Ralph Stephens Baze, Jr. v. PHILIP PARKER, Warden, Kentucky State Penitentiary

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0173P (6th Cir.)
File Name: 04a0173p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RALPH STEPHENS BAZE, JR.,
Petitioner-Appellant,
v.
PHILIP PARKER, Warden,
Kentucky State Penitentiary,
Respondent-Appellee.
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No. 03-5112
Appeal from the United States District Court
for the Eastern District of Kentucky at Ashland.
No. 01-00031—Henry R. Wilhoit, Jr., District Judge.
Argued: December 10, 2003
Decided and Filed: June 9, 2004
Before: BOGGS, Chief Judge; and COLE and COOK,
Circuit Judges.
_________________
COUNSEL
ARGUED: Timothy T. Riddell, PERCH & TOBY,
Lexington, Kentucky, for Appellant. David A. Smith,
OFFICE OF THE ATTORNEY GENERAL, Frankfort,
Kentucky, for Appellee. ON BRIEF: Timothy T. Riddell,
2 Baze v. Parker No. 03-5112
Milton Coburn Toby, PERCH & TOBY, Lexington,
Kentucky, for Appellant. David A. Smith, Brian T. Judy,
OFFICE OF THE ATTORNEY GENERAL, Frankfort,
Kentucky, for Appellee.
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.
_________________
OPINION
_________________
BOGGS, Chief Judge. Petitioner Ralph Baze, Jr. was
convicted of the 1992 murders of Sheriff Steven Bennett and
Deputy Sheriff Arthur Briscoe, whom he shot in the back
when they attempted to arrest him pursuant to an outstanding
Ohio multiple-felony arrest warrant. The jury sentenced Baze
to death. The Kentucky Supreme Court affirmed his
conviction and sentence on direct appeal, and it denied relief
in state post-conviction proceedings. Baze petitioned for
federal habeas relief, pursuant to 28 U.S.C. § 2254, which the
United States District Court for the Eastern District of
Kentucky denied in a series of exhaustive opinions. For the
reasons elaborated upon below, we affirm the district court's
denial of Baze’s petition.
I
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
same mountain. His cabin was at the end of gravel road,
heavily wooded on both sides, approximately 1,000 feet up
the mountain, in a small clearing that made maneuvering a
vehicle very difficult. By January 1992, the time of the
shootings, Baze was a twice-convicted felon and was wanted

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No. 03-5112 Baze v. Parker 3
in Ohio for felonious assault of a police officer, jumping bail,
receiving stolen property, and flagrant non-support.
On January 15, 1992, authorities from the Lucas County
Sheriff’s Office in Toledo, Ohio notified the Powell County
authorities that they wished to extradite Baze on the felony
counts. At that time, Baze was in Ohio, and his wife, Becky
Baze, informed the police that she did not know where he was
when they came to arrest her husband in mid-January. She
then phoned Baze to warn him that the police were looking
for him. Baze left Ohio for Michigan, where he bought a
SKS assault rifle and ammunition, which he ultimately used
to kill the two police officers.
Baze returned to his brother-in-law’s house in nearby Bath
County, Kentucky, on January 28 and decided to move to
Florida. He returned to his cabin on January 30 with his wife,
and his siblings-in-law, Wesley and Sophie McCarty,
intending to hold a yard sale to lighten their load and then to
leave for Florida that evening. Deputy Sheriff Briscoe heard
that Baze was back in town and proceeded to Baze’s cabin to
arrest him. When Briscoe arrived, Baze was inside; however,
he could hear Briscoe announce his intention to Becky to
arrest her husband. While Briscoe returned to his cruiser,
Baze left the cabin through a trapdoor in the bedroom floor,
retrieved his SKS assault rifle from behind the cabin, and then
walked around the cabin to inform Briscoe that he would not
allow himself to be arrested. Wesley McCarty intervened to
avoid a confrontation, during which Briscoe put his hand on
or near his holster. Becky grabbed Briscoe’s arm, and Baze
used the opportunity to leave the immediate area. Briscoe
then left in his cruiser to recruit additional officers to effect
the arrest.
Baze used the interim to gather his personal belongings,
and 98 rounds of ammunition, and went uphill into the
woods. He later told the Louisville Courier-Journal that he
circled around to hide behind a stump behind the spot where
the police would have to leave their cars. Deputy Briscoe
4 Baze v. Parker No. 03-5112
arrived back first, followed by Sheriff Bennett. Both got out
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
was yelling at them from the porch of the cabin, so that when
they turned to engage her, they had their backs to the woods
where Baze was hiding. All agree that at that moment gunfire
began.
Baze testified that he moved out from behind a large stump
and brush pile, unarmed, intending to surrender, but that
Briscoe shot him in the leg with a pistol. Wesley and Sophie
McCarty supported Baze’s version by testifying that Baze
stood up without a gun. In contrast, Baze’s son-in-law, Greg
Profitt, who was also at the house, testified that Baze shot
first, but he admitted that he could not distinguish between
rifle and pistol fire. Becky Baze also testified that Baze shot
first, causing Bennett to turn his head back to his right to see
where the gunfire was coming from. The policemen who
were driving up the road to lend support testified that the first
6-10 shots they heard were rifle fire.
Briscoe and Bennett then turned to face the woods and took
cover behind the police cruiser on the driver’s side, with
Briscoe shooting over the hood and Bennett over the trunk.
For reasons that are unclear, Bennett moved around the rear
of the cruiser and opened the back passenger door as if to get
into the back seat, in fact crossing directly into Baze’s line of
fire. Thereupon, Baze shot him three times in the back. Baze
then started to walk down the hill towards Briscoe, who
continued to shoot at Baze over the hood of the police cruiser
until he ran out of ammunition, and Baze was too close to
give him time to reload. Briscoe then turned to attempt to
escape and, after he had gone about ten feet, Baze shot him
twice in the back. Wesley McCarty described Briscoe as
“staggering away” before he fell on his face. Baze then
approached the fallen officer and, allegedly thinking that he
might be reaching for his gun, shot Briscoe in the head at
point-blank range.

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No. 03-5112 Baze v. Parker 5
Baze then picked up the weapons and ammunition and fled
on foot to adjoining Estill County. He surrendered without
incident at 8 p.m. that evening at the home of the former Estill
County Sheriff, where he received his Miranda warnings.
Upon overhearing a query over the radio as to whether the
arresting officer had the correct suspect, Baze responded:
“You tell them that you got the right man. I’m the one that
killed them son-of-a-bitches.”
Baze was tried in Rowan County, convicted, and sentenced
to death in February 1994 for shooting the officers. The
Kentucky Supreme Court affirmed the sentence on direct
appeal in November 1997. Baze v. Commonweath, 965
S.W.2d 817 (Ky. 1997) (Baze I). The United States Supreme
Court denied certiorari in April 1998. Baze filed a motion to
vacate his sentence under Kentucky’s post-conviction review
procedure, asserting, among other things, ineffective
assistance of counsel due to irregularities in the use of his
peremptory challenges. The state trial court denied the
motion to vacate without conducting an evidentiary hearing,
a decision that the Kentucky Supreme Court affirmed in April
2000. Baze v. Commonweath, 23 S.W.3d 619 (Ky. 2000)
(Baze II). Certiorari was again denied, in February 2001.
Baze then filed a petition for a writ of habeas corpus in the
United States District Court for the Eastern District of
Kentucky in April 2001. The district court denied a motion
for an evidentiary hearing on September 23, 2002, and denied
the habeas petition four days later. The district court denied
a motion to alter or amend the judgment on December 23,
2002 but “in an abundance of caution” issued a certificate of
appealability on all of the issues that Baze raised. Baze then
filed an appeal with this court asserting twelve points of error.
Most salient for this opinion are his assertions of ineffective
assistance of counsel and improper limitations on his ability
to exercise his peremptory challenges. He also alleges denial
of due process because of claims of: 1) trial court interference
with presentation of a defense; 2) refusal to strike six jurors
for cause; 3) improper jury admonition, instructions, and
6 Baze v. Parker No. 03-5112
verdict form; 4) improper introduction of character evidence
and unrelated out-of-state charges; 5) refusal to introduce
Baze’s federal firearms sentence; and 6) cumulative effect of
errors.
II
When reviewing a denial of habeas corpus relief, this court
reviews the district court’s legal conclusions de novo and its
factual findings under a “clearly erroneous” standard. Skaggs
v. Parker, 235 F.3d 261, 266 (6th Cir. 2000). The Anti-
Terrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs the review of the state court decisions involved in
this case and mandates additional deference to state court
proceedings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998).
In AEDPA, Congress provided that:
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 an
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 light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A state court decision is “contrary to” Supreme Court
precedent “if the state court arrives at a conclusion opposite
to that reached by [the] Court on a question of law,” or “if the
state court confronts facts that are materially indistinguishable

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No. 03-5112 Baze v. Parker 7
from a relevant Supreme Court precedent and arrives at a
result opposite to” the Court’s decision. Williams v. Taylor,
529 U.S. 362, 405 (2000). A state court decision involves an
“unreasonable application” of clearly established Supreme
Court precedent when it correctly identifies the governing
legal standard but applies that standard in an objectively
unreasonable, as opposed to merely incorrect, manner. Id. at
409-11. Furthermore, state findings of fact are presumed to
be correct unless the defendant can rebut the presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Finally, review is conducted in light of the law as it existed at
the time of the final state court decision, Teague v. Lane, 489
U.S. 288 (1989), unless an intervening constitutional decision
announces a “watershed” rule of criminal law with
implications for the fundamental fairness of the trial
proceeding. Caspari v. Bohlen, 510 U.S. 383, 396 (1994).
Most of Baze’s habeas claims are based on challenges to
interpretations of state law and therefore this court may only
grant relief if his Fourteenth Amendment Due Process rights
are implicated, an extremely high standard that Baze cannot
meet. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (stating that
federal habeas corpus relief does not lie for errors of state
law). Therefore, we will consider Baze’s clear constitutional
claim – ineffective assistance of counsel – first, and then
address the claims based on state law.
Ineffective Assistance of Counsel
Baze argues on appeal that he was denied effective
assistance of counsel when his lawyers negligently omitted
the name of a corrections officer from the list of peremptory
strikes, which resulted in the officer sitting on the jury.
The events that resulted in Ms. Sharon Perkins, a
corrections officer, sitting on Baze’s jury are somewhat
convoluted. Ms. Perkins approached the judge with another
corrections officer to bring to his attention their potential bias.
In response to the judge’s questions, Ms. Perkins initially said
8 Baze v. Parker No. 03-5112
that her job would affect her ability to be impartial, but then,
upon further probing by the judge, changed her mind, stating
that she could listen to testimony and be fair. During the
subsequent individual voir dire, Ms. Perkins stated that she
had been a corrections officer for six years but that her job
would not affect her judgment in the case. She also did not
think she would feel pressure from her prison colleagues to
render a particular verdict.
The defense moved that she be struck for cause, both
because of her job knowledge about parole and sentencing
rules, and because she might be swayed by the remote
possibility that she would meet Baze in prison, should he be
convicted but not sentenced to death. The court denied the
motion, after questioning Ms. Perkins to make sure that she
was not intimidated by the theoretical possibility of meeting
Baze at some later date. Nothing in the record suggests that
this court should not defer to the trial court’s determination
that Ms. Perkins’s responses were credible and that she could
be impartial. 28 U.S.C. § 2254(e)(1); see Patton v. Yount,
467 U.S. 1025, 1038 (1984).
After the voir dire, the court instructed counsel to submit
their lists of peremptory strikes by 8:45 the next morning.
Defense counsel conferred that night and eliminated nine
potential jurors, Baze’s statutory limit, including Ms. Perkins.
Mr. Riley, the lead counsel, described to the judge what
happened then:
We picked the nine, put it on a piece of paper, and, left
the piece of paper with the other two individuals on the
defense team, with the instructions to write down the
strikes. I didn’t even look at them. They were late
getting here this morning. I grabbed the piece of paper
from them, copied it, gave it – and, about the same time,
they noticed there was eight, we noticed there was eight.
We had decided, as a team, not to ask for the ninth,
because it was our mistake, and we screwed up. At that
time, your paralegal and the clerk came out, and, said

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No. 03-5112 Baze v. Parker 9
1Under local court procedure, fourteen jurors hear all of the evidence
and then two are chosen by lottery as alternates, after the closing
arguments, and do not participate in the deliberations. Therefore,
excusing extra jurors by lottery is a well-established practice in Kentucky
state courts. See also Ky. R. Crim. P. 9.3 6(2).
there was a ninth one . . . . So, we gave them the ninth
name. We will live by any ruling of the Court. I don’t
expect them to believe that it was an unintentional error,
but I tell you, it was an unintentional error, on our part.
Both the judge and the district attorney accepted the
contention that the error was inadvertent, but the prosecution
immediately objected to amending the strike list to include
Ms. Perkins. The judge initially decided to resolve the
question by eliminating the final juror by lottery.1 At that
point in the proceedings, another potential juror, Willie
Wagoner, requested to be excused because his wife opposed
the death penalty, although he did not. He feared, however,
that his participation in the trial would “cause conflict . . . in
my home.” The judge decided that he should be excused and
proceeded “as if he [Wagoner] would be the juror that was
struck.” In essence, therefore, the judge exercised Baze’s
final peremptory strike. Baze’s lawyer responded: “We are
not crazy about giving up any of the jurors that we didn’t
strike, but, we will live with whatever the . . . [court
decides].” The prosecution responded that “[I] will abide by
the Court’s ruling, but I will object to it.” As a result, Ms.
Perkins sat on the jury and ultimately voted with her fellow
jurors both to find Baze guilty and to impose the death
penalty.
In two paragraphs, the Kentucky Supreme Court considered
and rejected Baze’s ineffective assistance of counsel
argument related to the voir dire described above, on the
grounds that the claim, litigated on its merits in Baze I, could
not be resubmitted under the guise of ineffective assistance of
counsel. Baze II, 23 S.W.3d at 624 (citing Sanborn v.
Commonwealth, 975 S.W.2d 905 (1998), cert. denied, 526
10 Baze v. Parker No. 03-5112
U.S. 1025 (1999)). The Kentucky Supreme Court also held
that the decision not to use the peremptory challenge against
Ms. Perkins amounted to “trial strategy.” It did not refer to
the specific circumstances of this case in its decision,
characterizing the appellant’s argument as: “his trial counsel
was constitutionally deficient in negligently failing to
exercise a ninth peremptory challenge available to the
defense.” Baze II, 23 S.W.3d at 623. The court then simply
analyzed the claim under the law governing peremptory
challenges, rather than ineffective assistance of counsel.
Although the point was not argued in either brief, this court
must first consider if we may review Baze’s claim, given that
it is procedurally barred under Kentucky law, as set down in
Sanborn. Nevertheless, the Kentucky Supreme Court
addressed, albeit in summary fashion, Baze’s claim on the
merits. Baze II, 23 S.W.3d at 624. If a state court does not
expressly rely on a procedural deficiency, then a federal court
may conduct habeas review. Caldwell v. Mississippi,
472 U.S. 320, 327 (1985); Bowling v. Parker, 344 F.3d 487,
499 (6th Cir. 2003) (proceeding to consideration of the merits
of petitioner’s claims because the Kentucky Supreme Court
reviewed the ineffective assistance of counsel claims on the
merits, in spite of a procedural bar to review, and therefore
the reliance on procedural default was not “unambiguous”).
Subsequent discussion of the merits did not always cast a
doubt on the procedural bar, however. Simpson v. Jones, 238
F.3d 399, 407-09 (6th Cir. 2000); Clifford v. Chandler, 333
F.3d 724, 728-29 (6th Cir. 2003), overruled in part on other
grounds by Wiggins v. Smith, 123 S.Ct. 2527 (2003). Clifford
held that when a state court relies on an independent
procedural ground to deny relief, a discussion of the merits
will not supersede the procedural bar to habeas relief.
Although it could be argued that the Kentucky Supreme
Court relied on the procedural bar to dismiss Baze’s claim of
ineffective assistance of counsel, the district court held that
the claim was not procedurally defaulted and considered it on
the merits. The Commonwealth of Kentucky did not raise the

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No. 03-5112 Baze v. Parker 11
question of procedural default in its response brief to Baze’s
appeal, but rather opposed the claim on the merits. The state
may waive a defense by not asserting it. Scott v. Collins, 286
F.3d 923, 927-28 (6th Cir. 2002). Therefore, we also consider
Baze’s ineffective assistance claim on the merits.
AEDPA requires that a court considering a habeas petition
limit its analysis to the law as it was “clearly established”
under Supreme Court precedent at the time of the state court
decision. 28 U.S.C. § 2254(d)(1). At the time of Baze II, the
Strickland two-part test for determining ineffective assistance
of counsel was well-known, Strickland v. Washington, 466
U.S. 668 (1984), and governed the analysis of the claim.
Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001). We are
unsure whether the Kentucky Supreme Court applied the
Strickland test in its discussion of Baze’s ineffective
assistance of counsel claim. Baze II, 23 S.W.3d at 624. We
need not decide whether AEDPA deferential review should be
applied to the state court’s decision in this respect because
even if we were to review the claim de novo, Baze has not
established that he was prejudiced by his counsel’s
mishandling of the peremptory strike list.
Under Strickland, courts are required to determine whether
1) the performance of the attorney fell below an objective
standard of reasonableness; and 2) the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 688, 691-92.
A clerical error such as one at issue in this case does not give
rise to automatic relief. Yarborough v. Gentry, 124 S. Ct. 1, 6
(2003). Rather, the Sixth Amendment guarantees reasonable
competence, not perfect litigation. Ibid. (citing cases);
McQueen v. Scroggy, 99 F.3d 1302, 1315 (6th Cir. 1996)
(stating that an attorney “merely losing, being wrong, or
miscalculating is not enough to free every person convicted
of a crime”).
We do not need to address the question of competence,
however: “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice . . . that
12 Baze v. Parker No. 03-5112
course should be followed.” Strickland, 466 U.S. at 697.
Although the performance of Baze’s counsel arguably fell
below reasonable competence, Baze cannot show that he was
prejudiced by these deficiencies. Nothing in the record
suggests “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. Even with a
jury not entirely in line with Baze’s preferences, the trial was
not unreliable or fundamentally unfair. Lockhart v. Fretwell,
506 U.S. 364, 372 (1993).
Of the fourteen veniremen selected to hear the evidence
during trial, eleven, including Ms. Perkins, answered the
questions about attitudes toward the death penalty without
significant elaboration, stating that they could impose it if
warranted, as the Supreme Court required in Wainwright v.
Witt, 469 U.S. 412, 424 (1985). One answered that she would
“consider it less,” but reaffirmed that she would decide on the
evidence. The Commonwealth unsuccessfully moved to
strike her for cause on the grounds that she would not
consider the death penalty, and the record shows that she was
removed from a previous death penalty case jury through a
peremptory strike. Another juror stated that he would start by
thinking about the death penalty, but would consider the
range of penalties. The defense unsuccessfully objected to
him on the grounds of insufficient follow-up to his responses.
Finally, Baze’s counsel interpreted a third juror’s comment in
general voir dire to mean that she would only reject the death
penalty if the crime were a crime of passion, which in
Kentucky is a non-death penalty offense. The defense did not
move to have her removed for cause.
On balance, therefore, the record reveals that eleven of the
jurors were neutral on the death penalty (able to condemn a
guilty defendant to death but not impose the death penalty
automatically); two may have leaned slightly towards the
death penalty as the most proper sanction for murder, and one
may have leaned in the other direction. Given that make-up,
no plausible argument for prejudice can be made.

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No. 03-5112 Baze v. Parker 13
Baze argues that the trial judge prejudiced his case when he
excused Juror Wagoner, who, after being qualified,
approached the judge just before the panel was sworn in to
state that sitting on the jury would cause difficulties in his
marriage. Baze theorizes that Wagoner would have been
disinclined to impose the death penalty in deference to his
wife’s moral convictions against it. This assumption
presupposes that Wagoner, to placate his wife, would have
violated his oath as a juror to base his decision solely on the
evidence presented in court. Had he been willing to bend the
rules, however, he would not have asked to be excused since
he could have avoided marital strife simply by following his
wife’s wishes; his scruples indicate that he took the process
seriously, and therefore Baze’s theory that Wagoner would
have voted against the death penalty is not convincing.
Wagoner seemed hesitant about the death penalty in the
individual voir dire, stating that it was appropriate under
“certain circumstances.” Ironically, the defense wanted the
judge to question Wagoner further before finding him
qualified because of the attorney’s experience that when a
potential juror says he would impose the death penalty “in
certain circumstances,” he means “in this case.” The judge
declined to do so, finding Wagoner qualified based on his
responses in the individual voir dire. Nothing in the record
even hints that Wagoner would have voted against the death
penalty or that the outcome of the trial would have been
different had he remained. Even had Ms. Perkins been
included on the original strike list, it seems clear that the
judge would have excused Wagoner as well. Therefore, Baze
would not have had the benefit of his sympathy, if any, in any
event.
Furthermore, Baze did not have a right to have a specific
juror decide his case, only that all jurors be qualified.
McQueen, 99 F.3d at 1328 (stating that “once the jury is
qualified, any combination of twelve of the fourteen jurors is
as valid as any other”). Had the judge agreed to allow the
defense to exercise belatedly its last strike to remove Perkins,
14 Baze v. Parker No. 03-5112
and then excused Wagoner, the record does not reveal who
the next juror would have been. The judge suspended
individual voir dire after 29 jurors were qualified. Four
additional jurors had made it to the second jury pool of thirty,
but the record only contains their names. As a precaution, the
judge asked them to return the morning that the jury was
seated in case one or more jurors had second thoughts
overnight, but once Wagoner had been excused and Perkins
seated, evening out the numbers, these four extra potential
jurors were excused without any inquiry into their
qualifications to sit on the jury.
Therefore, one is left with pure speculation on whether the
outcome of the trial or the penalty phase could have been any
different, an insufficient basis for a successful claim of
prejudice. McQueen, 99 F.3d at 1321 (stating that a
defendant cannot successfully claim constitutional error
simply because he might have been better off with a different
jury). Although the procedure for removing Wagoner from
the jury was somewhat improvised, it was constitutional.
United States v. Mosely 810 F.2d 93, 96 (6th Cir. 1987)
(citing cases for the rule that “the manner in which the
peremptory challenges are exercised is a matter of local
custom and traditionally has been left to the sound discretion
of the district court”). Whatever errors Baze’s lawyers
committed, they did not prejudice his defense, and therefore
his claim of ineffective assistance of counsel must fail.
III
Federal courts are highly circumscribed in their ability to
second-guess state supreme court rulings on state law in order
to grant habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). The Supreme Court has made clear that “federal
habeas corpus relief does not lie for errors of state law.”
Lewis, 497 U.S. at 780. In conducting habeas review, a
federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United
States. 28 U. S. C. § 2241(c); Rose v. Hodges, 423 U.S. 19, 22

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No. 03-5112 Baze v. Parker 15
(1975) (per curiam)). Habeas relief may be granted when a
state court unreasonably applies Federal law, or a state court
is incorrect to such a degree that it implicates the defendant’s
right to a fair trial because an unreasonable determination of
the facts tainted the final outcome. See Williams, 529 U.S. at
412-13.
Baze argues that a Kentucky criminal rule requiring
simultaneous exercise of peremptory challenges deprived him
of his opportunity to voluntarily and intelligently exercise
those challenges. Baze has no constitutional right per se to a
set number of peremptory strikes. Ross v. Oklahoma, 487
U.S. 81, 89 (1988) (“peremptory challenges are a creature of
statute and are not required by the Constitution.”). He only
has a right to receive “that which state law provides.” Ibid.
Under the Kentucky Rules of Criminal Procedure,
“[p]eremptory challenges shall be exercised simultaneously
by striking names from the list and returning it to the trial
judge.” RCr 9.36(2). No juror can be challenged after being
accepted “unless the court for good cause permits it.” RCr
9.36(3). In this case, the judge warned the attorneys on two
occasions that the list of peremptory strikes would be due at
a certain time and that the list could not be amended once
submitted. Baze has not asserted that the relevant rules are
unconstitutional in light of Swain v. Alabama, 380 U.S. 202
(1965), the case upon which he relies. Because this is a claim
stemming from the application of state procedural rules, it is
beyond our purview on habeas review. McGuire, 502 U.S.
at 67-68.
Impermissible Interference with Right to Present a Defense
Baze argues that the trial court interfered with his right to
put on a defense and therefore denied him his due process
rights. Kentucky law allows a defense to murder if the killer
acts “under the influence of an extreme emotional disturbance
[EED] for which there is a reasonable explanation or excuse.”
KRS § 507.020(1)(a). To mount an EED defense, Baze
wanted to introduce evidence that he was engaged in a feud
16 Baze v. Parker No. 03-5112
with his wife’s family. According to Baze, his relatives had
called in false reports to the police to harass him, and the feud
had escalated to the point that he felt his life was in danger.
The feud fed into his underlying paranoia, resulting in his
belief that the officers’ attempted arrest on an outstanding
Ohio warrant was just another dirty trick set up by his
relatives, and he therefore had to defend himself.
The trial judge allowed some evidence of the feud to be
introduced, but he determined that Baze could not base his
defense on the incidents with his wife’s family because the
two officers were not directly involved in the family
altercation, and Baze did not have a contentious relationship
with either of the victims. The Kentucky Supreme Court held
that the trial judge ruled correctly that the feud was not
relevant to the killings, and that he had not abused his
discretion by limiting the evidence of the intra-familial
conflict. Baze I, 965 S.W.2d at 821.
A fair opportunity to present a defense is a constitutional
right. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citing
cases). Presenting relevant evidence is integral to that right.
Taylor v. Illinois, 484 U.S. 400, 408-09 (1988) (stating that
“[t]he need to develop all relevant facts in the adversary
system is both fundamental and comprehensive”). In
particular, few rights are more fundamental than that of an
accused to present witnesses in his own defense. Chambers
v. Mississippi, 410 U.S. 284, 302 (1973) (citations omitted).
However, this right is not absolute. The defendant “must
comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.” Ibid. States have
broad authority to promulgate rules that exclude evidence so
long as they are not “arbitrary” or “disproportionate to the
purposes they are designed to serve.” United States v.
Scheffer, 523 U.S. 303, 308 (1998) (citing Rock v. Arkansas,
483 U.S. 44, 56 (1987) (internal citations omitted)).
Accordingly, the Constitution leaves judges “wide latitude”

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No. 03-5112 Baze v. Parker 17
to exclude evidence that is only “marginally relevant.”
Crane, 476 U.S. at 689.
Exclusion of evidence only raises constitutional concerns
if it has “infringed upon a weighty interest of the accused.”
Scheffer, 528 U.S. at 308 (citations omitted). Only if “an
evidentiary ruling is so egregious that it results in a denial of
fundamental fairness [does] it . . . violate due process and thus
warrant habeas relief.” Bugh v. Mitchell, 329 F.3d 496, 512
(6th Cir. 2003), cert. denied sub nom. Bugh v. Bradshaw, 124
S. Ct. 345 (2003) (stating that “[g]enerally, state-court
evidentiary rulings cannot rise to the level of due process
violations unless they ‘offend[ ] some principle of justice so
rooted in the traditions and conscience of our people as to be
ranked as fundamental.’”) (internal citations omitted));
Estelle, 502 U.S. at 67 (rejecting the Ninth Circuit’s reliance
on its own determination that evidence had been improperly
admitted to justify habeas relief because “[s]uch an inquiry
. . . is no part of a federal court's habeas review of a state
conviction”).
In order to qualify for an extreme emotional disturbance
instruction under Kentucky law, the defendant must produce
“some definitive, non-speculative evidence” that the onset of
the extreme emotional disturbance was caused by a triggering
event. Morgan v. Commonwealth, 878 S.W.2d 18, 20 (Ky.
1994); see Patterson v. New York, 432 U.S. 197, 210 (1977)
(declining to “adopt as a constitutional imperative, operative
countrywide, that a State must disprove beyond a reasonable
doubt every fact constituting any and all affirmative defenses
related to the culpability of an accused”). Evidence of mere
anger or hurt is not sufficient. Talbott v. Commonwealth, 968
S.W.2d 76, 85 (Ky. 1998). See Sanborn v. Commonwealth,
892 S.W.2d 542, 551 (Ky. 1994) (holding that it was not
prejudicial error to refuse to allow the defense psychological
expert to testify about a “triggering event” for which there
was no independent evidence).
18 Baze v. Parker No. 03-5112
2See Eric Y. Drogin, To the Brink of Insanity: “Extreme Emotional
Disturbance” in Kentucky Law, 26 N . Ky. L. R ev. 99 (1999).
Because the statute does not define “extreme emotional
disturbance,” Kentucky law has considered a variety of
situations concerning who is eligible to present this defense.
By the time of Baze’s trial, however, it was clear that the
defendant had to point to a “triggering event,” prompting a
reaction that was so “enraged,” “inflamed,” or “disturbed” as
to be uncontrollable, before he could present a defense under
the theory.2 McClellan v. Commonwealth, 715 S.W.2d 464,
468 (Ky. 1986); Spears v. Commonwealth, 30 S.W.3d 152,
155 (2001) . Baze may have been distraught at the on-going
feud with his wife’s family, but he could not point to a
dramatic, isolated event in that conflict that could have caused
him to lose temporary control of sense of right and wrong,
thereby qualifying him for mitigation under a EED theory.
Ibid. (stating that a “triggering event” is required). Therefore,
limiting his ability to present evidence on this issue neither
undermined the fundamental fairness of Baze’s trial nor
deprived him of any “weighty interest,” and accordingly he
cannot establish any grounds for habeas relief on this issue.
Extreme Emotional Disturbance Instruction
The same analysis undermines Baze’s claim that the trial
court improperly instructed the jury that it could consider the
mitigation defense of extreme emotional disturbance (EED)
only if it found that Officer Briscoe shot first in the final
altercation with Baze. Baze claims that this qualifier rendered
the instruction unconstitutional, but his argument does not
survive scrutiny. “Extreme emotional disturbance is a
temporary state of mind so enraged, inflamed, or disturbed as
to overcome one's judgment, and to cause one to act
uncontrollably from the impelling force of the extreme
emotional disturbance rather than from evil or malicious
purposes.” Garland v. Commonwealth, 127 S.W.3d 529, 536
n.4 (Ky. 2003) (quoting McClellan, 715 S.W.2d at 468-69)

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No. 03-5112 Baze v. Parker 19
(emphasis added). Kentucky law requires a “triggering
event,” that is responsible for causing the emotional
disturbance. Sanford v. Commonwealth, 793 S.W.2d 112,
115 (Ky. 1990). A triggering event is dramatic, creating a
temporary emotional disturbance that overwhelms the
defendant’s judgment, ibid., such as the paradigmatic
discovery of a spouse in bed with a lover. See Spears, 30
S.W.3d at 153, 155 (observing a tryst between wife and
another man sufficient for “triggering event”).
A triggering event is not synonymous with the common law
concept of heat of passion, and may extend over a period of
time, but its onset must be “sudden” and its effects
“uninterrupted.” Springer v. Commonwealth, 998 S.W.2d
439, 452 (Ky. 1999) (threat of child molestation could form
basis for mother’s EED defense, although the statement
“festered for a time” in the defendant’s mind). Baze had been
in Ohio and Michigan in the immediate period preceding the
killings, so even if we accept his assertions of fear of the
police and aggravation from the family feud, the build-up of
these factors, upon which Baze relies for his EED defense,
was not uninterrupted. Garland, 127 S.W.3d at 536.
The dissent argues that “although Briscoe’s actions did not
constitute provocation in the textbook sense of the word,
Kentucky law imposes no categorical limitation on the types
of events that may trigger EED,” relying on McClellan v.
Commonwealth for support. (Dissent, p. 29). In a case
decided after McClellan, but before the events of this case,
the Kentucky Supreme court narrowed the circumstances
which a defendant can offer as the basis for an EED defense
and reiterated the requirement that “the event which triggers
the explosion of violence on the part of the criminal defendant
must be sudden and uninterrupted.” Foster v.
Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991) (citing
McClellan and other case law). The court explicitly stated that
extreme emotional disturbance is “not a mental disease or
illness.” Ibid. (citing Wellman v. Commonwealth, 694
S.W.2d 696, 697 (Ky. 1985)). The court concluded: “[I]t is
20 Baze v. Parker No. 03-5112
wholly insufficient for the accused defendant to claim the
defense of extreme emotional disturbance based on a gradual
victimization from his or her environment, unless the
additional proof of a triggering event is sufficiently shown.”
Ibid.
The dissent describes at length the efforts of the Highleys
to induce the police to harass Baze, to accept the defendant’s
characterization. Briscoe’s appearance at Baze’s cabin
therefore cannot be described as sudden or dramatic from
Baze’s point of view. Understanding that paranoia alone
cannot substitute for a triggering event, the district court still
allowed Baze to present an EED defense – if he could show
something out of the ordinary occurred in his on-going
relations with local law enforcement, namely that Briscoe
shot first. Baze argued at trial both that Briscoe shot first and
that Baze was put on edge by Briscoe reaching for his gun
during his first trip to the cabin that day. The jury did not
believe either story, but Baze received the opportunity to
argue his version of events, as the Constitution requires.
Juror Challenges
Baze also attacks the seating of individual jurors, but he
cannot point to any error, much less to one of constitutional
magnitude.
As described above, a corrections officer sat on Baze’s jury.
Although empaneling law enforcement or corrections officers
is far from optimal, no per se rule exists disqualifying them
from jury service, unless state statute prohibits it, which is not
the case in Kentucky. United States v. Wood, 299 U.S. 123
(1936) (holding that the Sixth Amendment does not
disqualify government employees from jury service); Woodall
v. Commonwealth, 63 S.W.3d 104, 118 (Ky. 2001) (holding
that employment at the Kentucky State Prison did not
disqualify a penalty-phase juror because “there is no authority
for the proposition that mere knowledge about parole
eligibility is a basis for challenge for cause”). In fact, at voir

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No. 03-5112 Baze v. Parker 21
dire, Baze’s attorney stated that he had corrections officers on
juries all the time. Therefore, this court has no basis on which
to hold that the presence of a prison employee on the jury
violated Baze’s Sixth Amendment rights.
Baze argues in his brief that another juror, Larry Knipp,
should have been excluded because his brother-in-law was, on
occasion, Baze’s jailer at the courthouse. Knipp indicated in
the general voir dire that this relationship might influence his
attitude toward Baze, a concern he withdrew in the individual
interview. Since being a law enforcement officer is not a
per se disqualification, then, logically, being a relative of one
cannot mandate automatic exclusion. He apparently satisfied
both the judge and counsel that his relationship would not
cloud his ability to judge Baze fairly, so that Baze’s right to
a fair trial was not compromised. For the same reasons, the
mere fact that an additional juror, James Padula, Jr., was
friends with policemen did not warrant his exclusion from the
jury, as Baze asserts. McQueen, 99 F.3d at 1319-20 (being
friends with two of the police officers in the case did not
disqualify a potential juror).
Valerie Utterback, another juror, had been personally
touched by crime: her sister-in-law had been murdered eleven
years before and she had two brothers serving time in prison.
Baze asserts that she equated “justice” with the imposition of
the death penalty, because, when asked about her sister-in-
law’s killing, she responded “I wanted to see justice done”
and, in fact, the perpetrator was sentenced to death, although
he died in prison. This reads a great deal into a stock
response, especially given Utterback’s assurances that she
could be fair in assessing Baze’s case. The judge found her
explanation credible and nothing in the record would prompt
this court to second guess that determination.
Baze asserts that he was forced to use two of his
peremptory challenges to remove two jurors, Diana Lindsey
and Noretta Bradt, from the panel, although he claims that
they should have been excused for cause. The record does not
22 Baze v. Parker No. 03-5112
indicate that these two jurors were unqualified, but even if
they were, Baze’s contention would be without merit.
Peremptory challenges are not a constitutional right, although
the Supreme Court has held them to constitute an “essential
part of trial by jury.” Lewis v. United States, 146 U.S. 370,
376 (1892). It is not a constitutional violation, therefore, if a
defendant has to use a peremptory strike to remove a juror
who should have been removed for cause. United States v.
Martinez-Salazar, 528 U.S. 304, 315-17 (2000).
Baze’s contention that juror bias denied him his right to a
fair trial is without merit.
Imperfect Self Defense
Baze claims that the trial court’s refusal to give the jury an
instruction on imperfect self-defense violated his
constitutional rights. Challenging a jury instruction on
collateral review is a difficult undertaking: only if “the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process,” can this court grant
a writ. Henderson v. Kibbe, 431 U.S. 145, 154 (1977)
(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Far
from infecting the process, the jury instructions were correct.
Baze wanted to argue that Deputy Briscoe reached for his
own gun during his first visit to the cabin, thereby prompting
Baze to fear for his life. Baze was willing to concede that this
fear was irrational, but argued to the trial judge that the jury
should be allowed to consider manslaughter, the result
provided for under the Kentucky penal statute for a defendant
who intentionally kills another in a reckless or wanton, but
genuinely held, belief that he needed to act in self-defense.
Shannon v. Commonwealth, 767 S.W.2d 548, 550 (Ky. 1988).
The Kentucky Supreme Court decided that the record did not
show that Briscoe had moved his hand toward his weapon on
his initial visit, and therefore Baze did not have any reason,
wanton or not, to fear for his life, making the trial court’s
ruling correct in disallowing the imperfect self-defense claim.

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No. 03-5112 Baze v. Parker 23
Baze I, 965 S.W.2d at 822. The testimony supports the
factual determination that Briscoe did not reach for his gun
during his first visit to the cabin on January 30, and therefore
Baze has not shown any improper interpretation of the facts
that would cast doubt on the fundamental fairness of his trial.
Furthermore, as the Kentucky Supreme Court carefully
explained, the concept of imperfect self-defense does not exist
under Kentucky law in the context of an arrest. The use of
deadly force, whatever the perpetrator’s state of mind, is not
justifiable when “[t]he defendant is resisting an arrest by a
peace officer.” Ky. Rev. Stat. Ann. § 503.060(1) (1999). If
the police are using “more force than is reasonably necessary
to effect the arrest” then a suspect who resists arrest can
validly claim he acted in self-defense. Ky. Rev. Stat. Ann.
§ 503.050 Kentucky Crime Commission Commentary (2003).
In that scenario, however, the suspect has a perfect defense.
Therefore, if Briscoe had shot at Baze first when Baze was
unarmed and attempting to surrender, he would be entitled to
an acquittal based on justified self-defense. The jury, in fact,
received an instruction to that effect. However, the jury
found implicitly that Baze initiated the gunfire, and so he falls
under § 503.060(1), which precludes any claim of self-
defense as justification for resisting arrest if the officer is
using reasonable force. Therefore, this court has no grounds
on which to grant habeas relief because, far from tainting the
trial, the jury instructions were proper.
Improper Jury Form
The form that the jury received when deliberating on
Baze’s punishment incorrectly reflected the Kentucky law of
the time: the form stated that the minimum punishment was
life without possibility of parole for 25 years as opposed to
the correct standard of 20 years before the possibility of
parole. The form stated correctly that the jury could also opt
for a life sentence. Baze claims that the incorrect verdict form
given to the jury violated his due process rights. Had the
mistake been the opposite, that is that the jurors were told that
24 Baze v. Parker No. 03-5112
their choice was between death and twenty years in prison,
then Baze might have a constitutional claim. A jury might
sentence a defendant to death if its members thought that the
only alternative punishment for a double murder of police
officers were a guaranteed twenty years in prison. It makes
no sense to argue, however, that the jury would have chosen
a lesser punishment (20 years) than the rejected, albeit
incorrect, option available to it (25 years), especially since it
also did not choose the life sentence.
Habeas petitioners must show that a trial error of
constitutional dimension “had substantial or injurious effect”
on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619,
638 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946)). In this case, the jury chose death over two other
options, including one that was stated more harshly than the
actual law provided, demonstrating its determination that
death was the appropriate penalty. See also Schad v. Arizona,
501 U.S. 624, 646-47 (1991) (explaining that the jury must be
able to consider lesser included offenses to prevent it from
being forced into an all-or-nothing choice between capital
murder and innocence, which would diminish the reliability
of a guilty verdict). The situation here meets the Schad
requirement. Baze’s jury could have sentenced him to life, a
middle option between 20 (or 25) years in prison and death,
but did not choose to do so. Therefore, the incorrect jury
form did not have an injurious effect on the jury’s verdict and
habeas relief is not warranted.
Admonition on Validity of the Ohio Arrest Warrant
Baze claims that the trial judge’s admonition regarding the
legal irrelevance of Baze’s belief that he was not wanted in
Ohio violated his constitutional rights because a defendant
has a right to explain why he acted as he did. Baze was able
to testify that he shot the officers because he thought that they
had no right to arrest him. It defies common sense to assert
that anyone who thinks they are being falsely arrested has the
right to use deadly force to thwart being taken into custody.

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No. 03-5112 Baze v. Parker 25
The trial judge was only acting responsibly in clarifying to the
jury that “the law is that a person may be lawfully arrested by
a law officer, without a warrant, upon reasonable information
that the accused stands charged in the courts of another state
. . . .” In essence, Baze was allowed to explain to the jury that
he acted on an incorrect assumption of the law, but it is
axiomatic that “ignorance of the law is no excuse.”
Therefore, the trial judge’s admonition did not violate Baze’s
due process rights.
Character Evidence
The coroner testified at trial that neither Briscoe or Bennett
were aggressive or “gung-ho” police officers. Baze
complains that he was not allowed to rebut this assertion by
introducing evidence that 1) Deputy Briscoe had once shot
out the tires of a suspect in an effort to apprehend him;
2) when approaching the suspect, he stated “do you want to
meet your Maker?”; and 3) Baze knew about the incident and
therefore it colored his reaction to Briscoe’s attempt to arrest
him. The Kentucky Supreme Court ruled that Baze had
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
record suggests that was an unreasonable conclusion that
would implicate Baze’s due process rights. In fact, the
Commonwealth explained that Briscoe shot out the tires to
stop the suspect from fleeing at 100 mph in a stolen car.
Appellee Br. at 86. In this scenario, “do you want to meet
your Maker?” is more an expression of admonition, along the
lines of “are you crazy?” than a threat, rendering the
statement irrelevant to Baze’s self-defense claim. Given at
least two plausible readings of the comment, the Kentucky
Supreme Court did not deny Baze’s due process rights by
affirming the trial judge’s evidentiary ruling.
26 Baze v. Parker No. 03-5112
Identification of the Ohio Felony Charges
Baze complains that informing the jury of the nature of the
Ohio charges against him violated his constitutional right to
a fair trial. He asserts that presenting the jury evidence of
alleged previous violent acts “undoubtedly tipped the balance
toward guilt during the jurors’ three days of deliberation.”
Appellant Br. at 81. Although perhaps plausible speculation,
Baze provides no citation to support his assertion that
revealing the nature of the charges violated Kentucky’s Rule
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 two policemen. Nor does Baze offer any way around the
fact that a federal court conducting habeas review may not, as
a basic rule, revisit state court decisions. Estelle, supra;
Crane, 476 U.S. at 690 (citing Chambers v. Mississippi, 410
U.S. 284, 302 (1973)). The Kentucky Supreme Court found
the issue to be without merit, Baze I, 965 S.W.2d at 821, and
there the matter must rest.
Mitigating Evidence: Baze’s Federal Firearms Conviction
Baze attempted to introduce evidence to the jury during the
sentencing phase that he had received a 20-year sentence on
a federal firearms charge, which would run consecutively to
any prison sentence the jury would impose. At the time of
sentencing, however, his firearms conviction was on appeal,
and thus the trial judge refused to inform the jury about it
because his sentence could be overturned. Baze’s theory is
that he could have avoided the death penalty if the jury
concluded that the additional firearms conviction would
ensure that he would never get out of prison. However, if the
jury’s “insurance sentence” were to be reduced or vacated, the
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

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No. 03-5112 Baze v. Parker 27
sentence him to life in prison for the tragic killings of the two
officers.” (Dissent, p. 38) The verdict form, however,
allowed the jury to sentence Baze to any number of years they
chose; to “confinement in the penitentiary for life;” to
“confinement . . . without benefit of probation or parole until
he has served a minimum of twenty-five years” or “death.”
We agree with the district court that, had the jury wished to
spare Baze’s life, yet keep him permanently behind bars, it
could have done so by selecting the “confinement for life”
option. Had the jury been skeptical that a life sentence would
stick, it could have sentenced Baze to a three-digit term of
years for each murder under its discretion to stipulate a
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
28 Baze v. Parker No. 03-5112
isolation may require reversal when taken together. Under
AEDPA, however, a court may only grant habeas relief based
on misapplication of Supreme Court law. Bailey v. Mitchell,
271 F.3d 652, 655 (6th Cir. 2001). Because Baze cannot
establish any errors to cumulate and because his theory that
errors can be considered in the aggregate depends on non-
Supreme Court precedent, this claim is also without merit.
IV
For the foregoing reasons, we AFFIRM the district court’s
denial of Baze’s petition for a writ of habeas corpus.

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No. 03-5112 Baze v. Parker 29
____________________________________________
CONCURRING IN PART, DISSENTING IN PART
____________________________________________
R. GUY COLE, JR., Circuit Judge, concurring in part and
dissenting in part. Because Baze admitted that he shot and
killed Officers Bennett and Briscoe, his constitutional right to
present a defense at trial pertaining to his mental state and
mitigating evidence at sentencing were of the utmost
importance. Although I agree with many of the majority’s
conclusions, I respectfully dissent as to my colleagues’
conclusions on the EED defense at trial and the presentation
of mitigating evidence at sentencing.
A. Due Process Right to Present a Defense
At trial, Baze asserted that he believed Briscoe showed up
at his residence to arrest him falsely and at the behest of the
Highleys, who Baze claimed had repeatedly harassed him and
previously used the police do so. In rejecting Briscoe’s
arrival as a possible trigger of EED, the majority
asserts—without authority—that “[a] triggering event is
shocking and dramatic, such as the paradigmatic discovery of
a spouse in bed with a lover.” This assertion, however,
misapprehends Kentucky law at the time of the shootings.
Although a discrete event must trigger the EED, that event
need not be as shocking and dramatic as the majority
suggests, it may overcome the defendant gradually, and it
must be measured from the perspective of the defendant.
First, although Briscoe’s actions did not constitute
provocation in the textbook sense of the word, Kentucky law
imposes no categorical limitation on the types of events that
may trigger EED. As held by the Kentucky Supreme Court
long before the shootings in our case, “a reasonable
explanation of extreme emotional disturbance is not limited
to specific acts of provocation by the victim but may relate to
any circumstance that could reasonably cause an extreme
30 Baze v. Parker No. 03-5112
emotional disturbance.” McClellan v. Commonwealth, 715
S.W.2d 464, 468 (Ky. 1986) (emphasis added). Indeed, the
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
mental or emotional disturbance.” Gall v. Commonwealth,
607 S.W.2d 97, 108 - 09 (Ky. 1980), overruled on other
grounds, Payne v. Commonwealth, 623 S.W.2d 867 (Ky.
1981).
Second, although the shootings did not instantaneously
follow Briscoe’s arrival, EED’s “onset may be more gradual
than the “flash point” normally associated with sudden heat
of passion.” McClellan, 715 S.W. at 468. So long as nothing
interrupted the triggering event, Kentucky law recognizes that
the EED remains viable.
Third—and most importantly in our case—Kentucky EED
law measures whether the source of the defendant’s alleged
EED “is reasonable under the circumstances as he believed
them to be.” McClellan, 715 S.W.2d at 468 (emphasis
added). That we (or most people, for that matter) would have
perceived certain events differently does not mean that Baze’s
defense fails as a matter of law. To the contrary, the defense
calls upon the jurors to “place themselves in the actor’s
position as he believed it to be at the time of the act.” Gall,
607 S.W.2d at 108. In other words, the jury must have a
chance to view Briscoe’s arrival through Baze’s eyes.
Evaluated through this time-honored legal framework, the
availability of the EED defense to Baze becomes apparent,
and the denial of it a clear violation of Baze’s constitutional
right to present a complete defense. The trial judge’s
unconstitutional denial of Baze’s EED defense is based upon
the: (1) improper restrictions on his right to present evidence;
and (2) erroneous instructions to the jury.
Had he been allowed to present the relevant evidence
available to him, Baze would have illustrated to the jury his

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No. 03-5112 Baze v. Parker 31
perception of the events on the day of the shooting—a
perception that was critical to understanding the source of his
claimed EED. Baze asserted that he saw Briscoe’s arrival as
the work of the Highleys, who had repeatedly harassed him in
the months leading up to the shootings, including providing
the police false accusations of criminal wrongdoing by Baze.
But the trial judge limited evidence of the family feud to only
to a general affirmation that it existed. Any time he asked a
feud-related question, defense counsel was required by the
court to instruct the witness to answer “[w]ithout going into
any details....” Even when he did allow feud-related
evidence—such as Baze’s motivation for building a trap-door
in his home—the trial judge admonished the defense to omit
any discussion of the specific events that underlay the dispute.
No matter how many defense witnesses were able to utter
the words “family feud,” the most relevant and dramatic
details—those involving the Highleys bringing the police into
the fray to put Baze in danger of physical harm—were
nowhere to be found. The jury was prevented from hearing
evidence—including the testimony of a police officer—that
on a prior occasion, the Highleys falsely told the police that
Baze was driving drunk, had nearly run someone off the road,
was armed and dangerous, and was a fugitive with out-of-
state warrants. According to the excluded testimony, this
false information from the Highleys led police officers to stop
Baze’s car, aim their guns at him, and threaten to shoot him
if he moved. Further, both Baze and the police officer would
have expressed their beliefs that it was the Highleys’
allegations that instigated the stop. This testimony, in
concrete terms, would have illustrated the link Baze perceived
between the police and the Highleys, and why he therefore
might have perceived Briscoe as an agent of the Highleys
who could put Baze’s life in danger. Instead, Baze was
allowed to testify only in general terms to his suspicion that
the Highleys had provoked this latest encounter with the
police. Yet it is only when placed in the context of this prior
showdown with the police that Baze’s perception of the
32 Baze v. Parker No. 03-5112
events could become credible and its effect on his emotions
reasonable.
Baze’s prior experience with the police was relevant not
only to show the general link in his mind between the
Highleys harassment and police action, but also because one
of the prior fabrications by the Highleys involved out-of-state
warrants—the initial basis for Baze’s arrest on the day of the
shootings. During the previous Highley-instigated traffic
stop, the officers had checked for out-of-state warrants and
had told Baze that the law-enforcement computer disclosed
no outstanding charges. This information would certainly
have made Baze more likely to believe that his impending
arrest on outstanding charges was a lawless act of familial
score-settling rather than a legitimate exercise of police
authority, and thereby contributed to the inflammation of his
passions upon Briscoe’s arrival. To the contrary, Baze was
allowed to testify only to his general belief that there were no
out-of-state warrants against him. Again, evidence that this
information came from the same police department now
seeking to arrest him would have bolstered the believability
of Baze’s perception and the reasonableness of the resulting
distress.
The relationship in Baze’s mind between the Highleys, the
police, the impending arrest, and the threat of violence also
interacted with another important contextual clue kept away
from the jury: Baze’s growing paranoia. Although a mere
ongoing mental disturbance does not suffice to set forth a
defense of EED, it was well-established by the Kentucky
Supreme Court that “an underlying mental disease may be
considered by a jury in making its determination of whether
a defendant’s explanation or excuse for his alleged ‘extreme
emotional disturbance’ is reasonable under the circumstances
as he believed them to be.” McClellan, 715 S.W.2d at 468.
The trial judge, however, prohibited the defense’s psychiatric
expert from testifying that the ongoing feud “was just feeding
his paranoia. As it continued, [Baze] became more and more
paranoid and more concerned about the safety of himself and

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No. 03-5112 Baze v. Parker 33
his family.” This context would have further allowed the
jury to assess how Baze might have interpreted the events on
the day of the shooting and how these events produced a
genuine fear for his well-being that produced severe distress.
The trial judge’s rationale for the exclusion of this
evidence—that the feud did not involve the murder
victims—was expressly contradicted by the Kentucky
Supreme Court well before Baze’s trial took place. As noted
above, in McClellan, 715 S.W.2d at 468, the court held that
“a reasonable explanation of extreme emotional disturbance
is not limited to specific acts of provocation by the victim but
may relate to any circumstance that could reasonably cause an
extreme emotional disturbance.” Baze’s EED defense
depended on placing the officers’ arrival in the context of the
ongoing family feud and his relatives’ prior use of the police
to harass him. The proper question was whether the events,
as Baze perceived them, reasonably placed him under severe
emotional distress—not whether the victim “asked for it.”
Finally, the trial judge excluded evidence that Baze might
have understood Briscoe’s presence at his home as a threat to
his physical safety. Baze was prohibited from testifying
about reading a newspaper article which reported that while
making an arrest, Briscoe shot out the tires of the arrestee’s
car, pointed his weapon at the suspect, and asked him if he
“want[ed] to meet [his] maker.” Baze’s testimony would
have emphasized the danger that he felt during Briscoe’s
attempt to arrest him, and also would have provided the lens
through which he interpreted Briscoe’s subsequent actions.
The majority justifies the exclusion of this evidence by
dwelling on details of Briscoe’s prior incident that were
unlikely to have been known to Baze. It first points out that
“the Commonwealth explained that Briscoe shot out the tires
to stop the suspect from fleeing at 100 mph in a stolen car.”
That may have been the case, but the majority does not
explain how Baze would have learned of this. Similarly, the
majority interprets “do you want to meet your maker?” as “an
34 Baze v. Parker No. 03-5112
expression of admonition, along the lines of ‘are you crazy.’”
Again, that may be one way of understanding such an
interrogatory, but it is hardly the only one. The jury
reasonably could have found that Baze was less prone than
the majority to interpret Briscoe’s question in this manner.
If the jury credited the above evidence, it could have
concluded that when Briscoe arrived at his residence to arrest
him, Baze believed: (1) that he was being falsely arrested;
(2) because Briscoe was using his authority as a police officer
to torment Baze at the Highleys behest; and (3) that the police
generally, and Briscoe in particular, might turn violent when
executing the arrest. A reasonable jury certainly could have
determined that Baze reasonably felt extreme distress when
confronted with these circumstances.
Even if the trial judge had admitted every piece of evidence
that Baze proffered, the jury instructions themselves would
have clearly trampled on Baze’s constitutional right to present
a complete defense. Following Baze’s testimony, the trial
judge told the jury that Baze’s belief in the lawfulness of the
attempted arrest was legally irrelevant. Yet this instruction
misunderstood the EED defense, which requires the jury to
measure the defendant’s emotions as the defendant himself
reasonably felt them. Baze’s belief that there were no such
charges would contribute to the “circumstances as he believed
them to be,” namely that Briscoe’s arrival at his residence to
arrest him was another instance of the police doing the
Highleys bidding.
The trial judge instructed the jury that it could find that
Baze acted under EED only if it found that Briscoe fired the
first shot. In so doing, the trial judge prevented the jury from
considering Baze’s reaction—in light of his understanding of
the circumstances—to Briscoe’s arrival. The instruction also
kept the jury from considering whether, Baze may have
believed that Briscoe had fired or was about to fire.

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No. 03-5112 Baze v. Parker 35
Granted, under the common law “heat of passion” standard,
the passage of several minutes between Briscoe’s arrival and
Baze’s turn to violence would have exhausted any claims of
EED. But because the Kentucky Supreme Court expressly
contemplates that EED may percolate more gradually, a
reasonable jury could have concluded that Briscoe’s
arrival—and all of the conclusions that Baze drew from it,
given the circumstances as he understood them—was enough
to inflame Baze’s passion, even if it did not produce a split-
second reaction. To use the majority’s analogy, Briscoe’s
arrival may not have been analogous to Baze catching his
wife in bed with a lover, but probably was analogous to, say,
Baze observing his wife and another man check into a motel.
The majority argues that because Baze had previously been
harassed by the police at the behest of the Highleys,
“Briscoe’s appearance at Baze’s cabin therefore cannot be
described as sudden or dramatic from Baze’s point of view;
if anything, it was routine and annoying.” Under this logic,
the majority would consider a husband’s beating his wife for
the second time to be merely “routine and annoying” because
the victim should be used to it by now. Of course, the
opposite is true: the first beating, or in this case the second
instance of police harassment would reasonably make
someone even more upset than the first instance. The second
time, the victim knows that the first incident was not isolated.
In any event, Briscoe’s arrival would have been more
disturbing to Baze than the prior incident of harassment,
because this time his arrest was assured.
Even if Briscoe’s arrival itself was not a triggering event
under Kentucky law, an even more sudden and dramatic
stimulus awaited Baze. Becky Baze testified that when her
husband walked away from Briscoe, she saw Briscoe putting
his hand near his holster. Believing that Briscoe was going to
shoot her husband, Becky hollered and grabbed Briscoe’s
arm. Baze similarly testified that after he turned away from
Briscoe, “everyone started hollering, ‘Run!’” Again, given
Baze’s view of the circumstances—including both the prior
36 Baze v. Parker No. 03-5112
tense police incident initiated by the Highleys and the article
he had read about Briscoe—Baze might have perceived his
wife’s outcry as a warning that Briscoe was about to turn
violent towards him, and Baze in fact testified that he
believed that Briscoe had tried to shoot him in the back. A
reasonable jury could have found that a perceived imminent
threat of violence at the hands of the police—which Baze
believed was the product solely of the Highleys’ vendetta
against him—could reasonably and severely disturb an
average person, let alone a paranoid one.
B. Mitigating Evidence
The majority also errs in rejecting Baze’s Eighth
Amendment claim: that he was deprived of his right to
present mitigating evidence by the exclusion of evidence
about his pending twenty-year prison term on federal
weapons charges. On the question of mitigating evidence, the
Supreme Court has been resolute: “the sentencer may not
refuse to consider or be precluded from considering any
relevant mitigating evidence.” Skipper v. South Carolina,
476 U.S. 1, 5, (1986) (emphasis added). This includes
evidence “that the defendant would not pose a danger if
spared (but incarcerated).” Id.
The majority contends that because this conviction was still
pending on appeal, “it was not entirely clear whether there
was mitigation or not.” But this is precisely the type of
inquiry that the Supreme Court has left for the jury, which
could have been told about both the sentence and the appeal.
And the possibility of an additional twenty-year sentence
makes it less likely that Baze would ever return to the streets,
and in any event would make him much older and presumably
less dangerous if he did. Of course, Baze bore the risk that
the jury would conclude that a not-yet-final sentence was too
flimsy a basis upon which to assume Baze’s additional
incarceration. But the jurors also might have factored it into
their calculus, given that an assessment of future
dangerousness is inherently an uncertain and probabilistic

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No. 03-5112 Baze v. Parker 37
enterprise. Cf. Johnson v. Texas, 509 U.S. 350, 368 (1993)
(upholding instructions to jury to consider whether there was
“a probability that [the defendant] would commit criminal
acts of violence that would constitute a continuing threat to
society” (emphasis added)).
Recent cases from our sister circuits are particularly
instructive in this regard. In Paxton v. Ward, 199 F.3d 1197,
1211 (10th Cir. 1999), the court reviewed the constitutionality
of the state trial court’s “refusal to admit a court order stating
that [the defendant] had been cleared in his wife’s death by a
polygraph examination.” The trial court had kept out the
results because state law prohibited the admission of
polygraph evidence due to concerns about its reliability. The
court held that the refusal to admit this evidence constituted
a clearly unreasonable application of the Supreme Court’s
Eighth Amendment jurisprudence, noting that whatever the
reliability concerns that the use of a polygraph test might raise
in a normal criminal proceeding “[t]he Supreme Court has
been exceedingly cautious to ensure that a person found guilty
of a capital offense is given every opportunity to present
potentially mitigating evidence that might form the basis for
a sentence less than death.” Id. at 1214 (internal quotations
omitted). The Ninth Circuit reached the same decision in an
identical case—notwithstanding the state’s concerns about the
polygraph’s reliability—noting that “under controlling United
States Supreme Court authority, relaxed standards govern the
admission of mitigating evidence during the penalty phase of
a death penalty trial.” Rupe v. Wood, 93 F.3d 1434, 1439 (9th
Cir. 1996).
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
38 Baze v. Parker No. 03-5112
consciousness that can only be understood from a clinical
perspective, not from a lay perspective.” Unlike Alley—in
which the evidence might affirmatively confuse all but the
most technically informed—the mitigating evidence in this
case requires no such expertise to consider. A lay person is
perfectly capable of understanding that the conviction would
not be final until after the appeal.
That Baze was facing an extra twenty years in prison was
particularly relevant because the jury had no way to directly
sentence him to life in prison for the tragic killings of the two
officers. If the jury spared Baze’s life, its next most
restrictive option was to impose a sentence of twenty-five
years to life. Finally, the trial judge excluded evidence that
Baze might have understood Briscoe’s presence at his home
as a threat to his physical safety. Baze was prohibited from
testifying about the newspaper article which reported that
while making an arrest, Briscoe shot out the tires of the
arrestee’s car, pointed his weapon at the suspect, and asked
him if he “wante[ed] to meet [his] maker.” Baze’s reading
this would have added to the danger that he felt during
Briscoe’s attempt to arrest him, and also would have provided
the lens through which he interpreted Briscoe’s subsequent
actions. The jury’s perception of Baze’s future
dangerousness—and the chance that he could be back on the
street sooner than it would want—may very well have
motivated the jury to sentence him to death.
These shootings were brutal. But constitutional errors
infected both Baze’s conviction and sentence of death.
Accordingly, I respectfully dissent.

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