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Baer v. Neal

United States Court of Appeals, Seventh Circuit

January 11, 2018

Fredrick Michael Baer, Petitioner-Appellant,
v.
Ron Neal, Superintendent, Indiana State Prison, Respondent-Appellee.

          Argued February 22, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cv-1168 - Sarah Evans Barker, Judge.

          Before, Bauer, Flaum and Williams, Circuit Judges.

          Williams, Circuit Judge.

         Fredrick Michael Baer murdered a young woman and her four-year-old daughter in their home. In connection with this crime, he was convicted in Marion Superior Court of the two murders, robbery, theft and attempted rape. He was sentenced to death. He filed a direct appeal to the Indiana Supreme Court raising several issues including prosecutorial misconduct, but his convictions and death sentence were affirmed. Baer filed state post-conviction proceedings alleging that his trial and appellate counsel were ineffective. The court denied his petition and this denial was affirmed by the Indiana Supreme Court. Baer then filed a petition for a writ of habeas corpus with the United States District Court for the Southern District of Indiana, which was also denied. After we issued a certificate of appealability, Baer appealed the district court's denial of his petition for a writ of habeas corpus.

         Baer asserts that the Indiana Supreme Court's ruling was unreasonable under Strickland v. Washington, 466 U.S. 668 (1984), for failing to find that Baer's trial counsel was constitutionally ineffective for failing to (1) object to improper and confusing jury instructions given at the penalty phase of his trial, (2) object to prejudicial prosecutorial statements made throughout trial, and (3) investigate and present mitigating evidence on Baer's behalf. While we affirm his convictions, we agree with Baer that, at the penalty phase, Baer's counsel failed to challenge crucial misleading jury instructions and a pattern of prosecutorial misconduct, and that the state court unreasonably applied Strickland in denying Baer relief. Counsel's deficiency resulted in a denial of due process, and we find the errors were sufficient to undermine confidence in the outcome of Baer's penalty trial and so we find prejudice. While Baer's offenses were despicable and his guilt is clear, he is entitled to a penalty trial untainted by constitutional error.

         I. BACKGROUND

         A. Factual History

         On February 25, 2004, Fredrick Michael Baer saw twenty-four-year-old Cory Clark on her front porch. He turned his car around and pulled into her driveway. He approached Cory's apartment, knocked, and asked to use her phone to call his boss. When she turned to go back inside, he followed her into her apartment with the intent to rape her. After attacking her, Baer decided against raping her because he feared contracting a disease so instead he cut Cory's throat with a fold-able hunting knife. Witnessing this atrocity, Cory's four-year-old daughter, Jenna Clark, ran from the room. Baer caught her and cut her throat. Taking Cory's purse, three to four hundred dollars, and some decorative stones, Baer then left the apartment. He cleaned himself up, changed his shirt, and returned to work. When he was arrested as a suspect and police asked if he committed the murders, Baer shook his head affirmatively and told the officers the location of the knife and purse.

         B. Procedural History

         Early on, Baer conceded that he murdered the Clarks, and sought to plead guilty but mentally ill (GBMI).[1] The trial court rejected the plea, finding that there was insufficient evidence to show mental illness. The case proceeded to trial with the only issue being whether Baer was GBMI or simply guilty.

         Voir dire began. In front of jurors and prospective jurors, the prosecutor persistently began stating the incorrect standard for a GBMI conviction. The prosecutor routinely suggested (incorrectly) that the GBMI standard and legal insanity standard were the same. He encouraged jurors to recite this incorrect standard in response to his questioning. The prosecutor also made statements suggesting that life without parole may be abolished and incorrectly stated that a GBMI conviction might not permit a death sentence. Baer's counsel did not object to any of these statements. The prosecutor also told jurors that the victims' family wanted Baer to be put to death. Toward the end of jury selection, during a bench conference, defense counsel asked for a mistrial for the prosecutor's comments mentioning the victims' family (referring to them as "victim impact" comments). The judge remarked that he was not paying attention, denied defense counsel's motion, and suggested the prosecutor tell jurors that he had misspoken. No objection or clarification was made in front of the jury.

         After jury selection, Baer's trial began, and the defense focused on convincing the jury that Baer suffered from a mental illness. Defense counsel offered an expert witness, Dr. George Parker, who testified that Baer had a history of drug issues, including methamphetamine use. He also diagnosed Baer as suffering from a psychotic disorder. The court also provided appointed experts, Dr. Larry Davis and Dr. Richard Lawler, who agreed that Baer suffered from mental illness, and also cited Baer's abuse of methamphetamine as something that would disturb his mental wellness and exacerbate his mental health problems. Dr. Davis testified that Baer was likely experiencing psychosis induced by heavy methamphetamine use at the time of the crime. Dr. Lawler described Baer's account that he used methamphetamine on the morning of the crimes. The experts' account of Baer's use of methamphetamine on the day of the crime was contradicted by Danny Trovig, the friend Baer reportedly used methamphetamine with that morning, who testified that Trovig was on parole at the time and did not consume or see Baer consume methamphetamine.

         The prosecutor also offered a toxicology expert, Dr. Michael A. Evans, who testified that a blood sample collected from Baer 38 hours after the offense and tested 13 months after collection showed some marijuana usage, but tested "absolutely zero" for methamphetamine or any other drug. However, because of the delay in the blood draw and the testing of the blood, Dr. Evans could not conclude that Baer had not used any methamphetamine on the morning of the crime. At post-conviction proceedings, Dr. Evans clarified that he could not say whether methamphetamine existed in Baer's blood at the time it was collected, but he could only confirm that there was no such substance in his blood when it was tested.

         The prosecution also presented evidence to counter whether Baer had a mental illness, and sought to prove that Baer instead was lying about his mental health. This evidence included playing a portion of a telephone conversation recorded while Baer was incarcerated in which Baer told his sister, "[o]h, yeah, and while we're at it to boot, here let's go ahead and say you're stupid and insane so it will make it a little easier. I don't think so. Matter of fact, I ain't got to worry about that 'cause I'm ready to go out here to the Peking doctor, tell this stupid son of a bitch a bunch of stupid lies."

         At the close of evidence, the jury convicted Baer of murdering Cory and Jenna Clark, robbery, theft, and attempted rape without a finding of GBMI. The case then proceeded with the same jury to a penalty trial.

         At the penalty phase, Baer's counsel offered one witness, Dr. Mark Cunningham. In approximately seven hours of testimony, Dr. Cunningham discussed Baer's prenatal and perinatal difficulties, including his mother having cancer while pregnant, drinking while pregnant, and Baer's malnourishment for the first several months of his life. Dr. Cunningham also testified about Baer's family troubles such as Baer's childhood in and out of foster care and the murder of his sister. Dr. Cunningham also stated that Baer had poor school performance and struggled with ADHD, head injuries, and extensive abuse of inhalants, alcohol, methamphetamine, and other substances. Dr. Cunningham reported that Baer was "extraordinarily damaged." However, while questioning Dr. Cunningham to show mitigating circumstances, Baer's counsel failed to ask Dr. Cunningham whether Baer met the definition of having a mental illness.

         The jury found that the state had proved all five of the alleged aggravating circumstances in Baer's crime (all which were uncontested), (1) murder while committing the crime of attempted rape, (2) murder while committing the crime of robbery, (3) murder of two human beings, (4) committing two murders while on parole, and (5) murder of a child under the age of twelve years. Finding that mitigating factors did not outweigh these aggravating factors, the jury recommended the death penalty. On June 9, 2005, the court sentenced Baer to death.

         C. Appellate History

         Baer filed a direct appeal of his death sentence to the Indiana Supreme Court, raising four issues: (1) prosecutorial misconduct, (2) failure to comply with proper procedures in handling prospective jurors, (3) erroneous admission of recorded telephone calls from jail, and (4) inappropriateness of the death sentence. On May 22, 2005, the Indiana Supreme Court affirmed Baer's convictions and death sentence. Baer v. State, 866 N.E.2d 752 (Ind. 2007) ("Baer I"). The state court discussed at length its holding that the prosecution did not commit misconduct by suggesting that a GBMI conviction may not support a death sentence. Id. at 755-61. The court also held that the death penalty was supported by the evidence of the brutal nature of the killings and the lack of evidence of Baer's positive character. Id. at 764-66. Baer filed a petition for writ of certiorari, which was denied. Baer v. Indiana, 552 U.S. 1313 (2008).

         Baer filed a petition for post-conviction relief on May 1, 2008, raising numerous allegations that trial counsel and appellate counsel were ineffective, including challenging trial counsel's failure to object to jury instructions and prejudicial prosecutorial statements. Baer's post-conviction counsel also raised prosecutorial misconduct, structural errors in the trial judge's rejection of Baer's GBMI plea and failure to correct the prosecutorial errors, cruel and unusual punishment based on Indiana's method of execution, and a challenge to Baer's death sentence based on his mental illness. At an evidentiary hearing, Baer presented the testimony of several witnesses to bolster his claim for mitigation, including a neuropsychologist, Baer's mother, Baer's juvenile probation officer, a former teacher, and former wife Zola Brown. After hearing this additional testimony, the court denied Baer's petition for relief. The court found Baer's prosecutorial misconduct, structural error, and method of execution claims were foreclosed because he had not raised them at trial or on direct appeal. The court rejected Baer's ineffective assistance of trial and appellate counsel claims on the merits, and found that the evidence about mental illness failed to undermine confidence in the verdict or sentence.

         The Indiana Supreme Court affirmed the denial of postconviction relief, holding, in part, that Baer's trial counsel and appellate counsel were not ineffective. See Baer v. State, 942 N.E.2d 80, 90-108 (Ind. 2011) ("Baer II"). The Indiana Supreme Court specifically addressed the merits of, and rejected, Baer's claims that counsel was ineffective for failing to challenge jury instructions relating to intoxication, failing to present a claim for prosecutorial misconduct, and failing to investigate or present adequate mitigating evidence. Id. at 97, 98, 102-03, 107.

         On November 29, 2011, Baer filed his petition for a writ of habeas corpus in the United States District Court for the Southern District of Indiana. He again challenged trial and appellate counsel's effectiveness regarding the penalty phase jury instructions, for failing to challenge the prosecutor's comments, and for failing to investigate and present mitigating circumstances. The court denied Baer's petition and his motion to alter or amend the judgment, and declined to grant his request for a certificate of appealability. Baer v. Wilson, No. 1:11-cv-1168, 2014 WL 7272772, at *27 (S.D. Ind., Dec. 18, 2014). In its order, the district court ruled that the Indiana Supreme Court did not unreasonably apply Strickland when finding that Baer's counsel's performance was not deficient during voir dire or for failing to object to penalty phase jury instructions.

         We granted a certificate of appealability and agreed to hear Baer's arguments that he had ineffective assistance of counsel. Baer presents three arguments under this theory: (1) counsel was ineffective for failing to object to penalty phase jury instructions that were likely interpreted to preclude the jury from considering central mitigating evidence; (2) counsel was ineffective for failing to object to numerous instances of prosecutorial misconduct; and (3) counsel was ineffective for failing to investigate and present evidence to prove mitigating factors that were described by medical experts. Our analysis of the first two arguments are determinative of the issue before us, so we decline to reach the third argument.

         II. ANALYSIS

         Baer appeals from the denial of habeas relief under 28 U.S.C. § 2254. Because his Sixth Amendment claims were adjudicated on the merits by the Indiana Supreme Court, they are subject to 28 U.S.C. § 2254(d), commonly referred to as the Anti-Terrorism and Effective Death Penalty Act (AEDPA). AEDPA permits a federal court to issue a writ of habeas corpus only if the state court reached a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " 28 U.S.C. § 2254(d)(1), or "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)(2). Needless to say, the AEDPA standard of review is a difficult standard, and it was meant to be.

         Baer seeks relief for the alleged denial of his Sixth Amendment right to effective assistance of counsel. This claim is analyzed under Strickland, 466 U.S. 668, which requires a petitioner to show two things. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687; see also Ward v. Neal, 835 F.3d 698, 702 (7th Cir. 2016), cert, denied, 137 S.Ct. 2161 (2017). "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding"; there must be a possibility of prejudice that is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 693, 694.

         Because we are under AEDPA review of a Strickland claim, the "pivotal question is whether the state court's application of the Strickland standard was unreasonable." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is a difficult standard, and even a strong case for relief under Strickland does not necessarily mean the state court's contrary conclusion was unreasonable. Id. at 102. But this is not an insurmountable standard. The writ of habeas corpus, as limited by AEDPA, is more than a dead letter. "The writ of habeas corpus stands as a safeguard ... of those held in violation of the law." Id. at 91. The writ's purpose is to provide a "guard against extreme malfunctions in the state criminal justice systems." Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment). AEDPA "directs federal courts to attend every state-court judgment with utmost care, but it does not require them to defer to the opinion of every reasonable state-court judge on the content of federal law." Williams, 529 U.S. at 389. "If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody-or, as in this case, his sentence of death-violates the Constitution, that independent judgment should prevail." Id.

         A. Failure to Object to Penalty Phase Instructions

         1. Challenged Instructions

         At the penalty phase of the capital trial, after Baer had been convicted of his crimes, defense counsel's strategy for avoiding a death sentence was ensuring that the jury considered and gave effect to Baer's mental health and intoxication (use of methamphetamine) evidence. During this penalty phase, the jury was instructed that the following was to be considered a mitigating factor:

Defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the requirements of the law was substantially impaired as a result of mental disease or defect.

         The language of this instruction came from a statutory mitigating factor provision, Indiana Code 35-50-2-9(c)(6), with one major difference. As given in Baer's penalty phase trial, this statutory jury instruction was modified to exclude the final words "or of intoxication." The complete Indiana Code 35-50-2-9(c)(6) reads:

Defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or of intoxication.

(emphasis added). Baer's counsel did not object to the modification of this statutory jury instruction.

         After the court instructed on aggravating and mitigating factors, near the end of the penalty phase jury instructions, the following instruction was given:

Intoxication is not a defense in a prosecution for an offense and may not be taken into consideration in determining the existence of a mental state that is an element of the offense unless the defendant meets the requirements of [Indiana Code] 35-41-3-5.
[Indiana Code] 35-41-3-5: It is a defense that the person who engaged in the prohibited conduct did so while intoxicated, only if the intoxication resulted from the introduction of a substance into his body: (1) without consent; or (2) when he did not know the substance might cause intoxication.

         Baer's counsel did not object to this "voluntary intoxication" instruction as it was given at the penalty phase trial.

         2. Failure to Object to Instructions Ineffective

         "[T]he Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978) (emphasis in original). Therefore, defense counsel in a death penalty case will fall deficient where he fails to object to removal of a mitigating factor from jurors' consideration. See id. Baer argues that is precisely what happened here.

         The Indiana Supreme Court separately evaluated defense counsel's failure to object to the modification of Indiana's statutory mitigating factor (removal of the words "or of intoxication" from Indiana Code 30-50-2-9(c)(6)) and inclusion of a "voluntary intoxication" instruction. Analyzing the modified mitigating factor instruction, the state court found that the trial judge could have believed that Baer failed to prove that he was intoxicated during the offense, and therefore the intoxication language in the mitigating factors was unnecessary. Baer II, 942 N.E.2d at 97. It also found that "[g]iven the link between ongoing methamphetamine usage and mental illness that repeatedly arose in expert testimony, ...


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