       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Baze v. Parker                              No. 03-5112
    ELECTRONIC CITATION: 2004 FED App. 0173P (6th Cir.)
                File Name: 04a0173p.06                    Milton Coburn Toby, PERCH & TOBY, Lexington,
                                                          Kentucky, for Appellant. David A. Smith, Brian T. Judy,
                                                          OFFICE OF THE ATTORNEY GENERAL, Frankfort,
UNITED STATES COURT OF APPEALS                            Kentucky, for Appellee.
              FOR THE SIXTH CIRCUIT                         BOGGS, C. J., delivered the opinion of the court, in which
                _________________                         COOK, J., joined. COLE, J. (pp. 29-38), delivered a separate
                                                          opinion concurring in part and dissenting in part.
 RALPH STEPHENS BAZE , JR.,       X
          Petitioner-Appellant, -                                             _________________
                                   -
                                   -   No. 03-5112                                OPINION
            v.                     -                                          _________________
                                    >
                                   ,                        BOGGS, Chief Judge. Petitioner Ralph Baze, Jr. was
 PHILIP PARKER, Warden,            -                      convicted of the 1992 murders of Sheriff Steven Bennett and
 Kentucky State Penitentiary,      -                      Deputy Sheriff Arthur Briscoe, whom he shot in the back
         Respondent-Appellee. -                           when they attempted to arrest him pursuant to an outstanding
                                   -                      Ohio multiple-felony arrest warrant. The jury sentenced Baze
                                  N                       to death. The Kentucky Supreme Court affirmed his
       Appeal from the United States District Court       conviction and sentence on direct appeal, and it denied relief
     for the Eastern District of Kentucky at Ashland.     in state post-conviction proceedings. Baze petitioned for
   No. 01-00031—Henry R. Wilhoit, Jr., District Judge.    federal habeas relief, pursuant to 28 U.S.C. § 2254, which the
                                                          United States District Court for the Eastern District of
              Argued: December 10, 2003                   Kentucky denied in a series of exhaustive opinions. For the
                                                          reasons elaborated upon below, we affirm the district court's
            Decided and Filed: June 9, 2004               denial of Baze’s petition.

  Before: BOGGS, Chief Judge; and COLE and COOK,                                        I
                  Circuit Judges.
                                                            Ralph Baze lived in Powell County, Kentucky, in a
                  _________________                       mountain hollow known as Little Hardwick’s Creek, with his
                                                          wife. Some of his other relatives lived on another ridge of the
                       COUNSEL                            same mountain. His cabin was at the end of gravel road,
                                                          heavily wooded on both sides, approximately 1,000 feet up
ARGUED: Timothy T. Riddell, PERCH & TOBY,                 the mountain, in a small clearing that made maneuvering a
Lexington, Kentucky, for Appellant. David A. Smith,       vehicle very difficult. By January 1992, the time of the
OFFICE OF THE ATTORNEY GENERAL, Frankfort,                shootings, Baze was a twice-convicted felon and was wanted
Kentucky, for Appellee. ON BRIEF: Timothy T. Riddell,

                            1
No. 03-5112                               Baze v. Parker       3    4     Baze v. Parker                               No. 03-5112

in Ohio for felonious assault of a police officer, jumping bail,    arrived back first, followed by Sheriff Bennett. Both got out
receiving stolen property, and flagrant non-support.                of their cruisers with their guns out and they came together on
                                                                    the rear driver’s side of Bennett’s cruiser. Baze’s wife Becky
  On January 15, 1992, authorities from the Lucas County            was yelling at them from the porch of the cabin, so that when
Sheriff’s Office in Toledo, Ohio notified the Powell County         they turned to engage her, they had their backs to the woods
authorities that they wished to extradite Baze on the felony        where Baze was hiding. All agree that at that moment gunfire
counts. At that time, Baze was in Ohio, and his wife, Becky         began.
Baze, informed the police that she did not know where he was
when they came to arrest her husband in mid-January. She               Baze testified that he moved out from behind a large stump
then phoned Baze to warn him that the police were looking           and brush pile, unarmed, intending to surrender, but that
for him. Baze left Ohio for Michigan, where he bought a             Briscoe shot him in the leg with a pistol. Wesley and Sophie
SKS assault rifle and ammunition, which he ultimately used          McCarty supported Baze’s version by testifying that Baze
to kill the two police officers.                                    stood up without a gun. In contrast, Baze’s son-in-law, Greg
                                                                    Profitt, who was also at the house, testified that Baze shot
   Baze returned to his brother-in-law’s house in nearby Bath       first, but he admitted that he could not distinguish between
County, Kentucky, on January 28 and decided to move to              rifle and pistol fire. Becky Baze also testified that Baze shot
Florida. He returned to his cabin on January 30 with his wife,      first, causing Bennett to turn his head back to his right to see
and his siblings-in-law, Wesley and Sophie McCarty,                 where the gunfire was coming from. The policemen who
intending to hold a yard sale to lighten their load and then to     were driving up the road to lend support testified that the first
leave for Florida that evening. Deputy Sheriff Briscoe heard        6-10 shots they heard were rifle fire.
that Baze was back in town and proceeded to Baze’s cabin to
arrest him. When Briscoe arrived, Baze was inside; however,            Briscoe and Bennett then turned to face the woods and took
he could hear Briscoe announce his intention to Becky to            cover behind the police cruiser on the driver’s side, with
arrest her husband. While Briscoe returned to his cruiser,          Briscoe shooting over the hood and Bennett over the trunk.
Baze left the cabin through a trapdoor in the bedroom floor,        For reasons that are unclear, Bennett moved around the rear
retrieved his SKS assault rifle from behind the cabin, and then     of the cruiser and opened the back passenger door as if to get
walked around the cabin to inform Briscoe that he would not         into the back seat, in fact crossing directly into Baze’s line of
allow himself to be arrested. Wesley McCarty intervened to          fire. Thereupon, Baze shot him three times in the back. Baze
avoid a confrontation, during which Briscoe put his hand on         then started to walk down the hill towards Briscoe, who
or near his holster. Becky grabbed Briscoe’s arm, and Baze          continued to shoot at Baze over the hood of the police cruiser
used the opportunity to leave the immediate area. Briscoe           until he ran out of ammunition, and Baze was too close to
then left in his cruiser to recruit additional officers to effect   give him time to reload. Briscoe then turned to attempt to
the arrest.                                                         escape and, after he had gone about ten feet, Baze shot him
                                                                    twice in the back. Wesley McCarty described Briscoe as
   Baze used the interim to gather his personal belongings,         “staggering away” before he fell on his face. Baze then
and 98 rounds of ammunition, and went uphill into the               approached the fallen officer and, allegedly thinking that he
woods. He later told the Louisville Courier-Journal that he         might be reaching for his gun, shot Briscoe in the head at
circled around to hide behind a stump behind the spot where         point-blank range.
the police would have to leave their cars. Deputy Briscoe
No. 03-5112                               Baze v. Parker       5    6      Baze v. Parker                              No. 03-5112

  Baze then picked up the weapons and ammunition and fled           verdict form; 4) improper introduction of character evidence
on foot to adjoining Estill County. He surrendered without          and unrelated out-of-state charges; 5) refusal to introduce
incident at 8 p.m. that evening at the home of the former Estill    Baze’s federal firearms sentence; and 6) cumulative effect of
County Sheriff, where he received his Miranda warnings.             errors.
Upon overhearing a query over the radio as to whether the
arresting officer had the correct suspect, Baze responded:                                        II
“You tell them that you got the right man. I’m the one that
killed them son-of-a-bitches.”                                         When reviewing a denial of habeas corpus relief, this court
                                                                    reviews the district court’s legal conclusions de novo and its
   Baze was tried in Rowan County, convicted, and sentenced         factual findings under a “clearly erroneous” standard. Skaggs
to death in February 1994 for shooting the officers. The            v. Parker, 235 F.3d 261, 266 (6th Cir. 2000). The Anti-
Kentucky Supreme Court affirmed the sentence on direct              Terrorism and Effective Death Penalty Act of 1996 (AEDPA)
appeal in November 1997. Baze v. Commonweath, 965                   governs the review of the state court decisions involved in
S.W.2d 817 (Ky. 1997) (Baze I). The United States Supreme           this case and mandates additional deference to state court
Court denied certiorari in April 1998. Baze filed a motion to       proceedings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
vacate his sentence under Kentucky’s post-conviction review         1998).
procedure, asserting, among other things, ineffective
assistance of counsel due to irregularities in the use of his           In AEDPA, Congress provided that:
peremptory challenges. The state trial court denied the
motion to vacate without conducting an evidentiary hearing,             An application for a writ of habeas corpus on behalf of a
a decision that the Kentucky Supreme Court affirmed in April            person in custody pursuant to the judgment of a State
2000. Baze v. Commonweath, 23 S.W.3d 619 (Ky. 2000)                     court shall not be granted with respect to any claim that
(Baze II). Certiorari was again denied, in February 2001.               was adjudicated on the merits in State court proceedings
                                                                        unless the adjudication of the claim--
   Baze then filed a petition for a writ of habeas corpus in the
United States District Court for the Eastern District of                (1) resulted in a decision that was contrary to, or an
Kentucky in April 2001. The district court denied a motion              involved an unreasonable application of, clearly
for an evidentiary hearing on September 23, 2002, and denied            established Federal law, as determined by the Supreme
the habeas petition four days later. The district court denied          Court of the United States; or
a motion to alter or amend the judgment on December 23,
2002 but “in an abundance of caution” issued a certificate of           (2) resulted in a decision that was based on an
appealability on all of the issues that Baze raised. Baze then          unreasonable determination of the facts in light of the
filed an appeal with this court asserting twelve points of error.       evidence presented in the State court proceeding.
Most salient for this opinion are his assertions of ineffective     28 U.S.C. § 2254(d).
assistance of counsel and improper limitations on his ability
to exercise his peremptory challenges. He also alleges denial          A state court decision is “contrary to” Supreme Court
of due process because of claims of: 1) trial court interference    precedent “if the state court arrives at a conclusion opposite
with presentation of a defense; 2) refusal to strike six jurors     to that reached by [the] Court on a question of law,” or “if the
for cause; 3) improper jury admonition, instructions, and           state court confronts facts that are materially indistinguishable
No. 03-5112                                 Baze v. Parker       7    8      Baze v. Parker                             No. 03-5112

from a relevant Supreme Court precedent and arrives at a              that her job would affect her ability to be impartial, but then,
result opposite to” the Court’s decision. Williams v. Taylor,         upon further probing by the judge, changed her mind, stating
529 U.S. 362, 405 (2000). A state court decision involves an          that she could listen to testimony and be fair. During the
“unreasonable application” of clearly established Supreme             subsequent individual voir dire, Ms. Perkins stated that she
Court precedent when it correctly identifies the governing            had been a corrections officer for six years but that her job
legal standard but applies that standard in an objectively            would not affect her judgment in the case. She also did not
unreasonable, as opposed to merely incorrect, manner. Id. at          think she would feel pressure from her prison colleagues to
409-11. Furthermore, state findings of fact are presumed to           render a particular verdict.
be correct unless the defendant can rebut the presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).                  The defense moved that she be struck for cause, both
Finally, review is conducted in light of the law as it existed at     because of her job knowledge about parole and sentencing
the time of the final state court decision, Teague v. Lane, 489       rules, and because she might be swayed by the remote
U.S. 288 (1989), unless an intervening constitutional decision        possibility that she would meet Baze in prison, should he be
announces a “watershed” rule of criminal law with                     convicted but not sentenced to death. The court denied the
implications for the fundamental fairness of the trial                motion, after questioning Ms. Perkins to make sure that she
proceeding. Caspari v. Bohlen, 510 U.S. 383, 396 (1994).              was not intimidated by the theoretical possibility of meeting
                                                                      Baze at some later date. Nothing in the record suggests that
  Most of Baze’s habeas claims are based on challenges to             this court should not defer to the trial court’s determination
interpretations of state law and therefore this court may only        that Ms. Perkins’s responses were credible and that she could
grant relief if his Fourteenth Amendment Due Process rights           be impartial. 28 U.S.C. § 2254(e)(1); see Patton v. Yount,
are implicated, an extremely high standard that Baze cannot           467 U.S. 1025, 1038 (1984).
meet. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (stating that
federal habeas corpus relief does not lie for errors of state           After the voir dire, the court instructed counsel to submit
law). Therefore, we will consider Baze’s clear constitutional         their lists of peremptory strikes by 8:45 the next morning.
claim – ineffective assistance of counsel – first, and then           Defense counsel conferred that night and eliminated nine
address the claims based on state law.                                potential jurors, Baze’s statutory limit, including Ms. Perkins.
                                                                      Mr. Riley, the lead counsel, described to the judge what
Ineffective Assistance of Counsel                                     happened then:
   Baze argues on appeal that he was denied effective                     We picked the nine, put it on a piece of paper, and, left
assistance of counsel when his lawyers negligently omitted                the piece of paper with the other two individuals on the
the name of a corrections officer from the list of peremptory             defense team, with the instructions to write down the
strikes, which resulted in the officer sitting on the jury.               strikes. I didn’t even look at them. They were late
                                                                          getting here this morning. I grabbed the piece of paper
   The events that resulted in Ms. Sharon Perkins, a                      from them, copied it, gave it – and, about the same time,
corrections officer, sitting on Baze’s jury are somewhat                  they noticed there was eight, we noticed there was eight.
convoluted. Ms. Perkins approached the judge with another                 We had decided, as a team, not to ask for the ninth,
corrections officer to bring to his attention their potential bias.       because it was our mistake, and we screwed up. At that
In response to the judge’s questions, Ms. Perkins initially said          time, your paralegal and the clerk came out, and, said
No. 03-5112                                      Baze v. Parker          9    10   Baze v. Parker                               No. 03-5112

  there was a ninth one . . . . So, we gave them the ninth                    U.S. 1025 (1999)). The Kentucky Supreme Court also held
  name. We will live by any ruling of the Court. I don’t                      that the decision not to use the peremptory challenge against
  expect them to believe that it was an unintentional error,                  Ms. Perkins amounted to “trial strategy.” It did not refer to
  but I tell you, it was an unintentional error, on our part.                 the specific circumstances of this case in its decision,
                                                                              characterizing the appellant’s argument as: “his trial counsel
   Both the judge and the district attorney accepted the                      was constitutionally deficient in negligently failing to
contention that the error was inadvertent, but the prosecution                exercise a ninth peremptory challenge available to the
immediately objected to amending the strike list to include                   defense.” Baze II, 23 S.W.3d at 623. The court then simply
Ms. Perkins. The judge initially decided to resolve the                       analyzed the claim under the law governing peremptory
question by eliminating the final juror by lottery.1 At that                  challenges, rather than ineffective assistance of counsel.
point in the proceedings, another potential juror, Willie
Wagoner, requested to be excused because his wife opposed                        Although the point was not argued in either brief, this court
the death penalty, although he did not. He feared, however,                   must first consider if we may review Baze’s claim, given that
that his participation in the trial would “cause conflict . . . in            it is procedurally barred under Kentucky law, as set down in
my home.” The judge decided that he should be excused and                     Sanborn. Nevertheless, the Kentucky Supreme Court
proceeded “as if he [Wagoner] would be the juror that was                     addressed, albeit in summary fashion, Baze’s claim on the
struck.” In essence, therefore, the judge exercised Baze’s                    merits. Baze II, 23 S.W.3d at 624. If a state court does not
final peremptory strike. Baze’s lawyer responded: “We are                     expressly rely on a procedural deficiency, then a federal court
not crazy about giving up any of the jurors that we didn’t                    may conduct habeas review. Caldwell v. Mississippi,
strike, but, we will live with whatever the . . . [court                      472 U.S. 320, 327 (1985); Bowling v. Parker, 344 F.3d 487,
decides].” The prosecution responded that “[I] will abide by                  499 (6th Cir. 2003) (proceeding to consideration of the merits
the Court’s ruling, but I will object to it.” As a result, Ms.                of petitioner’s claims because the Kentucky Supreme Court
Perkins sat on the jury and ultimately voted with her fellow                  reviewed the ineffective assistance of counsel claims on the
jurors both to find Baze guilty and to impose the death                       merits, in spite of a procedural bar to review, and therefore
penalty.                                                                      the reliance on procedural default was not “unambiguous”).
                                                                              Subsequent discussion of the merits did not always cast a
  In two paragraphs, the Kentucky Supreme Court considered                    doubt on the procedural bar, however. Simpson v. Jones, 238
and rejected Baze’s ineffective assistance of counsel                         F.3d 399, 407-09 (6th Cir. 2000); Clifford v. Chandler, 333
argument related to the voir dire described above, on the                     F.3d 724, 728-29 (6th Cir. 2003), overruled in part on other
grounds that the claim, litigated on its merits in Baze I, could              grounds by Wiggins v. Smith, 123 S.Ct. 2527 (2003). Clifford
not be resubmitted under the guise of ineffective assistance of               held that when a state court relies on an independent
counsel. Baze II, 23 S.W.3d at 624 (citing Sanborn v.                         procedural ground to deny relief, a discussion of the merits
Commonwealth, 975 S.W.2d 905 (1998), cert. denied, 526                        will not supersede the procedural bar to habeas relief.
                                                                                Although it could be argued that the Kentucky Supreme
    1
      Under local court procedure, fourteen jurors hear all of the evidence   Court relied on the procedural bar to dismiss Baze’s claim of
and then two are chosen by lottery as alternates, after the closing           ineffective assistance of counsel, the district court held that
argumen ts, and do not participate in the deliberations. Therefore,           the claim was not procedurally defaulted and considered it on
excusing extra jurors by lottery is a well-established practice in Kentucky
state courts. See also Ky. R . Crim. P. 9.3 6(2).
                                                                              the merits. The Commonwealth of Kentucky did not raise the
No. 03-5112                               Baze v. Parker     11    12   Baze v. Parker                               No. 03-5112

question of procedural default in its response brief to Baze’s     course should be followed.” Strickland, 466 U.S. at 697.
appeal, but rather opposed the claim on the merits. The state      Although the performance of Baze’s counsel arguably fell
may waive a defense by not asserting it. Scott v. Collins, 286     below reasonable competence, Baze cannot show that he was
F.3d 923, 927-28 (6th Cir. 2002). Therefore, we also consider      prejudiced by these deficiencies. Nothing in the record
Baze’s ineffective assistance claim on the merits.                 suggests “a reasonable probability that, but for counsel’s
                                                                   unprofessional errors, the result of the proceeding would have
  AEDPA requires that a court considering a habeas petition        been different.” Strickland, 466 U.S. at 694. Even with a
limit its analysis to the law as it was “clearly established”      jury not entirely in line with Baze’s preferences, the trial was
under Supreme Court precedent at the time of the state court       not unreliable or fundamentally unfair. Lockhart v. Fretwell,
decision. 28 U.S.C. § 2254(d)(1). At the time of Baze II, the      506 U.S. 364, 372 (1993).
Strickland two-part test for determining ineffective assistance
of counsel was well-known, Strickland v. Washington, 466              Of the fourteen veniremen selected to hear the evidence
U.S. 668 (1984), and governed the analysis of the claim.           during trial, eleven, including Ms. Perkins, answered the
Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001). We are       questions about attitudes toward the death penalty without
unsure whether the Kentucky Supreme Court applied the              significant elaboration, stating that they could impose it if
Strickland test in its discussion of Baze’s ineffective            warranted, as the Supreme Court required in Wainwright v.
assistance of counsel claim. Baze II, 23 S.W.3d at 624. We         Witt, 469 U.S. 412, 424 (1985). One answered that she would
need not decide whether AEDPA deferential review should be         “consider it less,” but reaffirmed that she would decide on the
applied to the state court’s decision in this respect because      evidence. The Commonwealth unsuccessfully moved to
even if we were to review the claim de novo, Baze has not          strike her for cause on the grounds that she would not
established that he was prejudiced by his counsel’s                consider the death penalty, and the record shows that she was
mishandling of the peremptory strike list.                         removed from a previous death penalty case jury through a
                                                                   peremptory strike. Another juror stated that he would start by
   Under Strickland, courts are required to determine whether      thinking about the death penalty, but would consider the
1) the performance of the attorney fell below an objective         range of penalties. The defense unsuccessfully objected to
standard of reasonableness; and 2) the deficient performance       him on the grounds of insufficient follow-up to his responses.
prejudiced the defense. Strickland, 466 U.S. at 688, 691-92.       Finally, Baze’s counsel interpreted a third juror’s comment in
A clerical error such as one at issue in this case does not give   general voir dire to mean that she would only reject the death
rise to automatic relief. Yarborough v. Gentry, 124 S. Ct. 1, 6    penalty if the crime were a crime of passion, which in
(2003). Rather, the Sixth Amendment guarantees reasonable          Kentucky is a non-death penalty offense. The defense did not
competence, not perfect litigation. Ibid. (citing cases);          move to have her removed for cause.
McQueen v. Scroggy, 99 F.3d 1302, 1315 (6th Cir. 1996)
(stating that an attorney “merely losing, being wrong, or            On balance, therefore, the record reveals that eleven of the
miscalculating is not enough to free every person convicted        jurors were neutral on the death penalty (able to condemn a
of a crime”).                                                      guilty defendant to death but not impose the death penalty
                                                                   automatically); two may have leaned slightly towards the
  We do not need to address the question of competence,            death penalty as the most proper sanction for murder, and one
however: “[i]f it is easier to dispose of an ineffectiveness       may have leaned in the other direction. Given that make-up,
claim on the ground of lack of sufficient prejudice . . . that     no plausible argument for prejudice can be made.
No. 03-5112                               Baze v. Parker     13    14   Baze v. Parker                               No. 03-5112

  Baze argues that the trial judge prejudiced his case when he     and then excused Wagoner, the record does not reveal who
excused Juror Wagoner, who, after being qualified,                 the next juror would have been. The judge suspended
approached the judge just before the panel was sworn in to         individual voir dire after 29 jurors were qualified. Four
state that sitting on the jury would cause difficulties in his     additional jurors had made it to the second jury pool of thirty,
marriage. Baze theorizes that Wagoner would have been              but the record only contains their names. As a precaution, the
disinclined to impose the death penalty in deference to his        judge asked them to return the morning that the jury was
wife’s moral convictions against it. This assumption               seated in case one or more jurors had second thoughts
presupposes that Wagoner, to placate his wife, would have          overnight, but once Wagoner had been excused and Perkins
violated his oath as a juror to base his decision solely on the    seated, evening out the numbers, these four extra potential
evidence presented in court. Had he been willing to bend the       jurors were excused without any inquiry into their
rules, however, he would not have asked to be excused since        qualifications to sit on the jury.
he could have avoided marital strife simply by following his
wife’s wishes; his scruples indicate that he took the process        Therefore, one is left with pure speculation on whether the
seriously, and therefore Baze’s theory that Wagoner would          outcome of the trial or the penalty phase could have been any
have voted against the death penalty is not convincing.            different, an insufficient basis for a successful claim of
                                                                   prejudice. McQueen, 99 F.3d at 1321 (stating that a
  Wagoner seemed hesitant about the death penalty in the           defendant cannot successfully claim constitutional error
individual voir dire, stating that it was appropriate under        simply because he might have been better off with a different
“certain circumstances.” Ironically, the defense wanted the        jury). Although the procedure for removing Wagoner from
judge to question Wagoner further before finding him               the jury was somewhat improvised, it was constitutional.
qualified because of the attorney’s experience that when a         United States v. Mosely 810 F.2d 93, 96 (6th Cir. 1987)
potential juror says he would impose the death penalty “in         (citing cases for the rule that “the manner in which the
certain circumstances,” he means “in this case.” The judge         peremptory challenges are exercised is a matter of local
declined to do so, finding Wagoner qualified based on his          custom and traditionally has been left to the sound discretion
responses in the individual voir dire. Nothing in the record       of the district court”). Whatever errors Baze’s lawyers
even hints that Wagoner would have voted against the death         committed, they did not prejudice his defense, and therefore
penalty or that the outcome of the trial would have been           his claim of ineffective assistance of counsel must fail.
different had he remained. Even had Ms. Perkins been
included on the original strike list, it seems clear that the                                    III
judge would have excused Wagoner as well. Therefore, Baze
would not have had the benefit of his sympathy, if any, in any        Federal courts are highly circumscribed in their ability to
event.                                                             second-guess state supreme court rulings on state law in order
                                                                   to grant habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68
  Furthermore, Baze did not have a right to have a specific        (1991). The Supreme Court has made clear that “federal
juror decide his case, only that all jurors be qualified.          habeas corpus relief does not lie for errors of state law.”
McQueen, 99 F.3d at 1328 (stating that “once the jury is           Lewis, 497 U.S. at 780. In conducting habeas review, a
qualified, any combination of twelve of the fourteen jurors is     federal court is limited to deciding whether a conviction
as valid as any other”). Had the judge agreed to allow the         violated the Constitution, laws, or treaties of the United
defense to exercise belatedly its last strike to remove Perkins,   States. 28 U. S. C. § 2241(c); Rose v. Hodges, 423 U.S. 19, 22
No. 03-5112                               Baze v. Parker     15    16    Baze v. Parker                               No. 03-5112

(1975) (per curiam)). Habeas relief may be granted when a          with his wife’s family. According to Baze, his relatives had
state court unreasonably applies Federal law, or a state court     called in false reports to the police to harass him, and the feud
is incorrect to such a degree that it implicates the defendant’s   had escalated to the point that he felt his life was in danger.
right to a fair trial because an unreasonable determination of     The feud fed into his underlying paranoia, resulting in his
the facts tainted the final outcome. See Williams, 529 U.S. at     belief that the officers’ attempted arrest on an outstanding
412-13.                                                            Ohio warrant was just another dirty trick set up by his
                                                                   relatives, and he therefore had to defend himself.
   Baze argues that a Kentucky criminal rule requiring
simultaneous exercise of peremptory challenges deprived him           The trial judge allowed some evidence of the feud to be
of his opportunity to voluntarily and intelligently exercise       introduced, but he determined that Baze could not base his
those challenges. Baze has no constitutional right per se to a     defense on the incidents with his wife’s family because the
set number of peremptory strikes. Ross v. Oklahoma, 487            two officers were not directly involved in the family
U.S. 81, 89 (1988) (“peremptory challenges are a creature of       altercation, and Baze did not have a contentious relationship
statute and are not required by the Constitution.”). He only       with either of the victims. The Kentucky Supreme Court held
has a right to receive “that which state law provides.” Ibid.      that the trial judge ruled correctly that the feud was not
Under the Kentucky Rules of Criminal Procedure,                    relevant to the killings, and that he had not abused his
“[p]eremptory challenges shall be exercised simultaneously         discretion by limiting the evidence of the intra-familial
by striking names from the list and returning it to the trial      conflict. Baze I, 965 S.W.2d at 821.
judge.” RCr 9.36(2). No juror can be challenged after being
accepted “unless the court for good cause permits it.” RCr            A fair opportunity to present a defense is a constitutional
9.36(3). In this case, the judge warned the attorneys on two       right. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citing
occasions that the list of peremptory strikes would be due at      cases). Presenting relevant evidence is integral to that right.
a certain time and that the list could not be amended once         Taylor v. Illinois, 484 U.S. 400, 408-09 (1988) (stating that
submitted. Baze has not asserted that the relevant rules are       “[t]he need to develop all relevant facts in the adversary
unconstitutional in light of Swain v. Alabama, 380 U.S. 202        system is both fundamental and comprehensive”). In
(1965), the case upon which he relies. Because this is a claim     particular, few rights are more fundamental than that of an
stemming from the application of state procedural rules, it is     accused to present witnesses in his own defense. Chambers
beyond our purview on habeas review. McGuire, 502 U.S.             v. Mississippi, 410 U.S. 284, 302 (1973) (citations omitted).
at 67-68.                                                          However, this right is not absolute. The defendant “must
                                                                   comply with established rules of procedure and evidence
Impermissible Interference with Right to Present a Defense         designed to assure both fairness and reliability in the
                                                                   ascertainment of guilt and innocence.” Ibid. States have
   Baze argues that the trial court interfered with his right to   broad authority to promulgate rules that exclude evidence so
put on a defense and therefore denied him his due process          long as they are not “arbitrary” or “disproportionate to the
rights. Kentucky law allows a defense to murder if the killer      purposes they are designed to serve.” United States v.
acts “under the influence of an extreme emotional disturbance      Scheffer, 523 U.S. 303, 308 (1998) (citing Rock v. Arkansas,
[EED] for which there is a reasonable explanation or excuse.”      483 U.S. 44, 56 (1987) (internal citations omitted)).
KRS § 507.020(1)(a). To mount an EED defense, Baze                 Accordingly, the Constitution leaves judges “wide latitude”
wanted to introduce evidence that he was engaged in a feud
No. 03-5112                               Baze v. Parker      17    18       Baze v. Parker                               No. 03-5112

to exclude evidence that is only “marginally relevant.”                Because the statute does not define “extreme emotional
Crane, 476 U.S. at 689.                                             disturbance,” Kentucky law has considered a variety of
                                                                    situations concerning who is eligible to present this defense.
   Exclusion of evidence only raises constitutional concerns        By the time of Baze’s trial, however, it was clear that the
if it has “infringed upon a weighty interest of the accused.”       defendant had to point to a “triggering event,” prompting a
Scheffer, 528 U.S. at 308 (citations omitted). Only if “an          reaction that was so “enraged,” “inflamed,” or “disturbed” as
evidentiary ruling is so egregious that it results in a denial of   to be uncontrollable, before he could present a defense under
fundamental fairness [does] it . . . violate due process and thus   the theory.2 McClellan v. Commonwealth, 715 S.W.2d 464,
warrant habeas relief.” Bugh v. Mitchell, 329 F.3d 496, 512         468 (Ky. 1986); Spears v. Commonwealth, 30 S.W.3d 152,
(6th Cir. 2003), cert. denied sub nom. Bugh v. Bradshaw, 124        155 (2001) . Baze may have been distraught at the on-going
S. Ct. 345 (2003) (stating that “[g]enerally, state-court           feud with his wife’s family, but he could not point to a
evidentiary rulings cannot rise to the level of due process         dramatic, isolated event in that conflict that could have caused
violations unless they ‘offend[ ] some principle of justice so      him to lose temporary control of sense of right and wrong,
rooted in the traditions and conscience of our people as to be      thereby qualifying him for mitigation under a EED theory.
ranked as fundamental.’”) (internal citations omitted));            Ibid. (stating that a “triggering event” is required). Therefore,
Estelle, 502 U.S. at 67 (rejecting the Ninth Circuit’s reliance     limiting his ability to present evidence on this issue neither
on its own determination that evidence had been improperly          undermined the fundamental fairness of Baze’s trial nor
admitted to justify habeas relief because “[s]uch an inquiry        deprived him of any “weighty interest,” and accordingly he
. . . is no part of a federal court's habeas review of a state      cannot establish any grounds for habeas relief on this issue.
conviction”).
                                                                    Extreme Emotional Disturbance Instruction
  In order to qualify for an extreme emotional disturbance
instruction under Kentucky law, the defendant must produce             The same analysis undermines Baze’s claim that the trial
“some definitive, non-speculative evidence” that the onset of       court improperly instructed the jury that it could consider the
the extreme emotional disturbance was caused by a triggering        mitigation defense of extreme emotional disturbance (EED)
event. Morgan v. Commonwealth, 878 S.W.2d 18, 20 (Ky.               only if it found that Officer Briscoe shot first in the final
1994); see Patterson v. New York, 432 U.S. 197, 210 (1977)          altercation with Baze. Baze claims that this qualifier rendered
(declining to “adopt as a constitutional imperative, operative      the instruction unconstitutional, but his argument does not
countrywide, that a State must disprove beyond a reasonable         survive scrutiny. “Extreme emotional disturbance is a
doubt every fact constituting any and all affirmative defenses      temporary state of mind so enraged, inflamed, or disturbed as
related to the culpability of an accused”). Evidence of mere        to overcome one's judgment, and to cause one to act
anger or hurt is not sufficient. Talbott v. Commonwealth, 968       uncontrollably from the impelling force of the extreme
S.W.2d 76, 85 (Ky. 1998). See Sanborn v. Commonwealth,              emotional disturbance rather than from evil or malicious
892 S.W.2d 542, 551 (Ky. 1994) (holding that it was not             purposes.” Garland v. Commonwealth, 127 S.W.3d 529, 536
prejudicial error to refuse to allow the defense psychological      n.4 (Ky. 2003) (quoting McClellan, 715 S.W.2d at 468-69)
expert to testify about a “triggering event” for which there
was no independent evidence).
                                                                         2
                                                                         See Eric Y. Drogin, To the Brink of Insanity: “Extreme Emotional
                                                                    Disturbance” in Kentucky Law, 26 N . Ky. L. R ev. 99 (1999).
No. 03-5112                              Baze v. Parker     19    20    Baze v. Parker                                No. 03-5112

(emphasis added). Kentucky law requires a “triggering             wholly insufficient for the accused defendant to claim the
event,” that is responsible for causing the emotional             defense of extreme emotional disturbance based on a gradual
disturbance. Sanford v. Commonwealth, 793 S.W.2d 112,             victimization from his or her environment, unless the
115 (Ky. 1990). A triggering event is dramatic, creating a        additional proof of a triggering event is sufficiently shown.”
temporary emotional disturbance that overwhelms the               Ibid.
defendant’s judgment, ibid., such as the paradigmatic
discovery of a spouse in bed with a lover. See Spears, 30            The dissent describes at length the efforts of the Highleys
S.W.3d at 153, 155 (observing a tryst between wife and            to induce the police to harass Baze, to accept the defendant’s
another man sufficient for “triggering event”).                   characterization. Briscoe’s appearance at Baze’s cabin
                                                                  therefore cannot be described as sudden or dramatic from
   A triggering event is not synonymous with the common law       Baze’s point of view. Understanding that paranoia alone
concept of heat of passion, and may extend over a period of       cannot substitute for a triggering event, the district court still
time, but its onset must be “sudden” and its effects              allowed Baze to present an EED defense – if he could show
“uninterrupted.” Springer v. Commonwealth, 998 S.W.2d             something out of the ordinary occurred in his on-going
439, 452 (Ky. 1999) (threat of child molestation could form       relations with local law enforcement, namely that Briscoe
basis for mother’s EED defense, although the statement            shot first. Baze argued at trial both that Briscoe shot first and
“festered for a time” in the defendant’s mind). Baze had been     that Baze was put on edge by Briscoe reaching for his gun
in Ohio and Michigan in the immediate period preceding the        during his first trip to the cabin that day. The jury did not
killings, so even if we accept his assertions of fear of the      believe either story, but Baze received the opportunity to
police and aggravation from the family feud, the build-up of      argue his version of events, as the Constitution requires.
these factors, upon which Baze relies for his EED defense,
was not uninterrupted. Garland, 127 S.W.3d at 536.                Juror Challenges

   The dissent argues that “although Briscoe’s actions did not      Baze also attacks the seating of individual jurors, but he
constitute provocation in the textbook sense of the word,         cannot point to any error, much less to one of constitutional
Kentucky law imposes no categorical limitation on the types       magnitude.
of events that may trigger EED,” relying on McClellan v.
Commonwealth for support. (Dissent, p. 29). In a case                As described above, a corrections officer sat on Baze’s jury.
decided after McClellan, but before the events of this case,      Although empaneling law enforcement or corrections officers
the Kentucky Supreme court narrowed the circumstances             is far from optimal, no per se rule exists disqualifying them
which a defendant can offer as the basis for an EED defense       from jury service, unless state statute prohibits it, which is not
and reiterated the requirement that “the event which triggers     the case in Kentucky. United States v. Wood, 299 U.S. 123
the explosion of violence on the part of the criminal defendant   (1936) (holding that the Sixth Amendment does not
must be sudden and uninterrupted.”                  Foster v.     disqualify government employees from jury service); Woodall
Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991) (citing              v. Commonwealth, 63 S.W.3d 104, 118 (Ky. 2001) (holding
McClellan and other case law). The court explicitly stated that   that employment at the Kentucky State Prison did not
extreme emotional disturbance is “not a mental disease or         disqualify a penalty-phase juror because “there is no authority
illness.” Ibid. (citing Wellman v. Commonwealth, 694              for the proposition that mere knowledge about parole
S.W.2d 696, 697 (Ky. 1985)). The court concluded: “[I]t is        eligibility is a basis for challenge for cause”). In fact, at voir
No. 03-5112                               Baze v. Parker      21    22    Baze v. Parker                               No. 03-5112

dire, Baze’s attorney stated that he had corrections officers on    indicate that these two jurors were unqualified, but even if
juries all the time. Therefore, this court has no basis on which    they were, Baze’s contention would be without merit.
to hold that the presence of a prison employee on the jury          Peremptory challenges are not a constitutional right, although
violated Baze’s Sixth Amendment rights.                             the Supreme Court has held them to constitute an “essential
                                                                    part of trial by jury.” Lewis v. United States, 146 U.S. 370,
   Baze argues in his brief that another juror, Larry Knipp,        376 (1892). It is not a constitutional violation, therefore, if a
should have been excluded because his brother-in-law was, on        defendant has to use a peremptory strike to remove a juror
occasion, Baze’s jailer at the courthouse. Knipp indicated in       who should have been removed for cause. United States v.
the general voir dire that this relationship might influence his    Martinez-Salazar, 528 U.S. 304, 315-17 (2000).
attitude toward Baze, a concern he withdrew in the individual
interview. Since being a law enforcement officer is not a             Baze’s contention that juror bias denied him his right to a
per se disqualification, then, logically, being a relative of one   fair trial is without merit.
cannot mandate automatic exclusion. He apparently satisfied
both the judge and counsel that his relationship would not          Imperfect Self Defense
cloud his ability to judge Baze fairly, so that Baze’s right to
a fair trial was not compromised. For the same reasons, the            Baze claims that the trial court’s refusal to give the jury an
mere fact that an additional juror, James Padula, Jr., was          instruction on imperfect self-defense violated his
friends with policemen did not warrant his exclusion from the       constitutional rights. Challenging a jury instruction on
jury, as Baze asserts. McQueen, 99 F.3d at 1319-20 (being           collateral review is a difficult undertaking: only if “the ailing
friends with two of the police officers in the case did not         instruction by itself so infected the entire trial that the
disqualify a potential juror).                                      resulting conviction violates due process,” can this court grant
                                                                    a writ. Henderson v. Kibbe, 431 U.S. 145, 154 (1977)
  Valerie Utterback, another juror, had been personally             (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Far
touched by crime: her sister-in-law had been murdered eleven        from infecting the process, the jury instructions were correct.
years before and she had two brothers serving time in prison.
Baze asserts that she equated “justice” with the imposition of        Baze wanted to argue that Deputy Briscoe reached for his
the death penalty, because, when asked about her sister-in-         own gun during his first visit to the cabin, thereby prompting
law’s killing, she responded “I wanted to see justice done”         Baze to fear for his life. Baze was willing to concede that this
and, in fact, the perpetrator was sentenced to death, although      fear was irrational, but argued to the trial judge that the jury
he died in prison. This reads a great deal into a stock             should be allowed to consider manslaughter, the result
response, especially given Utterback’s assurances that she          provided for under the Kentucky penal statute for a defendant
could be fair in assessing Baze’s case. The judge found her         who intentionally kills another in a reckless or wanton, but
explanation credible and nothing in the record would prompt         genuinely held, belief that he needed to act in self-defense.
this court to second guess that determination.                      Shannon v. Commonwealth, 767 S.W.2d 548, 550 (Ky. 1988).
                                                                    The Kentucky Supreme Court decided that the record did not
  Baze asserts that he was forced to use two of his                 show that Briscoe had moved his hand toward his weapon on
peremptory challenges to remove two jurors, Diana Lindsey           his initial visit, and therefore Baze did not have any reason,
and Noretta Bradt, from the panel, although he claims that          wanton or not, to fear for his life, making the trial court’s
they should have been excused for cause. The record does not        ruling correct in disallowing the imperfect self-defense claim.
No. 03-5112                               Baze v. Parker      23    24    Baze v. Parker                               No. 03-5112

Baze I, 965 S.W.2d at 822. The testimony supports the               their choice was between death and twenty years in prison,
factual determination that Briscoe did not reach for his gun        then Baze might have a constitutional claim. A jury might
during his first visit to the cabin on January 30, and therefore    sentence a defendant to death if its members thought that the
Baze has not shown any improper interpretation of the facts         only alternative punishment for a double murder of police
that would cast doubt on the fundamental fairness of his trial.     officers were a guaranteed twenty years in prison. It makes
                                                                    no sense to argue, however, that the jury would have chosen
   Furthermore, as the Kentucky Supreme Court carefully             a lesser punishment (20 years) than the rejected, albeit
explained, the concept of imperfect self-defense does not exist     incorrect, option available to it (25 years), especially since it
under Kentucky law in the context of an arrest. The use of          also did not choose the life sentence.
deadly force, whatever the perpetrator’s state of mind, is not
justifiable when “[t]he defendant is resisting an arrest by a         Habeas petitioners must show that a trial error of
peace officer.” Ky. Rev. Stat. Ann. § 503.060(1) (1999). If         constitutional dimension “had substantial or injurious effect”
the police are using “more force than is reasonably necessary       on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619,
to effect the arrest” then a suspect who resists arrest can         638 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,
validly claim he acted in self-defense. Ky. Rev. Stat. Ann.         776 (1946)). In this case, the jury chose death over two other
§ 503.050 Kentucky Crime Commission Commentary (2003).              options, including one that was stated more harshly than the
In that scenario, however, the suspect has a perfect defense.       actual law provided, demonstrating its determination that
Therefore, if Briscoe had shot at Baze first when Baze was          death was the appropriate penalty. See also Schad v. Arizona,
unarmed and attempting to surrender, he would be entitled to        501 U.S. 624, 646-47 (1991) (explaining that the jury must be
an acquittal based on justified self-defense. The jury, in fact,    able to consider lesser included offenses to prevent it from
received an instruction to that effect. However, the jury           being forced into an all-or-nothing choice between capital
found implicitly that Baze initiated the gunfire, and so he falls   murder and innocence, which would diminish the reliability
under § 503.060(1), which precludes any claim of self-              of a guilty verdict). The situation here meets the Schad
defense as justification for resisting arrest if the officer is     requirement. Baze’s jury could have sentenced him to life, a
using reasonable force. Therefore, this court has no grounds        middle option between 20 (or 25) years in prison and death,
on which to grant habeas relief because, far from tainting the      but did not choose to do so. Therefore, the incorrect jury
trial, the jury instructions were proper.                           form did not have an injurious effect on the jury’s verdict and
                                                                    habeas relief is not warranted.
Improper Jury Form
                                                                    Admonition on Validity of the Ohio Arrest Warrant
   The form that the jury received when deliberating on
Baze’s punishment incorrectly reflected the Kentucky law of            Baze claims that the trial judge’s admonition regarding the
the time: the form stated that the minimum punishment was           legal irrelevance of Baze’s belief that he was not wanted in
life without possibility of parole for 25 years as opposed to       Ohio violated his constitutional rights because a defendant
the correct standard of 20 years before the possibility of          has a right to explain why he acted as he did. Baze was able
parole. The form stated correctly that the jury could also opt      to testify that he shot the officers because he thought that they
for a life sentence. Baze claims that the incorrect verdict form    had no right to arrest him. It defies common sense to assert
given to the jury violated his due process rights. Had the          that anyone who thinks they are being falsely arrested has the
mistake been the opposite, that is that the jurors were told that   right to use deadly force to thwart being taken into custody.
No. 03-5112                               Baze v. Parker      25    26   Baze v. Parker                             No. 03-5112

The trial judge was only acting responsibly in clarifying to the    Identification of the Ohio Felony Charges
jury that “the law is that a person may be lawfully arrested by
a law officer, without a warrant, upon reasonable information          Baze complains that informing the jury of the nature of the
that the accused stands charged in the courts of another state      Ohio charges against him violated his constitutional right to
. . . .” In essence, Baze was allowed to explain to the jury that   a fair trial. He asserts that presenting the jury evidence of
he acted on an incorrect assumption of the law, but it is           alleged previous violent acts “undoubtedly tipped the balance
axiomatic that “ignorance of the law is no excuse.”                 toward guilt during the jurors’ three days of deliberation.”
Therefore, the trial judge’s admonition did not violate Baze’s      Appellant Br. at 81. Although perhaps plausible speculation,
due process rights.                                                 Baze provides no citation to support his assertion that
                                                                    revealing the nature of the charges violated Kentucky’s Rule
Character Evidence                                                  of Evidence 401. The trial judge admonished the jury that the
                                                                    Ohio charge was not relevant to Baze’s guilt in the killing of
   The coroner testified at trial that neither Briscoe or Bennett   the two policemen. Nor does Baze offer any way around the
were aggressive or “gung-ho” police officers. Baze                  fact that a federal court conducting habeas review may not, as
complains that he was not allowed to rebut this assertion by        a basic rule, revisit state court decisions. Estelle, supra;
introducing evidence that 1) Deputy Briscoe had once shot           Crane, 476 U.S. at 690 (citing Chambers v. Mississippi, 410
out the tires of a suspect in an effort to apprehend him;           U.S. 284, 302 (1973)). The Kentucky Supreme Court found
2) when approaching the suspect, he stated “do you want to          the issue to be without merit, Baze I, 965 S.W.2d at 821, and
meet your Maker?”; and 3) Baze knew about the incident and          there the matter must rest.
therefore it colored his reaction to Briscoe’s attempt to arrest
him. The Kentucky Supreme Court ruled that Baze had                 Mitigating Evidence: Baze’s Federal Firearms Conviction
failed to show that the incident was relevant to his claim of
self-defense. Baze I, 965 S.W.2d at 824-25. Nothing in the             Baze attempted to introduce evidence to the jury during the
record suggests that was an unreasonable conclusion that            sentencing phase that he had received a 20-year sentence on
would implicate Baze’s due process rights. In fact, the             a federal firearms charge, which would run consecutively to
Commonwealth explained that Briscoe shot out the tires to           any prison sentence the jury would impose. At the time of
stop the suspect from fleeing at 100 mph in a stolen car.           sentencing, however, his firearms conviction was on appeal,
Appellee Br. at 86. In this scenario, “do you want to meet          and thus the trial judge refused to inform the jury about it
your Maker?” is more an expression of admonition, along the         because his sentence could be overturned. Baze’s theory is
lines of “are you crazy?” than a threat, rendering the              that he could have avoided the death penalty if the jury
statement irrelevant to Baze’s self-defense claim. Given at         concluded that the additional firearms conviction would
least two plausible readings of the comment, the Kentucky           ensure that he would never get out of prison. However, if the
Supreme Court did not deny Baze’s due process rights by             jury’s “insurance sentence” were to be reduced or vacated, the
affirming the trial judge’s evidentiary ruling.                     jury would have determined his murder penalty on the basis
                                                                    of a false premise. Therefore, it was not entirely clear
                                                                    whether there was mitigation or not.
                                                                     The dissent argues that Baze’s Eighth Amendment rights
                                                                    were violated because “the jury had no way to directly
No. 03-5112                                Baze v. Parker      27    28   Baze v. Parker                            No. 03-5112

sentence him to life in prison for the tragic killings of the two    isolation may require reversal when taken together. Under
officers.” (Dissent, p. 38) The verdict form, however,               AEDPA, however, a court may only grant habeas relief based
allowed the jury to sentence Baze to any number of years they        on misapplication of Supreme Court law. Bailey v. Mitchell,
chose; to “confinement in the penitentiary for life;” to             271 F.3d 652, 655 (6th Cir. 2001). Because Baze cannot
“confinement . . . without benefit of probation or parole until      establish any errors to cumulate and because his theory that
he has served a minimum of twenty-five years” or “death.”            errors can be considered in the aggregate depends on non-
We agree with the district court that, had the jury wished to        Supreme Court precedent, this claim is also without merit.
spare Baze’s life, yet keep him permanently behind bars, it
could have done so by selecting the “confinement for life”                                       IV
option. Had the jury been skeptical that a life sentence would
stick, it could have sentenced Baze to a three-digit term of           For the foregoing reasons, we AFFIRM the district court’s
years for each murder under its discretion to stipulate a            denial of Baze’s petition for a writ of habeas corpus.
specific prison sentence.
  Kentucky juries are guided by detailed statutory guidelines
as to aggravating and mitigating circumstances in deciding
the penalty in a capital case. Commonwealth v. Eldred, 973
S.W.2d 43, 46 (1998). An independent sentence that might
reassure a jury that the defendant will spend his natural life in
prison is not on the list of mitigating circumstances that must
be considered. KRS § 532.025(2)(b). The basic rules about
restricting redundant and irrelevant evidence apply in capital
sentencing hearings. Skipper v. South Carolina, 476 U.S. 1,4
(1986) (stating the “well-established” rule that a defendant
has a right to introduce all relevant mitigating evidence). The
jury had a direct way to keep Baze in prison for life; it was
not error to withhold evidence of a potential, contingent,
indirect, route to the same result. Fed. R. Evid. 403.
Cumulation of Errors
   Baze argues in his brief that even if the eleven errors he
asserts are considered to be harmless, their cumulative effect
taints the trial to the extent that his due process rights were
violated. This analysis fails, however, because Baze is unable
to point to any individual errors in the trial, with the exception
of the harmless error related to the jury form. Furthermore,
Baze relies on United States v. Parker, 997 F.2d 219 (6th Cir.
1993), for the proposition that errors that are harmless in
No. 03-5112                               Baze v. Parker     29    30   Baze v. Parker                               No. 03-5112

  ____________________________________________                     emotional disturbance.” McClellan v. Commonwealth, 715
                                                                   S.W.2d 464, 468 (Ky. 1986) (emphasis added). Indeed, the
  CONCURRING IN PART, DISSENTING IN PART                           EED defense “is not restricted to circumstances which would
  ____________________________________________                     constitute provocation in the ordinary meaning of the term . . .
                                                                   it is possible for any event, or even words, to arouse extreme
  R. GUY COLE, JR., Circuit Judge, concurring in part and          mental or emotional disturbance.” Gall v. Commonwealth,
dissenting in part. Because Baze admitted that he shot and         607 S.W.2d 97, 108 - 09 (Ky. 1980), overruled on other
killed Officers Bennett and Briscoe, his constitutional right to   grounds, Payne v. Commonwealth, 623 S.W.2d 867 (Ky.
present a defense at trial pertaining to his mental state and      1981).
mitigating evidence at sentencing were of the utmost
importance. Although I agree with many of the majority’s             Second, although the shootings did not instantaneously
conclusions, I respectfully dissent as to my colleagues’           follow Briscoe’s arrival, EED’s “onset may be more gradual
conclusions on the EED defense at trial and the presentation       than the “flash point” normally associated with sudden heat
of mitigating evidence at sentencing.                              of passion.” McClellan, 715 S.W. at 468. So long as nothing
                                                                   interrupted the triggering event, Kentucky law recognizes that
A. Due Process Right to Present a Defense                          the EED remains viable.
   At trial, Baze asserted that he believed Briscoe showed up        Third—and most importantly in our case—Kentucky EED
at his residence to arrest him falsely and at the behest of the    law measures whether the source of the defendant’s alleged
Highleys, who Baze claimed had repeatedly harassed him and         EED “is reasonable under the circumstances as he believed
previously used the police do so. In rejecting Briscoe’s           them to be.” McClellan, 715 S.W.2d at 468 (emphasis
arrival as a possible trigger of EED, the majority                 added). That we (or most people, for that matter) would have
asserts—without authority—that “[a] triggering event is            perceived certain events differently does not mean that Baze’s
shocking and dramatic, such as the paradigmatic discovery of       defense fails as a matter of law. To the contrary, the defense
a spouse in bed with a lover.” This assertion, however,            calls upon the jurors to “place themselves in the actor’s
misapprehends Kentucky law at the time of the shootings.           position as he believed it to be at the time of the act.” Gall,
Although a discrete event must trigger the EED, that event         607 S.W.2d at 108. In other words, the jury must have a
need not be as shocking and dramatic as the majority               chance to view Briscoe’s arrival through Baze’s eyes.
suggests, it may overcome the defendant gradually, and it
must be measured from the perspective of the defendant.               Evaluated through this time-honored legal framework, the
                                                                   availability of the EED defense to Baze becomes apparent,
   First, although Briscoe’s actions did not constitute            and the denial of it a clear violation of Baze’s constitutional
provocation in the textbook sense of the word, Kentucky law        right to present a complete defense. The trial judge’s
imposes no categorical limitation on the types of events that      unconstitutional denial of Baze’s EED defense is based upon
may trigger EED. As held by the Kentucky Supreme Court             the: (1) improper restrictions on his right to present evidence;
long before the shootings in our case, “a reasonable               and (2) erroneous instructions to the jury.
explanation of extreme emotional disturbance is not limited
to specific acts of provocation by the victim but may relate to      Had he been allowed to present the relevant evidence
any circumstance that could reasonably cause an extreme            available to him, Baze would have illustrated to the jury his
No. 03-5112                               Baze v. Parker     31    32   Baze v. Parker                               No. 03-5112

perception of the events on the day of the shooting—a              events could become credible and its effect on his emotions
perception that was critical to understanding the source of his    reasonable.
claimed EED. Baze asserted that he saw Briscoe’s arrival as
the work of the Highleys, who had repeatedly harassed him in          Baze’s prior experience with the police was relevant not
the months leading up to the shootings, including providing        only to show the general link in his mind between the
the police false accusations of criminal wrongdoing by Baze.       Highleys harassment and police action, but also because one
But the trial judge limited evidence of the family feud to only    of the prior fabrications by the Highleys involved out-of-state
to a general affirmation that it existed. Any time he asked a      warrants—the initial basis for Baze’s arrest on the day of the
feud-related question, defense counsel was required by the         shootings. During the previous Highley-instigated traffic
court to instruct the witness to answer “[w]ithout going into      stop, the officers had checked for out-of-state warrants and
any details....” Even when he did allow feud-related               had told Baze that the law-enforcement computer disclosed
evidence—such as Baze’s motivation for building a trap-door        no outstanding charges. This information would certainly
in his home—the trial judge admonished the defense to omit         have made Baze more likely to believe that his impending
any discussion of the specific events that underlay the dispute.   arrest on outstanding charges was a lawless act of familial
                                                                   score-settling rather than a legitimate exercise of police
   No matter how many defense witnesses were able to utter         authority, and thereby contributed to the inflammation of his
the words “family feud,” the most relevant and dramatic            passions upon Briscoe’s arrival. To the contrary, Baze was
details—those involving the Highleys bringing the police into      allowed to testify only to his general belief that there were no
the fray to put Baze in danger of physical harm—were               out-of-state warrants against him. Again, evidence that this
nowhere to be found. The jury was prevented from hearing           information came from the same police department now
evidence—including the testimony of a police officer—that          seeking to arrest him would have bolstered the believability
on a prior occasion, the Highleys falsely told the police that     of Baze’s perception and the reasonableness of the resulting
Baze was driving drunk, had nearly run someone off the road,       distress.
was armed and dangerous, and was a fugitive with out-of-
state warrants. According to the excluded testimony, this            The relationship in Baze’s mind between the Highleys, the
false information from the Highleys led police officers to stop    police, the impending arrest, and the threat of violence also
Baze’s car, aim their guns at him, and threaten to shoot him       interacted with another important contextual clue kept away
if he moved. Further, both Baze and the police officer would       from the jury: Baze’s growing paranoia. Although a mere
have expressed their beliefs that it was the Highleys’             ongoing mental disturbance does not suffice to set forth a
allegations that instigated the stop. This testimony, in           defense of EED, it was well-established by the Kentucky
concrete terms, would have illustrated the link Baze perceived     Supreme Court that “an underlying mental disease may be
between the police and the Highleys, and why he therefore          considered by a jury in making its determination of whether
might have perceived Briscoe as an agent of the Highleys           a defendant’s explanation or excuse for his alleged ‘extreme
who could put Baze’s life in danger. Instead, Baze was             emotional disturbance’ is reasonable under the circumstances
allowed to testify only in general terms to his suspicion that     as he believed them to be.” McClellan, 715 S.W.2d at 468.
the Highleys had provoked this latest encounter with the           The trial judge, however, prohibited the defense’s psychiatric
police. Yet it is only when placed in the context of this prior    expert from testifying that the ongoing feud “was just feeding
showdown with the police that Baze’s perception of the             his paranoia. As it continued, [Baze] became more and more
                                                                   paranoid and more concerned about the safety of himself and
No. 03-5112                               Baze v. Parker     33    34   Baze v. Parker                               No. 03-5112

his family.” This context would have further allowed the           expression of admonition, along the lines of ‘are you crazy.’”
jury to assess how Baze might have interpreted the events on       Again, that may be one way of understanding such an
the day of the shooting and how these events produced a            interrogatory, but it is hardly the only one. The jury
genuine fear for his well-being that produced severe distress.     reasonably could have found that Baze was less prone than
                                                                   the majority to interpret Briscoe’s question in this manner.
   The trial judge’s rationale for the exclusion of this
evidence—that the feud did not involve the murder                     If the jury credited the above evidence, it could have
victims—was expressly contradicted by the Kentucky                 concluded that when Briscoe arrived at his residence to arrest
Supreme Court well before Baze’s trial took place. As noted        him, Baze believed: (1) that he was being falsely arrested;
above, in McClellan, 715 S.W.2d at 468, the court held that        (2) because Briscoe was using his authority as a police officer
“a reasonable explanation of extreme emotional disturbance         to torment Baze at the Highleys behest; and (3) that the police
is not limited to specific acts of provocation by the victim but   generally, and Briscoe in particular, might turn violent when
may relate to any circumstance that could reasonably cause an      executing the arrest. A reasonable jury certainly could have
extreme emotional disturbance.” Baze’s EED defense                 determined that Baze reasonably felt extreme distress when
depended on placing the officers’ arrival in the context of the    confronted with these circumstances.
ongoing family feud and his relatives’ prior use of the police
to harass him. The proper question was whether the events,            Even if the trial judge had admitted every piece of evidence
as Baze perceived them, reasonably placed him under severe         that Baze proffered, the jury instructions themselves would
emotional distress—not whether the victim “asked for it.”          have clearly trampled on Baze’s constitutional right to present
                                                                   a complete defense. Following Baze’s testimony, the trial
   Finally, the trial judge excluded evidence that Baze might      judge told the jury that Baze’s belief in the lawfulness of the
have understood Briscoe’s presence at his home as a threat to      attempted arrest was legally irrelevant. Yet this instruction
his physical safety. Baze was prohibited from testifying           misunderstood the EED defense, which requires the jury to
about reading a newspaper article which reported that while        measure the defendant’s emotions as the defendant himself
making an arrest, Briscoe shot out the tires of the arrestee’s     reasonably felt them. Baze’s belief that there were no such
car, pointed his weapon at the suspect, and asked him if he        charges would contribute to the “circumstances as he believed
“want[ed] to meet [his] maker.” Baze’s testimony would             them to be,” namely that Briscoe’s arrival at his residence to
have emphasized the danger that he felt during Briscoe’s           arrest him was another instance of the police doing the
attempt to arrest him, and also would have provided the lens       Highleys bidding.
through which he interpreted Briscoe’s subsequent actions.
                                                                      The trial judge instructed the jury that it could find that
  The majority justifies the exclusion of this evidence by         Baze acted under EED only if it found that Briscoe fired the
dwelling on details of Briscoe’s prior incident that were          first shot. In so doing, the trial judge prevented the jury from
unlikely to have been known to Baze. It first points out that      considering Baze’s reaction—in light of his understanding of
“the Commonwealth explained that Briscoe shot out the tires        the circumstances—to Briscoe’s arrival. The instruction also
to stop the suspect from fleeing at 100 mph in a stolen car.”      kept the jury from considering whether, Baze may have
That may have been the case, but the majority does not             believed that Briscoe had fired or was about to fire.
explain how Baze would have learned of this. Similarly, the
majority interprets “do you want to meet your maker?” as “an
No. 03-5112                               Baze v. Parker     35    36   Baze v. Parker                               No. 03-5112

  Granted, under the common law “heat of passion” standard,        tense police incident initiated by the Highleys and the article
the passage of several minutes between Briscoe’s arrival and       he had read about Briscoe—Baze might have perceived his
Baze’s turn to violence would have exhausted any claims of         wife’s outcry as a warning that Briscoe was about to turn
EED. But because the Kentucky Supreme Court expressly              violent towards him, and Baze in fact testified that he
contemplates that EED may percolate more gradually, a              believed that Briscoe had tried to shoot him in the back. A
reasonable jury could have concluded that Briscoe’s                reasonable jury could have found that a perceived imminent
arrival—and all of the conclusions that Baze drew from it,         threat of violence at the hands of the police—which Baze
given the circumstances as he understood them—was enough           believed was the product solely of the Highleys’ vendetta
to inflame Baze’s passion, even if it did not produce a split-     against him—could reasonably and severely disturb an
second reaction. To use the majority’s analogy, Briscoe’s          average person, let alone a paranoid one.
arrival may not have been analogous to Baze catching his
wife in bed with a lover, but probably was analogous to, say,      B. Mitigating Evidence
Baze observing his wife and another man check into a motel.
                                                                     The majority also errs in rejecting Baze’s Eighth
   The majority argues that because Baze had previously been       Amendment claim: that he was deprived of his right to
harassed by the police at the behest of the Highleys,              present mitigating evidence by the exclusion of evidence
“Briscoe’s appearance at Baze’s cabin therefore cannot be          about his pending twenty-year prison term on federal
described as sudden or dramatic from Baze’s point of view;         weapons charges. On the question of mitigating evidence, the
if anything, it was routine and annoying.” Under this logic,       Supreme Court has been resolute: “the sentencer may not
the majority would consider a husband’s beating his wife for       refuse to consider or be precluded from considering any
the second time to be merely “routine and annoying” because        relevant mitigating evidence.” Skipper v. South Carolina,
the victim should be used to it by now. Of course, the             476 U.S. 1, 5, (1986) (emphasis added). This includes
opposite is true: the first beating, or in this case the second    evidence “that the defendant would not pose a danger if
instance of police harassment would reasonably make                spared (but incarcerated).” Id.
someone even more upset than the first instance. The second
time, the victim knows that the first incident was not isolated.      The majority contends that because this conviction was still
In any event, Briscoe’s arrival would have been more               pending on appeal, “it was not entirely clear whether there
disturbing to Baze than the prior incident of harassment,          was mitigation or not.” But this is precisely the type of
because this time his arrest was assured.                          inquiry that the Supreme Court has left for the jury, which
                                                                   could have been told about both the sentence and the appeal.
   Even if Briscoe’s arrival itself was not a triggering event     And the possibility of an additional twenty-year sentence
under Kentucky law, an even more sudden and dramatic               makes it less likely that Baze would ever return to the streets,
stimulus awaited Baze. Becky Baze testified that when her          and in any event would make him much older and presumably
husband walked away from Briscoe, she saw Briscoe putting          less dangerous if he did. Of course, Baze bore the risk that
his hand near his holster. Believing that Briscoe was going to     the jury would conclude that a not-yet-final sentence was too
shoot her husband, Becky hollered and grabbed Briscoe’s            flimsy a basis upon which to assume Baze’s additional
arm. Baze similarly testified that after he turned away from       incarceration. But the jurors also might have factored it into
Briscoe, “everyone started hollering, ‘Run!’” Again, given         their calculus, given that an assessment of future
Baze’s view of the circumstances—including both the prior          dangerousness is inherently an uncertain and probabilistic
No. 03-5112                                Baze v. Parker      37    38    Baze v. Parker                               No. 03-5112

enterprise. Cf. Johnson v. Texas, 509 U.S. 350, 368 (1993)           consciousness that can only be understood from a clinical
(upholding instructions to jury to consider whether there was        perspective, not from a lay perspective.” Unlike Alley—in
“a probability that [the defendant] would commit criminal            which the evidence might affirmatively confuse all but the
acts of violence that would constitute a continuing threat to        most technically informed—the mitigating evidence in this
society” (emphasis added)).                                          case requires no such expertise to consider. A lay person is
                                                                     perfectly capable of understanding that the conviction would
   Recent cases from our sister circuits are particularly            not be final until after the appeal.
instructive in this regard. In Paxton v. Ward, 199 F.3d 1197,
1211 (10th Cir. 1999), the court reviewed the constitutionality         That Baze was facing an extra twenty years in prison was
of the state trial court’s “refusal to admit a court order stating   particularly relevant because the jury had no way to directly
that [the defendant] had been cleared in his wife’s death by a       sentence him to life in prison for the tragic killings of the two
polygraph examination.” The trial court had kept out the             officers. If the jury spared Baze’s life, its next most
results because state law prohibited the admission of                restrictive option was to impose a sentence of twenty-five
polygraph evidence due to concerns about its reliability. The        years to life. Finally, the trial judge excluded evidence that
court held that the refusal to admit this evidence constituted       Baze might have understood Briscoe’s presence at his home
a clearly unreasonable application of the Supreme Court’s            as a threat to his physical safety. Baze was prohibited from
Eighth Amendment jurisprudence, noting that whatever the             testifying about the newspaper article which reported that
reliability concerns that the use of a polygraph test might raise    while making an arrest, Briscoe shot out the tires of the
in a normal criminal proceeding “[t]he Supreme Court has             arrestee’s car, pointed his weapon at the suspect, and asked
been exceedingly cautious to ensure that a person found guilty       him if he “wante[ed] to meet [his] maker.” Baze’s reading
of a capital offense is given every opportunity to present           this would have added to the danger that he felt during
potentially mitigating evidence that might form the basis for        Briscoe’s attempt to arrest him, and also would have provided
a sentence less than death.” Id. at 1214 (internal quotations        the lens through which he interpreted Briscoe’s subsequent
omitted). The Ninth Circuit reached the same decision in an          actions.      The jury’s perception of Baze’s future
identical case—notwithstanding the state’s concerns about the        dangerousness—and the chance that he could be back on the
polygraph’s reliability—noting that “under controlling United        street sooner than it would want—may very well have
States Supreme Court authority, relaxed standards govern the         motivated the jury to sentence him to death.
admission of mitigating evidence during the penalty phase of
a death penalty trial.” Rupe v. Wood, 93 F.3d 1434, 1439 (9th          These shootings were brutal. But constitutional errors
Cir. 1996).                                                          infected both Baze’s conviction and sentence of death.
                                                                     Accordingly, I respectfully dissent.
   Although the trial court retains some discretion to exclude
flagrantly unreliable or confusing evidence, this is not a case
in which this discretion was called for. In Alley v. Bell, 307
F.3d 380 (6th Cir. 2002), we upheld the exclusion from the
sentencing phase of a videotape of the defendant answering
questions while under hypnosis. There, however, there was
evidence in the record that “people can lie under hypnosis,
and ... the hypnotic state produces different levels of
