Hough, Kevin L. v. Anderson, Rondle ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3968
KEVIN L. HOUGH,
Petitioner-Appellant,
v.
RONDLE ANDERSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 98 C 246--Allen Sharp, Judge.
ARGUED SEPTEMBER 14, 2000--DECIDED November 20, 2001
Before RIPPLE, DIANE P. WOOD and EVANS,
Circuit Judges.
RIPPLE, Circuit Judge. Kevin Hough was
convicted of the murders of Ted Bosler
and Gene Rubrake in the Superior Court of
Allen County, Indiana, and was sentenced
to death. After exhausting his state
remedies, Mr. Hough filed a petition for
a writ of habeas corpus in the district
court. The district court denied the
petition, but granted Mr. Hough a
certificate of appealability. For the
reasons set forth in the following
opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A. Facts
On November 6, 1985, Mr. Hough and his
younger brother, Duane Lapp, set out for
the home of Ted Bosler and Gene Rubrake.
Once there, Mr. Hough approached Rubrake
and helped him unload groceries from his
car; Lapp accompanied Mr. Hough. Mr.
Hough then followed Rubrake into the
basement where Bosler joined them. Once
in the basement, Mr. Hough pulled a .45
caliber pistol from his shoulder holster
and told Bosler and Rubrake to lie down
on the floor. Rubrake swung at Mr. Hough
with the television remote control. Mr.
Hough responded by shooting Rubrake in
the chest. Bosler, however, dropped to
the floor; Mr. Hough then shot Bosler
while he was lying on the floor. When
Rubrake appeared to move, Mr. Hough shot
him in the face. Mr. Hough and Lapp then
started up the stairs, but Mr. Hough
returned to the basement to retrieve a
beer can and a remote control that, he
believed, might contain his fingerprints.
While in the basement, Mr. Hough also
removed several rings from the bodies of
Bosler and Rubrake. As Mr. Hough left the
basement, he stepped on Rubrake’s face.
After the murders, Mr. Hough took Lapp
back to his (Mr. Hough’s) home. There,
Mr. Hough packed and left for
Indianapolis with his fiancee, Noreen
Akers.
Less than a month before the
Bosler/Rubrake murders, Mr. Hough had
committed another murder. On October 27,
1985, Mr. Hough had told his friend, Juan
Fernandez, that "[t]onight’s the night to
hit Greg Nicola’s house." Tr. 1210,
State’s Ex.21. Then Mr. Hough, Fernandez,
and another man, Donald Maley, went to
the home of Greg Nicola for the purpose
of evaluating the prospects of robbing
the house. Mr. Hough directed Fernandez
to park approximately three to four
blocks away on another street; Mr. Hough
and Maley left the car and went to the
house. When Antoni Bartkowiak answered
the door, Mr. Hough stuck a .45 caliber
handgun into his stomach and backed him
into the residence. Mr. Hough made
Bartkowiak lie down on the floor, and Mr.
Hough and Maley handcuffed Bartkowiak’s
hands behind his back. Mr. Hough
discovered a semi-automatic weapon and
shells in the house, which he handed to
Maley. Mr. Hough then told Maley to hold
it against Bartkowiak and use it if
necessary. Mr. Hough then searched the
house.
After ransacking the house, Mr. Hough
questioned Bartkowiak regarding cocaine
that he believed to be in the residence.
When Bartkowiak denied knowledge of the
cocaine, Mr. Hough used a device to
inflict electric shocks on Bartkowiak.
Mr. Hough and Maley then took Bartkowiak
to the basement. En route downstairs, Mr.
Hough instructed Maley to return to the
main floor to get a cushion from the
couch. Once in the basement, Mr. Hough
forced Bartkowiak to lean over a rollaway
bed. Mr. Hough then took the cushion,
placed it over the back of Bartkowiak’s
head and shot Bartkowiak.
After the murder, Mr. Hough and Maley
returned to the car and left for home.
Mr. Hough took two bags of stolen items
to the basement of the house and emptied
the contents. Mr. Hough then gave Maley
$80 and stated that it came from
Bartkowiak’s wallet. He also told Maley
that he could have the shotgun, but Maley
declined. After complaining to Mr. Hough
that he had not gotten his share, Maley
left. After that, Mr. Hough told
Fernandez that he had found an additional
$400, but that he did not wish to divide
it with Maley because Maley had not done
his part. A few days later, Mr. Hough
gave Fernandez the .25 caliber semi-
automatic weapon and told him to dispose
of it; Fernandez did so.
Mr. Hough was tried and convicted for
the murder of Bartkowiak in November
1986./1 These proceedings were given
significant coverage in the Fort Wayne
newspapers.
B. State Court Proceedings
1.
Mr. Hough’s Trial
Mr. Hough’s trial for the Bosler/Rubrake
murders was scheduled to take place less
than three months after his conviction
for the Bartkowiak murder. Because of the
extensive press coverage that the trial
for the Bartkowiak murder had received,
counsel for Mr. Hough requested a change
of venue. The court denied the request
for change of venue, but ordered that the
jury be chosen from Marion County.
During this same time frame, Mr. Hough
requested that he be allowed to act as
co-counsel with his attorneys because he
believed that they had not represented
him adequately in the Bartkowiak trial.
The court denied the request, but allowed
one of Mr. Hough’s attorneys to withdraw.
The court then appointed another attorney
to assist the remaining attorney with Mr.
Hough’s representation. At the request of
the defense, the trial was then postponed
until May 1987.
When the trial commenced, Maley
testified against Mr. Hough pursuant to a
plea agreement. Although Maley had not
been present at the Bosler/Rubrake
murders, he had seen Mr. Hough both
before and after the murders, and he was
called to testify about conversations he
had with Mr. Hough at those times. After
Maley testified, defense counsel began to
cross-examine him about his plea
agreement. The prosecutor then requested
a side bar. During the ensuing colloquy
with the judge, the prosecutor suggested
that, if defense counsel cross-examined
Maley on the plea agreement, it would
open up the door to questions as to
whether Mr. Hough was present at, and
convicted for, another murder. Defense
counsel acknowledged that he may be
opening the door to such questioning, but
nevertheless wanted to pursue this
course. After the side bar concluded,
defense counsel asked Maley if the plea
agreement "involve[d] not being charged
with an unrelated murder" and whether he
"was involved in an unrelated murder and
. . . [was] not charged with that crime."
Tr. 900-01.
During the redirect examination of
Maley, the prosecutor focused on the
opening created by defense counsel’s
inquires into the plea agreement.
Initially, the prosecutor limited his
questions to the requirements of the
agreement. He also, however, asked Maley
whether the plea agreement required him
to testify against Mr. Hough in the
Bartkowiak case and whether Maley was
present when Mr. Hough killed Bartkowiak.
Further inquiries into the Bartkowiak
murder, however, met with objections from
defense counsel.
The prosecutor then moved to admit
Maley’s plea agreement. He next asked
Maley whether he had fulfilled the plea
agreement by testifying against Mr.
Hough, whether Mr. Hough had been
convicted of that murder and who had
killed Bartkowiak. Before Maley could
respond to this last question, defense
counsel objected on the ground that this
was an attempt to retry the Bartkowiak
murder and to elicit the details of the
Bartkowiak murder, and that it was beyond
the scope of cross-examination. The
prosecutor, however, replied that he only
was trying to determine if Maley "killed
anyone that day." Id. at 925. On that
basis, the court overruled the objection.
On the second redirect, the roles of
Maley and Mr. Hough in the Bartkowiak
murder arose again. Specifically, the
prosecutor asked Maley whether he
knowingly had committed a burglary,
whether Mr. Hough was involved and
whether Mr. Hough "shot a man to death."
Id. at 933. While Maley was answering the
question, defense counsel objected to
both the question and response. The
court, however, overruled the objection
on the ground that the matter already had
been covered.
During the trial, Mr. Hough also took
the stand in his own defense. Mr. Hough
tried to explain why Maley and his
brother, Duane Lapp, would testify
against him and accuse him of murder.
Also, at the request of defense counsel,
Mr. Hough detailed his criminal record,
including his prior conviction for
homicide. At the end of his examination,
defense counsel asked Mr. Hough whether
he had "murder[ed] those two men." Id. at
1105. Mr. Hough responded, "No, I did
not." Id.
The prosecutor then cross-examined Mr.
Hough about Maley’s testimony against him
in the Bartkowiak trial. One of the last
questions focused on whether Bartkowiak
was handcuffed at the time of the murder.
At that point, defense counsel
interrupted on the basis that, again, the
prosecutor was attempting to retry the
Bartkowiak case. The prosecutor stated
that he would move on. On recross, the
prosecutor again returned to the robbery
prior to the Bartkowiak murder. The court
sustained the objection to this line of
inquiry and noted that "[i]t sounds to me
like we’re retrying the case." Id. at
1132.
After the trial concluded, the jury
deliberated and returned a verdict
against Mr. Hough. The case then
proceeded to the sentencing phase. The
state submitted that Mr. Hough was
eligible for the death penalty based on
three statutory aggravating
circumstances: 1) double murder; 2)
murder during robbery or attempted
robbery; and 3) prior murder conviction.
During its opening instructions to the
jury, the court stated that "[y]ou may
recommend the death penalty, only if you
find, one, that the State of Indiana has
proved beyond a reasonable doubt that at
least one of the aggravating
circumstances exists, and two, that any
mitigating circumstances that exist are
outweighed by the aggravating
circumstance or circumstances." Id. at
1198-99. Later in the instructions, the
court paraphrased the standard, stating,
"[i]f the State failed to prove beyond a
reasonable doubt the existence of at
least one aggravating circumstance, or if
you find that any mitigating
circumstances outweigh the aggravating
circumstances, you should not recommend
the death penalty." Id. at 1199. The
court later restated the standard as it
had initially. Defense counsel did not
object to any part of this instruction.
The first witness for the state during
the sentencing phase of trial was a court
clerk who testified to Mr. Hough’s
conviction for the Bartkowiak murder and
brought with her some records of that
conviction, collectively State’s Exhibit
21. The exhibit contained findings by the
presiding judge in the Bartkowiak case of
aggravating circumstances including a
description of the "viciousness and
senselessness of the murder" and the fact
that the judge had found no mitigating
circumstances. Id. at 1210, State’s
Ex.21. Also included was the probable
cause affidavit based on the statement of
Juan Fernandez, which set forth the
Bartkowiak murder in great detail.
Defense counsel stipulated to the
admission of Exhibit 21.
Defense counsel then offered evidence in
mitigation. The first piece of evidence
was Mr. Hough’s juvenile record. The
defense also presented testimony from Mr.
Hough’s former probation officer, John
Mauch, that Mr. Hough was raised in a
highly dysfunctional family, that Mr.
Hough was an unloved and unwanted child,
and that his home life was extremely
negative. On cross-examination, the
prosecutor elicited, without objection,
that in 1976 Mr. Hough had been charged
with armed robbery and that the case had
been transferred to adult court, that he
had a history of juvenile offenses, and
that he had robbed a man while armed with
a gun. Mauch, at the request of the
prosecutor, also read from a report
compiled as a result of the armed robbery
charge. The lengthy report was a
psychological analysis of Mr. Hough that
included statements that Mr. Hough had
expressed little or no remorse and had
taken no responsibility for the offense.
The report also characterized Mr. Hough
as "deeply troubled" and having little
feeling for others. Id. at 1227.
Mr. Hough’s counsel next presented the
videotaped testimony of Elroy Szabo,
another of Mr. Hough’s probation
officers. Szabo stated that Mr. Hough had
a very unhappy childhood, that his mother
was extremely negative and abusive, and
that he lacked a male role model. Szabo’s
reports also were entered into evidence.
Taped testimony of another probation
officer followed. Several family members
then testified to Mr. Hough’s terrible
childhood. Mr. Hough did not testify at
the death penalty hearing.
The parties then proceeded to closing
arguments. Much of the state’s closing
argument was dedicated to reviewing the
law of aggravation and mitigation, the
weighing process, and how the prosecutor
believed the evidence should be weighed.
However, during the course of the
argument, the prosecutor also returned to
the specific facts of the Bartkowiak
murder. He argued that the death penalty
should be imposed because it would stop
the drug flow from Indianapolis to Fort
Wayne, that the evidence in mitigation
should be discounted because Mr. Hough’s
mother was not the killer, that if you
let a wolf "out in the sheep that wolf
will kill every time," Tr. 1339, and that
it was possible to kill by commission or
omission.
The jury deliberated and recommended
that Mr. Hough be sentenced to death. The
judge agreed with the recommendation and
sentenced Mr. Hough to death. Mr. Hough
then appealed.
2.
State Court Appeals and Postconviction
Proceedings
The state supreme court affirmed the
conviction and the sentence. Hough v.
State, 560 N.E.2d 511 (Ind. 1990). Two
justices dissented on the ground that Mr.
Hough had not been convicted of the
Bartkowiak murder at the time he
committed the Bosler/Rubrake murders, and
therefore the fact of a prior conviction
should not have been used as an
aggravating factor. One of those justices
also took the view that the majority had
used the improper standard in reviewing
instructional error. Id. at 521-22.
Mr. Hough then filed for state
postconviction relief. In his petition,
he claimed that he had received
ineffective assistance of counsel at
trial and on his direct appeal. He argued
that his counsel’s failure to object to
the admission of a probable cause
affidavit constituted ineffective
assistance of counsel. Relying on its
decision in Maisonet v. Indiana, 448
N.E.2d 1052, 1055-56 (Ind. 1983), the
Supreme Court of Indiana, however, held
that, in light of the evidence and
aggravating factors, Mr. Hough was not
prejudiced by any additional evidence
contained in the affidavit. See Hough v.
State, 690 N.E.2d 267, 270-71 (Ind.
1998). Mr. Hough also argued that his
counsel was ineffective because he failed
to object to an improper closing argument
by the state. The Supreme Court held that
several of the prosecutor’s arguments
were improper. "However," it stated, "in
the context of this trial we do not
believe that the defendant was placed in
grave peril because, even without these
remarks, the jury was still confronted
with three substantial aggravating
factors." Id. at 270. With respect to Mr.
Hough’s other evidentiary arguments, many
made with only passing citation to the
record, the Supreme Court of Indiana
stated:
In defendant’s final argument concerning
counsel’s failure to object, he
challenges, again without legal citation,
some evidence which was admitted without
an objection. Defendant argues that he
was prejudiced because the evidence (such
as his juvenile record and facts
concerning the prior murder conviction)
added non-statutory aggravating factors
to the jury’s consideration. However, the
jury was instructed to consider only the
three alleged aggravating circumstances.
Furthermore, there is no indication that
this evidence amounted to any prejudice
as the jury was presented with evidence
of three aggravating circumstances, and
we do not believe defendant has shown a
reasonable probability that the outcome
would have been different absent these
pieces of evidence.
Id. at 271-72.
Finally, Mr. Hough argued that the trial
court erroneously led the jury to believe
both that the defendant had the burden of
proving any mitigating circumstances
beyond a reasonable doubt and that the
jury had to find unanimously that
defendant had met this burden before
balancing the aggravating and mitigating
factors. However, the court determined
that the instructions did not mislead the
jury regarding the burden of proof and
therefore did not jeopardize Mr. Hough’s
due process rights under Mills v.
Maryland, 472 U.S. 320 (1985). The
Supreme Court of Indiana held that the
portion of the instructions that the
defendant found objectionable simply
paraphrased the statutory language as it
existed at the time. See Hough, 690
N.E.2d at 274.
C. Disposition of Habeas Petition in
District Court
After he had exhausted state remedies,
Mr. Hough filed a petition for writ of
habeas corpus in district court. The
district court for the Northern District
of Indiana denied Mr. Hough habeas relief
because it found that the decision of the
Supreme Court of Indiana did not
constitute an unreasonable application of
federal law as stated by the Supreme
Court of the United States. The district
court, however, issued a certificate of
appealability with respect to the
ineffective assistance of counsel claim
based on counsel’s failure to object to
the prosecutor’s misconduct, failure to
object to specific evidence relating to
the Bartkowiak murder, introduction of
petitioner’s criminal record, and
cumulative errors. The court also issued
a certificate for Mr. Hough’s due process
claim arising from the alleged
instructional error.
II
ANALYSIS
On appeal, Mr. Hough maintains both that
his trial counsel was constitutionally
ineffective and also that instructional
error occurred in his trial that resulted
in a violation of his due process rights.
We address each of these contentions
below.
A. Standard of Review
Mr. Hough filed his petition for a writ
of habeas corpus on August 11, 1998,
after the effective date of the
Antiterrorism and Effective Death Penalty
Act ("AEDPA"), P.L. 104-132, 110 Stat.
1214 (1996) (codified at 28 U.S.C. sec.
2254). The provisions of this statute
therefore govern our review. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997). AEDPA
directs that, if a constitutional claim
was adjudicated on the merits by the
state courts, a federal court may only
grant habeas relief based on that claim
if (1) the state court’s decision was
contrary to or an unreasonable
application of federal law as determined
by the Supreme Court of the United
States, or (2) the state court’s determi
nation of the facts was unreasonable in
light of the evidence presented./2 See
28 U.S.C. sec. 2254(d).
The Supreme Court provided guidance as
to how to conduct the review required by
AEDPA in Williams v. Taylor, 529 U.S. 362
(2000). A state court’s decision is
"contrary to" established Supreme Court
precedent when it applies a rule that
contradicts the governing law set forth
in Supreme Court cases. Id. at 405. A
state court decision also is contrary to
Supreme Court precedent when it confronts
a set of facts that is materially
indistinguishable from those of a
decision of the Supreme Court and
nevertheless arrives at a decision
different from that reached by the
Supreme Court precedent. See id. at 406.
In this case, the Supreme Court of
Indiana correctly identified Strickland
v. Washington, 466 U.S. 668 (1984), as
the controlling precedent for Mr. Hough’s
ineffective assistance of counsel claims,
and Mills v. Maryland, 486 U.S. 367
(1988), as the controlling precedent for
his instructional error claim. Thus, we
are unable to say that the court’s
decision was contrary to established
federal law. Mr. Hough is not entitled to
habeas relief on this ground.
It remains to be determined, however,
whether the state court’s conclusion
resulted from an unreasonable application
of the principles established in
Strickland and Mills. The Supreme Court
has made clear that an incorrect
application is not necessarily an
unreasonable one. See Williams, 529 U.S.
at 410. A federal court may not issue a
writ of habeas corpus "simply because
[it] concludes in its independent
judgment that the relevant state-court
decision applied clearly established
federal law erroneously or incorrectly.
Rather, that application must also be
unreasonable." Id. at 411.
B. Ineffective Assistance of Counsel
Mr. Hough argues that he was rendered
ineffective assis-tance of counsel by his
attorneys’ failure to object to various
pieces of evidence introduced during the
guilt and punishment phases of his trial.
Specifically, Mr. Hough maintains that
his counsel should have objected to the
prosecutor’s questioning of Maley
concerning the details of the Bartkowiak
murder. Mr. Hough also believes his
counsel should have objected to various
questions put to him on cross-
examination. Additionally, Mr. Hough
takes issue with his counsels’ failure to
object to prejudicial documents
introduced during the sentencing phase of
his trial. Finally, Mr. Hough believes
defense counsel should have objected to
portions of the prosecutor’s closing
argument during the sentencing phase of
trial. We address each of Mr. Hough’s
arguments below, but first review the
constitutional standards according to
which we must evaluate Mr. Hough’s
claims.
1.
Constitutional Standards
Under the familiar test established in
Strickland v. Washington, 466 U.S. 668
(1984), a convicted defendant who claims
that his counsel’s assistance was so
defective as to require a reversal of a
conviction (or death sentence in the
context of a capital sentencing
proceeding) must establish two
components. First, he must demonstrate
that his counsel’s performance fell below
an objective standard of reasonableness.
See id. at 688. Second, he must
demonstrate that he was prejudiced by the
deficient performance. See id. at 687.
Prejudice occurs when there is a
reasonable probability that, but for
counsel’s unprofessional errors, the
result of the proceeding would have been
different. See id. at 694. If the
defendant makes an insufficient showing
on one prong of the test, a court need
not consider the remaining prong.
a. Deficient Performance
A defendant who complains that his
counsel was ineffective must show that
counsel’s representation fell below an
objective standard of reasonableness. See
id. at 688. Reasonableness is measured
under prevailing professional norms. See
id. Counsel owes a criminal defendant
certain basic duties. For example,
counsel owes a duty to avoid conflicts of
interest, to advocate the defendant’s
cause and to consult with the defendant
on important decisions. Furthermore,
counsel has a duty to "bring to bear such
skill and knowledge as will render the
trial a reliable adversarial testing
process." Id. "These basic duties neither
exhaustively define the obligations of
counsel nor form a checklist for judicial
evaluation of attorney performance." Id.
The controlling inquiry is whether
"counsel’s assistance was reasonable
considering all the circumstances." Id.
Our review of the performance of counsel
must be "highly deferential." Id. at 689.
We must presume that counsel’s conduct
falls within the wide range of reasonable
professional assistance; to prevail, the
defendant must overcome the presumption
that the challenged act or omission might
have been considered sound trial
strategy. See id. Furthermore, "[a] fair
assessment of attorney performance
requires that every effort be made to
eliminate the distorting effects of
hindsight, to reconstruct the
circumstances of counsel’s challenged
conduct, and to evaluate the conduct from
counsel’s perspective at the time." Id.
b. Prejudice
"An error by counsel, even if
professionally unreasonable, does not
warrant setting aside the judgment of a
criminal proceeding if the error had no
effect on the judgment." Id. at 690. In
order to constitute ineffective
assistance, the deficiencies must have
been prejudicial to the defense./3 In
defining "prejudice," the Court noted
that it is not enough for the defendant
to show that his counsel’s errors had
some conceivable effect on the outcome of
the proceeding, id.; the Court has stated
that the defendant must show that there
is a reasonable probability that, but for
counsel’s unprofessional errors, the
result of the proceeding would have been
different, id. at 694. A reasonable
probability is a probability sufficient
to undermine confidence in the outcome.
Id. In weighing the effect of counsel’s
errors, the court must consider the
totality of the evidence before the judge
or jury. Consequently, a verdict or
conclusion that is overwhelmingly
supported by the record is less likely to
have been affected by errors than one
that is only weakly supported by the
record. Id. at 696.
The standard changes very little when
applied to a capital sentencing
proceeding. "Resolution of a claim of
ineffective assistance of counsel at the
penalty phase of a capital trial, like
other claims of ineffective assistance,
involves two elements: performance and
prejudice." Hall v. Washington, 106 F.3d
742, 749 (7th Cir. 1997). The only
difference is the question asked to
determine prejudice. "When a defendant
challenges a conviction, the question is
whether there is a reasonable probability
that, absent the errors, the factfinder
would have had a reasonable doubt
respecting guilt." Strickland, 466 U.S.
at 695. But when a defendant challenges a
death sentence, "the question is whether
there is a reasonable probability that,
absent the errors, the sentencer . . .
would have concluded that the balance of
aggravating and mitigating circumstances
did not warrant death." Id. We now
evaluate the actions of Mr. Hough’s
counsel against these standards.
2.
Testimonial Evidence
Mr. Hough first argues that counsel
rendered ineffective assistance with
respect to testimony by Maley which was
admitted without objection. Mr. Hough
points to several places in the course of
Maley’s testimony where the prosecutor
asked about the details of the Bartkowiak
murder, but his counsel made no
objection. Additionally, Mr. Hough
believes that his counsel was also
ineffective in not objecting to testimony
elicited from him during his cross-
examination. Specifically, Mr. Hough was
asked whether he was present during the
Bartkowiak murder and whether he
committed that murder.
The State argues in reply that the issue
of ineffective assistance of counsel with
respect to testimonial evidence was not
properly presented before the state court
or the district court, and, therefore,
the argument has been waived.
a.
In Duncan v. Henry, 513 U.S. 364 (1995),
the Court stated that "exhaustion of
state remedies requires that petitioners
fairly present federal claims to the
state courts in order to give the State
the opportunity to pass upon and correct
alleged violations of its prisoners’
federal rights." Id. at 365 (internal
quotation marks and citations omitted).
This "fair presentation contemplates that
both the operative facts and the
controlling legal principles must be
submitted to the state court." Williams
v. Washington, 59 F.3d 673, 677 (7th Cir.
1995); see also Wilson v. Briley, 243
F.3d 325, 327 (7th Cir. 2001) ("To
satisfy that requirement, he must present
both the operative facts and the legal
principles that control each claim to the
state judiciary . . . ."). "[A] prisoner
who fails to present his claims in a
petition for discretionary review to a
state court of last resort" has not
"properly presented his claims to the
state courts." O’Sullivan v. Boerckel,
526 U.S. 838, 848 (1999). This failure
results in a procedural default that
precludes federal review. Id.; see also
Wilson, 243 F.3d at 327.
In the present case, Mr. Hough did not
present the issue of ineffective
assistance with respect to the
testimonial evidence in his petition for
review to the Supreme Court of Indiana.
Although he points to various parts of
the state court record where he claims to
have raised this issue, those sections
only allege failures of his counsel to
object to State’s Exhibit 21, to the
inclusion of the entire guilt phase of
trial in the sentencing phase, and to
allegedly improper commentary on the
evidence by the prosecutor. However, "the
operative facts" of this claim, the
failure to object to Maley’s testimony on
redirect and Mr. Hough’s testimony on
cross-examination, were not presented to
the Supreme Court of Indiana for
consideration. Consequently, under the
standards set forth above, Mr. Hough did
not fairly present this claim to the
state courts; he therefore failed to
exhaust his state court remedies, and
this failure constitutes a procedural
default of this claim./4
This conclusion, however, does not end
the inquiry. "A procedural default can be
overlooked when the petitioner
demonstrates cause for the default and
consequent prejudice, or when he shows
that a fundamental miscarriage of justice
will occur unless the federal court hears
his claim." Wilson, 243 F.3d at 329. Mr.
Hough, however, does not argue a "cause"
for the failure to raise this argument in
his petition to the Supreme Court of
Indiana, nor does he maintain that a
"fundamental miscarriage of justice" will
result from a failure to consider this
argument. Instead, Mr. Hough posits in
his reply brief that the state has
"waived any claim of waiver" for failing
to argue waiver or procedural default
either before the Indiana courts or the
district court. We believe that this
argument is without merit.
First, it was impossible for the state
to rebut, in the state court, Mr. Hough’s
claims of ineffective assistance with
respect to the testimonial evidence when
those claims were not raised properly.
Nor can we say that the state waived
reliance on procedural default, or
waiver, in the district court. Mr. Hough
did not raise the issue of ineffective
assistance concerning the testimonial
evidence in his petition for the writ of
habeas corpus. See R.12. Shortly after
Mr. Hough filed his petition, the
district court issued an order to show
cause why the petition should not be
granted. See R.20. The state then filed
its response to the order and a
memorandum in support of the response.
See R.34. Almost two months after the
state filed the response to the order to
show cause, Mr. Hough filed his
memorandum in support of his petition for
the writ. See R.41. It was in this
memorandum that Mr. Hough raised, for the
first time, the issue of ineffective
assistance of counsel with respect to
testimonial evidence. See id. at 32-33.
Therefore, when Mr. Hough raised the
issue of ineffective assistance regarding
testimonial evidence, the government
already had submitted its substantive
memorandum and response to the court.
Consequently, because of this sequence of
the briefing on the petition and the
order to show cause, the state cannot be
said to have waived Mr. Hough’s
procedural default.
b.
Even if we are mistaken in our
assessment of Mr. Hough’s procedural
default, we cannot conclude that Mr.
Hough’s counsel was constitutionally
deficient based on his actions during the
redirect of Maley and the cross-
examination of Mr. Hough. Some detail is
helpful in assessing counsel’s
performance.
During the cross-examination of Maley,
defense counsel asked Maley about his
plea agreement. The prosecutor then
requested a side bar. During the
conversation at the bench, the prosecutor
suggested that, if defense counsel-cross-
examined Maley on the plea agreement,
"maybe it would open up the door to his
client and this witness . . . and I think
what [defense counsel] may be getting
into may be opening cross examination as
to whether his client . . . was in fact,
present at another murder and convicted
for it." Tr. 899-900. Defense counsel
responded that he knew he would be
opening the door to such questioning;
indeed, when the prosecutor asked "[d]o
you want to bring it out," defense
counsel responded "[y]ou betcha." Id. at
900. Defense counsel then continued to
cross-examine Maley concerning the
Bartkowiak murder and his role in it.
Defense counsel asked Maley if the plea
agreement "involve[d] not being charged
with an unrelated murder" and whether he
"was involved in an unrelated murder and
. . . [was] not charged with that crime."
Id. at 900-01.
On redirect examination, the prosecuting
attorney initially focused on the
language of the plea agreement. The
prosecutor asked if, as part of the plea
agreement, Maley had to testify against
Mr. Hough for the murder of Bartkowiak
and whether Maley was present when Mr.
Hough killed Bartkowiak. When the
prosecutor began to ask Maley about the
events preceding the Bartkowiak murder,
defense counsel interjected: "Your honor,
I’m not sure that that’s relevant. I know
that I’ve discussed with him the plea
agreement. But I do not know that it’s
necessary to go into the details." Id. at
921. Although the court did not rule on
the objection, the question went
unanswered and the prosecutor refocused
his questions on the requirements of the
plea agreement, what Maley’s obligations
were, and to what crimes Maley had
pleaded guilty. The prosecutor then
followed with a series of questions that
elicited an objection:
Q. Alright, and you’ve plead guilty to
Aiding Burglary?
A. Yes sir, I did.
Q. The burglary that you did with the
Defendant?
A. Yes sir.
Q. On October 27, 1985?
A. Yes sir.
Q. Did an execution occur in the basement
of that house?
A. Yes, it did.
Q. Who shot . . . how did the execution
occur?
Id. at 922-23. After this last question,
defense counsel objected that "we’re
getting into the details of the
commission of the crime." Id. at 923. The
court, however, never ruled on the
objection. The prosecutor, however,
replied "alright" and moved to admit the
text of the plea agreement. Id.
He next asked Maley if he had fulfilled
the plea agreement by testifying against
Mr. Hough and if an "Allen Superior Court
Jury has convicted him [Mr. Hough] of
that murder?" Id. at 925. Maley
responded, "Yes, sir." Id. The prosecutor
then asked Maley directly whether he
(Maley) had killed Bartkowiak. However,
before Maley could respond, defense
counsel objected on the ground that the
prosecutor was attempting to retry the
Bartkowiak murder, that the question was
meant to elicit the details of the
Bartkowiak murder and that it was beyond
the scope of cross-examination. The
prosecutor, however, replied that "[t]he
only thing I will ask if the Court gives
its consent, is part of the plea bargain,
was that this man was somehow involved in
the murder. I simply want to ask him if
he killed anyone that day and I will be
done." Id. at 925-26. On that basis, the
court overruled the objection and allowed
Maley to answer the question.
On the second redirect, the issue of
Maley’s and Mr. Hough’s roles in the
Bartkowiak murder arose again.
Specifically, the prosecutor asked Maley
whether he knowingly had committed a
house burglary, whether he had committed
the burglary with Mr. Hough, and whether
"while you were there, Kevin Hough shot a
man to death." Id. at 933. While Maley
was answering the question "[y]es, sir,"
id., defense counsel objected to both the
question and response. He stated: "[I]t’s
the response that I’m objecting to and
his question that I’m objecting to and
that is that he was there and he’s
participated and he’s seen somebody else
do something. I’m objecting to getting
into the details of the prior murder."
Id. at 934. The court, however, overruled
the objection because, according to the
court, "that’s already been covered." Id.
Later in the trial, Mr. Hough took the
stand. Mr. Hough used this opportunity to
give his explanation as to why Maley and
Lapp had testified against him and
accused him of murder. Also during his
testimony, Mr. Hough detailed his
criminal record, including his prior
conviction for homicide. His testimony
concluded with this question and
response: "Kevin, did you murder those
two men?" Mr. Hough responded, "No, I did
not." Id. at 1105.
On cross-examination, the prosecutor
questioned Mr. Hough about Maley’s
testimony against him in the Bartkowiak
trial. The prosecutor then returned again
to the Bartkowiak murder; he asked: "Why
don’t you explain, Mr. Bartkowiak was
handcuffed when he was shot, was he not?"
Id. at 1106-07. At that point, defense
counsel interrupted: "Your honor, I am
reluctant to cut this off, but I’m
reluctant to retry the Bartkowiak case in
this proceeding and I think that, you
know, if we have--," at which point the
prosecutor stated that he would go on.
Id. at 1107. On recross, the prosecutor
again returned to the robbery prior to
the Bartkowiak murder. Defense counsel
allowed Mr. Hough to answer some
questions, but later objected on the
ground that the prosecutor appeared to be
retrying the Bartkowiak murder and that
the questions went beyond the scope of
the redirect. The court sustained the
objection, noting that "[i]t sounds to me
like we’re retrying the case." Id. at
1132.
In order to prove that this
representation was constitutionally
deficient, Mr. Hough must establish that
"the identified acts or omissions were
outside the wide range of professionally
competent assistance." Strickland, 466
U.S. at 690. In doing so, he must
overcome the strong presumption that the
challenged action, or omission, "might be
considered sound trial strategy." Id. at
689 (internal quotation marks and
citations omitted). In an effort to meet
that standard, Mr. Hough maintains that,
with respect to Maley’s testimony, his
counsel "made no attempt" to limit the
redirect examination of Maley to the
parameters of the plea agreement and to
rebuff the prosecutor’s efforts to
introduce evidence of Mr. Hough’s
involvement in the Bartkowiak murder.
Petitioner’s Br. at 27. According to Mr.
Hough, "[i]t was incumbent upon
reasonably effective counsel to point
this out to the court and to attempt to
prevent, and at least minimize, the
prosecutor’s inquiry into the facts of
the Bartkowiak murder." Id.
We cannot conclude that the performance
of Mr. Hough’s counsel falls outside the
wide range of constitutionally
permissible decisions. To save his
client, defense counsel had to impeach,
in some way, the credibility of Maley and
other witnesses. With respect to Maley,
the most effective means of doing so was
by way of the plea agreement. The plea
agreement was however, as Mr. Hough
points out, a two-edged sword: Once it
was used to cross-examine Maley, the
prosecution was free to explore the
parameters of the plea agreement,
including Maley’s testimonial duties
pursuant to the agreement./5 At that
point, counsel had to walk a fine line:
He had to monitor the prosecutor’s
questions closely to make sure that Mr.
Hough was not unnecessarily linked with
the Bartkowiak murder, while not
appearing so protective of Mr. Hough as
to arouse the suspicion of the jury. In
this case, defense counsel objected to
attempts to link Mr. Hough directly to
the Bartkowiak murder; he was overruled.
Other attorneys may have taken a more
aggressive approach to keeping out the
information; another approach may have,
in the end, been more efficacious.
Counsel’s approach, however, was not
unreasonable.
Mr. Hough also takes issue with his
counsel’s failures to object during his
own cross-examination. "Unaccountably,"
he states, "defense counsel failed to
make any effort to prevent or restrict
examinations into the details of
Bartkowiak’s torture and execution, and
the prosecution again elicited evidence
that Hough shot Bartkowiak in the head in
a basement during the course of a
robbery, admitted being present in the
house for the robbery, and that
Bartkowiak was handcuffed at the time he
was shot." Petitioner’s Br. at 29. We
believe that this is an overstatement of
defense counsel’s presumed deficiencies.
During the cross-examination of Mr.
Hough, only two of the facts listed above
were offered without objection. The
prosecutor asked, without objection: "Was
Mr. Bartkowiak, in fact, shot in the head
in a basement?" Id. at 1106. Later in
recross, the prosecutor established,
without objection, that Mr. Hough
participated in a robbery at the
Bartkowiak home on the day of the murder.
Mr. Hough also said, however, that,
although he had been present at the house
immediately prior to the murder, he was
unaware that the murder was going to
occur. See Tr. 1106. Defense counsel did
interject when the prosecutor asked Mr.
Hough whether Bartkowiak was handcuffed
when he was shot and whether Mr. Hough
was present when Bartkowiak was killed.
We do not believe that defense counsel’s
efforts fell below an objective standard
of reasonableness under the
circumstances./6
3.
State’s Exhibit 21
Mr. Hough next submits that he was
deprived of effective assistance of
counsel when his attorneys failed to
object to State’s Exhibit 21. That
exhibit included, among other items, a
probable cause affidavit that detailed
the Bartkowiak murder. It also contained
the sentencing determination of the judge
in the Bartkowiak trial that there were
no mitigating factors and that the murder
was horrendous and senseless. In Mr.
Hough’s view, this document was unduly
prejudicial and its contents were
inadmissible under Indiana law. It
therefore was unreasonable for defense
counsel not to object to its admission.
To resolve this issue, we must determine
whether the Supreme Court of Indiana
addressed this issue and, if so, whether
its decision is contrary to, or an
unreasonable application of, existing law
as interpreted by the Supreme Court. With
respect to this claim of ineffective
assistance, the Supreme Court of Indiana
stated:
Without citing to any authority,
defendant argues that the evidence
[State’s Exhibit 21] was both hearsay and
irrelevant. However, the evidence was
relevant to prove one of the alleged
aggravators, a previous conviction for
murder. Also, in light of the evidence
and aggravating factors against
defendant, any additional evidence
contained in the affidavit and entry were
not prejudicial. See Maisonet v. State,
448 N.E.2d 1052, 1055-56 (Ind. 1983).
Hough, 690 N.E.2d at 270-71. Here, unlike
the issue of the testimonial evidence,
the Supreme Court of Indiana clearly
addressed this issue on the merits./7
Furthermore, in evaluating Mr. Hough’s
claim, the Supreme Court of Indiana
correctly cited Strickland v. Washington
as the governing case law, and
performance and prejudice as the
governing standard. Consequently, we are
constrained by AEDPA only to assess
whether the determination of the Supreme
Court of Indiana that the admission
without objection of State’s Exhibit 21
did not result in a constitutional
violation was an unreasonable application
of the Strickland v. Washington test.
An ineffective assistance claim based on
a failure to object is tied to the
admissibility of the underlying evidence.
If evidence admitted without objection
was admissible, then the complained of
action fails both prongs of the
Strickland test: failing to object to
admissible evidence cannot be a
professionally "unreasonable" action, nor
can it prejudice the defendant against
whom the evidence was admitted. Indeed,
"’[o]nly in a rare case’ will a court
find ineffective assistance of counsel
based upon a trial attorney’s failure to
make an objection that would have been
overruled under the then-prevailing law."
Lucas v. O’Dea, 179 F.3d 412, 420 (6th
Cir. 1999)./8 Consequently, we turn to
an examination of Indiana law to
determine whether, at the time of trial,
an objection to State’s Exhibit 21 would
have been sustained or overruled.
At the time of Mr. Hough’s trial, the
Supreme Court of Indiana recently had
handed down Maisonet v. State, 448 N.E.2d
1052 (Ind. 1983). In Maisonet, the
defendant alleged that the trial court
erred in admitting certain exhibits
during a habitual offender proceeding.
Among the exhibits admitted there was (1)
charging information for the crime of
assault and battery with intent to kill,
and (2) admission documents from the
Indiana Department of Corrections for the
same offense. The documents contained a
brief summary of the circumstances
surrounding the assault and battery as
well as of another offense, entering with
intent to commit a felony. The Supreme
Court of Indiana held that "[a]lthough it
is true that the statute requires only
that the state prove that defendant has
two prior unrelated felony convictions,
relevant information connected with those
convictions is not generally considered
to be prejudicial." Id. at 1056. In
reviewing Mr. Hough’s case, the Supreme
Court of Indiana relied upon Maisonet.
Despite the similarity between the type
of evidence at issue in Maisonet and that
admitted in the present action, Mr. Hough
urges that we find ineffective assistance
on the basis of Thompson v. State, 690
N.E.2d 224 (Ind. 1997). Thompson involved
introduction of other-crime evidence into
the guilt phase of a capital trial. The
Supreme Court of Indiana held that,
although it may have been within the
trial court’s discretion to admit
evidence of other crimes (robbery) to
connect the defendant with the murder
weapon (stolen during the robbery), other
details concerning the prior crime (that
the victim of the robbery was killed
"execution style") were "unfairly
prejudicial" and "had no bearing on
whether Thompson stole the murder weapon
. . . that day." Id. at 234. Thompson,
therefore, addresses the guilt phase of a
trial as opposed to the punishment phase
of the trial and stands for the
unremarkable proposition that evidence of
other crimes is admissible in such a
proceeding for only very narrowly defined
circumstances. Notably, Thompson was
handed down within one week of the
Supreme Court of Indiana’s decision in
Mr. Hough’s case. Nevertheless, the
Supreme Court of Indiana apparently
determined that neither Thompson, nor its
case-law underpinnings, was applicable to
Mr. Hough’s allegations concerning
State’s Exhibit 21.
The question whether Mr. Hough’s counsel
was ineffective when he failed to object
to State’s Exhibit 21 rests on the
Indiana law of evidence. As we have just
noted, governing Indiana case law makes
clear that State’s Exhibit 21 would have
been admitted in the face of an objection
by counsel. In assessing Mr. Hough’s
claims, the Supreme Court of Indiana
cited that case law and determined that
State’s Exhibit 21 was both relevant and
admissible. We shall not second guess the
Supreme Court of Indiana on a point of
state evidentiary law. Consequently, we
cannot say that its determination of
counsel’s effectiveness, based on that
law, was unreasonable./9
4.
Introduction of Juvenile Record
Mr. Hough next argues that counsel
rendered ineffective assistance by asking
him to recount portions of his juvenile
record. Mr. Hough states that, during his
direct examination, his "counsel elicited
several criminal acts Mr. Hough had
committed as a juvenile, apparently under
the misapprehension that such crimes were
admissible as impeachment. They were
not." Appellant’s Br. at 33. The Supreme
Court of Indiana concluded that Mr. Hough
was not prejudiced by this evidence.
Mr. Hough fails to identify where during
his testimony this questioning occurred.
We have reviewed Mr. Hough’s testimony in
some detail and only have located
questions and responses concerning Mr.
Hough’s record as an adult. Mr. Hough did
testify to a 1976 burglary charge that
was initiated in juvenile court. However,
this charge was transferred out of
juvenile court, and Mr. Hough was tried
as an adult on the charge. Any
ineffective assistance of counsel for
failing to object to testimony given by
Mr. Hough concerning his juvenile record,
therefore, finds no support in the
record.
Mr. Hough also takes issue with his
counsel’s failure to object to cross-
examination of other witnesses by the
prosecutor regarding his juvenile file.
During the sentencing phase of the trial,
trial counsel introduced testimony from
several of Mr. Hough’s former probation
officers. One of those officers, John
Mauch, testified concerning Mr. Hough’s
difficult childhood. His testimony was
not based on his independent
recollection, but on the social history
that Mauch had prepared for Mr. Hough’s
case file. See Tr. 1223-24. On cross-
examination, the prosecutor elicited from
Mauch some aspects of Mr. Hough’s
juvenile record and a psychological
report that Mauch had relied upon in
drawing up Mr. Hough’s social history.
Mr. Hough claims that his attorney’s
failure to object to questions put to
Mauch concerning the psychological
evaluation constituted ineffective
assistance.
Mr. Hough’s arguments fail on the
merits. Mr. Hough offered his difficult
childhood as a mitigating factor; one
disinterested witness to those
difficulties was Mauch. Notably, Mr.
Hough does not argue that his counsel
should not have offered his troubled past
as a mitigating factor, nor does he
contend that his counsel erred in calling
Mauch as a witness. Once Mauch testified
concerning Mr. Hough’s childhood, the
prosecution was entitled to test both
Mauch’s knowledge of that childhood and
his credibility as a witness. See State
v. Owings, 622 N.E.2d 948 (Ind. 1993)
(stating that right to cross-examination
is "fundamental" and "includes the right
to ask pointed and relevant questions in
an attempt to undermine the opposition’s
case, as well as the opportunity to test
a witness’s memory, perception and
truthfulness"). Furthermore, the
prosecution was entitled to question
Mauch concerning any materials he had
referenced in creating the social history
from which he had testified.
Consequently, defense counsel’s failure
to object was not substandard
performance.
5.
Closing Arguments
Mr. Hough also maintains that his
counsel were ineffective because they
failed to object to unduly prejudicial
arguments by the prosecutor. In order to
evaluate Mr. Hough’s claims, we first
must review in detail the arguments made
by the prosecutor.
The prosecutor spoke in closing and
final arguments for twenty-six pages of
text. Much of the closing argument was
dedicated to reviewing the law of
aggravation and mitigation. However, on
several occasions, the prosecutor made
reference to the details of the
Bartkowiak murder. Specifically, the
prosecutor invited the jury to "[t]ake a
look at his conduct. Remember Antonio
Bartkowiak? You know, basements muffle
noise don’t they? . . . Shoot somebody in
the head, you know very well that they’re
dead. Head shot to Mr. Antonio
Bartkowiak, handcuffed, helpless, in a
basement to absorb sound." Tr. 1309.
Later, the prosecutor again turned to the
Bartkowiak murder: "Antonio Bartkowiak
was helpless on his living room floor.
Did the murder occur then? He was
questioned with an electrical cattle
prod, as to where all of his valuables
were." Id. at 1315.
In addition, the prosecutor, on at least
one occasion, referenced Mr. Hough’s lack
of remorse. He stated: "You know, you saw
Kevin on this witness stand, and I asked
him about Antonio Bartkowiak. Did you
ever hear the words, ’I’m sorry.’ You
never will, because he’s not. He honest
to God is not. He’s a sociopathic
personality. He will never feel remorse."
Id. at 1313.
In part of his closing argument, and
again in his final argument, the
prosecutor also appealed to the jury’s
sense of duty. Near the end of the
state’s closing argument, the prosecutor
stated: "Sitting before you, ladies and
gentlemen, is one of the most dangerous
sociopaths in our society. It’s a plain,
pure and absolute fact. And you have the
responsibility to address that issue with
your guts and what you know, you have to
do under your oath. You really do." Id.
at 1320. The prosecutor followed up on
this idea later:
If you do not follow your duty, I’m going
to submit to you that you will depreciate
the seriousness of this crime. You will.
And that’s why you have to take a look at
where your duty takes you, and you
absolutely have to say to that Judge, you
know, Your Honor, we don’t have any doubt
that this man has knowingly or
intentionally killed all three men . . .
. [I]f you don’t want to depreciate the
seriousness of this crime, of these
crimes, of these corpses, these men whose
lives were shed for nothing in the
sanctity of their own home, then you’re
going to have to do what you took an oath
to do.
Id. at 1321.
Finally, in his final argument, the
prosecutor suggested that, if the jury
did not impose the death penalty, they
would be killing by omission. He argued:
One thing that I learned is there’s two
ways to kill. You kill be commition
[sic], and you kill by omission. And once
you put on the responsibility of the
Prosecutor, baby, that’s just how it is.
Whether you like it or not. If you’re
that final constitutional authority to
make and to call whether you file it, you
kill one way or the other potentially you
absolutely do. . . . And you, I said that
you, are no longer you, you are part of
that criminal justice system, you’re just
like me. You can kill one or two ways
potentially. Honestly you can. You can
kill by commission, by making a
recommendation that will be very
important or you can kill by omission.
It’s not a choice of whether or not you
are or you aren’t. It’s a choice of
you’re going to follow the law, you’re
going to follow the evidence.
Id. at 1330.
In its opinion, the Supreme Court of
Indiana acknowledged the impropriety of
some of the prosecutor’s comments. "It is
unfortunate," commented the court, "that
the State, armed with the evidence and
the aggravating circumstances that it
had, still resorted to potentially
inflammatory statements." Hough, 690
N.E.2d at 271. The Supreme Court of
Indiana, however, concluded that Mr.
Hough was not "placed in grave peril
because, even without these remarks, the
jury was still confronted with three
substantial aggravating factors." Id.
a.
Mr. Hough argues that the prosecutor’s
comments on his lack of remorse were
improper under state law and drew
attention to his failure to testify at
sentencing, thus violating his Fifth
Amendment rights./10 In United States
v. Ramos, 932 F.2d 611 (7th Cir. 1991),
we set forth the burden that a defendant
must meet in order to invalidate a
sentence based on a prosecutor’s comment
on the defendant’s silence. We stated:
Although a mere formality in many cases,
a defendant, as a predicate to relief,
must be able to establish a reference to
his or her silence. In determining
whether such a reference exists, we
follow the same standard that we use in
analyzing alleged comment on a
defendant’s failure to testify at trial.
Under this standard, we must determine
whether: (1) it was the prosecutor’s
manifest intention to refer to the
defendant’s silence; or (2) the remark
was of such a character that the jury
would naturally and necessarily take it
to be a comment on the defendant’s
silence.
Id. at 616 (internal quotation marks and
citations omitted). We do not believe
that the one reference in the
prosecutor’s closing argument to Mr.
Hough’s lack of remorse can be
characterized as commentary that violates
Mr. Hough’s Fifth Amendment rights. The
prosecutor stated: "You know, you saw
Kevin on this witness stand, and I asked
him about Antonio Bartkowiak. Did you
ever hear the words, ’I’m sorry.’ You
never will, because he’s not. He honest
to God is not. He’s a sociopathic
personality. He will never feel remorse."
Tr. 1313. In the present case, Mr. Hough
took the stand in his own defense. The
prosecutor asked him about the prior
murder, and he admitted to the
conviction. In closing argument, the
prosecutor commented upon the testimony
actually given, not Mr. Hough’s choice to
remain silent. Mr. Hough does not explain
how the prosecutor’s actions fall within
one of the standards set forth above;
indeed, he does not even cite the
standard in his brief. Consequently, we
shall not hold that the prosecutor’s
argument on Mr. Hough’s testimony
violated the Fifth Amendment.
b.
Mr. Hough next points to a series of
arguments made by the prosecutor that, in
his view, appealed to the passion and
prejudice of the jury, and therefore
undermined his right to due process.
Specifically, in the penalty phase
argument, the prosecutor told the members
of the jury that they would depreciate
the seriousness of the crime if they did
not impose the death penalty. Later, the
prosecutor also explained to the jury
that he had a special role and could kill
by omission or commission. When the
individuals on the jury took their oath,
continued the prosecutor, they also
assumed the power to kill by omission or
commission.
In evaluating this argument, the Supreme
Court of Indiana first reviewed the
standard against which the prosecutor’s
remarks would be measured. "In order to
show prejudice from prosecutorial
misconduct, one must show first, that
there was misconduct by the prosecutor
and second, that the misconduct placed
the defendant in grave peril." Hough, 690
N.E.2d at 271 (citing Lowery v. State,
640 N.E.2d 1031, 1038 (Ind. 1994)).
"Grave peril," continued the court, "is
measured by the probable persuasive
effect of any misconduct on the jury’s
decision and whether there were repeated
instances of misconduct which would
evidence a deliberate attempt to
improperly prejudice the defendant." Id.
(internal quotation marks and citations
omitted). Applying this standard, the
court determined that, although the
remarks were improper, they were not
prejudicial. It held:
The State concedes that several of these
remarks were objectionable, and we agree.
It is unfortunate that the State, armed
with the evidence and the aggravating
circumstances that it had, still resorted
to potentially inflammatory statements.
However, in the context of this trial we
do not believe that defendant was placed
in grave peril because, even without
these remarks, the jury was still
confronted with three substantial
aggravating factors.
Id.
Before this court, both parties appear
to agree that at least some portion of
the prosecutor’s argument was
problematic. Consequently, we turn to the
question of whether Mr. Hough was
prejudiced by the prosecutor’s closing
arguments.
In evaluating prosecutorial misconduct
under governing Supreme Court law, it is
not enough that the prosecutor’s remarks
were "undesirable or even universally
condemned. The relevant question is
whether the prosecutors’ comments so
infected the trial with unfairness as to
make the resulting conviction a denial of
due process." Darden v. Wainwright, 477
U.S. 168, 181 (1986) (citations and
quotation marks omitted). As we pointed
out in Howard v. Gramley, 225 F.3d 784,
793 (7th Cir. 2000), Darden sets forth
several factors to inform this inquiry:
"(1) whether the prosecutor misstated the
evidence, (2) whether the remarks
implicate specific rights of the accused,
(3) whether the defense invited the
response, (4) the trial court’s
instructions, (5) the weight of the
evidence against the defendant, and (6)
the defendant’s opportunity to
rebut."/11 These factors, however, are
not to be applied in a rigid manner, but
should be used as a guide to determine
whether there was fundamental unfairness
that infected the bottom line. For that
reason, we often have characterized the
weight of the evidence as "the most
important consideration." United States
v. Morgan, 113 F.3d 85, 90 (7th Cir.
1997); see also Gramley, 225 F.3d at 793.
The Supreme Court of Indiana did not
recite with precision the factors set
forth in Darden, but evaluated the impact
of the prosecutor’s arguments using the
common rubric of Indiana law. The court
asked whether the prosecutor’s comments
placed Mr. Hough in "grave peril." Grave
peril is measured, in large part, by "the
probable persuasive effect of any
misconduct on the jury’s decision."
Hough, 690 N.E.2d at 271 (quoting Lowery,
640 N.E.2d at 1038). The Supreme Court of
Indiana determined that, because of the
presence of "three substantial
aggravating factors," Mr. Hough’s trial
was not compromised, and he was not
placed in grave peril.
We cannot fault the Supreme Court of
Indiana for its conclusion. Essentially,
the court focused on the Darden factor
that we have characterized as the most
important. See Gramley, 225 F.3d at
793./12 We note, moreover, that only
a few of the remaining Darden factors can
be said to weigh in Mr. Hough’s favor:
Mr. Hough’s counsel did not invite, and
did not have an opportunity to rebut,
some of the prosecutor’s remarks.
Significantly, more of the remaining
Darden factors suggest that the
prosecutor’s arguments did not affect the
result. First, the prosecutor did not
misstate the evidence, nor was a specific
right, such as the right to remain
silent, implicated. In addition, the
trial court specifically instructed the
jury that "[a]rguments, statements and
remarks of counsel were intended to help
you in understanding the evidence and
applying the law, but are not evidence.
Any argument, statement or remark had no
basis in the evidence, then you should
disregard that argument, statement or
remark." Tr. 1349. Consequently, the jury
was on notice that the arguments were
nothing more than counsel’s
interpretation of the evidence.
Furthermore, defense counsel did have an
opportunity to rebut at least some of the
prosecutor’s questionable statements in
his closing argument. See Tr. 1334
(replying to the prosecutor’s arguments
that a penalty less than death would
depreciate the seriousness of the crime).
Finally, the jury was presented with
overwhelming evidence of three
aggravating factors compared to sparse
evidence in mitigation.
Because the prosecutor’s comments do not
rise to the level of a constitutional
violation as set forth in Darden, defense
counsel’s failure to object to those
arguments cannot be considered
prejudicial for purposes of the
Strickland analysis.
c.
Mr. Hough also urges that the arguments
of counsel created non-statutory
aggravating factors that the jury then
considered in its deliberations./13
These factors, he contin-ues, are grounds
for reversal under Sochor v. Florida, 504
U.S. 527 (1992). To determine the
validity of this contention, we first
must review the decisions of the Supreme
Court regarding the use of aggravating
factors in the death sentence calculus.
(1)
The Supreme Court analyzes the effect of
an invalid factor differently depending
on whether the state involved is a
"weighing" or "nonweighing" state. In a
weighing state, aggravating factors play
a special role in both stages of the
death penalty selection process. First,
aggravating factors in weighing states
are used to determine if a defendant is
eligible for the death penalty; unless at
least one statutory aggravating factor is
found, the judge or jury may not impose
the death penalty. Second, in weighing
states aggravating factors also play a
critical role in the selection process.
Only statutory aggravating factors are
weighed against mitigating factors to
determine if the death sentence is
appropriate. See Coleman v. Ryan, 196
F.3d 793, 798 (7th Cir. 1999), cert.
denied, 531 U.S. 848 (2000); see also
Hameen v. Delaware, 212 F.3d 226, 249 (3d
Cir. 2000) ("[D]uring this latter stage
under a ’weighing statute,’ the jury is
required to weigh only the statutory
aggravating factors against any
mitigating factors."), cert. denied, 121
S. Ct. 1365 (2001).
Aggravating factors do not have the same
import in non-weighing states. In a
nonweighing state, aggravating factors
are used to determine a defendant’s
eligibility for the death penalty.
However, their special role then ends.
Once a defendant is determined to be
death eligible in a non-weighing state,
"the jury is instructed not to give any
particular weight to statutory
aggravating factors," but to "take into
consideration all circumstances before it
from both the guilt-innocence and the
sentence phases of trial." Coleman, 196
F.3d at 798 (internal quotation marks and
citations omitted). The Supreme Court has
stated that the difference between
"weighing" and "nonweighing" states
is not one of "semantics" . . . but of
critical importance. In a nonweighing
State, so long as the sentencing body
finds at least one valid aggravating
factor, the fact that it also finds an
invalid aggravating factor does not
infect the formal process of deciding
whether death is an appropriate penalty.
Assuming a determination by the state
appellate court that the invalid factor
would not have made a difference to the
jury’s determination, there is no
constitutional violation resulting from
the introduction of the invalid factor in
an earlier stage of the proceedings. But
when the sentencing body is told to weigh
an invalid factor in its decision, a
reviewing court may not assume it would
have made no difference if the thumb had
been removed from death’s side of the
scale.
Stringer v. Black, 503 U.S. 222, 231-32
(1992) (citations omitted).
The Supreme Court has addressed, in a
number of cases, the constitutional
impact of a judge’s or jury’s
consideration of an invalid factor in a
weighing state. Although Mr. Hough relies
upon Sochor v. Florida, Sochor was
preceded by Clemons v. Mississippi, 494
U.S. 738 (1990), and we begin our
discussion there. In Clemons, a
Mississippi jury had convicted the
defendant of murder and sentenced him to
death. The state supreme court upheld the
death penalty after one of the statutory
aggravating factors had been invalidated
as unconstitutionally vague. The Supreme
Court held that, when an invalid
statutory aggravating factor was
considered during sentencing, a weighing
state could not rely on the other valid
factors and automatically affirm the
sentence; that course of action "would
not give defendants the individualized
treatment that would result from actual
reweighing of the mix of mitigating and
aggravating circumstances." Id. at 752.
However, the Court stated that it was not
necessary to remand for resentencing if
the state court had engaged in a
reweighing of the valid factors. In the
absence of reweighing, the state
appellate court must find harmless error
beyond a reasonable doubt. Because the
Mississippi Supreme Court did not clearly
take either of these paths, the Supreme
Court remanded.
Sochor v. Florida, 504 U.S. 527 (1992),
further elaborated upon the rule set down
in Clemons. In Sochor, the jury had been
instructed improperly that it could
consider the "coldness" of the crime in
imposing the death sentence. The state
supreme court determined that the
evidence in the record did not support
the "coldness" instruction; nevertheless,
it upheld the sentence because
"[s]triking one aggravating factor when
there are no mitigating circumstances
does not necessarily require
resentencing. Under the circumstances of
this case, and in comparison with other
death cases, we find Sochor’s sentence
proportionate to his crime." Id. at 531
(citations and internal quotation marks
omitted).
The Supreme Court began its analysis by
summarizing its holdings in Clemons and
related cases. It stated:
In a weighing state like Florida, there
is Eighth Amendment error when the
sentencer weighs an "invalid" aggravating
circumstance in reaching the ultimate
decision to impose a death sentence.
Employing an invalid aggravating factor
in the weighing process "creates the
possibility . . . of randomness," by
placing a "thumb [on] death’s side of the
scale," thus "creat[ing] the risk [of]
treat[ing] the defendant as more
deserving of the death penalty." Even
when other valid aggravating factors
exist, merely affirming a sentence
reached by weighing an invalid
aggravating factor deprives a defendant
of "the individualized treatment that
would result from actual reweighing of
the mix of mitigating factors and
aggravating circumstances."
Id. at 532 (citations omitted). The Court
found it impossible to determine from the
state supreme court’s language whether it
found the error harmless beyond a
reasonable doubt. Consequently, the Court
concluded:
Although we do not mean here to require a
particular formulaic indication by state
courts before their review for harmless
federal error will pass federal scrutiny,
a plain statement that the judgment
survives on such an enquiry is clearly
preferable to allusions by citation. In
any event, when the citations stop as far
short of clarity as these do, they cannot
even arguably substitute for explicit
language signifying that the State
Supreme Court reviewed for harmless
error.
Id. at 540.
Sochor and Clemons, therefore, stand for
the proposition that, when an "invalid"
aggravating factor is considered in
sentencing in a "weighing" state, a state
appellate court must either reweigh the
aggravating circumstances against the
mitigating circumstances, engage in a
meaningful harmless error analysis, or
remand for resentencing.
(2)
Mr. Hough does not set forth with
precision how he believes Clemons and
Sochor require reversal of his sentence.
In his brief and at oral argument, he
appears to argue that both the
heinousness of the Bartkowiak murder and
the likelihood that he will commit
another murder as evidenced by his lack
of remorse are the invalid factors that
the prosecutor asked the jury to
consider. It appears that Mr. Hough
believes that these factors are "invalid"
because they are not identified as
aggravating factors in Indiana’s death
penalty statute. Finally, Mr. Hough
concludes, because the jury considered
these illegitimate factors, and because
the Supreme Court of Indiana did not
reweigh the factors or engage in harmless
error analysis, then he must be
resentenced.
In order for Clemons/Sochor to be
implicated, the jury must have considered
an "invalid" aggravating factor. However,
there is no evidence that the jury
considered the allegedly "illicit"
factors. Mr. Hough has not pointed to any
part of the instructions, the record of
the jury’s deliberation, or his
sentencing proceeding that suggests that
the jury or the judge, in their
respective sentencing roles, treated
either the heinousness of the Bartkowiak
murder or Mr. Hough’s propensity to
commit future crimes as aggravating
factors. Thus, we are not presented with
the same situation as in Clemons or
Sochor in which the jury was instructed
to consider the factor that was later
determined to be invalid. See Sochor, 504
U.S. at 529; Clemons, 494 U.S. at 740.
Indeed, in the present case, the jury
instructions were limited only to the
aggravating factors set forth in
Indiana’s death penalty statute, the
validity of which Mr. Hough does not
contest. See Tr. 1342-46. Furthermore,
absent compelling evidence to the
contrary, Indiana juries are presumed to
have followed the court’s instruction.
See Funk v. State, 714 N.E.2d 746, 748
(Ind. App. 1999). Without any evidence
that the jury or judge considered
nonstatutory aggravating factors, Clemons
and Sochor are not applicable./14
C. Instructional Error
As his final argument, Mr. Hough claims
that the trial court "incorrectly
instructed" the jury that "it could only
consider mitigating circumstances found
to exist beyond a reasonable doubt, and
that the mitigating circumstances must
outweigh the aggravating circumstances."
Appellant’s Br. at 41. The Supreme Court
of Indiana addressed this issue/15 and
acknowledged that, "if his allegations
[were] true, then the instruction would
be unconstitutional under Mills v.
Maryland." Hough, 690 N.E.2d at
274./16 The court concluded, however,
that the trial court had not improperly
deprived the jury of the right to
consider all mitigating circumstances,
but had instructed the jury according to
state law.
Our analysis begins with a review of the
jury instructions given. The trial court
instructed the jury no less than five
times that the state had the burden of
proving, beyond a reasonable doubt, any
aggravating circumstances and also
proving, beyond a reasonable doubt, that
the aggravating circumstances outweighed
the mitigating circumstances. See Tr.
1198-99, 1341-42, 1346-47. At one point
during the opening instructions of the
penalty phase and again during the final
instructions in the penalty phase, the
court slightly restated the "weighing"
standard; the court instructed on both
occasions: "If the State failed to prove
beyond a reasonable doubt the existence
of at least one aggravating circumstance
or if you find that any mitigating
circumstances outweigh the aggravating
circumstances, you should not recommend
the death penalty." Id. at 1199, 1346.
The court also instructed the jury that
it could consider any mitigating
circumstances; it did not give an
instruction requiring Mr. Hough to prove
mitigating circumstances beyond a
reasonable doubt. Finally, the court
instructed the jurors that "[e]ach of you
must refuse to recommend the death
penalty unless you are convinced beyond a
reasonable doubt that the State has met
its burden of proof." Id. at 1347.
After reviewing the record, we find no
support for Mr. Hough’s contention that
the jury was instructed that "it could
only consider mitigating circumstances
found to exist beyond a reasonable
doubt." Furthermore, there is no
indication in the record that the jury
believed that it had to find unanimously
the existence of a mitigating factor
before the mitigating factor could be
considered. Consequently, we believe the
Supreme Court of Indiana reasonably
concluded that the instructions do not
run afoul of Mills v. Maryland.
Conclusion
For the reasons set forth in the
foregoing opinion, the judgment of the
district court is affirmed.
AFFIRMED
FOOTNOTES
/1 Mr. Hough did not receive the death
penalty for that crime.
/2 Mr. Hough has not suggested that the state
court’s determination of the facts in
this case was unreasonable. Therefore, we
need not consider or discuss this prong
of the statute.
/3 We previously have pointed out
that prejudice may be based on the
cumulative effect of multiple errors. See
Kubat v. Thieret, 867 F.2d 351, 370 (7th
Cir. 1989). Although a specific error,
standing alone, may be insufficient to
undermine the court’s confidence in the
outcome, multiple errors together may be
sufficient. See id.
/4 In his petition to the Supreme
Court of Indiana, Mr. Hough states:
"Defense counsel failed to timely object
to the prosecutor’s eliciting of facts
concerning the aggravating factor of a
prior murder conviction. The facts of the
prior conviction were not relevant to the
weighing in this case. (Tr. 1315)." R.34,
Ex.E at 30. The transcript citation,
however, does not refer the court to any
section of the transcript in which the
prosecutor was "eliciting . . . facts";
the citation refers to a portion of the
prosecutor’s closing argument during
sentencing.
Viewed most charitably toward Mr. Hough,
it could be argued that Mr. Hough raised
the issue of his counsel’s failure to
make a relevance or prejudice objection
when the prosecutor elicited these facts,
but failed to identify the correct
passage in the transcript in support of
this issue. However, even if we view the
statement in that vein, as opposed to
characterizing it as raising an issue
concerning the prosecutor’s closing
argument, we do not believe that Mr.
Hough "properly presented his claim[ ] to
the state court[ ]" so as to avoid a
procedural default. O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999). In
this statement, Mr. Hough does not
present either the operative facts or the
controlling legal principles to the
Supreme Court of Indiana. See Wilson v.
Briley, 243 F.3d 325, 327 (7th Cir.
2001). With respect to the operative
facts, neither the text nor the citation
refer the court to the alleged failures
of counsel during the cross-examination
of Mr. Hough or the redirect examination
of Mr. Maley. Indeed, the portion of the
prosecutor’s closing argument that is
referenced makes no mention of either of
those examinations. Consequently, because
Mr. Hough did not recite, reference or
describe facts elicited during the
testimony of Mr. Hough or Maley, we do
not believe that he presented the
"operative facts" of this issue to the
state supreme court.
Furthermore, the statement of the issue
to the Supreme Court of Indiana also did
not include even a passing reference to
the "controlling legal principles" that
should guide the court. See Williams v.
Washington, 59 F.3d 673, 677 (7th Cir.
1995). In Wilson, 243 F.3d at 327, we
reiterated the factors that
bear upon whether the petitioner has
fairly presented the claim in state
court: (1) whether the petitioner relied
on federal cases that engage in
constitutional analysis; (2) whether the
petitioner relied on state cases which
apply a constitutional analysis to
similar facts; (3) whether the petitioner
framed the claim in terms so particular
as to call to mind a specific
constitutional right; and (4) whether the
petitioner alleged a pattern of facts
that is well within the mainstream of
constitutional litigation.
"If none of the four factors is present,"
we continued, "then this court will not
consider the state courts to have had a
fair opportunity to consider the claim."
Id. at 327-28. Here, none of the four
factors is present, and we must conclude
that Mr. Hough has failed to fairly
present this issue to the Supreme Court
of Indiana.
/5 See Ballard v. State, 318 N.E.2d
798, 806 (Ind. 1974) ("Ballard opened up
the general subject of his statements to
police by testifying that the statements
were part of plea bargaining. Having done
so, the trial court acted within its
discretion by permitting the State to
explore the details of these
statements."); Kimble v. State, 451
N.E.2d 302, 306 (Ind. 1983) (holding that
State was entitled to conduct redirect
examination on motivations of witness in
seeking terms of plea agreement when
defense counsel had opened the door to
the subject on cross-examination).
/6 In addition to arguing that his
counsel should have objected to this
evidence on the basis of prejudice or
relevance, Mr. Hough also maintains that
this testimonial evidence, either alone
or in conjunction with Exhibit 21 and the
prosecutor’s argument, created a non-
statutory aggravating factor that tainted
the jury’s sentencing determination. Mr.
Hough raised this issue before the
Supreme Court of Indiana in cursory
fashion; he stated: "Defense counsel
failed to timely object to the
prosecutor’s eliciting of facts
concerning the aggravating factor of a
prior conviction. The facts of the prior
conviction were not relevant to the
weighing in this case. (Tr. 1315)." R.34,
Ex.E at 30. For the reasons set forth in
footnote 5, supra, we could not fault the
Supreme Court of Indiana if, for lack of
factual or legal support, it had not
addressed this argument. However, that
court appears to have resolved the issue:
Defendant argues that he was prejudiced
because the evidence (such as his
juvenile record and facts concerning the
prior murder conviction) added non-
statutory aggravating factors to the
jury’s consideration. However, the jury
was instructed to consider only the three
alleged circumstances. Furthermore, there
is no indication that this evidence
amounted to any prejudice as the jury was
presented with evidence of three
aggravating circumstances, and we do not
believe defendant has shown a reasonable
probability that the outcome would have
been different absent these pieces of
evidence.
Hough v. State, 690 N.E.2d 267, 271-72
(Ind. 1997). As will be explained in
greater detail in section II.B.4.d., we,
like the Supreme Court of Indiana, do not
believe that the Supreme Court’s
jurisprudence on non-statutory
aggravating factors has any clear
application to the present situation.
Zant v. Stephens, 462 U.S. 862 (1983),
and its progeny--the authority cited in
support of this argument--addressed
situations in which the sentencer
explicitly considered a factor in the
death penalty equation that was later
found to be invalid, usually because the
state supreme court had determined that
the factor was vague. Here, the jury was
instructed based on valid, statutory
aggravating factors, and there is no
indication that something other than
those factors played a role in either the
jury’s recommendation or the judge’s
sentence. Finally, even if there were
some argument that this line of cases
should be extended to the present
situation, AEDPA limits our review to
determining whether a state court’s
determination is contrary to, or an
unreasonable application of, "clearly
established" law as set forth by the
Supreme Court.
/7 Mr. Hough maintains that the
Supreme Court of Indiana gave short
shrift to this argument, that it paid
little, if any attention, to the actual
contents of State’s Exhibit 21 and,
therefore, its opinion should be given
little weight. We cannot so easily
dismiss the action of our colleagues on
the Supreme Court of Indiana. Under
AEDPA, it is a state court’s resolution
of an issue, as opposed to its reasoning
process, that must be treated with
deference. See Hennon v. Cooper, 109 F.3d
330, 335 (7th Cir. 1997) ("It doesn’t
follow that the criterion of a reasonable
determination is that it is well
reasoned. It is not. It is whether the
determination is at least minimally
consistent with the facts and
circumstances of the case. Which it is
here, however deficient the discussion of
the reasons for so believing by the state
appellate court."); Sellan v. Kuhlman,
261 F.3d 303, 312 (2d Cir. 2001) (holding
that it is a state court’s "ultimate
decision," and not its rationale, that
should be evaluated for reasonableness).
/8 Cf. United States v. Snyder, 872
F.2d 1351, 1358 (7th Cir. 1989)
("Counsel’s failure to object to other
Rule 404(b) evidence is insignificant
where, as we have already noted, it is
unlikely that the objection would have
been sustained."); Williams v. Carter, 85
F. Supp. 2d 837, 840 (N.D. Ill. 1999)
("It is not deficient performance to fail
to raise an argument with no real chance
of success or where the objection would
have been properly overruled if it had
been made.").
/9 Mr. Hough also suggests that the
admission of this evidence was tantamount
to the jury’s considering a non-statutory
aggravating factor, a methodology
forbidden in a weighing state such as
Indiana. Mr. Hough cites Zant v.
Stephens, 462 U.S. 862 (1983), in support
of this statement. We believe that this
argument meets with several obstacles.
First, it is questionable whether Mr.
Hough presented this constitutional
argument to the Supreme Court of Indiana.
Before the Supreme Court of Indiana, Mr.
Hough only argued that his attorney
should have objected to Exhibit 21 on
relevance and hearsay grounds, see R.34,
Ex.E at 26; he never argued that Exhibit
21 created a non-statutory aggravating
factor that marred the jury’s
deliberations. In light of the this
specific challenge, Mr. Hough’s brief
reference to "the prosecutor’s eliciting
of facts concerning the aggravating
factor of a prior murder conviction" can
be read as not encompassing Exhibit 21.
If so, he has procedurally defaulted this
claim. See O’Sullivan v. Boerckel, 526
U.S. 838, 848 (1999). On the other hand,
the state supreme court’s treatment of
this general issue of non-statutory
aggravating factors, see supra note 7,
may have been intended to address Exhibit
21 as well as the testimonial evidence.
Second, as was mentioned in note 7, and
will be discussed in greater detail later
in this opinion, the methodology set
forth in Zant has no clear application to
the present action.
/10 Mr. Hough did not articulate
this argument fully before the Supreme
Court of Indiana. However, the state does
not argue that Mr. Hough procedurally
defaulted this claim and, therefore, it
has waived that argument. See Pisciotti
v. Washington, 143 F.3d 296, 300 (7th
Cir. 1998).
/11 The considerations also have
been formulated accordingly: "(1) the
nature and seriousness of the
prosecutorial misconduct; (2) whether the
conduct of the defense counsel invited
the prosecutor’s remarks; (3) whether the
trial court’s instructions to the jury
were adequate; (4) whether the defense
was able to counter the improper
arguments through rebuttal; and (5) the
weight of the evidence against the
defendant." United States v. Durham, 211
F.3d 437, 442 (7th Cir. 2000).
/12 We have employed this approach
on more than one occasion, see United
States v. White, 222 F.3d 363, 371 (7th
Cir. 2000) (noting that "[f]inally, and
most importantly, the overwhelming
evidence of White’s guilt eliminates any
lingering doubt that the prosecutor’s
remarks unfairly prejudiced the jury’s
deliberations or exploited the
Government’s prestige in the eyes of the
jury" (internal quotation marks
omitted)); Swofford v. Dobucki, 137 F.3d
442, 445 (7th Cir. 1996) ("While the
prosecutor’s comments might have been
improper, we do not believe that they
tainted Swofford’s trial with unfairness
in light of the weight of evidence
against him.").
/13 Mr. Hough presented this issue
(with respect to the prosecutorial
argument) in his opening brief to the
Supreme Court of Indiana only in passing.
He stated: "Such commentary adds
additional non-statutory aggravating
factors into the weighing process which
is impermissible under the statue and the
Federal and Indiana Constitutions." R.34,
Ex.E at 30. The subject was covered in
slightly more detail in his reply brief.
See id., Ex.K at 7. The Supreme Court of
Indiana did not address this argument
specifically in its opinion, and we
cannot fault it for its failure to do so.
Given Mr. Hough’s failure to present
either the operative facts or the
controlling legal principles to the
Supreme Court of Indiana in a timely
fashion, it could be argued that he
procedurally defaulted this claim.
Nevertheless, because the state has not
argued procedural default to us, we
address Mr. Hough’s argument and review
the claim de novo. See Braun v. Powell,
227 F.3d 908, 917 (7th Cir. 2000)
(stating that when a state court fails to
adjudicate a claim on the merits, we
"must rely upon the general standard as
set forth in 28 U.S.C. sec. 2243 . . . to
dispose of the matter as law and justice
require" (internal quotation marks and
citations omitted)), cert. denied, 121 S.
Ct. 1164 (2001).
/14 Mr. Hough also maintains that
even if his counsel’s failures,
considered independently, do not rise to
the level of a Sixth Amendment violation,
the cumulative effect of these errors
does. We do not agree. As set forth
above, the only potential error of Mr.
Hough’s counsel was the failure to object
to the prosecutor’s closing argument. We
previously have held, albeit in a context
other than ineffective assistance of
counsel, that "[i]f there are no errors
or a single error, there can be no
cumulative error." United States v.
Allen, 2001 WL 1249266, at *3 (7th Cir.
Oct. 19, 2001). The logic of this
statement applies with no less force in
the context of ineffective assistance of
counsel.
/15 The Supreme Court of Indiana
found that the arguments had been waived,
but addressed them on the merits because
they were intertwined with the
ineffective assistance claims. Hough, 690
N.E.2d at 274.
/16 In Mills v. Maryland, 486 U.S.
367, 384 (1988), the Supreme Court
stated: "We conclude that there is a
substantial probability that reasonable
jurors, upon receiving the judge’s
instructions in this case, and in
attempting to complete the verdict form
as instructed, well may have thought they
were precluded from considering any
mitigating evidence unless all 12 jurors
agreed on the existence of a particular
such circumstance. Under our cases, the
sentencer must be permitted to consider
all mitigating evidence. The possibility
that a single juror could block such
consideration, and consequently require
the jury to impose the death penalty, is
one we dare not risk."