1

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
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. 
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 AntiTerrorism 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
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
No. 03-5112 Baze v. Parker 9

1

Under 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. 9.36(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,theKentucky 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
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 AEDPAdeferential 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.
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
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”
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

2

See Eric Y. Drogin, To the Brink of Insanity: “Extreme Emotional

Disturbance” in Kentucky Law, 26 N. Ky. L. Rev. 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)
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 employeesfromjuryservice); 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
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-inlaw’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.
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 ofimperfectself-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 CrimeCommissionCommentary (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 selfdefense 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) (quotingKotteakos 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.
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
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 nonSupreme 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.
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
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-ofstate 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
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

chargeswould 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.
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 splitsecond 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
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 aboutthe

polygraph’sreliability—notingthat “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.