
cumulative effect of multiple improper comments
magnifies the prejudicial effect of the statements.
In this case, the prosecutor commented on
Petitioner's silence three times during closing
argument. The multiple statements strongly
suggests that Petitioner's silence was a central
theme in the prosccutor’s closing argument. ‘The
comments came in relatively close sequence and
were some of the last statements heard by the jury
before deliberations. Since’ the _ prosecutor's
comments were not isolated, the statements had a
profoundly prejudicial effect. The multiple
statements amplified the prejudicial effect.
3. The Prosecutor’s Statements Were
Deliberate
This Court also considers whether’ the
prosecuto deliberately placed the improper
35a
comments before the jury. Carter, 236 F.3d at 790.
Petitioner maintains that “|t|he very repetition of the
improper comments reveals that such comments
were not accidentally placed before the jury.” (Pet.
Br. at 45) “[R]Jepeated comments [| | demonstrate that
the errors were not inadvertent” because “clearly, we
are not dealing with a spontaneous comment that
could be regretted but not retracted.” United States
uv. Smith, 962 F.2d 923, 935 (9th Cir. 1992). The
prosecutor made repeated references to Petitioner's
silence and failure to testify in the closing argument.
The statements were simply not a response to trial
counsel’s arguments because trial counsel “never
mentioned anything in his opening statement about
[Petitioner] testifying or not testifying.” (Pet. Br. at
45) As the district court indicated, “the prosecutor
intended to comment (especially with regard to the
third statement) on |Petitioner’s] failure to testify
and that the jury likely understood the comments to
have been offered for that purpose.” (J.A. 1230)
(citing Gall v. Parker, 231 F.3d 265 (6th Cir. 2000)).
Therefore, we find that the prosecutor deliberately
placed the statements before the jury.
4. The Strength of the Evidence
Against Petitioner Was Not
Overwhelming
Last, the Court considers the strength of the
evidence against Petitioner to assess the impropriety
of the prosecutor’s comments. Carter, 236 F.3d at
791. In this case, the district court noted that the
evidence against Petitioner was not overwhelming
The record shows that Petitioner was out of state
when his wife died. The prosecutor also had little, if
any, evidence concerning the alleged ingestion of
cyanide. More specifically, during the first autopsy,
the toxicology test for cyanide did not yield a positive
result. Although the second toxicology test yielded a
positive result for cyanide, Petitioner’s wife did not
exhibit physical symptoms of cyanide poisoning. (J.A.
1281-82) The evidence in this case is insufficient to
overcome the prosecutor's improper comments. Given
the facts in this case, there is a strong likelihood that
the prosecutor strategically made the prejudicial
statements at the end of the trial to focus the jury's
attention on Petitioner’s silence, and away from the
limited evidence presented at trial. The improper
statements in this case _ constitute flagrant
prosecutorial misconduct and are grounds for
reversal even if trial counsel did not raise an
objection. ‘Therefore, we grant Petitioner’s petition
for a writ of habeas corpus on the grounds of flagrant
prosecutorial misconduct and ineffective assistance
of counsel,
CONCLUSION
For the foregoing reasons, the district court's
decision is REVERSED. We conditionally GRANT
the writ of habeas corpus petition, and REMAND
this case to the district court with instructions to
order Petitioner’s release from custody unless the
State of Ohio grants Petitioner a new trial within
180 days.
DISSENT
ALICE M. BATCHELDER, Circuit Judge,
37a
dissenting. The majority deems the prosecutor’s
comments inherently prejudicial and concludes that
Girts is entitled to a new trial. | must respectfully
disagree.
In a habeas' proceeding, a claim of
prosecutorial misconduct must be ~ reviewed for
harmless error, Spisak v. Mitchell, 465 F.3d 684, 713
(6th Cir. 2006) (citations omitted); it “is not enough
that the prosecutors’ remarks were undesirable or
even universally condemned.” Darden v. Wainwright,
477 U.S. 168, 181 (1986). “The relevant question is
whether the prosecutors’ comments ‘so infected the
trial with unfairness as to make the resulting
conviction a denial of due process.” /d. (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974));
accord Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.
1982) (en banc). And this question must be answered
on the totality of the circumstances; “taken as a
whole and within the context of the entire record.”
Lundy v. Campbell, 888 F.2d 467, 472-73 (6th Cir.
1989). The majority's supposition that the
prosecutor's comments were inherently prejudicial,
without demonstrable proof of prejudice, is patently
wrong.
Proseccutorial misconduct claims are analyzed
under a two-step approach, in which the court first
determines whether the challenged statements were
improper, and if so, determines “whether the
impropriety was flagrant and thus’ warrants
reversal.” United States v. Carter, 236 F.3d 777, 783
(6th Cir. 2001). Even assuming all three statements
were improper — a proposition with which I do not
agree - | cannot agree thev were flagrant
Flagrancy is measured by four factors: (1) whether
38a
the statements tended to mislead the jury or
prejudice the defendant; (2) whether the statements
were isolated or among a_ series of improper
statements; (3) whether the statements’ were
deliberately or accidentally before the jury; and (4)
the total strength of evidence against the accused.
Id.
The most powerful of these factors in this case
is the fourth factor: whether the evidence against
Girts was strong — the evidence against Girts was
overwhelming. Moreover, the prosecutor’s comments
had no bearing on the theory of the case. Diane Girts
died suddenly and unexpectedly from a lethal dose of
cyanide, without leaving any evidence of accident or
suicide, thus creating a reasonable inference that she
had been murdered. Girts had obtained a lethal dose
of cyanide prior to Diane’s death and had hidden this
fact from the police. He had motive for killing her.
And, he had offered certain witnesses’ inconsistent,
contradictory, and incriminating stories, all of which
created a reasonable (and powerful) inference that
Girts was the murderer.
The prosecution's statement regarding Girts’s
pre-arrest secrecy in not telling the police about his
purchasing cyanide is not even a Fifth Amendment
issue, it is part of the prosecution’s theory of the
case, insomuch as Girts — prior to any arrest or
Miranda warning — withheld information critical to
the police investigation. The statement regarding the
government-witness-testimony’s being unrefuted is
not improper either, it is merely a summary of the
evidence. The statement that only Girts could
explain how the cyanide got into Diane's system,
however, could be interpreted as a comment on
Girts’s decision not to testify at trial. But if this
statement had any effect on the jury at all — and I
do not believe that it did — then the only reasonable
conclusion from the totality of the evidence is that
the effect was minimal. There is no basis to conclude
that, but for this statement, the jury’s decision would
have been different.
The district court should be affirmed.
APPENDIX B
No. 05-4023
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT GIRTS,
Petitioner-Appellant,
Vv.
CoRIS YANAI, WARDEN,
Respondent-Appellee
ORDER
BEFORE: MARTIN, BATCHELDER, and CLAY,
Circuit Judges.
The court having received a petition for
rehearing en banc, and the petition having been
circulated not only to the original panel members but
also to all other active judges of this court, and no
judge of this court having requested a vote on the
suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
——/
The panel has further reviewed the petition
for rehearing and concludes that the issues raised in
the petition were fully considered upon the original
submission and decision of the case. Accordingly, the
petition is denied. Judge Batchelder would grant
rehearing for the reasons stated in her dissent.
ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk
APPENDIX C
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT GIRTS,
Petitioner,
v.
CHRIS YANAI, Warden,
Respondent.
Case No. 1:02cv0264
JUDGE KATHLEEN O’MALLEY
OPINION AND ORDER
Robert Girts has petitioned the Court for a
writ of habeas corpus pursuant to 28 U.S.C. §2254.
His petition challenges the constitutional sufficiency
of his August 23, 1995 jury conviction for aggravated
murder. Girts is currently serving a sentence of
twenty (20) years to life. The Court finds that each of
Girts’s asserted grounds for relief are either without
merit or are not reviewable and must be rejected.
Subject only to the Court’s comments herein relating
to Girts’s third and a fifth grounds for relief, the
Court agrees with, and wholly ADOPTS, the
reasoning and conclusions set forth in Magistrate
Judge Limbert’s Report and Recommendation of
Magistrate Judge (Doc. 22) (“Report'§ and
Recommendation” or “R&R”). The Court ultimately
adopts the magistrate judge’s recommendation for
dismissal.
Accordingly, Girts’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. §2254 must be
DENIED, and his case is DISMISSED.
a PROCEDURAL HISTORY}
A. Girts’s First And Second Trials.
On February 9, 1993, the Grand Jury for
Cuyahoga County, Ohio returned a single count
indictment charging Girts with aggravated murder
pursuant to Ohio Revised Code § 2903.01. See Doc.
17, Exhibit 2. On June 3, 1993, following a jury trial,
a jury returned a guilty verdict to the single count
indictment. On that same date, Girts was sentenced
to life in prison. See Doc. 17, Exhibit 3.
An appeal followed, and on July 28, 1994, the
Ohio Court of Appeals for the Eighth Appellate
District (“Eighth District Court of Appeals” or
“Eighth District”) found that Girts’s conviction was
supported by the weight of the evidence. The Eighth
District, however, reversed the conviction on the
grounds that the trial court should have granted a
mistrial when the State questioned Girts about an
alleged jailhouse confession, and, thereafter, failed to
' The Court’s recitation of the procedural history is taken
substantially from the magistrate judge's R&R (Doc. 22), which
sets forth the relevant background provided by the Eighth
District Court of Appeals’ July 24, 1997 opinion in connection
with Girts'’s direct appeal. See Doc. 17, Exhibit 23 at pp. 2-10.
The Court views, as it must, the state court’s factual findings as
accurate. See 28 U.S.C. § 2254(e)(1) (“a determination of a
factual issue made by a state cuurt shall be presumed correct.”).
produce rebuttal testimony initially offered as the
“good faith” basis for that hne of questioning. The
court’s decision was docketed on August 29, 1994.
See id., Exhibits 4 and 5. On January 18, 1995, the
Supreme Court of Ohio denied leave to appeal, and
leave to cross-appeal. See id., Exhibits 6 and 7.
After being remanded to the trial court, this
case was assigned to a new judge on February 22,
1995. On August 9, 1995, following the second trial, a
second jury—convicted Girts of a single count of
aggravated murder pursuant to Ohio Revised Code §
2903.01. From that conviction, Girts was sentenced
to life imprisonment without the possibility of parole
for twenty (20) years. That judgment entry was
docketed on August 17, 1995. Doc. 17, Exhibit 8.
On August 23, 1995, Girts filed a motion for
new trial. See Doc. 17, Exhibit 9. The State filed its
opposition on September 15, 1995. See id., Exhibit
10. On that same day, the trial court denied Girts’s
motion. That judgment entry was docketed on
September 29, 1995. See id., Exhibit 11.
B. Girts’s Direct Appeal From The Second
Conviction.
On September 19, 1995, Girts filed with the
Eighth District a notice of appeal from the August
17, 1995 judgment of conviction and sentence. See
Doc. 17, Exhibit 13.2 On October 31, 1995, Girts filed
a second notice of appeal from both the
conviction/sentence and the trial court's denial of his
“ As will be seen infra, Girts filed various items pro se. Unless
identified as pro se filings, however, all referenced filings are
presumed to have been made through counsel.
44a
motion for new trial entered on September 29, 1995.
See id., Exhibit 15. On December 14, 1995, the
Eighth District consolidated the two appeals. See id.,
Exhibit 16.
On August 5, 1996, Girts filed his appellate
brief in which he set forth eleven assignments of
error, to wit:
I. The trial court denied the
appellant his protection against double
jeopardy as guaranteed by the Fifth and
Fourteenth Amendments of the U.S.
Constitution and Article 1, Section 10 of
the Ohio Constitution when it denied his
motion to dismiss.
Il. The appellant was denied his
right to a speedy trial after his first
conviction was reversed by the court of
appeals in violation of the Due Process
Clauses of the Ohio and Federal
Constitutions.
Ill. The trial court denied the
appellant his constitutional right to a
trial by an impartial jury free from
outside influences when it permitted the
alternate jurors to sit in the jury room
during deliberations in violation of Crim.
‘ Minor grammatical and/or typographical errors have been
corrected in the Court's recitation of Girts’s assignments of
error. Otherwise, each assignment appears as asserted by
Girts.
R. 24(f) and the Fourteenth Amendment
of the U.S Constitution and Sheppard uv.
Maxwell (1996) 384 U.S. 333.
IV. The appellant was denied
effective assistance of counsel when
counsel failed to object to the alternate
jurors being present in the jury room
during deliberations in violation of the
Sixth Amendment of the USS.
Constitution and Article 1, Section 10 of
the Ohio Constitution.
V. The evidence pertaining to the
cause of death is insufficient to sustain
the appellant’s conviction for aggravated
murder.
VI. The evidence is insufficient as
to the manncr of death to sustain the
appellant’s conviction for aggravated
murder.
VII. The verdict is against the
weight of the evidence.
VIIfl. The trial court improperly
denied the appellant’s motion for new
trial and denied the appellant due
process under the Fourteenth
Amendment
IX. The trial court erred in giving
the reasonable doubt instruction found in
R.C. 2901.05(D) in violation of due
process contained in the Ohio and federal
constitutions.
X. The’ prosecutor’s closing
argument denied the appellant due
process and a fair trial as guaranteed by
the U.S. Constitution when he
improperly commented on the appellant's
right to remain silent.
XI. The trial court improperly
denied the appellant’s motion for mistrial
after prejudicial hearsay testimony was
permitted and the appellant was denied
due process under the Fourteenth
Amendment of the U.S. Constitution.
Doc. 17, Exhibit 17. On September 5, 1996, Girts
filed a pro se Supplemental Brief and Assignments of
Error, in which he identified six assignments of
error, to wit:
A. The appellant was denicd
protection against double jeopardy as
guaranteed by the 5th and 14th
Amendments and Article 1, Section 10 of
the Ohio Constitution when the state
court commenced a second trial.
B. Girts’s right to due process
under the 14th Amendment was violated
47a
when the State failed to adduce enough
evidence on each essential element of the
crime of which he was convicted to
convince a rational juror beyond a
reasonable doubt [of his guilt].
C. The prosecutor’s closing
argument denied the appellant due
process and a fair trial as guaranteed by
the U.S. Constitution when he
improperly commented on the appellant’s
right to remain silent.
D. Appellant's 6th and 14th
Amendment right to confront his
accusers, and his right protected under
the Ohio Constitution, Article I, Section
10, to confront his accusers “face-to-
face|,]” was denied when out-of-court
declarations were admitted against him
in the absence of any opportunity to
cross-examine the declarant|[,] and where
there was no _ solid proof of the
declarant’s “un-availability|[,]” and there
were indications the declaration was not
reliable.
EK. Appellant’s trial counsel
rendered ineffective assistance at trial
because the cumulative effect of counsel’s
omissions and deficient performance was
prejudicial and rendered the _ trial
fundamentally unfair.
F. The cumulative effect of all the
errors and all plain errors denied
appellant due process of law and his
right to a fair trial under the Ohio and
United States Constitutions.
Doc. 17, Exhibit 18. On October 3, 1996, Girts filed a
second pro se Supplemental Brief and Assignments of
Error, in which he asserted the same assignments of
error. See id., Exhibit 19. On January 30, 1997, the
State filed its opposition. See id., Exhibit 20. On
February 7, 1997, Girts filed a reply brief. See id.,
Exhibit 21. On February 10, 1997, Girts also filed a
pro se reply brief. See id., Exhibit 22. On June 12,
1997, the Eighth District affirmed the trial court’s
judgment of conviction and sentence. This entry was
docketed on July 24, 1997. See id., Exhibit 23.
On June 23, 1997, Girts filed a motion for
reconsideration with the Eighth District. See Doc. 17,
Exhibit 24. On July 3, 1997, the State filed its
opposition. See id., Exhibit 25. On July 24, 1997, the
Kighth District denied Girts’s motion for
reconsideration. See id., Exhibit 26.
On July 25, 1997, Girts filed a pro se notice of
appeal and a memorandum in support of jurisdiction
with the Supreme Court of Ohio. See Doc. 17,
Exhibits 27 and 28. Girts’ asserted twelve
propositions of law, to wit:
Proposition of Law One: A defendant’s
right to due process under the
Fourteenth Amendment is violated when
49a
the State fails to adduce enough eviuc
on each essential element of the crime ot
which he was convicted to convince a
rational juror beyond a reasonable doubt
of guilt.
Proposition of Law Two: Under the
“law-of-the-case” doctrine, the decision of
a reviewing court remains the law of the
case on the legal questions involved for
all subsequent proceedings.
Proposition of Law Three: Bad faith
conduct by the prosecutor which
threatens harassment of the accused will
bar reprosecution [sic] under the Double
Jeopardy Clause of the Ohio
Constitution, Article I, Section 10,
notwithstanding that a mistrial is
granted upon the accused's own motion,
Proposition of Law Four: The Federal
Constitution prohibits successive
prosecutions under the Double Jeopardy
Clause when the prosecutor intended to
provoke the defendant to move for a
mistrial.
Proposition of Law Five: A criminal!
defendant may seek a pre-trial hearing
pursuant to [Ohio Revised Code] § 313.19
to challenge a coroner's verdict as to the
cause and manner of death.
Proposition of Law Six: A defendant
must receive a speedy trial after his
conviction is reversed on appeal to
comply with the due process clauses of
the Ohio and Federal Constitutions.
Proposition of Law Seven: When the
cumulative effect of counsel’s omissions
and deficient performance renders the
trial fundamentally unfair, a defendant
is entitled to a new trial.
Proposition of Law’ Eight: A
prosecutor's closing argument denies a
defendant due process and a fair trial
when he improperly comments on the
defendant’s right to remain silent.
Proposition of Law Nine: When a new
judge, who did not preside over the trial,
rules on a motion for new trial, due
process requires the new judge to hold a
hearing and review the transcripts to
make his own finding on the merits.
Proposition of Law Ten: A defendant
is denied his right to confront his
accusers under the State and Federal
Constitutions when out-of-court
declarations are admitted against him in
the absence of any opportunity to cross-
examine the declarant and there are
indications that the declaration is not
reliable.
Proposition of Law Eleven: Due
process of law is violated when the
cumulative effect of all the errors and all
plain errors denies a defendant a fair
trial.
Proposition of Law Twelve: A
defendant is denied due process when
the appellate court, in upholding a
defendant's conviction, conducts its
review in a patently unfair manner.
Doc. 17, Exhibit 28. On August 20, 1997, the State
filed its response. See id., Exhibit 29. On October 15,
1997, the Supreme Court of Ohio denied leave to
appeal and dismissed Girts’s appeal as not involving
any substantial constitutional question. See id.,
Exhibit 30. Girts did not appeal that decision to the
United States Supreme Court.
On October 23, 1997, Girts filed a pro se
motion for reconsideration in the Supreme Court of
Ohio. See Doc. 17, Exhibit 31. On December 10, 1997.
the Supreme Court of Ohio denied Girts’s motion
See id., Exhibit 32.
id Girts’s Petition For Post-Conviction
Relief In The Trial Court.
On January 22, 1996, Girts filed a pro se
petition for post-conviction relief in Cuyahoga
County Court of Common Pleas, in which he alleged
ineffective assistance of trial counsel. See Doc. 17,
Exhibit 33. On February 28, 1996, the State filed its
opposition. See id., Exhibit 34. On May 10, 1996,
Girts filed a pro se motion for leave to
supplement/amend his petition for post-conviction
relief. See id., Exhibit 35. On November 24, 1997, the
court denied Girts’s petition and issued findings of
fact and conclusions of law. See id., Exhibits 36 and
37,
On December 24, 1997, Girts filed a pro se
notice of appeal to the Eighth District Court of
Appeals from the denial of his petition for post-
conviction relief. See Doc. 17, Exhibit 39. On March
27, 1998, Girts filed a pro se brief in support of his
appeal in which he set forth various assignments of
error, to wit:
1. Appellant was denied due process and
equal protection of the laws _ in
contravention of the Ohio and United
States Constitutions when the trial court
arbitrarily refused to appoint post-
conviction counsel to an_ indigent
defendant, where other indigent
defendants are appointed counsel as a
matter of nght pursuant to O.R.C. §
120.16, et seq.
Il. The trial court committed reversible
error by failing to issue findings of fact
and conclusions of law _ regarding
appellant's supplemental petition for
post-conviction rehef filed on May 10,
1996.
III. The trial court erred to the prejudice
of appellant when it denied appellant a
hearing on his petition for post
conviction relief.
IV.:Appellant’s trial counsel rendered
ineffective assistance at trial because the
cumulative effect of counsel’s omissions
and deficient performance was
prejudicial and rendered the trial
fundamentally unfair.
Doc. 17, Exhibit 40. On May 15, 1998, the State filed
its opposition. See id., Exhibit 41. On May 27, 1998,
Girts filed a pro se reply brief. See id., Exhibit 42. On
December 21, 1998, the Eighth District dismissed
the case for want of a final appealable order and
remanded the matter for additional findings of fact
and conclusions of law on the issues raised in the
supplemental petition. See id., Exhibit 43.
On November 19, 1999, the trial court issued
findings of fact and conclusions of law denying
Girts’s petition for post conviction relief. See Doc. 17,
Exhibit 44. Thereafter, on December 15, 1999, Girts
filed another pro se notice of appeal to the Eighth
District, this time from the second denial of his
petition for post conviction relief. See Doc. 17,
Exhibit 46. On January 27. 2000, Girts filed a pro se
brief 1n support of his appeal, in which he again set
forth various assignments of error, to wit:
|. Appellant was denied due process and
equal protection of the laws in
54a
contravention of the Ohio and United
States Constitutions when the trial court
arbitrarily refused to appoint post
conviction counsel to an_ indigent
defendant, where other indigent
defendants are appointed counsel as a
matter of right pursuant to O.R.C. §
120.16, et seq.
II. The trial court erred to the prejudice
of appellant when it denied appellant a
hearing on his petition for _ post-
conviction relief.
lif. Appellant’s trial counsel rendered
ineffective assistance at trial because the
cumulative effect of counsel’s omissions
and deficient performance was
prejudicial and rendered the trial
fundamentally unfair.
Doc. 17, Exhibit 47. On March 17, 2000, the State
filed its opposition. See id., Exhibit 48. On March 31,
2000, Girts filed a pro se reply brief. See id., Exhibit
49. On December 4, 2000, the Eighth District
affirmed the judgment of the trial court. See td..
Exhibit 50.
On January 3, 2001, Girts again filed a pro se
notice of appeal and memorandum in support of
jurisdiction in the Supreme Court of Ohio. See Doc.
17, Exhibits 51 and 52. QGirts asserted one
proposition of law, to wit:
Proposition of Law One: A defendant
is denied the effective assistance of trial
counsel when the cumulative effect of
such counsel’s omissions and deficient
performance prejudices the outcome of
the trial and _ renders tthe trial
fundamentally unfair.
Doc. 17, Exhibit 52. On February 2, 2001, the State
filed its response. See id., Exhibit 53. On April 4,
2001, the Supreme Court of Ohio dismissed Girts’s
appeal as not involving a substantial constitutional
question. See id., Exhibit 54. Girts did not appeal
that decision to the United States Supreme Court.
D. Girts’s Petition for a Writ of Habeas
Corpus.
On February 12, 2002, Girts filed the present
Petition for Writ of Habeas Corpus with this Court,
in which he asserted six grounds for relief, to wit:4
GROUND ONF: The trial court denied
Girts his protection against double
jeopardy guaranteed by the Fifth and
Fourteenth Amendments when it denied
his motion to dismiss the charges against
him.
4 Minor grammaticai and/or typographical errors have been
corrected in the Court’s recitation of Girts’s grounds for relief.
Otherwise, the grounds and supporting facts appear as asserted
by Girts.
SUPPORTING FACTS: The trial
court erred by failing to grant Girts’s
motion to dismiss the charges against
him on the grounds of double jeopardy.
The court of appeals reversed Girts’s
previous conviction for aggravated
murder because the State exhibited bad
faith trial tactics at Girts’s first trial that
goaded Girts into seeking a mistrial.
Under these circumstances, this second
prosecution for aggravated murder was
barred.
GROUND TWO: Girts was not convicted
upon proof beyond a reasonable doubt.
SUPPORTING FACTS: Girts
was convicted of the aggravated murder
of his wife. The State’s theory of the case
was that Girts poisoned his wife with
cyanide. The State failed to produce
sufficient evidence to demonstrate the
cause of death, however. The forensic
evidence of cyanide poisoning did not
correspond to the classic physical signs
that appear in the body of a typical
cyanide poisoning victim. In addition, the
State failed to provide the manner of
death — how Girts would have poisoned
his wife. Consequently, the evidence
4 .
presented by the state was insufficient.
GROUND THREE: Girts’s due process
rights and his right to a fundamentally
fair triai were violated when the
prosecutor. improperly commented on
Girts’s right to remain silent.
SUPPORTING FACTS: During
closing arguments, the prosecutor first
improperly commented that Girts’s oral
statements were [not refuted]. Second,
the prosecutor improperly argued that
Girts had at least three chances to tell
the police he had ordered cyanide and
that only one person could tell the jury
how it was ingested. Third, the
prosecutor improperly argued that Girts
was the only person who could tell the
jury how the poison was introduced.
GROUND FOUR: Girts’s due process
right to a fundamentally fair trial [was]
violated when the trial court failed to
grant a mistrial after prejudicial hearsay
testimony came out at trial.
SUPPORTING FACTS: The
State elicited testimony from witness
Louis Borden that Kathy Latimer-
Bloesinger told him that “They [she and
Girts] were going through this scenario
of ways this. could’ have _ been
accomplished, this death. And she didn’t
tell me what scenario was put forward,
but she did say that [Girts] said to her,
‘that’s not the way I did it.” Trial counsel
objected and that objection was
sustained. Trial counsel then requested a
mistrial which was denied. The trial
court’s denial of the mistrial was error.
GROUND FIVE: Girts was denied the
effective assistance of trial counsel in
violation of his Sixth and Fourteenth
Amendment rights under the U.S.
Constitution.
SUPPORTING FACTS: 1) Trial
counsel failed to object to the allowance
of the alternate jurors in the jury
deliberation room. The trial court
violated Ohio Crim. R. 24(F) by
permitting the two alternate jurors to
enter the jury room and listen to the
jury's deliberations. Trial counsel failed
to object to this. This failure prejudiced
Girts. 2) Trial counsel failed to object to
the prosecutor’s comments during closing
arguments that Girts remained silent.
During the closing arguments, the
prosecutor made three objectionable
comments. First, the prosecutor
commented that Girts’s oral statements
were unrefuted. Second[,] the prosecutor
argued that Girts had at least three
chances to tell the police he had ordered
cyanide and that only one person can tell
you how it was ingested. Third, the
prosecutor argued that Girts was the
only person who could tell the jury how
the poison was. introduced. These
comments were improper and_ trial
counsel should have objected. Trial
counsels’ failure to object prejudiced
Girts.
GROUND SIX: Girts was denied the
effective assistance of trial counsel in
violation of his Sixth and Fourteenth
Amendment rights under the USS.
Constitution.
SUPPORTING FACTS: 1) Trial
counsel failed to adequately prepare for
trial because counsel failed to investigate
the relevant facts and interview the
relevant witnesses. First, the private
investigator appointed by the court did
not conduct any independent
investigation of this case in that his
report contained no information that
could have been’ obtained from
transcripts and records of the first case.
The investigator also never interviewed
Girts. Second, trial counsel faile2 to
interview a number of witnesses
including, but not limited to: Nick
Giarola, Charles Zabor, Philip
Rothenburger, Robert Deighton, Guy
Sciulli, Mark Bollinger. Kenneth
Willham, Thomas Zabor, Gary Beeman,
Elaine Latimer, Michael Greenwald,
Philip Barragate, Helen and George
Kabat, Patricia Pellman, Lambert
Dehler, George T. Doyle, and Ronald
Fields. These failures of trial counsel
constituted deficient performance that
prejudiced Girts’s case. 2) Trial counsel
failed to protect Girts from an invalid
waiver of his right to testify and
prevented Girts, who desired to testify,
from testifying at the second trial. Girts
wanted to testify at trial but was
prevented from doing so by his attorneys.
Girts’s attorneys told the Girts that he
had nothing to add to the defense. Girts’s
attorneys did not explain to Girts that
his right to testify could only be waived
by nim. 3) Trial counsel failed to have all
side bar proceedings at the second trial
recorded. Trial counsel failed to have all
the proceedings recorded as mandated
under Ohio Crm. Rule 22, and as
specifically requested by Girts. 4) Trial
counsel failed to challenge the coroner's
verdict of “homicide” through a pretrial
motion prior to the commencement of the
second trial. Counsel failed to request a
pre-trial hearing on the inadmissibility
of the coroner’s testimony pursuant to
Ohio Revised Code § 313.19 and as
specifically requested by the Girts during
pre-trial proceedings. 5) ‘The cumulative
impact of trial counsel’s errors prejudiced
Girts.
Doc. 1. On April 29, 2002, Respondent filed an
Answer/Return of Writ (Doc. 12), and moved this
Court to dismiss Girts’s petition. On June 5, 2002,
Girts filed a Traverse to Respondent’s Answer/ Return
of Writ. See Doc. 20.
On February 27, 2002, this case was
automatically referred to Magistrate Judge George J.
Limbert for review and preparation of a report and
recommendation to this Court. On May 29, 2003,
Magistrate Judge Limbert issued an R&R (Doc. 22),
in which he concluded that none of Girts’s grounds
for habeas relief were meritorious. He recommended,
therefore, that Girts’s petition be dismissed with
prejudice. On July 3, 2003, Girts filed pro se
Objection te the Magistrate’s Report and
Recommendation (Doc. 24) (“Objections”), wherein he
set forth thirteen (13) objections to the R&R.
Thereafter, the Court took the matter under
advisement.
II. FACTUAL BACKGROUND®
Girts and his wife, the victim, lived in a house
that adjoined a funeral home where Girts worked as
a funeral director and embalmer. On the morning of
September 2, 1992, Girts and several others began
’ As with the procedural history, the Court's recitation of the
factual background ts taken substantially from the magistrate
judge’s R&R (Doc. 22), which was based on _ information
provided in an opinion issued by the Eighth District, which
considered Girts’s direct appeal from his second trial and
conviction.
62a
driving back from Chicago, Illinois to Parma, Ohio
after having helped Girts’s brother move. Girts’s
wife, who had not gone to Chicago, remained at home
during the morning because she was scheduled to
work at noon that day. When she did not arrive at
work on time, a co-worker telephoned the funeral
home and expressed concern over her unusual
absence. A funeral home employee noticed Mrs.
Girts’s car in the driveway, so he checked the house.
When he found the screen door to the house open he
called inside. When no one responded, he entered the
house and discovered Mrs. Girts’s dead body in the
bathtub.
The police found no evidence of foul play, nor
any obvious signs of suicide. A razor floating in the
bath water, a hot curling iron resting on a nearby
dressing table, and the couple’s dog roaming in the
yard led the police to conclude that Mrs. Girts died
suddenly while bathing. Because the police could not
readily determine a cause of death, they transported
Mrs. Girts’s body to the coroner’s office for an
autopsy.
During the autopsy, the coroner noted no
obvious cause of death. The coroner did find an
undigested meal of pasta salad in Mrs. Girts’s
stomach. He also observed lividity — 1.e., reddening of
her skin - which is typically found in bodies that
have been exposed to carbon monoxide. Carbon
monoxide testing, however, revealed that there were
no significant levels of carbon monoxide present. The
coroner, therefore, listed no cause of death.
Around September 20, 1992, Girts telephoned
the police and told them he had found a handwritten
63a
note from his wife, which might explain her death.
The undated note stated, “I hate Cleveland. I hate
my job. | hate myself.” Girts explained that he found
the note underneath some papers in his briefcase.
Further, he told police that his wife had been
despondent over the couple’s recent move to the
Cleveland, Ohio area. He explained that she had
difficulty finding work, and worried that she had a
weight problem. Girts also told police that his wife
had suffered three miscarriages, and had been trying
to cope with the thought that she might not be able
to have children.
At about the same time, the coroner ordered
the department toxicologists to perform additional
tests on fluids that had been taken from Mrs. Girts’s
body. Specifically, he asked the toxicologists to
determine whether any poisons were present. An
initial test for potassium cyanide was discarded
when the toxicologists discovered the reagents used
in the testing process had been compromised. New
reagents were obtained, and a later test yielded a
positive result for potassium cyanide at about twice
the minimum lethal dose. The coroner verified tne
result by having the Franklin County Coroner's
Office conduct a test for cyanide by utilizing a
different methodology. The Frankhn County
Coroner's tests yielded virtually identical results.
Following these tests, the coroner then listed the
cause of death as “homicide.”
Thereafter, the police returned to Girts’s
house and executed a search warrant, pointedly
telling Girts that they were looking for cyanide or
other poisons. Girts cooperated, but the police found
nothing. The police questioned the funeral home
operators about possible uses for cyanide in the
embalming process, but found no evidence that the
funeral home received cyanide from any of its
suppliers. The funeral home director later recalled a
conversation with Girts, in which they discussed how
the police had investigated the funeral home supply
shipments for deliveries containing cyanide. He
testified that Girts told him, “[t]hat is not where I got
it from.”
The evidence did not show that the police had
any suspects until they broadcast a plea for
assistance through a television crime watch service.
As a result of the broadcast, Girts’s commanding
officer in the army reserves came forward in January
1993 with information that she had provided Girts
with 2 grams of potassium cyanide. She explained
that Girts knew she worked as a chemist in her
civilian job, and that, in the Spring of 1992, he asked
her if she could get him a small amount of cyanide
for use in controlling ground hogs on his property.
She did not immediately send the cyanide, however.
She later discovered that Girts had left his business
card on her desk, with a _ notation in Girts’s
handwriting stating, “thank you for your help.” In
the lower corner of the card Girts wrote “KCN,” the
cnemical abbreviation for potassium cyanide. Upon
seeing the business card, she remembered Girts’s
request, so she sent “a couple grams” of cyanide to
the funeral home address listed on the business card.
She explained that she came forward with the
information after learning that Girts’s wife died of
cyanide poisoning.
When confronted with evidence that he had
obtained cyanide, Girts told police that he used it to
6Sa
control ground hogs on the property. A funeral home
employee, however, insisted that he had no
knowledge of a ground hog problem, and produced
records showing that squirrels were the only pest
control problem on the property. The city pest contro]
officer also stated that he had received no complaints
about ground hogs. A_ pest control company
representative conceded that cyanide might have
been used for pest control well in the past, but that
in ten years of business, she had not used any
products containing cyanide.
Other people soon came forward with
information that increased the focus on Girts. One of
Girts’s business associates recalled a conversation in
which Girts abruptly interrupted her to ask if she
could show him the measurement of “a gram.” When
she asked why he needed the information, Girts said
that he needed to measure some medicine for his
dog. Girts’s veterinarian, however, stated that he did
not proscribe medication for Girts’s dog that would
require “measuring.” One of Girts’s funeral home
colleagues described a conversation in which Girts
told him that Mrs. Girts had committed suicide.
When the colleague wondered how Mrs. Girts could
have obtained cyanide, Girts responded that “she
probably got it down on West 25th Street where she
worked because she came in contact with a lot of low
lives.” In a subsequent conversation, the colleague
again expressed confusion as to how Mrs. Girts could
have obtained cyanide, to which Girts responded,
“someone at the coroner's office probably spilled
some of it because they keep it there.”
Another funeral home colleague testified that
when the ambulance came to transport Mrs. Girts’s
66a
body, Girts yelled to the drivers that they should
take the body to Parma General Hospita:. The police
later learned that, at some point, Girts had worked
for the Lorain County Coroner. They speculated that
his experience there had likely informed him that,
absent a known cause, the coroners office
investigates all deaths and performs autopsies that
are much more complete than those performed by
hospital personnel.
The police also began to question the theory
that Mrs. Girts committed suicide because they did
not believe she had a motive to do so. Several close
friends told the police that they spoke with Mrs.
Girts shortly before her death. They stated that she
was in good spirits. They found nothing unusual
about her behavior and noted that she looked
forward to moving into a house she and her husband
had recently purchased. One friend did say, however,
that she met with Girts shortly before his wife’s
death and he told her Mrs. Girts was depressed
about living in Cleveland. That statement
contradicted the friend’s perceptions, however. Just
three days before her conversation with Girts, that
same friend had spent the weekend with the couple
and found nothing unusual about Mrs. Girts’s
demeanor.
The State settled on two motivating factors in
support of the murder charge. First, it discovered
that Girts had a fitful affair with another woman
who had refused to continue the affair as long as
Girts remained married. Girts first became involved
with the woman for a short period in 1980, but she
broke off the affair when she discovered Girts was
lying about his marital status with a previous wife.
The affair resumed briefiy in either 1985 or 1986, but
ended shortly thereafter by mutual agreement. It
resumed again in February 1992. Girts told the
woman that he was remarried, but that he and his
wife were finalizing a divorce. The intimate portion
of their relationship ended in late May 1992,
although they remained in contact for several more
months. Girts stipulated he was not a party to any
divorce action.
Girts called this woman shortly after Mrs.
Girts’s death and informed her that Mrs. Girts had
died from an aneurysm. Thereafter, they spoke
twice. In the early part of October 1992, the woman
received an early morning call from Girts, in which
he said, “Miss Bethea, this is Robert Girts. We'll
have to put the decorating of my house on hold.
Something really bizarre has happened.” When she
asked what had happened, Girts replied, “I’m being
investigated for my wife’s death.” He then hung up.
The woman found the conversation unusual because
Girts had never referred to her as “Miss” and that,
while she worked as an interior designer, she had
not discussed decorating Girts’s house.
The woman called police and informed them of
her conversation with Girts. Girts telephoned her
late that evening. When he heard that she had
telephoned the police and that they would be coming
to question her, he told her that there was no harm
in her doing design work for him and that she should
“be brief’ during questioning
The second motivating factor arose from
Girts’s financial status. Girts stipulated that he
received just over $50,000 from hfe insurance
68a
policies taken on Mrs. Girts’s life. The State tied this
money to Girts’s purchase of a house, and his desire
to invest $10,000 in another funeral home, in which
he was to be a silent partner.
Girts’s defense consisted primarily of evidence
showing he had been in Chicago at the time of Mrs.
Girts’s death — a fact the State did not dispute — and
expert testimony rebutting the State’s findings
relating to the manner and cause of death. In
addition, Girts’s sister-in-law testified that she ate
from a bowl of pasta salad she found in Girts’s
refrigerator but suffered no ill effects.
Girts’s expert testified he would have listed
the cause of death as “undetermined,” because, in his
opinion, the level of cyanide found in Mrs. Girts’s
body did not correspond with the classic signs of
cyanide poisoning he would have expected to find. He
testified that cyanide basically poisons all the cells of
the body to the point where they cannot use oxygen.
Because the cells cannot use oxygen, the blood
becomes superoxygenated, thus giving the body its
reddish appearance. A cyanide victim can breathe,
but, nonetheless, experiences the sensation and
effects of asphyxiation. The onset of cyanide
poisoning is marked by dizziness or faintness with
rapid breathing. Convulsions, palpitations or
seizures may follow before the victim falls into a
comma and dies.
The outward indicia of cyanide ingestion
include burning around the mouth and throat areas,
uniform lividity of other major internal organs,
petechiae or small bleeding points usually found in
the stomach, incontinence of both urine and fecal
69a
matter and collection of fluid in the lungs. Of these
signs, only the lividity and collection of fluid in the *
lungs were present in Mrs. Girts’s case. ‘I'he expert
thought that the lhvidity and collection of fluid,
however, could be explained by other factors, such as
immediate refrigeration of the body after being taken
from warm water.
Following the parties’ presentation of proofs at
the second trial, each provided closing arguments to
the jury. During the State’s closing, the prosecutor
made three statements that arguably commented on
Girts’s failure to provide the police with certain
information and/or testify at the trial to explain how
Mrs. Girts could have come into contact with the
cyanide that killed her. These statements, outlined
and discussed in greater detail infra at Section IV-C-
1, serve as the basis for Girts’s: 1) third ground for
habeas relie:, based on the view that they violated
his Fifth Amendment right = against self-
incrimination; and 2) fifth ground for habeas relief,
based on the view that his trail counsel’s failure to
object to the statements’ admission violated his Sixth
Amendment right to effective assistance of counsel.
Il. THE MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION AND GIRTS’S
OBJECTIONS THERETO.
As outlined in greater detail supra, Girts’s
petition asserts six grounds for relief. In sum, he
alleges that the trial court: 1) denied him protection
against a double jeopardy violation (Ground One); 2)
errantly convicted him based on insufficient evidence
(Ground Two): 3) violated his 5th Amendment right
against self incrimination by allowing the prosecutor
to comment on his decision to remain silent (Ground
Three); 4) denied him a fundamentally fair trial by
failing to grant a mistrial based upon the admission
of prejudicial hearsay
testimony (Ground Four); and 5) violated his 6th
Amendment right to effective assistance of counsel
by denying relief based on Girts’s arguments that his
counsel was ill-prepared and failed to make
necessary objections (Grounds Five and Six).
A. The Magistrate Judge’s Report And
Recommendation.
The R&R rejects each of Girts’s asserted grounds for
relicf and recommends dismissal with prejudice of
his petition. In sum, the R&R’s analysis as to each of
Girts’s grounds for relief is as follows.
1. Double Jeopardy (Ground One).
As to the alleged double jeopardy violation, Girts
argued that the prosecution’s “bad faith” tactics
goaded Girts into seeking, and obtaining, a mistrial
in his first trial. Based on the prosecutor’s alleged
bad faith encouragement toward a mistrial, Girts
argued that the prosecution should have been barred
from pursuing a second prosecution for the same
crime.® Concluding that the state appellate court
below correctly identified the relevant legal standard
* Girts obtained a mistrial based on the prosecution's failure to
provide testimony it promised to proffer as its good faith basis
for pursuing a line of questioning relating to an alleged
jailhouse confession. When the prosecution failed to keep its
promise to provide the requisite supporting testimony, the trial
court granted a mistrial.
set forth in Oregon v. Kennedy, 456 U.S. 667 (1982) —
that a double jeopardy violation may result if a
defendant is prompted by prosecutorial misconduct
designed to goad the defendant into requesting a
mistrial — the magistrate judge determined that,
based on the facts of this case, the state courts did
not unreasonably apply the clearly established
federal law set forth in Kennedy.
The state appellate court reasonably observed
that there was no evidence of a sequence of
overreaching by the State pnor to the line of
questioning relating to the alleged jailhouse
confession. It also took ito account that the State
opposed Girts’s motion for a _ mistrial and
demonstrated no outward desire to take the case
away from the jury in the first trial. As such, the
magistrate judge determined that the appellate court
reasonably concluded that any misconduct relative to
the State’s presentation of its case amounted only to
negligence and not intentional encouragement for
Girts to seek a mistrial.
Accordingly, the magistrate judge concluded
that no double jeopardy violation occurred and
recommended dismissal of Girts’s petition as to that
ground.
2. Insufficiency Of The Evidence
(Ground Two).
As to Girts’s argument that the State failed to
produce sufficient evidence to demonstrate the cause
and manner of Mrs. Girts’s death, the magistrate
judge determined that the state trial and appellate
courts did not unreasonably apply clearly established
72a
federal law when they found that the state had
presented sufficient evidence, circumstantial or
otherwise, to show that: 1) Mrs. Girts died from
intentional cyanide poisoning (i.e. the cause of
death); and 2) Girts had not only obtained cyanide in
the past, but that he had a familiarity with the
substance and its effects on the human body (i.e. the
manner of death).
The magistrate judge identified the correct
legal principles relative to the state appellate court’s,
as well as a federal habeas court’s, review based on a
“sufficiency of the evidence argument.” In sum, so
long as it can be reasonably said that the evidence
presented could have led to the verdict that resulted,
an appellate court’s refusal to reverse is not
unreasonable, which is the standard of review
employed by a federal habeas court when considering
the propriety of the state court’s conclusion.
Accordingly, because the magistrate judge
concluded that the state appellate court did not
unreasonably apply established federal law — i.e., an
allegation that a verdict was entered upon
insufficient evidence states a federal “due process”
claim under the 14th Amendment — he recommended
dismissal of Girts’s petition as to that ground.
3. Prosecutorial Misconduct (Ground
Three).
As to Girtss argument that his ith
Amendment right against self-incrimination was
violated by virtue of various alleged references by the
prosecutor to his decision to remain silent (1.e., not
testify), the magistrate judge concluded that this
73a
issue was procedurally defaulted — and, therefore,
not reviewable by a federal habeas court — because:
1) Girts failed timely to object to the statements
when made at trial, which resulted in a “plain error”
review by the state appellate court; and 2) Girts
could not demonstrate justifiable “cause” for his
failure to object at trial, nor “prejudice” resulting
therefrom, such that the procedural default could be
overcome.
Though the magistrate judge ultimately based
his recommendation to dismiss Girts’s petition, as to
this ground on procedural default, he went on to
discuss the merits of Girts’s argument and further
concluded that none of the prosecutor’s statements
amounted to inappropriate references to Girts’s
decision to remain silent.
4, Inappropriate Admission Of
Prejudicial Hearsay Testimony (Ground Four).
As to Girts’s argument that he was denied a
fundamentally fair trial when the trial court failed to
grant a mistrial after the introduction of arguably
prejudicial hearsay testimony, the magistrate judge
concluded that, in the context of the entire record,
fundamental unfairness did not result. As outlined in
greater detail at pages 41 to 43 of the R&R, Girts
objected at trial to the admission of certain hearsay
testimony. Based on his objection, which was
premised purely on the application of state law (..e.,
state evidentiary rules), the trial court struck the
challenged testimony from the record and issued a
curative instruction to the jury. Because a federal
habeas court cannot review a_ state court's
application of state law, Girts necessarily couched
74a
his argument here in constitutional terms by
asserting that the measures employed by the trial
court relative to the hearsay testimony were
insufficient, resulting in a fundamentally unfair trial
— i.e., a federal “due process” claim under the 14th
Amendment.’
Considering that the prosecutor clearly had a
good faith basis for presenting the arguably
inappropriate testimony — to refute the defense’s
theory that the witness’s testimony was a recent
fabrication — and that the trial court employed every
reasonable measure to cure any state law violation
(e.g., striking the testimony and providing a curative
jury instruction), the magistrate judge reasonably
concluded that “fundamental unfairness” had not
occurred. Further, he properly determined that a de
novo review of the state court’s application of its own
state's laws would be inappropriate in any event, and
that a federal habeas court would be hard-pressed to
give constitutional effect to debatable violations of
state evidentiary rules. See Dowling v. U.S., 493 U.S.
342 (1990) (state rules of evidence are _ not
constitutionally based).
Accordingly, because habeas review of this
asserted ground for relief is inappropriate, and
because there was no apparent fundamental
unfairness in anv event, the magistrate judge
recommended dismissal of Girts’s petition as to this
ground.
7 Notably, Girts’s argument on this issue in his direct appeal to
the Eighth District was limited to alleged violations of Ohio
Rules of Evidence 602, 801 and 802. Doc. i7, Exhibits 17 and
25.
75a
5. Ineffective Assistance Of Trail
Counsel (Grounds Five and Six).
Finally, the magistrate judge collectively
considered Girts’s two “ineffective assistance of
counsel” arguments and determined that neither was
meritorious. Girts’s first ineffective assistance of
counsel argument addressed his trail counsel’s
failure to object to: 1) the trial court permitting
alternate jurors to remain in the jury room during
the deliberations; and 2) statements made by the
prosecutor that arguably violated Girts’s 5th
Amendment right against self-incrimination (_.e.,
Girts’s third ground for relief).
As to the alternate jurors issue, the magistrate
judge concluded that the state court of appeals
properly determined that trial counsel’s failure to
object did not fall below the requisite standard of
performance because: 1) there is no per se rule under
Ohio law that alternate jurors cannot sit in on
jeliberations; and 2) there was no evidence that the
alternate jurors actually participated in, or — by their
presence — imposed a chilling effect upon, the
deliberations.
As to the prosecutorial misconduct issue, the
magistrate judge deferred to his prior analysis of the
“cause” element relative to Girts’s procedural default
of his third ground for relief, and concluded that trial
counsel’s failure to object did not amount to
constitutional ineffective assistance of counsel.
Accordingly, he recommended that these arguments
be rejected.
Girts’s second ineffective assistance of counsel
76a
argument addressed his trial counsel's alleged: 1)
deficient investigation, preparation, and
performance; and 2) inappropriate waiver of Girts’s
individually-held right to choose to testify. The
magistrate judge properly disregarded the deficiency
argument based on the fact it was previously, and
unsuccessfully, litigated in the state courts, and
because Girts failed to demonstrate how the outcome
of the trial would have been different given the
State’s evidence that he had acquired cyanide in the
past, knew of its function, and had a familiarity with
autopsy protocol. These facts, in conjunction with the
coroner's testimony and toxicology report, in the
absence of compelling argument from Girts, which he
has not made, render an “ineffective assistance of
counsel” argument based on deficient investigation
(or the like) facially unavailing.
Similarly, as to Girts’s argument that his trail
counsel prevented him from testifying, and thereby
unlawfully waived a right that only Girts could
waive, the magistrate judge correctly concluded that
Girts has failed to present competent evidence, short
of his self-serving affidavit attached to his petition
for postconviction relief, to demonstrate that he was
prevented from testifying — as opposed to choosing
not to testify based upon counsel’s advice. The
magistrate judge insightfully noted that Girts
testified at his first trial, which clearly establishes
that he knew of his right to do so. As nothing in the
record indicates that Girts desired to testify or was
prevented from doing so, the magistrate judge found
that Girts’s argument to the contrary now is not well
taken. Accordingly, the magistrate judge ultimately
recommended dismissal of Girts’s petition.
B. Girts’s Pro Se Objections To The R&R.
In response to the R&R, Girts filed thirteen
(13) pro se Objections (Doc. 24), most of which
primarily take issue with factual findings referenced
by the magistrate judge — and in some cases, but not
all, the legal conclusions flowing from the allegedly
erroneous facts. In sum, Girts objects to the
magistrate judge’s findings that:
1. “On the morning of September 2, 1992,
Petitioner and several others began
driving back from Chicago to Parma,
Ohio... .” Doc. 22 at 2.
2.“...the couple's dog |was roaming] in
the yard....” Doc. 22 at 2.
3. “When confronted with evidence that
he obtained cyanide, Petitioner told
police that he used the cyanide to control
groundhogs on the property. A funeral
home employee, however, insisted he had
no knowledge of a groundhog problem .
.”” Doc. 22 at 4.
4. “The police learned that Petitioner
previously worked for the Lorain County
Coroner.” Doc. 22 at 5.
5. “Petitioner stipulated he received just
over $50,000 as proceeds from life
insurance policies taken on [Mrs. Girts’s]
life. The State tied this money to
Petitioner's purchase of a house and his
desire to invest $10,000 and become a
silent partner in the funeral home.” Doc.
22 at 7.
6. “Respondent does raise issues relating
to the doctrine of procedural default.”
Doc. 22 at 19.
7. “The undersigned [magistrate judge]
concurs with the Ohio Court of Appeals
in its assessment that the prosecutor
lacked the constitutionally sufficient
level of intent to cause a mistrial during
Petitioner's first criminal trial necessary
to implicate the protection against
double jeopardy . . . Further, the
undersigned |magistrate judge] agrees
with the Ohio Court of Appeals when it
concluded that the State’s failure to call
the prisoner as a rebuttal witness, in the
rh)
first trial, amounted to negligence... .
Doc.22 at 25-26.
8.“ ... Petitioner not only obtained and
possessed cyanide through his
association with his commanding officer
in the Army reserves, but also
demonstrated a familiarity with the
poison and its effect on the body
Petitioners past employment with the
Lorain County Coroner's Office
Doc. 22 at 30
9. “Petitioner committed a_ procedural
default in his state court proceedings
because he failed to make a
contemporaneous objection to the
prosecutor's comments during final
argument.” Doc. 22 at 32.
10. “The undersigned [magistrate judge]
finds that the three cited remarks by the
prosecutor in his closing argument were
not ‘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 reascnably take them to be
comments on the failure of the accused to
testify.” Doc. 22 at 40.
11. “Inasmuch as the statement offered
by Borden was not consistent with the
prior testimony of Bloesinger, it was
properly stricken from the record.” Doc
22 at 46
12. “... holding that it is not per se error
for the trial judge to permit alternate
jurors to remain in the jury room during
deliberations ....° Doc. 22 at 49
13. “The Court of Appeals concluded
that, other than Petitioner's self-serving
affidavit. there was no demonstration
‘SUa
that the outcome of the trial would have
been different.” (Regarding the alleged
insufficiency of trial counsel’s
performance). Doc. 22 at 50.
c. The R&R’s Conclusions As To Each Of
Girts’s Grounds For Relief Are Well-Taken And
Adopted By This Court.
As outlined above, the R&R extensively
reviewed each of Girts’s six grounds for relief,
thereafter recommending complete dismissal of
Girts’s petition. Having considered the R&R in its
entirety — as well as Girts’s objections — the Court
agrees in whole with the R&R’s ultimate conclusion
that Girts’s petition should be dismissed. The Court
finds it unnecessary to provide an independent
substantive analysis as to each rejected ground for
relief.
Because the Court disagrees with some of the
R&R’s reasoning as it pertains to Girts’s third
ground for relief (i.e., alleged 5th Amendment
violations), however, it addresses that ground
separately below, but still concludes that dismissal of
Girts’s petition is warranted. In conjunction with the
Court’s consideration of Girts's objections, therefore,
and subject only to the Court’s additional comments
set forth in Section IV-C infra, the Court hereby
ADOPTS the R&R’s reasoning and recommendation
that Girts’s petition be dismissed with prejudice
1. Objections 1-ll and 13 Do Not
Threaten The R&R’s Conclusions.
Objections 1-5 and 8 challenge specific factual
Sla
findings made by the state courts below. As
previously noted, however, “a determination of a
factual issue made by a state court shall be
presumed correct.” 28 U.S.C. § 2254(e)(1).
Accordingly, as did the magistrate judge, this Court
must accept the factual record as articulated by the
state courts. Objections 1-5 and 8, therefore, must be
summarily disregarded as being purely factual in
nature.
Objections 6, 9, 10 and 13 relate to Girts’s
“prosecutorial misconduct” and “ineffective
assistance of counsel” grounds for relief (i.e., grounds
three and five), and are, therefore, subsumed by the
Court’s discussion infra of those grounds.
Objections 7 and 11 are simply not well taken,
and the Court summarily adopts the R&R’s
resolution of the legal issues challenged in these
objections based on the magistrate judge’s well-
reasoned analysis in connection therewith.
2. Objection 12 Is Not Well-Taken, But
Warrants Brief Discussion.
As to this issue, Girts’s objection simply
restates his unpersuasive legal argument that the
state courts incorrectly concluded that allowing
alternate jurors to sit-in on the jury’s deliberations
does not render a conviction reversible per se. In this
regard, Girts’s objection states nothing new and does
not “object” to the magistrate judge's
recommendation —- it simply restates his prior
argument. In any event, because this argument rises
in connection with an ineffective assistance of
counsel ground, it can only have a meaningful effect
82a
here if Girts can demonstrate not only that his
counsel’s failure to object (which presumes an at-trial
objection was warranted) constituted “deficient”
representation, but that the deficiency adversely
affected (i.e., prejudiced) the outcome of the trial. It
is not enough that the legal argument alone have
merit — which it does not, in any event. Girts’s filings
(including his objections) simply presume prejudice
in the presence of a procedural violation, but do not
articulate how the jury’s deliberations were, or even
arguably were, affected by the alternate juror’s
presence during the deliberations.
Because the Court agrees with the magistrate
judge’s AEDPA determination that the state courts’
conclusions on this issue were not unreasonable, this
ground for relief (and its attendant objection) is
without merit and must be rejected. Nevertheless,
because this is an important issue both in the state
and federal courts — whose rules currently differ — a
brief discussion is warranted.
As noted by the Eighth District’s opinion, the
record in this case clearly demonstrates that some
circumstance gave the parties and the trial court
reason to believe that a primary juror may not have
been able to continue to deliberate beyond one day.
See Doc. 17, Ex. 23 at pp. 26-27. Based on that
circumstance, and not some judicial oversight (with
inherent prejudicial effect) as Girts would have this
Court believe, the parties and the trial court agreed
that the alternate jurors should remain with the jury
during its deliberations.® In this regard, the trial
* As further ncted in the Eighth District’s opinion, the alternate
jurors were given an explicit instruction not to participate in
83a
court had an identifiable reason for permitting the
alternates to sit in on the deliberations, despite Ohio
Rule of Criminal Procedure 24(F)’s provision that
alternates be discharged prior to the jury beginning
its deliberations.
Interestingly, the Ohio and federal rules
applicable to this issue currently differ. As noted,
Ohio Criminal Rule 24(F) provides that alternates be
discharged once the jury begins its deliberations.
Federal Rule of Criminal Procedure 24(c), however,
now provides that alternate jurors may be retained
by the trial court so long as the court ensures that
they do not participate in the jury’s deliberations
until and unless instructed by the Court to do so (.e.,
a replacement occurs).’ Regardless, state and federal
courts agree that, despite a rule to the contrary (i.e.,
the current Ohio rule, or more restrictive former
versions of the federal rule), an alternate juror’s
presence during the jury’s deliberations does not
automatically invalidate the jury’s verdict. Instead, a
verdict is only in jeopardy if a defendant can
demonstrate actual prejudice — most commonly by
demonstrating an actual participation in, or an
otherwise “chilling” effect on, the deliberations.
Courts are also encouraged to specifically instruct
the jury and the alternates that it is imperative that
the alternates not participate until instructed to do
so, if at all. See U.S. v. Olano, 507 U.S. 7256 (1993);
Roberts v. Carter, 337 F.3d 609 (6th Cir. 2003);
Manning v. Huffman, 269 F.3d 720 (6th Cir. 2001).
the deliberations. There is no evidence that they did. or that the
jury was 1n any way affected by their presence
* Prior to 1999, the federal rules did not allow alternate jurors
to sit-in on deliberations.
84a
Accordingly, it is clear that the presence of
alternates during the jury’s deliberations does not
inherently prejudice a defendant. Rather, a
defendant bears the burden of demonstrating
prejudice and cannot successfully blindly assume a
detriment. Notvithstanding the foregoing, however,
the Court believes that judicial discretion on this
issue should err on the side of caution and that
courts generally should not allow alternate jurors to
observe the jury’s deliberations because the benefit of
doing so (i.e., saving time if a juror is replaced) is
outweighed by the potential detriment (i.e., actual
prejudice to the defendant or an invitation for all
defendants to challenge otherwise valid verdicts).
Except in cases where the deliberations are expected
to be significantly long, it is not unreasonable to ask
a jury to begin anew if an alternate is eventually
asked to serve. In as much as the law is clear, and
the record in this case is devoid of any evidence of
prejudice (or substantiated argument of prejudice),
the presence of alternate jurors during the jury’s
deliberations cannot upset Girts’s conviction.
IV. DISCUSSION
As noted previously, the Court only addresses
in detail Girts’s third ground for relief due to the
Court’s limited disagreement with the R&R’s
analysis of that ground. Girts argues in his third
ground for relief that his conviction should be
reversed due to inappropriate comments made
during the Srate’s closing argument, which, he
argues, amounted to _ violations of his 5th
Amendment rights. In sum. Girts argues that the
State violated his 5th Amendment right to remain
silent by commenting on the fact he chose to do so
85a
both before and during his trial. A portion of Girts’s
fifth ground for relief argues that his trial counsel’s
failure to object to the allegedly inappropriate
comments amounted to a violation of Girts’s 6th
Amendment right to effective assistance of counsel.
In addition to raising ineffective assistance of
counsel as an independent ground for relief, Girts
asserts that ground as “cause” for his procedural
default of his 5th Amendment ground (i.e., his third
ground for relief).
Given the procedural default considerations
further outlined below, and the unique procedural
background of this case, whether Girts’s 5th
Amendment ground is_ reviewable, much less
meritorious, is contingent upon the portion of his 6th
Amendment ground relating to his counsel’s failure
to object to the alleged prosecutorial misconduct.
Accordingly, these two grounds for relief necessarily
collapse into each other, as does the Court’s analysis
below.
A. Standard Of Review.
Because Girts filed his petition on February
12, 2092, the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) applies. See Harpster
v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997), cert.
denied, 522 U.S. 1112 (1998).'° In pertinent part, the
AEDPA provides:
'0 As to claims that survive “procedural default” scrutiny, the
AEDPA applies if the petition was filed after the Act’s April 26,
1996 effective date.
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State
court shall not be granted with respect to
any claim that was adjudicated on the
merits in State court proceedings unless
the adjudication of the claim —
(1) resulted in a decision that was
contrary to, or involved an
unreasonable application of,
clearly established Federal law, as
determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was
based on an_ unreasonable
determination of the facts in lhght
of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
After passage of the AEDPA, various circuit
courts accorded differing interpretations to the
standard of review applicable under § 2254(d).!! In
response to the nationwide variation accorded to the
habeas corpus standard of review, the Supreme
Court elaborated on the meaning of the AEDPA’s
statutory language, announcing that the recently
'' Compare Green vu. French, 143 F.3d 865 (4th Cir.1998), and
Nevers v. Killinger, 169 F.3d 352, 358 (6th Cir. 1999), with Long
vu. Humphrey, 184 F.3d 758 (8th Cir.1999), and Matleo v.
Superintendent, SCI Albion, 171 F.3d 877 (3d Cir. 1999).
87a
revised habeas statute “places a new constraint on
the power of a federal habeas court to grant a state
prisoner’s application for a writ of habeas corpus
with respect to claims adjudicated on the merits in
state court.” Campbell v. Coyle, 260 F.3d 531, 539
(6th Cir. 2001) (quoting Williams v. Taylor, 529 U.S.
362, 412 (2000) (emphasis added).
The Supreme Court clarified the language of §
2254(d)(1), and held that:
Under the “contrary to” clause, a federal
habeas court may grant the writ if the
state court arrives at a_ conclusion
opposite to that reached by this Court on
a_ question of law or if the state court
decides a case differently than this Court
has on a set of _ materially
indistinguishable facts. Under’ the
“unreasonable application” clause, a
federal habeas court may grant the writ
if the state court identifies the correct
governing legal principle from this
Court’s decisions but unreasonably
applies that principle to the facts of the
prisoner's case.
Williams, 529 U.S. at 412-413 (emphasis added). The
Court offered additional guidance regarding the
meaning of “unreasonable application.” A state-court
opinion can also engender the ‘unreasonable
application’ of Supreme Court precedent if it “either
unreasonably extends or unreasonably refuses to
extend a legal principle from Supreme Court
precedent to a new context.” Williams, 529 U.S. at
88a
409. Further, the Court declared that “a federal
habeas court making the unreasonable application’
inquiry should ask whether the state court’s
application of clearly established federal law was
objectively unreasonable.” Jd. (Emphasis added).
Elaborating on the term “objectively unreasonable,”
the Court stated that “a federal habeas court may
not issue the writ simply because that court
concludes in its independent judgment that the
relevant state-court decision applied clearly
established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.”
Id.
Additionally, federal habeas courts are obliged
to “accept a state court’s interpretation of that state’s
statutes and rules of practice.” Duffel v. Dutton, 785
F.2d 131, 133 (6th Cir. 1986). Similarly, a federal
court is not free to ignore the pronouncement of a
state appellate court on matters of state law. See
Central States, Southeast & Southwest Areas Pension
Fund v. Howell, 227 F.3d 672, 676 (6th Cir. 2000).
B. Exhaustion and Procedural Default.
A federal habeas petitioner must satisfy the
doctrines of exhaustion and procedural default before
a federal court can review the merits of his grounds
for relief. In this case, the Respondent argues, and
the R&R concludes, that Girts’s third ground for
relief is procedurally defaulted, and, therefore, not
reviewable on the merits by this Court. The general
legal guidelines pertaining to these doctrines are as
follows.
The exhaustion doctrine bars federal review of
89a
grounds for relief that were not raised by the
petitioner in his direct appeal. Regardless of how a
petitioner seeks to use a legal ground for relief —
whether substantively or otherwise — that ground
must have been exhausted below. In this case, Girts
ultimately argues that his 5th Amendment ground is
not procedurally defaulted because he can satisfy the
“cause and prejudice” exception to the procedural
default doctrine based on his trial counsel's failure to
object to the alleged prosecutorial misconduct, which
Girts argues also amounted to a_ substantive
violation of his 6th Amendment right to effective
assistance of counsel. Accordingly, Girts’s 6th
Amendment ground for relief — which is offered both
procedurally and substantively — must have been
exhausted below in order for Girts to rely upon it in
connection with the procedural default analysis
relating to his 5th Amendment ground. Obviously,
his 5th Amendment ground must similarly have
been exhausted below.
Among other places, Girts asserted ineffective
assistance of counsel (i.e, a 6th Amendment
violation) as his fourth assignment of error in his
direct appeal to the Eighth District, and as his
seventh proposition of law in his appeal to the
Supreme Court of Ohio. Similarly, among other
places, Girts asserted prosecutorial] misconduct (1.e.,
a 5th Amendment violation) as his tenth assignment
of error in his direct appeal to the Eighth District,
and as his eighth proposition of law in his appeal to
the Supreme Court of Ohio. Girts’s 5th and 6th
Amendment grounds for relief, therefore, have been
exhausted and have not been waived for purposes of
Girts’s present petition.
90a
The procedural default doctrine, on the other
hand, bars federal review of a habeas ground for
relief if the state courts below declined to address the
merits of that ground because of the petitioner’s
noncompliance with state procedural rules. See
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In that
regard, when the last explained state court decision
rests upon procedural default as an alternative
ground, a federal district court is not required to
reach the merits of a habeas petition’s claims. McBee
v. Abramajtys, 929 F.2d 264, 265 (6th Cir. 1991).
Accordingly, any claim that the Court determines
was procedurally defaulted in the state courts
generally will not be reviewable in a federal habeas
proceeding.
Two exceptions exist, however. A ground that
has been otherwise procedurally defaulted can be
rescued if the petitioner demonstrates: 1) adequate
cause for the default, and that actual prejudice
resulted from the alleged federal law violation; or 2)
that failure to consider the claim will result in a
fundamental miscarriage of justice. See Coleman uv.
Thompson, 501 U.S. 722, 751 (1991) (emphasis
added). As to the first, “cause” is a legiitmate excuse
for the default, and “prejudice” is actual harm
resulting from the alleged constitutional violation.
See Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th
Cir. 1984), cert. denied, 490 U.S. 1068 (1985). If a
petitioner fails to show sufficient cause for his
procedural default, a reviewing court need not
address the prejyudice prong. See Smith v. Murray,
477 U.S. 527 (1986).
To determine whether a ground has been
procedurally defaulted, a federal court must
91a
determine whether the state courts below addressed
the ground’s merits. To make that determination,
federal courts must rely on the presumption that
there is no independent and adequate state grounds
for a state court decision absent a clear statement to
the contrary. See Coleman, 501 U.S. at 735. Applying
this presumption, and considering the “cause and
prejudice” exception identified above, the Sixth
Circuit established a four-step analysis in Maupin v.
Smith, 785 F.2d 135 (6th Cir. 1986), to determine
whether a ground has been procedurally defaulted.
The Maupin test requires federal courts to
determine:
(1) whether the petitioner failed to
comply with an_ applicable — state
procedural rule;
(2) whether the state courts actually
enforced the state procedural sanction;
(3) whether the state procedural bar is
an “adequate and independent” state
ground on which the state can foreclose
federal review; and
(4) if the above are met, whether the
petitioner has demonstrated “cause” and
“prejudice.”
Id. at 138.
As relevant here, the Sixth Circuit has held
that Ohio's contemporaneous _ objection _ rule
independent” state
92a
ground. See, e.g., Scott v. Mitchell, 209 F.3d 854, 867-
68 (6th Cir. 2000). Moreover, the Sixth Circuit views
a state appellate court’s review for “plain error” as
the enforcement of a procedural violation made at
the trial level. See, e.g., Seymour v. Walker, 224 F.3d
542, 557 (6th Cir. 2000). Accordingly, because Girts
never objected to the _ prosecutors allegedly
inappropriate comments during his _ closing
argument, and because the Eighth District employed
a “plain error” standard of review to Girts’s 5th
Amendment assignment of error in his direct appeal
because his counsel failed to object, the first three
Maupin factors are clearly satisfied. Indeed, the
parties agree that Girts’s third ground for relief is
procedurally defaulted unless he demonstrates
“cause” and “prejudice” under the fourth factor, or
that failure to consider the claim will result in a
fundamental miscarriage of justice. Because the
Court’s determination of the “cause and prejudice”
factor (i.e., a procedural determination) requires
substantive consideration of the alleged prosecutorial
misconduct and alleged ineffective assistance of
counsel, the Court collapses below its procedural and
merits analyses of these two issues.
C. Girts’s Third Ground For Relief Is
Procedurally Defaulted Based On This Court’s
Application Of The AEDPA.
Girts claims that sufficient “cause” and
“prejudice” exist to avoid procedural default of his
third ground for relief. He argues that the “cause” for
his default (1.e., the failure to object at trial to the
prosecutor’s statements) was his trial counsel's
ineffectiveness, which itself presents a_ potential
constitutional violation. See Strickland _ vu,
Washington, 466 U.S. 668 (1984) (setting forth a two-
pronged test for determining whether a defendant
has been constitutionally deprived of effective
assistance of counsel). ‘he Respondent argues that
1) ineffective assistance of counsel is not a valid legal
basis to satisfy the “cause” requirement, and 2) even
if it was, Girts cannot adequately demonstrate that
his counsel acted in a constitutionally inadequate
manner such that the “cause” element is satisfied or
his substantive 6th Amendment ground is well
taken.
The Court rejects the Respondent’s first
argument because the Sixth Circuit has expressly
acknowledged that ineffective assistance of counsel,
if properly established, can satisfy the “cause”
element. Washington v. Hofbauer, 228 F.3d 689 (6th
2000); see also, Gravley v. Mills, 87 F.3d 779, 785
(6th Cir. 1996) (“Attorney error that amounts to
ineffective assistance of counsel can constituted
‘cause’ under the cause and prejudice test.”).
Whether Girts’s counsel’s failure to object at trial
amounted to a constitutional violation, therefore,
becomes the pivotal inquiry here.
The magistrate judge concluded that Girts had
not sufficiently established “cause” by way of
ineffective assistance of counsel. Specifically, the
magistrate judge concluded both that counsel was
not ineffective by failing to object to the prosecutor's
closing argument and that, even if he was ineffective,
his failure to object to the prosecutor's comments
likely had no material effect on the jury’s ultimate
decision to convict. The magistrate judge concluded,
therefore, that Girts’s third ground for relief was
procedurally defaulted. He then went on to analyze
the merits of that ground, however, and further
concluded that the prosecutor’s comments did not
violate Girts’s 5th Amendment rights because the
Eighth ODhistrict’s decision denying’ Girts’s
prosecutorial misconduct argument on direct appeal
was not an unreasonable application of clearly
established federal law. Rather, he found it to be
consistent with the body of federal law regarding the
right to a fair trial and the right against self
incrimination.
For the reasons that follow, the Court agrees
with the magistrate judge’s ultimate conclusion that
Girts’s 5th Amendment ground was _ procedurally
defaulted based on Girts’s inability to demonstrate
“cause” via ineffective assistance of counsel. The
Court disagrees, however, with the his conclusion
that the prosecutor’s comments were not improper.
To the contrary, the Court believes that the
prosecutor engaged in prosecutorial misconduct.
Because the Court's ability to substantively review
that issue is limited by the procedural default
doctrine and the narrow strictures of the AEDPA,
however, the Court is compelled to conclude that
Girts’s conviction must be affirmed, regardless of
that misconduct. Because Girts cannot establish a
6th Amendment ineffective assistance of counsel
claim — thereby satisfying the “cause” factor of the
Maupin test and rescuing his otherwise procedurally
defaulted 5th Amendment ground — or that a
fundamental miscarriage of justice will result, Girts’s
5th Amendment ground for relief, though potentially
meritorious if reviewed de novo, is_ procedurally
defaulted and must be dismissed.
Prosecutorial Misconduct.
Absent prosecutorial misconduct, Girts’s
counsel could not have been expected to object.
Accordingly, the Court’s first determination must be
whether prosecutorial misconduct even occurred.
Because the AEDPA’s narrow standard of review
applies only to a federal habeas court’s review of
claims that have not been procedurally defaulted, the
Court’s analysis of the prosecutorial misconduct
issue at this juncture — i1.e., prior to determining
whether a procedural default occurred — is much
broader.
Girts complains that three statements made
by the prosecutor during closing argument violated
his 5th Amendment rights. Those statements are as
follows:
Again these are his words. And the
words that you heard from these folks
supplied by him are unrefuted, and they
are uncontroverted. There has been no
evidence offered to say that these people
are incorrect. None at all.
Doc. 16 (Trial Transcript) at 1347.
. with respect to the source [of the
cyanide], the defendant had no less than
three occasions to tell the police that he
had ordered the cyanide.
Doc. 16 (Trial Transcript) at 1410.
Ladies and gentlemen, we don't have to
tell you how it was introduced into her
system. We know that it was ingested.
And there is only one person that can tell
you how it was introduced, and that’s the
defendant.
Doc. 16 (Trial Transcript) at 1414.
In assessing whether alleged misconduct
amounts to a constitutional violation, the Court must
view it in light of the totality of the circumstances.
See Hayton v. Egeler, 555 F.2d 599, 604 (6th Cir.
1977). The Court must first determine if the
prosecutor’s comments were “improper.” See Boyle uv.
Million, 201 F.3d 711, 717 (6th Cir. 2000). Then it
must determine whether the comments were
sufficiently “flagrant” to warrant reversal. As
prefaced above, given the procedural context of the
Court’s analysis here — i.e., as a_ prerequisite
determination in the context of analyzing Girts’s 6th
Amendment ineffective assistance of counsel ground
— the Court’s de novo-like conclusions on this issue
are not determinative of the merits of Girts’s 5th
Amendment ground because, ultimately, that ground
is procedurally defaulted. !
‘2 Were the Court to address the merits of Girts’s 5th
Amendment ground as a non-defaulted claim, this Court would
be required to give great deference to the state court decisions
on that issue. While this Court finds that prosecutorial is
conduct occurred, because the Court is not doing a merits
assessment of that claim, it expresses no opinion on the
question of whether the state court’s conclusions to the contrary
were unreasonable within the meaning of the AEDPA.
97a
a. The Siatements Were Clearly
“Improper.”
Unlike the state appellate court and the
magistrate judge, this Court believes that the
prosecutor’s repeated comments on Girts’s decision to
remain silent — both before and during the trial —
crossed the 5th Amendment line and constituted
prosecutorial misconduct. Though of no practical
effect in this case because the Court does not
ultimately believe that the outcome of the trial
clearly would have been different in the absence of
the prosecutor’s comments (a necessary finding given
the procedural default at issue), the Court deems a
brief discussion on this issue worthwhile. The
prosecutor made, not one, but three comments
relating to Girts’s decision not to provide information
to the police (i.e., during the investigation) or the
jury (i.e., during the trial). In sum, the Court simply
disagrees with the Eighth District and _ the
magistrate judge’s view of these comments.
As to the first two statements, though the
Court summarily disagrees with the Eighth District
and magistrate judge’s conclusions, it concedes that
they are the least offensive of the three and that
room for argument exists as to whether they
qualified as permissible “summations” of evidence or
testimony presented. As to the third statement,
however, the Court finds that it clearly crossed the
line and commented on Girts’s silence. In response to
defense counsels closing argument, in which he
pointed out that the State did not prove how Girts
would have had the opportunity to introduce the
poison into Mrs. Girts's food, the prosecutor stated:
Ladies and gentlemen, we don’t have to
tell you how it was introduced into her
system. We know that it was ingested.
And there is only one person that can tell
you how it was introduced, and that’s the
defendant.
Doc. 16 (Trial Transcript) at 1414. To say that the
prosecutor’s comment is appropriate because it was
in response to a defense argument that the State had
presented no proof of how the poison was ingested —
which was the view taken by the Eighth District — is
illogical. Characterizing the prosecutor’s statement
as a “comment on the evidence” enables the State to
take the deficiencies in its own case, which the
defense has every right — indeed, every obligation —
to point out, and utilize those deficiencies against
Girts. So used, such a statement is anything but a
comment on the evidence. For this reason, the Court
believes the prosecutor intended to comment
(especially with regard to the third statement) on
Girts’s failure to testify and that the jury likely
understood the comments to have been offered for
that purpose. Gall v. Parker, 231 F.3d 265 (6th Cir.
2000).
b. The Statements Were Sufficiently
“Flagrant.”
Upon a finding of impropriety, the Sixth
Circuit utilizes four factors to determine whether a
prosecutor's comments are “flagrant” such that they
can be said to have affected a petitioner's substantial
rights: 1) the hkelihood that the remarks would
mislead the jury or prejudice the accused; 2) whether
the remarks were isolated or among a series of
99a
improper statements; 3) whether the remarks were
deliberately or accidentally presented to the jury;
and 4) the totai strength of the evidence against the
defendant. See United States v. Carroll, 26 F.3d
1380, 1385 (6th 1994).
Fiagrancy Factor #1: Did the
Statements Misled the Jury and Were
They Prejudicial?
The Court must cumsider whether the
prosecutor's comments were likely to mislead the
jury or prejudice the defendant. U.S. v. Carter, 236
F.3d 777, 785 (6th Cir. 2001). As the Sixth Circuit
has made clear in its harmless error review of cases
applying the Carroll factors, there exists a strong
presumption that prejudice flows from
unconstitutional comments made by a prosecutor.
See Eberhardt, 605 F.2d at 279. “It is not enough for
the reviewing court to feel that the evidence is strong
and that the defendant probably would have been
convicted anyway.” Jd. “That is a decision for the jury
to make, unaffected by improper argument or
impermissible inferences urged by the prosecutor.”
Id. Accordingly, a presumption exists at the outset
that the improper comments misled the jury aad
were prejudicial — for purposes of defining the
comments as “flagrant.”
Utilizing plain error review, the Sixth Circuit
has recognized that improper insinuations or
suggestions are apt to carry great weight against a
defendant “because a jury generall, has confidence
that a prosecuting attorney is faithfuily observing his
obligation as a representative of a sovereignty.”
Carter, 236 F.3d at 785-86. The Carter court asserted
100a
that there is an even greater potential for misleading
the jury if the error was “central to the Government’s
case.” Id at 786 (prosecutor’s improper statements
included misstatements of a witness’s testimony and
personal attacks on defense counsel’s truthfulness).
Here, the method by which the cyanide was ingested
was “central” to the State’s case, especially to its
effort to refute the impact of Girts’s absence from the
jurisdiction at the time of the murder. There was
great potential for misleading the jury, then, when
the prosecutor made references to Girts as being the
only person who could explain how the cyanide was
ingested. As the State’s' representative, the
prosecutor has a “duty to refrain from improper
methods calculated to produce a wrongful conviction
[and to] use every legitimate means to bring about a
just one.” Id.
Furthermore, prosecutors have “immense
power and influence” when bringing a case against
an accused. Gravely, 87 F.3d at 782. This power is
usually kept in check by safeguards that proscribe
the state from violating the accused’s constitutional
rights. Id. “However, regrettably, in some instances a
prosecutor abuses his or her power and in so doing,
diverges from the goal of seeking truth and justice.”
Id.
Also, juries are composed of lay persons who
are unfamiliar with the rules of evidence, and, in
many cases, unaware of the basic constitutional
rights afforded to criminal defendants. In this case.
the jury would have had no independent knowledge
that a prosecutor is prohibited from commenting on a
defendant’s silence. Additionally, “the prosecutor’s
opinion carries with it the imprimatur of the
10la
Government and may induce the jury to trust the
government's judgment rather than its own view of
the evidence.” Gall, 231 F.3d at 312 (holding that
prosecutor’s improper comments misled the jury and
prejudiced the defendant).
Finally, the jury instruction provided at the
conclusion of Girts’s trial, which instructed the jury
that Girts had a right not to testify, and that his
failure to testify could not be used by the jury for any
purposes, was likely insufficient to cure the damage
caused by the prosecutor's comments. Compare
Carter, 236 F.3d at 787 (ruling that general
instruction given at end of trial, rather than at the
time the comments were made, did not cure the
misconduct), with Galloway, 316 F.3d at 633 (ruling
that judge’s “admonition” expressing _ specific
disapproval of prosecutor’s improper comment was
sufficient to constitute a curative instruction).
“Ordinarily a court should not overturn a criminal
conviction on the basis of a prosecutor’s comments
alone, especially where the district court has given
the jury an instruction that may cure the error.”
Carter, 236 F.3d at 787. Juries are generally
presumed to understand and follow the judge’s
instructions. Id. Where, however, the only possible
curative instruction occurred durirz the judge’s
general, routine jury instruction with no explicit
reference to the impruper comments, chere can be no
basis upon which to find that the instruction
mitigated the jury’s tendercy to prejudicially
consider the unconstitutional comments. See Carter,
236 F.3d at 787-88. Only if the trial judge had given
an instruction at the time the comments were made,
specifically mentioning the improper comments,
would the instruction be potentially curative. See id.
A defendant’s presumption of prejudice, the
prosecutors role as a_ representative of the
sovereignty, the immense power and influence the
prosecutor has over a jury, the fact that juries are
often unaware of basic constitutional law, and the
absence of a prompt, specific curative instruction
demonstrates that the prosecutor’s comments 1n this
case likely misled the jury into believing that Girts’s
silence amounted to guilt.
Flagrancy Factor #2: Were the
Comments Isolated or Among a
Series of Improper Comments?
Next, the Court considers the frequency of the
prosecutor's references to Girts’s silence. See
Gravely, 87 F.3d at 789; Carter, 236 F.3d at 788;
Hearn, 708 F.2d at 1077; Eberhardt, 605 F.2d at 279.
“(P]reyudice may be magnified by the cumulative
effect of repeated improper conduct.” Eberhardt, 605
F.2d at 277 (quoting U.S. v. Smith, 500 F.2d 293, 297
(6th Cir. 1974)). Although the jury is usually more
often misled, and the defendant more often
prejudiced, by repeated or extensive improper
comments, “[i]t only takes a single comment... to
remind a jury that the defendant has not testified
and to fix in the jurors’ minds the impermissible
inference that the defendant is guilty merely because
of his exercise of that right.” See Gravely, 87 F.3d at
789 (prosecutor improperly commented on silence
throughout cross-examination and in_ closing
statements); Hearn, 708 F.2d _~— at 1077-78
(prosecutor’s comments were made during opening
statements and repeated during closing statements);
compare Eberhardt, 605 F.2d at 279 (“relatively brief
103a
and junjrepeated” comment was prejudica! partly
because judge did not give a strong, prompt curative
instruction) with Greer v. Miller, 483 U.S. 756, 766
(1987) (single comment followed by prompt objection
and two curative instructions was not prejudicial).
In this case, the prosecution commented on
Girts’s silence not once, but three times during
closing arguments. Although there are no allegations
that improper comments were made during opening
statements, or on cross-examination, the cumulative
effect of all three statements may very well have
sufficiently “[fixed] in the jurors’ minds the
impermissible inference that the defendant is guilty.”
See Eberhardt, 605 F.2d at 279. In Carter, supra, the
court stated that simply because the improper
comments were made during closing arguments did
not render them any less problematic than if they
had been made elsewhere in the trial. Jd. at 789.
Here, the prosecutor made all three comments
during closing argument. However, as previously
noted, unconstitutional comments are treated
equally, regardless of when they are made, and will
not be viewed as less prejudicial if only made during
closing arguments. See Tarwater, 308 F.3d at 511
(stating that the prosecutor “may not comment on a
defendant’s post-arrest silent in their case in chief,
on crossexamination, or in closing arguments’)
(citing Doyle v. Ohio, 426 U.S. 610, 619-20 (1976)).
Consequently, it is entirely possible that the
prosecutor's comments misled the jury, regardless of
whether they are viewed cumulatively or as three
separate accounts.
Flagrancy Factor #3: Were the
Comments Deliberately Placed
Before the Jury?
Next, the Court considers whether the
comments were deliberately or accidentally placed
before the jury. See Galloway, 316 F.8d at 632;
Tarwater, 308 F.3d at 511; Carter, 236 F.3d at 790;
Hearn v. Mintzes, 708 F.2d at 1077. In Hearn, the
prosecution attempted to justify its improper
comments by arguing that they were merely
intended to respond to defense counsel’s promise that
the victim’s testimony would be disputed by the
defendant. See Hearn, 708 F.2d at 1077. The court
rejected that argument, pointing out that the trial
record showed that the defense made no such
“promise” during its opening statement. Id. The court
ruled that the prosecutor intended to comment on
the defendant’s silence, or at least intended that his
comment be interpreted by the jury as drawing
attention thereto. Jd. at 1077-78.
Here, Girts’s counsel never mentioned
anything in his opening statement about Girts
testifying or not testifying. Tr. at 511-15. Throughout
his opening statement, Girts’s counsel merely made
general statements about what the jury would see
and hear throughout the trial. No promises were
made to the effect that Girts himself would testify. In
such circumstances, the prosecutors comments
regarding Girts’s silence at trial were simply
unjustifiable.
In Carter, the court stated that the “very
repetition with which the prosecutor [made improper
comments], in and of itself, reveals that such
105a
comments were not accidentally placed before the
jury. Carter, 236 F.3d at 791. As previously
discussed, the prosecutor in this case commented on
Girts’s silence three times during his closing
argument. The mere fact that the prosecutor made
three similar comments, therefore, is a sufficient
basis upon which to conclude that he did so
intentionally, and in no way “accidentally” placed the
comments before the jury.
Flagrancy Factor #4: What Was the
Strength of the Evidence Against the
Defendant?
The fourth Carroll factor involves the overall
strength of the State’s evidence. See Carter, 236 F.3d
at 791. To sustain a finding of harmless error, which
is the standard the Court is to employ in this
context, the Sixth Circuit has repeatedly required
the State’s evidence to be “overwhelming.” See
Galloway, 316 F.3d at 632; Tarwater, 308 F.3d at
511; Carter, 236 F.3d at 791; Hearn, 708 F.2d at
1077; Eberhardt, 605 F.2d at 279. Though the State’s
evidence in this case was certainly strong, the Court
cannot say that it was so overwhelming as to
overcome the impropriety of the _ prosecutor's
comments. This is true for a number of reasons.
First, Girts was out of town at the time of his
wife’s. death. While it may be true that, in cases of
death by poison, it is not absolutely necessary that
the killer be in close proximity the victim at the time
of death, his absence from the jurisdiction is a strong
point of his defense. As was undoubtedly the position
of the prosecution, Girts may have placed poison in
food, beverage, or other substances that he knew his
106a
wife would ingest in the days prior to her death. On
the other hand, there was serious dispute, and
certainly room for disagreement, as to exactly how
the poison was ingested. The only available
explanation — that she might have eaten poisoned
pasta salad that was in the refrigerator — is suspect
because Mrs. Girts’s sister ate from the same bow! of
pasta salad without harmful consequence.
Second, room for disagreement exists as to the
cause of death. During the first autopsy, the coroner
found “reddening of the skin, which would typically
be found in a person exposed to carbon monoxide.”
See R&R at p. 2. The coroner could not find evidence
of carbon monoxide exposure, however, and, thus,
listed no cause of death. Furthermore, the first set of
toxicologists’ tests for cyanide presence failed to
produce results, allegedly due to compromised
reagents. See id. Although a second test did result in
a positive indication of cyanide, several of the
symptoms associated with cyanide poisoning were
not present. See id. at 7-8.
At least one expert noted, moreover, that one
of the two symptoms present could be explained by
the immediate refrigeration of the decedent’s body
after being taken from the warm bathtub in which
she was found. See id. at 8. Combining these facts
with the questions relating to how cyanide could
have been ingested raises the question of whether
cyanide poisoning was the cause of death. Though
these arguments certainly do not present a clear case
for acquittal, especially in hght of evidence relating
to Girts’s motive and access to cyanide, they are not
frivolous. In light of these non-frivolous arguments,
while the State’s evidence against Girts was
107a
certainly strong, it is difficult to characterize it as
“overwhelming.”
For all these reasons, the Court finds that
prosecutorial misconduct did occur during closing
argument. Because the ultimate impact of the
prosecutorial misconduct claim for relief turns on
Girts’s ineffective assistance of counsel claim,
however, the Court’s view at this stage that
prosecutorial misconduct occurred is not
determinative of Girts’s right to the relief he seeks.
2. Girts’s 6th Amendment Ineffective
Assistance Of Counsel Ground Fails.
Having determined that the prosecutor’s
comments were improper, the Court now turns to the
issue of whether defense counsel’s failure to object to
that misconduct violated the Supreme Court’s 6th
Amendment “effective assistance of counsel”
standard set forth in Strickland v. Washington, 466
U.S. 668 (1984), such that Girts’s 5th Amendment
ground can avoid procedural default in this case.
More precisely, pursuant to the AEDPA, the Court
must determine whether the state courts’ application
of the Strickland standard, when it found that
Girts’s counsel’s alleged deficiency did not rise to the
level of constitutional “ineffective assistance,” was an
unreasonable application of Strickland. Though the
Court finds that an objection to the comments
certainly would not have been frivolous, because the
comments were improper, it cannot say that the
state appellate court’s conclusion —- that no
Strickland violation occurred — was based on an
unreasonable application of federal law. Accordingly,
despite this Court’s view that misconduct occurred,
its narrow review under the AEDPA in this context
prevents a finding of “cause” to rescue Girts’s third
ground from procedural default.
An essential ingredient of the 6th Amendment
right to counsel is that counsel provide
constitutionally effective assistance. See Powell v.
Alabama, 287 U.S. 45, 57 (1932). In Strickland uv.
Washington, 466 U.S. 668 (1984) , the Supreme
Court established that the benchmark of
effectiveness “must be whether counsel’s conduct so
undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.” 466 U.S. at 686. The
Strickland Court set out a two-part inquiry to
determine whether trial counsel's assistance is
constitutionally ineffective.
First, a defendant must show that counsel’s
performance was “deficient,” involving “errors so
serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth
Amendment.” /d. at 687. This requires that counsel’s
conduct “fell below an_ objective standard of
reasonableness,” Tucker v. Prelesnik, 181 F.3d 747
(6th Cir. 1999), and that counsel’s “identified acts
and omissions were outside the range of
professionally competent assistance.” Jd. at 690. In
making this determination, a court must “indulge a
strong presumption that counsel’s conduct falls
within the wide range of reasonable professional
assistance,” and it is the defendant who “bears the
burden of overcoming the presumption that the
challenged action might be considered sound trial
strategy.” Tucker, 181 F.3d at 754 (citation omitted).
Courts must not view a trial in hindsight, but must
109a
evaluate the reasonableness of counsel’s performance
within the context of the circumstances at the time of
the alleged errors. See McQueen v. Scroggy, 99 F.3d
1302, 1311 (6th Cir. 1996). The Sixth Circuit has on
several occasions found that a counsel’s failure to
object to prosecutorial misconduct constitutes
defective performance when that failure is due to
clear inexperience or lack of knowledge of the
controlling law, rather than reasonable trial
strategy. See, e.g., Gravely v. Mills, 87 F.3d 779, 785-
86 (6th Cir. 1996); Rachel v. Bordenkircher, 590 F.2d
200, 204 (6th Cir. 1978).
Second, even if counsel’s performance is
deemed deficient, a defendant must show that those
deficiencies were prejudicial to the defense. See
Strickland, 466 U.S. at 692. To establish prejudice
for this purpose, is distinct from the standard
previously discussed in connection with determining
whether a prosecutor’s comments were “flagrant,” a
defendant must demonstrate that there “is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.” Jd. at 694. A reasonable
probability is “a probability sufficient to undermine
confidence in the outcome.” /d.
Because the AEDPA applies to all substantive
grounds for relief in this case, the Court must assess
the state court's application of Strickland to the facts
of this case to determine whether that application
was objectively unreasonable. See Williams vu. Tavlor,
529 U.S. 362 (2000).
110a
a. Girts’s Traii Counsel’s Performance Was
Deficieni.
Based on this Court's prior determination that the
prosecutor’s comments crossed the 5th Amendment
line, it is axiomatic that defense counsel’s failure to
object constituted “deficient” representation for
purposes of a Strickland analysis. Indeed, the state
courts and the magistrate judge employed the same
logic — only in the opposite direction — to find that no
6th Amendment violation could have occurred in the
absence of prosecutorial misconduct.
Because the Court disagrees with the
underlying legal conclusion, however, a comparison
of their analyses and the Court’s analysis on this
point would not be an “apples to apples” comparison
for purposes of AEDPA review. Because the Court
finds that misconduct occurred, it must lkewise
characterize defense counsel’s responsive inaction as
“deficient.”
b. Girts Cannot Demonstrate Prejudice Under
Strickland.
Whether the above deficiency rose to a
constitutional level warranting habeas relief requires
a finding of Strickland prejudice. Because the Eighth
District concluded that no misconduct occurred, it
understandably did not conduct a formal 6th
Amendment Strickland analysis. It determined,
nevertheless, that “nothing in the record suggests
that, but for these comments, the verdict would
clearly have been different,” which is the Strickland
prejudice standard. Doc. 17, Ex. 23 at p. 39. It
appears, accordingly, that the Eighth District did
lila
address the Strickland prejudice prong, albeit
indirectly. Accordingly, per the AEDPA, this Court
must afford deference to the Eighth District’s
determination and find that a _ reversible 6th
Amendment violation occurred only if that
determination arose from an_ unreasonable
application of federal law. Though the Court
considers the facts of this case to be a cluse call, as
evidenced by its analysis supra, and may have found
differently if a de novo review were employed, the
Court does not find that the Eighth District’s finding
of “no »rejudice” was an unreasonable application of
federal law.
While this Court has found that the evidence
against Girts was not “overwhelming,” it was strong.
Reasonabie jurors clearly could have reached a guilty
verdict in this case even in the absence of the
prosecutorial misconduct which securred. The Eighth
District’s conclusion that the jury’s verdict would not
likely have been different had the prosecutor not
made the comments in question, therefore, cannot be
said to be unreaso
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