Revised February 23, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 98-10916 __________________
GARRY DEAN MILLER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
______________________________________________
Appeal from the United States District Court for the Northern District of Texas ______________________________________________ January 5, 2000
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Petitioner Garry Dean Miller, convicted of capital murder in
Texas and sentenced to death, requests from this Court a
Certificate of Appealability (COA) pursuant to 28 U.S.C. §
2253(c)(2). Miller raises several arguments on appeal, including
ineffective assistance of counsel, insufficient evidence to support
an affirmative answer to the second special issue, misleading
penalty phase jury instructions, and prosecutorial misconduct.
Finding that Miller has not made a substantial showing of the denial of a constitutional right, we DENY the COA.
I. BACKGROUND
Garry Dean Miller was indicted on November 30, 1988, on
charges of the capital murder, murder, and aggravated sexual
assault of April Marie Wilson (April), a child younger than
fourteen years of age, on or about November 11, 1988. Miller was
tried before a jury on a plea of not guilty by reason of insanity.
The facts adduced during the guilt-innocence phase of the
trial are set forth in the Texas Court of Criminal Appeals’
opinion1 on direct appeal and reflect the following: In Miller’s
written confession, he stated that he arose early on the morning of
November 10, 1988, and went to work. At about 11:00 a.m., Miller
went home and prepared lunch for his girlfriend, after which his
girlfriend returned to school and he went to a friend’s house.
Miller subsequently went home and apparently began drinking alcohol
and continued to do so after arriving at his second job at the
Merkel Country Club. After completing his shift, Miller went to a
bar and drank more and played pool. He returned home about 1:30
a.m. on November 11, 1988, knowing that April, a seven-year-old
child, was spending the night there.
Miller did not want to remain at home so he woke April to see
if she wanted to go “riding around.” Eventually, Miller and April
stopped riding around, and April hugged him because he “was
1 Miller v. State, No. 70,989 (Tex.Crim.App. May 12, 1993) (unpublished).
2 depressed.” Miller “did not know what happened,” but he started
abusing April. He placed April on the tailgate of the truck; even
though she was scared, he told her to remove her clothes. April
was crying, and Miller told her to be quiet. He then removed his
own clothes and raped her using hand lotion as a lubricant. Miller
had to hold April down forcibly and did not stop even though she
told him it hurt. After intercourse, Miller performed oral sex on
April and forced her to perform oral sex on him by holding her head
down. Miller again attempted to have intercourse with her. Miller
panicked and started choking April and hitting her with something
he had picked up from the ground.
April ceased fighting, and Miller, apparently believing she
was dead, used coat hangers to drag her body into some brush.
Miller went back to his home to retrieve April’s belongings to dump
with her body; however, he could not locate the body when he
returned to the scene. Miller “passed out” after again returning
home. Later that morning, the other individuals who lived with
Miller noticed that April was missing. When Miller was asked if he
had seen her, Miller stated that he had not; he then pretended to
look for her. During Miller’s subsequent confession, he expressed
shame and sorrow that he had killed April.
The pathologist who performed the autopsy testified that the
cause of death was “multiple blunt force injuries of the head,
neck, and trunk.” The fractures to the head were such that the
blows had to be delivered with “extreme force,” multiple times.
3 Many contusions and abrasions had been inflicted on April’s face;
her right jaw was fractured, which was consistent with being hit.
There were bruises on and thorns in the ball of April’s foot,
indicating that April had put her foot down, possibly while being
dragged. The pathologist described the appearance of trauma to
both the vaginal and anal canals. In the pathologist’s opinion,
the excessive injuries to both the anal and vaginal cavities were
caused by an object, other than a penis, in excess of five inches.
Based on the above evidence, the jury found Miller guilty of
capital murder.
During the punishment phase of the trial, the trial court
readmitted all evidence admitted during the guilt-innocence phase.
The following additional evidence was introduced during the
punishment phase. The State introduced the testimony of Dr.
Griffith, a psychiatrist, who taught medical school anatomy for
several years before teaching psychiatry. He testified that the
State’s exhibit 87, which depicted April’s genitalia, reflected
that her anal opening was “totally destroyed,” “almost mutilated.”
In Griffith’s opinion, the five-inch tear in her colon could not
have been caused by a penis and was caused by some other foreign
object. In Griffith’s opinion, Miller represented a continuing
threat to society based upon the extremely brutal murder, a murder
“as brutal as [Griffith] [had] ever seen in a child.” Griffith
observed that the murder was totally unprovoked and that Miller was
meticulous during the killing and in his actions following the
4 killing.
During the cross-examination of Griffith, defense counsel
introduced an article from a psychiatric journal that suggested
that no significant difference existed in the accuracy of
diagnostic predictions of future dangerousness of psychiatrists and
those of laymen. Counsel introduced a portion of another article
which recommended that the courts no longer ask experts to opine on
future dangerousness because such opinions lacked reliability.
Dr. Karlson, a psychologist who testified at length on
Miller’s behalf during the guilt-innocence phase of the trial,
testified during the punishment phase that he disagreed with Dr.
Griffith’s assessment that Miller was antisocial. Miller did not
have the typical characteristics of a person with an antisocial
personality, such as a long history of illegal acts prior to the
age of eighteen, problems in school, truancy, cruelty to animals,
petty theft, or a total lack of remorse. Karlson testified that
Miller’s behavior after the murder reflected the confusion of a
troubled and very upset person who was not thinking clearly. In
Karlson’s opinion, Miller could not have consciously,
intentionally, or deliberately planned a rape and murder because he
was acting on “automatic pilot,” during a dissociative episode.
Karlson acknowledged the possibility, however, that Miller
would commit criminal acts of violence in the future that would
constitute a continuing threat to society. He testified that if
Miller were in the same circumstances again, a similar crime could
5 occur, but that the likelihood was extremely small because prior to
the murder Miller was nonviolent. In Karlson’s opinion, Miller had
a tendency to try to please people and did not get angry or express
anger in an appropriate way. In the days and months preceding the
murder, Miller had been under a lot of pressure. Testimony
indicated he was working three jobs, going to school, under
financial pressure, had moved, and the week prior to the murder,
had broken up with a serious girlfriend, someone with whom he was
“very much in love.” In Karlson’s opinion, treatment would
virtually guarantee no recurrence of the violent behavior.
Although Karlson supported capital punishment for career criminals
who lacked remorse, he was not in favor of the death penalty in
this case because Miller, due to his mental disease or defect, was
out of control for a short period of time. Karlson testified that
the solution was confinement and treatment.
Miller also called numerous witnesses to offer testimony in
mitigation of the death penalty. Ms. Townsend, Miller’s former
school teacher, testified Miller was a “fine outstanding young
man.” In Townsend’s opinion, Miller did not commit the crimes
deliberately and would not commit criminal acts of violence in the
future. Miller never violated any of her classroom’s rules. He
was “an extremely good friend, a giver and not a taker,” and was
“just always such a friendly, nice kid, a nice guy always.” She
would have been proud to have him as her son.
Alice Carter, an employee at Camp Butman, worked with Miller
6 for five years and testified that she would ask the jury to
consider that Miller’s conduct was not deliberate. Miller needed
help and a life sentence would be appropriate.
Shirley Ann Miller, Miller’s stepmother, testified that Miller
was not rebellious and was a very caring child who never got out of
line and always “minded.” He did not have violent reactions toward
her and was not disrespectful. She testified that Miller could not
have done something like this deliberately and that Miller would
not commit criminal acts of violence in the future.
Randy Davis testified that Miller was his best friend and that
Miller did not “con” or use him. Davis was aware that Miller drank
and that he had been drinking that night. He testified that Miller
could not have done this deliberately and that alcohol could have
affected his behavior. Davis testified that if Miller got help,
more likely than not, he would not commit violent acts in the
future.
Don Russom, who used to work with Miller at a fire department,
testified that he had never heard of Miller committing antisocial
acts and that although he did not know whether Miller would be a
continuing threat to society, he believed that a life sentence
would be a more appropriate sentence than death.
Roy Smith, a friend of Miller’s family, had known Miller since
Miller was seven or eight years old. Smith testified that as a
“robot,” Miller may have committed the crimes but that he would not
have acted deliberately and that he did not believe that Miller
7 would commit criminal acts of violence in the future.
Miller’s mother, Patricia Edwards, testified that Miller was
a good son, was never violent, and would not do “something like
this again.” Bill Miller, Miller’s father, testified that Miller
did not ever try to “con” people and that he always was more of a
“giver” than a “taker.” Bill Miller testified that he had “a bad
drinking problem” when his son was young and that he had a violent
temper when he was drinking. He would “slap [Miller’s mother]
around” while he was drinking. In his opinion, his son needed
psychiatric treatment and would never repeat this behavior if such
treatment was provided. He did not think that Miller did this
deliberately.
Mickey Edwards, Miller’s stepfather, testified that Miller was
“absolutely trouble free” during the twelve years he had known him.
Miller was obedient and well disciplined. He testified that under
normal conditions, it would be impossible for Miller to have
committed the crimes. He had never seen Miller mistreat an animal.
Miller was “real kind and considerate to animals and people.”
Edwards did not think that Miller would commit criminal acts of
violence in the future.
Following the punishment hearing, the jury answered
affirmatively the special issues regarding the deliberateness of
Miller’s conduct and the probability of his future dangerousness,2
2 Special issue number one asked “[w]as the conduct of [Miller], that caused the death of the deceased . . . committed deliberately and with the reasonable expectation that the death of
8 and the court sentenced Miller to death.
On May 12, 1993, the Texas Court of Criminal Appeals affirmed
Miller’s conviction and sentence in an unpublished opinion, and
the Supreme Court denied Miller’s petition for a writ of
certiorari. Miller, through counsel, filed a state application for
a writ of habeas corpus. The trial court issued findings of fact
and conclusions of law, recommending that Miller’s habeas
application be denied. The “findings of fact” consisted of a brief
recitation of the procedural history of the case and a statement
that Miller’s first amended state habeas application did not allege
any new points of error concerning jurisdictional defects or
denials of fundamental constitutional rights or set forth any new
case law that in the court’s opinion would change the opinion of
the Texas Court of Criminal Appeals on direct appeal. The Texas
Court of Criminal Appeals, after reviewing the record, determined
that the findings and conclusions entered by the trial court were
supported by the record and issued a written unpublished order
denying the habeas application.
On May 21, 1998, Miller, through counsel, filed the instant
federal petition for a writ of habeas corpus. The respondent
answered and moved for summary judgment, stating that it believed
that Miller had exhausted state remedies but declining to waive the
the deceased or another would result?” Special issue number two asked “[i]s there a probability that the defendant . . . would commit criminal acts of violence that would constitute a continuing threat to society?”
9 exhaustion requirement.3 The district court heard oral argument on
the summary judgment motion. At the hearing, defense counsel
conceded that as to any one of the alleged instances of ineffective
assistance, he probably had not demonstrated that the ineffective
assistance was “material enough to change the outcome of the
trial.” Counsel argued, however, that the court should assess the
representation as a whole.
Miller filed a response to the motion for summary judgment.
The district court denied Miller’s habeas petition, explaining its
decision in a written order. Miller filed a motion for a COA,
which the district court denied. Miller now requests a COA from
this Court.
II. ANALYSIS
A. STANDARDS OF REVIEW
Miller filed his section 2254 application for habeas relief on
May 21, 1998, which was after the April 24, 1996 effective date of
the Antiterrorism and Effective Death Penalty Act (AEDPA). His
application is therefore subject to the AEDPA. Lindh v. Murphy,
521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).
Under the AEDPA, a petitioner must obtain a COA. 28 U.S.C. §
2253(c)(2). A COA will be granted only if the petitioner makes “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must
3 “An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” § 2254(b)(2).
10 demonstrate that the issues are debatable among jurists of reason;
that a court could resolve the issues [in a different manner]; or
that the questions are adequate to deserve encouragement to proceed
further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct.
3383, 3394 n.4 (1983) (citation and internal quotation marks
omitted). Any doubt regarding whether to grant a COA is resolved
in favor of the petitioner, and the severity of the penalty may be
considered in making this determination. Fuller v. Johnson, 114
F.3d 491, 495 (5th Cir. 1997).
The AEDPA prescribes the following standards of review:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
§ 2254(d) (emphasis added).
Accordingly, section 2254(d) applies only to issues that have
been adjudicated on the merits in state court.4 In the context of
federal habeas proceedings, a resolution (or adjudication) on the
merits is a term of art that refers to whether a court’s
4 Review is de novo when there has been no clear adjudication on the merits. Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997).
11 disposition of the case was substantive, as opposed to procedural.
Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). We must
determine whether Miller’s claims were adjudicated on the merits by
considering these factors: (1) what state courts have done in
similar cases; (2) whether the case’s history suggests that the
state court recognized any ground for not resolving the case on the
merits; and (3) whether the state courts’ opinions suggest reliance
on procedural grounds rather than an adjudication of the merits.
As for the claims that Miller now raises that were raised on
his direct appeal, the Texas Court of Criminal Appeals did hold
that one of the claims, prosecutorial misconduct, was procedurally
barred. In regard to Miller’s state habeas proceedings, the state
did not raise a procedural bar in its answer to Miller’s
application for state habeas relief, and the trial court’s denial
of relief does not expressly mention the imposition of a procedural
bar. After a review of the record, the Court of Criminal Appeals
“denied” Miller’s application for state habeas relief. Under Texas
law a denial of relief by the Court of Criminal Appeals serves as
a denial of relief on the merits of the claim. Ex parte Torres,
943 S.W.2d 469 (Tex.Crim.App. 1997). As such, except for the claim
of prosecutorial misconduct, we are persuaded that the state courts
did adjudicate Miller’s claims on the merits.
This Court reviews pure questions of law and mixed questions
of law and fact under § 2254(d)(1) and reviews questions of fact
under § 2254(d)(2). Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th
12 Cir. 1996). Under § 2254(d)(1), “an application of law to facts is
unreasonable only when it can be said that reasonable jurists
considering the question would be of one view that the state court
ruling was incorrect.” Drinkard, 97 F.3d at 769. Thus, this court
“can grant habeas relief only if a state court decision is so
clearly incorrect that it would not be debatable among reasonable
jurists.” Id. State court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence.
Section 2254(e)(1).
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Miller raises nine claims of ineffective assistance of
counsel, stating that he is offering these examples as a “general
cross-section of the record as a whole.” The district court
determined that all Miller’s allegations of counsel’s deficient
performance were conclusory and that he had failed to make any
specific demonstration of prejudice as a result of counsel’s
deficient performance. Miller fails to challenge the district
court’s conclusion on appeal. This Court has made clear that
conclusory allegations of ineffective assistance of counsel do not
raise a constitutional issue in a federal habeas proceeding. Ross
v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). “In the absence
of a specific showing of how these alleged errors and omissions
were constitutionally deficient, and how they prejudiced his right
to a fair trial, we [can find] no merit to these [claims].”
13 Barnard v. Collins, 958 F.2d 634, 642 (5th Cir. 1992).
In regard to three of the nine claims of ineffective
assistance, the entire text of Miller’s argument is simply that
“[t]rial counsel failed to preserve error for appellate review.”
He then provides approximately twenty-nine cites to the record.
Because Miller failed to set forth the nature of any of the errors
trial counsel purportedly failed to preserve and did not assert any
resulting prejudice, the district court properly determined that
these three claims of ineffective assistance were conclusory.
As to the remaining six claims of ineffective assistance, the
district court also addressed the merits of the claims, and,
exercising an abundance of caution, we will do the same. To
prevail on an ineffective assistance of counsel claim, Miller must
show that his counsel’s performance was deficient and that the
deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). The complete argument
set forth in regard to his fourth allegation of ineffective
assistance is that his attorney “denigrated and withdrew
Appellant’s Motion to Transfer Venue.” A review of the record
indicates that Miller filed a motion for change of venue, arguing
that he could not obtain a fair trial because of publicity prior to
trial and local prejudice. The motion was supported by an
affidavit signed by counsel’s secretary and Miller’s sister-in-law.
Subsequently, counsel attempted to withdraw the motion but the
trial court refused.
14 We agree with the district court’s conclusion that Miller
failed to demonstrate that his counsel’s actions were unreasonable
in light of counsel’s apparent inability to find impartial
witnesses to support the motion. Moreover, Miller has not shown
that a re-urged motion would have been granted in the absence of
any supporting evidence.
With no elaboration, Miller next claims that counsel
“attempted to make an objection to the State’s voir dire regarding
probation or parole ramifications on sentencing and never does
articulate an appropriate objection so that the trial court can
rule.” The record indicates that counsel filed a motion in the
trial court, and the essence of counsel’s argument was that the
prosecutor should be prohibited from implying that if Miller
received a life sentence, he would be eligible for parole within a
short period of time. The trial court denied the motion, stating
that it would not “restrict either party in the voir dire
examination from [discussing] the full range of punishment.” The
court noted, however, that the issue of parole was not part of the
court’s ruling as to the motion. The court observed that the issue
of parole was not properly raised in other cases and the court did
not know why this case would be an exception.
As the district court recognized, counsel made a motion and
obtained a ruling on that motion. Indeed, in response to counsel’s
motion, the court made clear that parole was not a proper issue for
voir dire. Miller has not demonstrated that counsel’s performance
15 was deficient or that he was prejudiced.
Miller next asserts that the prosecutor “interjected his
belief that putting Appellant to death is proper. Trial counsel
objected and his objection was sustained but [counsel] did not go
further to perfect this point for appeal.”
During the individual voir dire of juror Jay Baccus, the
prosecutor stated the following:
I believe the evidence will show that she was raped, vaginally and anally; do you see?
. . . .
And during the commission of this rape that she was murdered. I believe the evidence will show that she was choked but she didn’t die, that she was bludgeoned with a blunt instrument until her head was crushed. I believe the evidence will show that, and I believe if selected as a juror that is what you will hear. I believe that if you believe that beyond a reasonable doubt that is what the evidence is, I believe that you too would believe that Garry Dean Miller needs to be killed; do you see?
Defense counsel objected, arguing that the prosecutor’s statements
assumed facts not in evidence and were an attempt to commit the
juror to a course of action. The court sustained the objection.
The court instructed Baccus that no one was “trying to tie you down
to making a decision today. You can’t do it because you don’t have
any evidence in front of you.” The prosecutor then stated to the
juror that he “certainly [was] not trying to commit you to
anything.”
After additional questioning, the prosecutor asked the juror
16 if he would be able to return an affirmative answer to the issue of
Miller’s future dangerousness based solely upon the instant crime.
Defense counsel again objected, and the court ruled that the
prosecutor had a right to delve into the special issues. Counsel
obtained a running objection. The juror responded that he would be
able to answer yes as to future dangerousness based solely upon the
instant crime. The prosecutor then stated, “I believe you can. I
believe you can and I believe under the evidence that you will if
selected as a juror.” Defense counsel again objected, and the
court sustained the objection. Counsel asked the court to instruct
the juror to disregard the prosecutor’s last comment. In response
to counsel’s request, the court again instructed the juror that he
should not be tied down to a specific course of conduct because he
could not make a decision at that point.
The district court reasoned that if Miller’s claim was that
counsel should have objected on the ground that the prosecutor
improperly was stating his personal opinion, the claim lacked merit
because the prosecutor was stating that the evidence would support
a death-sentence verdict, which was not improper under Texas law.
The court reasoned that because any objection on this basis would
have been overruled, Miller was not prejudiced. Citing Miller v.
State,5 the court further reasoned that even assuming the comments
5 741 S.W.2d 382, 391 (Tex.Crim.App. 1987) (noting general rule that there must usually be a timely, proper, and specific objection to the prosecutor’s jury argument for a defendant to preserve the complaint for appellate review, but also noting exception that improper argument may present a Fourteenth Amendment
17 violated due process, trial counsel was not ineffective for failing
to preserve error because prosecutorial misconduct that rises to
the level of a due process violation does not require an objection
to be preserved for appeal under Texas law.
The district court reasoned, alternatively, that if Miller’s
claim was that counsel should have preserved for appeal the
objection that counsel did make, the claim still failed because
reasonable counsel could have decided that the first comment by the
prosecutor was not so prejudicial after the objection was sustained
that a curative instruction was necessary. The district court also
concluded that the prosecutor did not actually seek a commitment
from the juror, but stated only that he believed that the evidence
would convince the juror that Miller needed to be sentenced to
death. The district court reasoned that the prosecutor’s second
statement that he believed that the juror would find future
dangerousness under the evidence again did not seek to commit the
juror. As to this second comment, defense counsel did request an
instruction but the court refused to give an instruction. The
district court properly found that Miller has shown neither
deficient performance nor prejudice.
Miller argues that trial counsel was ineffective in failing to
object to the introduction of the State’s exhibit 95, Officer
Drumheller’s offense report. The State recalled Officer Drumheller
due process claim if the prosecutor’s argument so infected the trial with unfairness as to make the resulting conviction a denial of due process)).
18 during the guilt-innocence of the trial, who testified as to the
requirements of a business record for State’s exhibit 95, a Texas
Department of Public Safety data sheet, containing handwritten and
typewritten information regarding Miller and the instant crime.
Drumheller testified that he maintained the forms in the regular
course of business of the Texas Department of Public Safety. After
the State offered the exhibit, defense counsel stated that he had
no objection, “subject to prior agreement.” Drumheller then
testified as to various statements Miller made to him regarding his
physical and mental condition, which questions and answers,
Drumheller testified, were accurately reflected in the exhibit.
Defense counsel then cross-examined Drumheller.
The district court determined that defense counsel apparently
had reached an agreement with the State not to oppose the admission
of the document. Although the agreement was not reflected in the
record, the court presumed that counsel’s conduct fell within the
range of reasonable assistance, “especially in the case of a
conscious and informed decision of trial strategy.” The court
further noted that Miller made no attempt to demonstrate why the
document was objectionable.
Miller does not explain on appeal on what ground counsel could
have objected or argue that the result of the trial was rendered
unreliable as a result of counsel’s failure to object. Miller has
shown neither deficient performance nor prejudice.
Miller also argues that his counsel failed to object to the
19 prosecutor’s statement to the venire panel that a verdict of not
guilty by reason of insanity allows the accused to “walk” away
“totally free,” despite the fact that the prosecutor’s statements
violated Tex. Code Crim. P. Ann. art. 46.03 § 1(e). During voir
dire, the prosecutor stated that, “if you are insane at the time of
the commission of the offense, sane at the time of trial you walk.
You are through, a complete and total defense.” Defense counsel
did not object. Defense counsel did, however, state later during
voir dire that:
[The prosecutor] said temporary insanity. If you return a verdict of temporary insanity Gary Miller walks. That’s not true. That is a totally incorrect statement of the law. He does not walk. He is subject to psychiatric incarceration, supervised by the statutes.
Thereafter, defense counsel commented on the issue of temporary
insanity as follows:
Let’s go back to temporary insanity just a minute. This imposes three types of considerations on the jury: Number one, it imposes an issue on you individually on how you feel about temporary insanity. Because if it is brought up, then it must be considered by you. And the law will require you to consider it. It is a legal issue because it is presented as a legal defense. That does not mean that the defendant walks as [the prosecutor] said. He does not.
The prosecutor then objected to counsel’s statements as purported
misstatements of the law, and defense counsel responded that they
could “read the statute right now.” The prosecutor then said,
“[r]ead the statute,” and the court responded, “I will instruct the
jury on what the law is with regard to the insanity defense. The
20 jury has already been instructed that the law will come from the
Court.”
Outside the presence of the venire panel, defense counsel and
the prosecutor discussed the issue of the consequences of a verdict
of not guilty by reason of insanity. Defense counsel asked the
court to instruct the jury that the prosecutor misstated the law by
implying that a verdict of not guilty by reason of insanity would
result in Miller going “free as a bird.” The court stated that it
could instruct the jury that neither the prosecutor nor the defense
may inform a juror or prospective juror of the consequences to the
defendant of a verdict of not guilty by reason of insanity. The
court also stated that it could instruct the jury that any comments
made in voir dire by either attorney should be disregarded.
On direct appeal, the Texas Court of Criminal Appeals,
although observing that neither attorney should have commented on
the consequences of a verdict of not guilty by reason of insanity,
held that Miller had not shown prejudice. The court presumed that
defense counsel believed his remark to the venire was strategically
the best method to address the State’s improper comment and that
defense counsel believed that this cured any harm.
Miller has failed to demonstrate that counsel acted
unreasonably. Once the prosecutor made the comments, defense
counsel could have reasonably believed that an objection, at best,
would have resulted in an instruction to disregard, in light of
article 46.03 § 1(e), Tex. Code Crim. P., which prohibits the
21 court, the prosecutor, or defense counsel from informing the jury
of the consequences of an insanity verdict. As the district court
concluded, it was not unreasonable for counsel to believe that
responding to the prosecutor’s remarks would be more effective in
removing any possible taint from the jury than a simple instruction
to disregard. Indeed, by not objecting, counsel used the
opportunity to put before the jury favorable information that he
would not have been allowed to had he made an objection. Defense
counsel used the prosecutor’s misstatement to inform the jury that,
in the event Miller was found not guilty by reason of insanity,
Miller would not be set “free.” Such strategy was not
unreasonable. Miller has not demonstrated that counsel’s
performance was constitutionally deficient.
Miller argues that his counsel was ineffective in failing to
object when the prosecutor asked him on cross-examination if it was
“time to get the needle.” During the cross-examination of Miller,
the following exchange took place:
Prosecutor: Now, Garry, let’s quit this -- this is the first time you have ever pulled a deal like this, isn’t it?
Miller: No, sir, it’s not the first time I have cried.
Prosecutor: The first time anybody has ever seen you?
Miller: You haven’t been over at the jail, sir, watching me.
Prosecutor: You are scared, aren’t you?
Miller: Yes, sir. I believe anybody would be
22 scared.
Prosecutor: It’s time to get the needle, isn’t it?
Miller: Sir, I am testifying because I have to say what I remember. That’s the reason I am testifying, sir.
Prosecutor: You are testifying trying to save your life, aren’t you?
Miller: Sir, I don’t know if I want to live or die, to be honest with you, sir.
Prosecutor: You want to tell this jury to put the needle in me, then?
Miller: I will leave that up to them to judge, sir.
Questioning then continued regarding Miller’s written
confession. On direct appeal, the Texas Court of Criminal Appeals
determined that although the State’s remarks may have been
improper, Miller failed to show how the remarks prejudiced his
defense; the court refused to speculate as to prejudice.
Miller has not provided any argument as to why the questioning
was objectionable or in what specific way his trial was rendered
unreliable by the lack of an objection. The district court
reasoned that the questions were a proper method of impeaching the
purported basis for Miller’s emotional outburst by suggesting that
Miller was crying because of the impending punishment, not because
of his own remorse. Under those circumstances, Miller has failed
to show that counsel’s performance was deficient or that he
suffered any prejudice.
In conclusion, Miller has not made a substantial showing of
23 the denial of a federal right. Miller therefore is not entitled to
a COA on these claims.6
C. SUFFICIENCY OF EVIDENCE TO SUPPORT SPECIAL ISSUE TWO
Miller contends that the evidence was insufficient to support
the jury’s affirmative answer to the second special issue during
the punishment phase, namely, whether there is a probability that
Miller would commit acts of violence constituting a continuing
threat to society beyond a reasonable doubt. He asserts that the
evidence introduced to demonstrate his future dangerousness was
confined largely to the brutal and vicious nature of the murder.
If that is sufficient, he argues, then virtually any murder
involving the aggravated sexual assault of a child would also
support such a verdict.
This Court examines all the evidence in the light most
favorable to the verdict to determine whether any rational trier of
fact could have found the issue in controversy to have been proven
beyond a reasonable doubt. Callins v. Collins, 998 F.2d 269, 276
(5th Cir. 1993). We apply this standard looking to the state’s
substantive law, giving great weight to the state court’s
determination. Foy v. Donnelly, 959 F.2d 1307, 1313-14 (5th Cir.
6 Miller further argues that the “cumulative effect of numerous errors of counsel rendered counsel’s performance inadequate.” As set forth above, Miller has not demonstrated error by trial counsel; thus, by definition, Miller has not demonstrated that cumulative error of counsel deprived him of a fair trial. See Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993) (explaining that because certain errors were not of constitutional dimension and others were meritless, petitioner “has presented nothing to cumulate”).
24 1992). Under Texas law, although a number of factors may be
considered in making the determination as to future dangerousness,
the facts of the crime alone, if severe enough, can be sufficient
to support the affirmative finding to the special issue. Vuong v.
State, 830 S.W.2d 929, 935 (Tex.Crim.App. 1992).7
On Miller’s direct appeal, the Texas Court of Criminal Appeals
opined as follows:
The evidence was sufficient to support the jury’s affirmative finding to special issue number two for numerous reasons. While some evidence does militate against this finding (appellant’s clean criminal record), any such evidence is far outweighed by the aggravating evidence. The facts of the murder
7 The following is a non-exclusive list of factors:
1. The circumstances of the capital offense, including the defendant’s state of mind and whether he was acting alone or with others;
2. The calculated nature of the defendant’s conduct;
3. The deliberateness exhibited in the execution of the crime;
4. The existence and severity of any previous offenses committed by the defendant;
5. The defendant’s age and personal circumstances at the time of the offense;
6. Whether, at the time of the offense, the defendant was acting under duress or the dominion of another;
7. Psychiatric evidence; and
8. Character evidence.
Vuong, 830 S.W.2d at 934-35.
25 itself show that appellant was just shy of twenty-one years of age, whereas, the victim was only seven. While these facts do not indicate that the murder was premeditated, they do illustrate that appellant brutally raped the victim, vaginally and anally, before he very deliberately and repeatedly choked and beat her to death. Further, while still working alone, appellant attempted to conceal the murder and faked concern by appearing to help look for the girl when she was reported missing. Additionally, while allegedly mitigating evidence of appellant’s good behavior in school, work, and prison was presented, evidence was also presented that appellant could be “violent and disruptive when`crossed.’” Finally, psychiatric evidence was presented by Dr. E. Clay Griffith that, based upon the brutal facts of the murder, the attempt at concealing the occurrence, and the subsequent lying to maintain the charade, there was every reason to believe that some sort of violence would occur again in the future. Viewed in its entirety the evidence was such that a rational trier of fact could have found beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society.
The evidence in this case is that Miller acted alone and that
his conduct in committing the crime was very deliberate. The
pathologist testified that the cause of death was multiple blunt
force injuries of the head, neck, and trunk. The fractures to the
head were such that the blows had to be delivered with extreme
force and multiple times. Numerous contusions and abrasions had
been inflicted on the seven-year old victim’s face; her right jaw
was fractured, and there were injuries on the ball of her foot,
indicating that she had put her foot down, possibly while being
dragged. She sustained excessive injuries to both the anal (a
26 five-inch tear in her colon) and vaginal cavities that, in the
pathologist’s opinion, were caused by an object, other than a
penis, in excess of five inches.
Dr. Griffith, a psychiatrist called by the State, testified
that it was his opinion that Miller represented a continuing threat
to society based upon the extremely brutal murder, a murder “as
brutal as [Griffith had] ever seen in a child.” Griffith observed
that the murder was totally unprovoked and that Miller was
meticulous during the killing and as to his actions following the
killing.
Also, the defense called a psychologist, Dr. Karlson, who
testified that Miller had committed the crimes during a
dissociative episode. Karlson disagreed with Griffith’s conclusion
that Miller had an antisocial personality. He did not believe that
Miller consciously, intentionally, or deliberately planned a rape
and murder because he was acting on “automatic pilot.” Karlson did
however acknowledge the possibility that Miller would commit
criminal acts of violence in the future, but he thought there was
little likelihood of future violence because prior to the murder
Miller was nonviolent. Karlson believed that treatment would
virtually guarantee that Miller would not continue to commit
violent acts.
Although there was some evidence militating against a finding
of future dangerousness, the evidence must be viewed in the light
most favorable to the verdict. Here, the evidence of Miller’s
27 deliberateness and brutality in the execution of this heinous
crime, coupled with the psychiatric testimony, amply support an
affirmative finding to the issue of future dangerousness. See
Vuong, 830 S.W.2d at 935 (explaining that crime was of such a
calculated and brutal nature that, even without expert psychiatric
testimony and prior extraneous offenses, a rational jury could have
found that the defendant was a continuing threat to society).
Miller has failed to make a substantial showing of the denial of a
federal right. Indeed, the state court’s conclusion that the
evidence was sufficient to support an affirmative finding regarding
Miller’s future dangerousness did not result in a decision that was
contrary to, or involve 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).
D. JURY INSTRUCTIONS REGARDING EFFECT OF A “NO” VOTE
At the punishment phase, the jurors were instructed that if
all twelve jurors find that the State has proven a special issue
beyond a reasonable doubt, the presiding juror will record the
jury’s answer of “yes.” The charge instructed that if ten or more
jurors vote “no,” then the answer of the jury shall be “no” to that
special issue.
Miller argues that because the jurors were not instructed that
the consequences of a failure to reach either of the above two
options was a life sentence,8 the risk that one or more jurors
8 The Texas Code of Criminal Procedure expressly prohibited
28 would change a vote to satisfy the majority is too great to pass
muster under the Eighth Amendment. More specifically, he contends
that the charge mislead the jury regarding the effect of a “no”
vote by a single juror as to either special issue.9 He asserts
that the jurors were instructed that they had only two options:
either the jurors would unanimously agree to answer all of the
special issues affirmatively, which would result in the imposition
of a death sentence; or at least ten jurors would agree to answer
one or more of the special issues negatively, which would result in
the imposition of a life sentence.
Contrary to Miller’s assertion, the jury at his trial was
instructed what to do if they did not reach agreement as set forth
in the charge. The jury instructions provided that if there was
any special issue on which the vote of the jurors was not
unanimously ‘yes’ or not at least ten in favor of an answer of
‘no,’ there should be no answer for that special issue and the
presiding juror should not sign his or her name to any answer form
informing the jury of the effect of a failure to agree on the special issues. Tex. Code Crim. Proc. Ann. Art. 37.071 § 2(a). 9 In support of this contention, Miller refers to two notes the jury sent to the court during deliberations. The first note inquired whether “[i]f the jury votes once on an issue without an acceptable conclusion of either 12 yes or 10 no, do we stay in deliberation until a conclusion is reached or do we turn the charge in unsigned?” In the second note, the jury asked the following questions, “[i]f we do not reach a decision[:] What happens? hung jury? retrial?” The judge gave the following response to both notes: “[y]ou are instructed that all of the law to which you are entitled is contained in the Court’s Charge. Please refer to the Court’s charge.”
29 for that special issue.
Nevertheless, relying on Mills v. Maryland, 486 U.S. 367, 108
S.Ct. 1860 (1988), Miller asserts a reasonable juror could have
believed that their individual vote was not meaningful unless some
threshold number of jurors were in agreement on that particular
special issue. This claim will afford Miller no relief.
In Mills, the Supreme Court held that the Eighth Amendment was
violated because the jury instructions may have precluded the jury
from considering mitigating evidence unless all twelve jurors
agreed that a particular circumstance was supported by the
evidence. 486 U.S. at 384, 108 S.Ct. at 1870. Subsequent to
Mills, the Supreme Court has explained that “Mills requires that
each juror be permitted to consider and give effect to mitigating
evidence when deciding the ultimate question whether to vote for a
sentence of death.” McKoy v. North Carolina, 494 U.S. 433, 442-43,
110 S.Ct. 1227, 1233 (1990).
This Court has explained that Mills is not applicable to the
capital sentencing scheme in Texas. We have concluded that
“[u]nder the Texas system, all jurors can take into account any
mitigating circumstance. One juror cannot preclude the entire jury
from considering a mitigating circumstance.” Jacobs v. Scott, 31
F.3d 1319, 1329 (5th Cir. 1994). “Mills does not require a certain
number of jurors to agree to impose the death penalty.” Id.
Miller’s jury was instructed in conformity with Texas law. In
light of our precedent, Miller has not made a substantial showing
30 of the denial of a constitutional right. Moreover, our precedent
precludes him from demonstrating that the state court’s resolution
of this claim involved an unreasonable application of clearly
established federal law as determined by the Supreme Court.
E. PENRY CLAIM
Miller argues that the jury charge did not allow the jury to
express a proper moral reaction to the mitigating evidence. He
contends that the evidence that he was suffering from a severe
mental illness, a dissociative episode, during the offense, should
have been considered by the jury during its deliberations on
punishment. He argues that the charge instructed that the jury
could not consider such evidence as sufficient to answer negatively
on either punishment issue. Miller argues that the jury
instructions were unconstitutional under Penry v. Lynaugh, 492
U.S. 302, 109 S.Ct. 2934 (1989).
Miller requested, but was denied, the following instruction on
punishment, “[a]ny evidence that is concluded mitigating against
the imposition of the death penalty may be sufficient to require a
no answer to the issues.” The jury was instructed, in part, as
follows:
You are instructed that if you return an affirmative finding on each of the special issues submitted to you, the Court shall sentence the defendant to death. You are further instructed that if you return a negative finding on any special issue submitted to you the Court shall sentence the Defendant to the Texas Department of Corrections for life. You are therefore instructed that your answers to the special
31 issues which determines the punishment to be assessed the Defendant by the Court should be reflective of your finding as to the personal culpability of the Defendant, Garry Dean Miller, in this case.
You are instructed that when you deliberate on the questions posed to you in the special issues you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial whether presented by the State or by the Defendant. A mitigating circumstance may include but is not limited to any aspect of the Defendant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case you must decide how much weight they deserve, if any, and thereafter give effect and consideration to them in assessing the Defendant’s personal culpability at the time you answer the special issue. If you determine when giving effect to the mitigating evidence, if any, that a life sentence as reflected by a negative finding to the issue under consideration rather than a death sentence is an appropriate response to the personal culpability of the Defendant a negative finding should be given to the special issue under consideration.
(emphasis added).
The jury at the punishment phase of a capital case must be
permitted to give effect to any constitutionally relevant
mitigating evidence. See Green v. Johnson, 116 F.3d 1115, 1126
(5th Cir. 1997) (citing Eddings v. Oklahoma, 455 U.S. 104, 112, 102
S.Ct. 869, 875 (1982)). In Penry, the Supreme Court reversed a
death sentence on the ground that, although the evidence regarding
the defendant’s mental retardation and childhood abuse was
presented to the jury at the penalty phase of the trial, the
32 special issues prescribed by Texas statute prevented the jury from
giving mitigating effect to that evidence. Penry, 492 U.S. at 328,
109 S.Ct. at 2952.
On direct appeal, the Texas Court of Criminal Appeals
acknowledged that the mitigating evidence, that Miller was
suffering from a “‘very severe mental disorder’” at the time of the
offense which “‘interfered with his knowing right from wrong,’”
“may or may not have been considered mitigating evidence of the
type contemplated by the Supreme Court in Penry.” The Court
concluded that the trial court’s instruction on mitigating
circumstances provided the jury with an adequate vehicle to express
and to give effect to its “reasoned moral response” to Miller’s
mitigating evidence, if any existed.
In Penry, “[t]he jury was never instructed that it could
consider the evidence offered by Penry as mitigating evidence and
that it could give mitigating effect to that evidence in imposing
sentence.” 492 U.S. at 320, 109 S.Ct. at 2947. The Supreme Court
rejected “the State’s contrary argument that the jury was able to
consider and give effect to all of Penry's mitigating evidence in
answering the special issues without any jury instructions on
mitigating evidence.” Id. at 322, 109 S.Ct. at 2948.
Miller’s jury, unlike Penry’s, was instructed that it should
consider mitigating evidence when deliberating on the special
issues and that a mitigating circumstance may include, but is not
limited to, any aspect of Miller’s character and record or
33 circumstances of the crime which the jury believed could make a
death sentence inappropriate. The jury was instructed that if it
identified any mitigating circumstances, it should weigh them and
give effect and consideration to them in assessing Miller’s
personal culpability. The jury was instructed that if it
determined when giving effect to the mitigating evidence, if any,
that a life sentence rather than a death sentence was an
appropriate response to Miller’s personal culpability, a negative
finding should be given to the special issue under consideration.
Miller has not demonstrated that his requested instruction was
required under Penry or that the challenged instructions were
barred by Penry. He has not shown that the jury was prevented from
considering the evidence of his dissociative condition at the time
of the offense. Therefore, we conclude that he has not made a
substantial showing of the denial of a constitutional right.
F. INFORMING JURY REGARDING PAROLE ELIGIBILITY
Miller argues that his due process and Eighth Amendment
constitutional rights were violated because the trial court failed
to inform the jury during the punishment phase of the trial that he
would not be eligible for parole for fifteen years if he received
a life sentence. Relying on Simmons v. South Carolina, 512 U.S.
154, 114 S.Ct. 2187 (1994), Miller argues that, had the jury been
informed that a life sentence would require him to spend fifteen
calendar years in prison before becoming eligible for parole, a
member of the panel could have been convinced that he would not
34 pose a future danger.
In Simmons, the Supreme Court held that if the defendant’s
future dangerousness is at issue and state law prohibits the
defendant’s release on parole, due process requires that the
sentencing jury be informed that the defendant is ineligible for
parole. 512 U.S. at 156, 114 S.Ct. at 2190. This Court has
explained that Simmons requires that a jury be informed about a
defendant's parole ineligibility only when (1) the state argues
that a defendant represents a future danger to society, and (2) the
defendant is legally ineligible for parole. Allridge v. Scott, 41
F.3d 213, 222 (5th Cir. 1994) (footnote omitted). Miller concedes
that Simmons is distinguishable because Simmons was not eligible
for parole and “would have effectively spent his natural life in
the penitentiary.” More to the point, because Miller would have
been eligible for parole under Texas law if sentenced to life, we
find his reliance on Simmons “unavailing.” Id.
In addition to asserting a due process claim, Miller argues
that the jury should have been instructed as to parole eligibility
in regard to a life sentence under the Eighth Amendment. “We have
consistently held, however, that neither the due process clause nor
the Eighth Amendment compels instructions on parole in Texas.”
Johnson v. Scott, 68 F.3d 106, 112 (5th Cir. 1995).
Once again, in light of this Court’s precedent, Miller has not
made a substantial showing of the denial of a constitutional right
with respect to this claim. Further, he cannot show that the state
35 court’s denial of relief on this claim involved an unreasonable
application of clearly established federal law as determined by the
Supreme Court.
G. PROSECUTORIAL MISCONDUCT
Miller argues that an erroneous statement of law by the
prosecutor during voir dire as to the consequences of a verdict of
not guilty by reason of insanity violated his constitutional
rights. As discussed above in the context of an ineffective
assistance of counsel claim, during voir dire, the prosecutor
stated, “you see, if you are insane at the time of the commission
of an offense, sane at the time of trial you walk. You are
through, a complete and total defense.”
As Miller asserts, under Tex. Code Crim. Proc. Ann. art. 46.03
§ 1(e), “[t]he court, the attorney for the state, or the attorney
for the defendant may not inform a juror or prospective juror of
the consequences to the defendant if a verdict of not guilty by
reason of insanity is returned.” On Miller’s direct appeal, the
Texas Court of Criminal Appeals opined that “[a]s no timely
objection was made, nothing has been preserved for our review.”
The court below therefore held that this claim was
procedurally barred. If a state court has explicitly relied on a
procedural bar, a state prisoner may not obtain federal habeas
relief absent a showing of cause for the default and actual
prejudice that is attributable to the default. Coleman v.
Thompson, 111 S.Ct. 2546, 2565 (1991). Miller does not
36 specifically argue that he has shown cause and prejudice sufficient
to lift the procedural bar. Nevertheless, as discussed previously
in a separate argument, he does contend that counsel rendered
ineffective assistance by failing to object to these remarks.
Because we have determined that counsel did not render ineffective
assistance, Miller cannot demonstrate cause and prejudice to
overcome the procedural bar. Miller has not made a substantial
showing of the denial of a constitutional right and is not entitled
to a COA on this claim.
In sum, Miller has not shown that any of his claims are
debatable among jurists of reason, that a court could resolve the
issues in a different manner, or that the questions are adequate to
deserve encouragement to proceed further. Drinkard, 97 F.3d 751,
755-56 (5th Cir. 1996). Because Miller has failed to make a
substantial showing of the denial of a constitutional right, we
DENY his request for a COA.
DENIED.
37