FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 21 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk
GEORGE JAMES MILLER,
Plaintiff-Appellant,
v. No. 02-6199
MIKE MULLIN, Warden, Oklahoma
State Penitentiary,
Respondent-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CIV-99-1696-T)
Robert W. Jackson (Steven M. Presson, with him on the briefs), Jackson &
Presson, P.C., Norman, Oklahoma, for Plaintiff-Appellant.
Robert L. Whittaker, (W.A. Drew Edmundson, Attorney General of Oklahoma,
with him on the brief), Assistant Attorney General, Criminal Division, Oklahoma
City, Oklahoma, for Defendant-Appellee.
Before SEYMOUR, HENRY, and O’BRIEN, Circuit Judges.
PER CURIAM.
George James Miller, a state prisoner, appeals the district court’s decision
denying him habeas relief from his Oklahoma first-degree malice aforethought
murder convictions for the September 17, 1994 death of Kent Dodd. On appeal,
Mr. Miller contends that (1) the prosecution engaged in prosecutorial misconduct
when it concealed until final closing its theory that Mr. Dodd identified his killer
by writing the letters “JAy” in smeared blood; (2) his trial and appellate counsel
were ineffective; (3) the Oklahoma Court of Criminal Appeals’ application of the
heinous, atrocious, or cruel aggravating factor was vague and overbroad; and (4)
cumulative error entitles Mr. Miller to relief. We affirm the denial of habeas
relief under 28 U.S.C. § 2254.
I. BACKGROUND
We reiterate the facts of this tragic homicide, drawing largely from the
Oklahoma Court of Criminal Appeals’ summary in Miller v. State, 977 P.2d 1099,
1103-04 (Okla. Crim. App. 1999).
Kent Dodd, a twenty-five year old night auditor at the Central Plaza Hotel,
which is located at the intersection of I-40 and Martin Luther King Drive in
Oklahoma City, registered, as he typically did, as a guest at 3:15 a.m. on
September 17, 1994. Shortly thereafter an assailant attacked Mr. Dodd, stabbed
him repeatedly, beat him with hedge shears and a paint can, and poured muriatic
acid on him and down his throat. Two and a half hours later, a hotel housekeeper
arrived for her morning shift. She called for Mr. Dodd when she saw he was not at
the front desk. In response she heard moans from the restaurant area of the hotel.
2
She ran to a nearby restaurant and had the police called. When the officers
arrived, Mr. Dodd was still alive. There were several blood trails and signs of
struggle in various parts of the hotel.
Mr. Dodd was able to respond to police questioning, but his responses were
mostly unintelligible. The police understood him to say his attacker was an
African-American man who wore grey trousers. Mr. Dodd died later that day from
blunt force trauma to his head.
The hotel cash drawer was open and empty when the police investigated the
crime scene. Hotel policy requires each shift to begin with $250 in the drawer. At
the end of the shift, the desk clerk places any amount in excess of the deposit in an
envelope and drops it into the hotel safe. Only desk clerks knew the amount of
cash in the drawer.
Mr. Dodd was known to be an exemplary employee who carefully followed
the accounting procedures and whose money count was always correct. After the
murder, the hotel manager discovered a deposit envelope containing $100 hidden
behind registration forms in a separate drawer.
All of the evidence presented against Mr. Miller at the trial for Mr. Dodd’s
murder was circumstantial. Mr. Miller had worked as a maintenance man at the
Central Plaza Hotel for two weeks about a month before the murder. Mr. Dodd
knew Mr. Miller, but knew him under another name, Jay Elkins.
3
Apparently, the night before the murder, Mr. Miller was broke and tried
unsuccessfully to borrow money from several different friends. According to Mr.
Miller, he, accompanied by Chris Carriger and Jeremy Collman, went to the
Central Plaza on September 16, 1994, at approximately 10:00 p.m. Mr. Miller
attempted to cash a check written by Mr. Carriger to Mr. Miller; the visit lasted
about five minutes. Mr. Miller indicated to authorities that he was then taken back
to his apartment where he remained until mid-morning the following day. After
trying to cash the check at other locations, Mr. Carriger returned home and asked
his wife, Stephanie Carriger, to write a check to Mr. Miller for $75, and she
complied. Mr. Carriger and Mr. Collman gave similar renditions of these events
to Mr. Miller’s counsel.
Mr. Miller told police he was home with his wife at the time of the murder.
Mr. Miller and his wife separated shortly after the murder, and he went to stay
with his mother in Sherman, Texas. Mr. Miller’s ex-wife, whom he divorced prior
to trial, testified he was not at home at the time of the murder and that he had
taken her car keys from where she hid them and left. She testified that on the day
following the murder, when Mr. Miller returned in her car, he attempted to give
her $120. She testified that she found sand in the car and that after the murder,
she noticed that a pair of Mr. Miller’s khaki shorts and a silk shirt had
disappeared. She identified two buttons found at the crime scene to be similar to
buttons on the missing shirt.
4
When police questioned Mr. Miller about the $120 he gave to his wife, he
claimed he had cashed a paycheck. When the police reminded Mr. Miller that he
was not working at the time, he then denied giving his wife the money.
See Miller, 977 P.2d at 1104.
There is little physical evidence connecting Mr. Miller to the crime scene.
According to testimony of the State’s forensic scientist, Mr. Miller’s sandals could
have made the footprints found at the scene, but she could not exclusively identify
the sandals. A microscopic drop of blood on Mr. Miller’s sandal was “consistent”
with Mr. Dodd’s blood, but this too could not be exclusively identified.
The sample revealed a positive DNA reading, indicating the blood on the shoe was
the same type as the blood type of the victim.
II. DISCUSSION
A jury found Mr. Miller guilty of first degree murder. At the capital
sentencing proceeding, the jury then found four aggravating factors: (1) Mr. Miller
had a prior violent felony conviction; (2) this murder was especially heinous,
atrocious, or cruel; (3) Mr. Miller had killed the night clerk to avoid arrest or
prosecution for the robbery; and (4) Mr. Miller was a continuing threat to society.
After considering the mitigating evidence, the jury sentenced Mr. Miller to death.
The Oklahoma Court of Criminal Appeals affirmed Mr. Miller’s conviction
on direct appeal and also denied him post-conviction relief. The federal district
5
court denied Mr. Miller habeas relief on eight claims, but granted Mr. Miller a
certificate of appealability (COA) on three of those claims: (1) whether the
prosecutor engaged in misconduct through its calculated concealment, until the
closing argument, of its theory that the victim wrote “JAy,” Mr. Miller’s alias, in
blood at the crime scene; (2) ineffective assistance of trial and appellate counsel;
and (3) cumulative error. We granted review of these three claims, and we also
granted a COA on the issue of whether the Oklahoma Court of Criminal Appeals’
application of the heinous, atrocious, or cruel aggravating factor has eroded to a
vague unconstitutional standard. We affirm the district court’s denial of habeas
relief as to each claim.
A. Standard of Review under AEDPA
Because Mr. Miller’s habeas petition was filed after the effective date of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA
governs whether Mr. Miller may obtain relief from his death sentence. Under
AEDPA, because Mr. Miller’s claim was adjudicated on the merits in state court,
he is entitled to federal habeas relief only if he can establish that the state court
decision 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).
6
In Williams v. Taylor, 529 U.S. 362 (2000), Justice O’Connor’s opinion for
the Court stated:
Under the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law or if the state court decides a case
differently than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Id. at 412-13. “In Williams, the Supreme Court declined to refine the meaning of
the term ‘reasonable’ as it is used in the AEDPA, other than to note that while it is
‘difficult to define,’ it is ‘a common term in the legal world and, accordingly,
federal judges are familiar with its meaning.’” Cook v. McKune, 323 F.3d 825,
830 (10th Cir. 2003) (quoting Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir.
2000) (quoting Williams 529 U.S. at 410)).
“‘Unreasonableness’ is gauged by an objective standard.” Id. “An
unreasonable application of federal law denotes some greater degree of deviation
from the proper application than a merely incorrect or erroneous application.” Id.
(internal citations omitted). The Supreme Court recently stated that “[w]e have
made clear that the ‘unreasonable application’ prong of § 2254(d)(1) permits a
federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 123 S. Ct. 2527,
2534-35 (2003) (quoting Williams, 529 U.S. at 413). “In other words,” the Court
7
stated, “a federal court may grant relief when a state court has misapplied a
‘governing legal principle’ to ‘a set of facts different from those of the case in
which the principle was announced.’” Id. at 2535 (quoting Lockyer v. Andrade,
123 S. Ct. 1166, 1175 (2003)).
Furthermore,
[a] state court’s decision is not “contrary to . . . clearly established
Federal law” simply because the court did not cite our opinions. We
have held that a state court need not even be aware of our precedents,
“so long as neither the reasoning nor the result of the state-court
decision contradicts them.”
Mitchell v. Esparza, 124 S. Ct. 7, 10 (2003) (quoting Early v. Packer, 537 U.S. 3,
8 (2002)) (internal citations omitted). Thus, we apply this standard
notwithstanding the Oklahoma Court of Criminal Appeals’ failure to cite or
discuss federal case law . See Cook, 323 F.3d at 831 (citing Early , 123 S. Ct. at
365).
1. Prosecutorial misconduct
Mr. Miller maintains that he was unduly prejudiced by the prosecutor’s
overly suggestive and previously unannounced use of illustrative devices during
the final closing argument. During final closing, the prosecutor presented a
transparency marked with the letters “JAy” and posited that these letters matched
blood smears on the double doors and floor of the murder scene.
8
Mr. Miller’s counsel did not contemporaneously object to the prosecutor’s
statements. Tr. trans. vol. X, at 250-53. Indeed, counsel did not object to the
statements until seventy-eight minutes after the statement had been made and the
jury had retired to deliberate. Id. at 256-57. The Oklahoma Court of Criminal
Appeals reviewed the contention for plain error.
a. Standard of review
We apply AEDPA’s deferential standard of review to a claim of
prosecutorial misconduct. See Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002).
“Generally, a prosecutor’s improper remarks require reversal of a state conviction
only if the remarks ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Id. (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). “Alternatively, if the alleged prosecutorial misconduct
denied the petitioner a specific constitutional right (rather than the general due
process right to a fair trial), a valid habeas corpus claim may be established
without proof that the entire trial was rendered fundamentally unfair.” Id.
b. Evidence presented and the closing argument
During the trial, the State presented evidence and testimony concerning the
blood found at the crime scene. Specifically, the State presented testimony from
Detective Sgt. Ed Bradway, the crime scene investigator who processed the crime
scene and collected the evidence. Sgt. Harville assisted Det. Bradway and took
photographs of the crime scene, and in particular the photographs of the double
9
kitchen doors where most of the blood was found. Mr. Miller notes that the State
did not present evidence from a blood spatter expert or a handwriting expert,
although both were consulted by the State.
At trial, Det. Bradway testified regarding Exhibits 54-57, which are color
photos of the double doors and the floor in front of them. Det. Bradway noted
what appeared to be high velocity blood spatter on the right door and smears that
looked like “transfer blood” off somebody’s hands. See Tr. trans. vol. V, at 63-64.
Det. Bradway testified that the right-hand spatter appeared red and unsmeared, and
postulated that this blood must have been on the door before the transfer blood, in
that it had time to dry. Det. Bradway testified that he was unable to obtain prints
from any of the smears or wipes.
During the final closing argument 1, the prosecutor showed the jury State
Exhibit 55 and told the jury that the most important evidence had almost been
overlooked, for they could see the victim “went into his own blood . . . and wrote
his killer’s name.” Tr. trans. vol. X, at 251. The prosecutor then produced a
transparency overlay with the name “JAy” written on it. He placed the overlay
1
Oklahoma procedure allows the state to make two closing arguments. It makes its
first argument and, after the defense closing argument, it is permitted a second. See Okla.
Stat. Ann. tit. 22, § 831 (“Thereupon, unless the case is submitted to the jury without
argument, the counsel for the state shall commence, and the defendant or his counsel shall
follow, then the counsel for the state shall conclude the argument to the jury. During the
argument the attorneys shall be permitted to read and comment upon the instructions as
applied to the evidence given, but shall not argue to the jury the correctness or
incorrectness of the propositions of law therein contained.”). The second argument is not
limited to rebuttal.
10
atop Exhibit 55 and matched up the written “JAy” with the blood smear on the
wall. He also concluded that Mr. Dodd did not write the name Jay just once: “He
wanted to make sure that you saw it, you people . . . . Folks, he wrote the letter J
in the lower left-hand corner of that picture. J, which, of course, []usually stands
for the word Jay.” Id. at 252.
In denying relief on this claim, the Oklahoma Court of Appeals stated:
Contrary to Miller’s argument, State’s Exhibit No. 55 is not evidence.
It was not introduced into evidence and it was not taken into
deliberations by the jury. Rather, it demonstrated a reasonable
inference from evidence properly disclosed to the defense and
properly admitted at trial. In this regard the transparency is akin to
counsel writing with chalk on a blackboard. Counsel for both the
defense and State are granted wide latitude to draw reasonable
inferences from the evidence.
Miller, 977 P.2d at 1110. 2
Mr. Miller argues that he was unduly prejudiced because the prosecutor
knew before trial that he intended to suggest that Mr. Dodd was identifying his
killer in the blood smear during final closing. The presentation of this
“undisclosed bombshell” theory at the final closing left no opportunity for rebuttal
or cross-examination. Aplt’s Br. at 21.
2
The district court noted that the Oklahoma Court of Criminal Appeals’
statement that Exhibit 55, was “not evidence” and “was not introduced into
evidence and it was not taken into deliberations by the jury” was incorrect. In
fact, Exhibit 55 had been admitted and, as well, disclosed to the defense months
before trial. But that is not the focus of the argument, and the misstatement does
not change the analysis that the trial court did not commit plain error in allowing
the argument and the use of the transparencies.
11
The State does not deny that it planned this strategy of attack. In his
opening, the prosecutor told the jury that Mr. Dodd “certainly wanted to live as the
evidence from the scene would indicate, and he wanted Jay captured as you will
see.” Tr. trans. vol. IV, at 90. In his first closing argument, the prosecution
continued building up this yet undisclosed theory, telling the jury that Mr. Miller
“left the only witness bleeding out on the ground, the witness who in fact did
know who killed him, that Jay had killed him. And I will tell you exactly how the
evidence demonstrates that in the second closing.” Tr. trans. vol. X, at 159. The
State argues it was under no duty to disclose its theory of the case, which involved
only inculpatory materials, asserting that “[t]he State is not required to inform the
defense as to what significance the State assigns to each exhibit.” Aple’s Br. at
17.
c. Analysis
First, as to the review for plain error, Mr. Miller’s counsel waited over an
hour to object to what the defendant now characterizes as an “undisclosed
bombshell.” Aplt’s Br. at 21. Unlike the situation in Lambert v. Midwest City
Mem’l Hosp. Auth., 671 F.2d 372 (10th Cir. 1982), where counsel lodged his
objection “[i]mmediately after [opposition] counsel had completed his closing
argument,” id. at 374, here we have no reasoned excuse for delay until after the
jury began deliberations. The Oklahoma Court of Criminal Appeals appropriately
12
considered whether the trial court had committed plain error when it considered
Mr. Miller’s belated objection.
Second, we acknowledge that the decision to allow the use of visual aids,
including pedagogical devices, rests squarely with the trial court. Collins v. State,
561 P.2d 1373, 1380 (Okla. Crim. App. 1977) (“‘Argument by means of
illustration, such as exhibiting to the jury models, tools, weapons, implements,
etc., is a matter of every day practice . . . . [D]iscretion is vested in the trial court
to prevent an abuse of the use of such illustrations, and unless there has been such
an abuse, this court will not interfere.’”) (quoting Peoples v. Commonwealth, 137
S.E. 603, 607 (Va. 1927)). “Reversible error is committed when counsel’s closing
argument to the jury introduces extraneous matter which has a reasonable
probability of influencing the verdict.” Lambert, 671 F.2d at 375-76 (setting aside
judgment where counsel’s remarks were “improper and prejudicial”).
The use of a transparency, which is a pedagogical device, is “more akin to
argument than evidence. . . . Quite often [one is] used on summation.” United
States v. Bray, 139 F.3d 1104, 1111 (6th Cir. 1998) (internal quotation marks
omitted). “Generally, such a summary is, and should be, accompanied by a
limiting instruction which informs the jury of the summary’s purpose and that it
does not itself constitute evidence.” Id. (citing United States v. Wood, 943 F.2d
1048, 1053-54 (9th Cir. 1991) and United States v. Sawyer, 85 F.3d 713, 740 (1st
Cir. 1996)). Mr. Miller does not suggest a limiting instruction was requested.
13
Indeed, that option may have been forfeited by delay in making an objection until
the jury was deliberating. That delay also foreclosed any opportunity for the trial
judge to permit defense counsel to address the jury a second time to rebut the
“JAy” argument.
The unsupervised use of pedagogical aids during closing arguments greatly
heightens the risk of reversible error. An inherent risk in the use of pedagogical
devices is that they may “unfairly emphasize part of the proponent’s proof or
create the impression that disputed facts have been conclusively established or that
inferences have been directly proved.” United States v. Drougas, 748 F.2d 8, 25
(1st Cir. 1984) (citing J. Weinstein and M. Berger, Weinstein's Evidence § 1006
[07] (1983)).
In United States v. Crockett, 49 F.3d 1357 (8th Cir. 1995), the district court
permitted the use of overhead transparencies that summarized the testimony
presented. The transparencies were challenged on the grounds that they provided
argumentative characterizations of defense testimony. In rejecting this challenge,
the district court concluded that the visual devices contained only statements that
would be considered fair closing arguments. Id. at 1361-62.
In Crockett, as here, the prosecutor did not give defense counsel advance
notice of his planned use of the transparencies during closing argument. However,
the district court in Crockett did instruct the jury to rely on its own recollection,
forbade the use of the transparencies in the prosecutor’s rebuttal argument, and
14
permitted the defense a chance to counter the argumentative summaries in its
closing. As to the failure to give advance notice, the Eighth Circuit noted that
That did not concern [the district court judge] and probably would not
concern most trial judges. But some might limit use of visual aids in
closing argument to those approved by the court well in advance, as
suggested in 5 Weinstein & Berger, Weinstein’s Evidence ¶ 1006[07],
at p. 1006-24 (1994). Again, discretionary rulings of this nature will
seldom if ever be overturned on appeal.
Id. at 1362. We agree that the ability of an appellate court to overturn
discretionary rulings on direct review is severely constrained. It is even more
attenuated on habeas review.
Our review under AEDPA is deferential, but it is even further simplified by
counsel’s delayed objection to the transparencies. Although the transparencies
may have unfairly emphasized or even exaggerated the significance of the blood
spatters, and may have potentially injected a new theory into the case, we cannot
say that the Oklahoma Court of Criminal Appeals unreasonably applied federal
law when it determined that the trial court’s allowing this use was not plain error.
See also United States v. Downen, 496 F.2d 314, 320 (10th Cir. 1974) (holding
that blackboard chart prepared by government, summarizing its theory of case, in
courtroom and jury room during deliberation, “in light of the careful and detailed
cautionary instructions given by the Trial Court” was not shown to have been an
abuse of discretion or prejudicial to defendants); cf. United States v. Reyes, 157
F.3d 949, 955 (2d Cir. 1998) (holding that district court did not abuse its
discretion in allowing prosecution to use blown-up map of New York State, which
15
had not been admitted into evidence, during its summation in murder and
conspiracy trial to show the distances that gang members traveled to visit
defendant when he was in prison); United States v. Tai, 994 F.2d 1204, 1211 (7th
Cir. 1993) (holding error was harmless where prosecution presented firearms
during closing argument, as the firearms had no relevance to extortion charge and
there was no testimony regarding defendant’s firearm and there was no
opportunity for further testimony).
In crediting the plain error analysis of the Oklahoma Court of Criminal
Appeals we note the closing made by Mr. Miller’s trial counsel. Counsel
emphasized that Mr. Dodd, when found by the police, did not inform them Jay
Elkins was his attacker. Instead, the defense argued, Mr. Dodd, with great
difficulty, told the police, “a black man in gray pants” was responsible. 3 Tr. trans.
vol. X, at 199. From that version of the facts the defense suggested that Mr. Dodd
did not know his attacker and therefore it could not have been Jay Elkins, who was
well known to Mr. Dodd. The prosecutor may have intended to spring the
transparency surprise in any event, but, in fact, its use directly and dramatically
countered a defense argument.
Nevertheless our precedent suggests caution in pushing the prosecutorial
envelope. Given the lack of notice of the use of the transparencies, we note that
their dramatic presentation during final closing and the potentially inflammatory
3
The State has a different version of Mr. Dodd’s dying words. See Tr. trans. vol.
X, at 238, suggesting that Mr. Dodd stated “Jay” rather than “gray.”
16
nature of the prosecutor’s comments raise concern. Further, as the Eighth Circuit
has warned:
[W]e do not encourage the use of such devices in the future. . . .
Moreover, in a criminal case, the prosecution runs a tangible risk of
creating reversible error when it seeks to augment the impact of its oral
argument with pedagogic devices. . . . . Because the very purpose of a
visual aid of this type is to heighten the persuasive impact of oral
argument, we will necessarily be more inclined to reverse in a close
case if the testimony has been unfairly summarized or the summary
comes wrapped in improper argument.
Crockett, 49 F.3d at 1362 (emphasis added); see also Ellis v. State, 651 P.2d 1057,
1063 (Okla. Crim. App. 1982) (condemning prosecutor’s recreation of the image of
deceased through the use of decedent’s trousers and shoes, noting the “illustration
used by the prosecutor served no useful or explanatory purpose but rather only
served to inflame the jury's emotions,” but determining the error not to be
reversible).
The government has a great duty to prosecute crimes, especially terrible
crimes such as this one. But as this court and the Oklahoma Court of Criminal
Appeals have consistently warned, we also expect not just marginal but heightened
courtroom ethics on the part of counsel, the government and the defense alike. With
respect to government conduct, see Le, 311 F.3d at 1018 (“There is little question
that Mr. Macy’s comments on this point were, as the Court of Criminal Appeals
noted, improper and irrelevant. It is difficult to tell from the record whether the
comments were intended to encourage the jury to ignore the court’s instructions
regarding mitigating character evidence or simply to insert his opinion as to the
17
evidence provided by defense counsel.”) (per curiam); Paxton v. Ward, 199 F.3d
1197, 1218 (10th Cir. 1999) (noting that prosecutor’s “conduct crossed the line
between a hard blow and a foul one, consequently giving rise to a valid
constitutional claim”); Le v. State, 947 P.2d 535, 556 (Okla. Crim. App. 1997)
(“This Court remains continually astounded that experienced prosecutors jeopardize
cases, in which the evidence is overwhelming, with borderline argument.”) (internal
quotation marks omitted); Brewer v. State, 650 P.2d 54, 58 (Okla. Crim. App. 1982)
(reversing for new trial and admonishing the prosecutor, noting that “[t]he
prosecutor’s conduct of not allowing defense counsel an opportunity to be heard on
his objections, coupled with the needless ridicule demonstrate a lack of respect for
the appellant’s constitutional right to a fair trial which this Court shall neither
tolerate nor condone”). Prosecutors, as well as defense counsel, would do well to
avoid theatrics of questionable or even marginal fairness. Not only do such actions
threaten otherwise valid cases, they have the potential to diminish the ethical
standing of a noble profession.
2. Ineffective assistance of trial and appellate counsel
Mr. Miller contends that he received ineffective assistance of trial counsel
based on counsel’s failure (1) to prepare for the testimony of the state’s forensic
scientist concerning the blood discovered on Mr. Miller’s sandal; (2) to investigate
the negotiation of the check written by Ms. Carriger; and (3) to object to the
18
prosecutor’s closing remarks concerning the alleged “JAy” and “J” identification in
the blood smears. “To demonstrate ineffective assistance of counsel a petitioner
must establish both (1) that his counsel’s performance fell below an objective
standard of reasonableness, and (2) that there is a reasonable probability that, but
for counsel’s unreasonable errors, the outcome of his appeal would have been
different. Ellis v. Hargett , 302 F.3d 1182, 1186-87 (10th Cir. 2002) (citing
Williams v. Taylor, 529 U.S. 362, 390-91 (2000) and Strickland v. Washington, 466
U.S. 668, 688, 694 (1984)).
The State maintains that these claims were procedurally barred. In the
interest of judicial economy, “[w]e need not and do not address these issues,
however, because the case may be more easily and succinctly affirmed on the
merits.” Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000) (citing Cain v.
Redman, 947 F.2d 817, 820 (6th Cir. 1991) (“In the present case, it is in the interest
of judicial economy for this court to hear this cause in spite of the unresolved issues
of exhaustion and procedural default.”)); cf. United States v. Wright, 43 F.3d 491,
496 (10th Cir. 1994) (addressing a 28 U.S.C. § 2255 petition and declining to
address the procedural bar issue because the claim would fail on the merits in any
event).
Mr. Miller also contends that appellate counsel was ineffective for failing “to
assert that trial counsel were ineffective with respect to several of the omissions
previously noted.” Aplt’s Br. at 37. Claims of appellate counsel ineffectiveness are
19
often based on counsel’s failure to raise a particular issue on appeal. See Cargle v.
Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). “[A]ppellate counsel who files a
merits brief need not (and should not) raise every nonfrivolous claim, but rather
may select from among them in order to maximize the likelihood of success on
appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Jones v. Barnes, 463
U.S. 745 (1983)). Although it is possible to bring an ineffective assistance claim
based on counsel’s failure to raise a particular issue, “it is difficult to demonstrate
that counsel was incompetent.” Id.
In order to evaluate appellate counsel’s performance, “we look to the merits
of the omitted issue.” Cargle, 317 F.3d at 1202 (internal quotation marks omitted).
“If the omitted issue is so plainly meritorious that it would have been unreasonable
to winnow it out even from an otherwise strong appeal, its omission may directly
establish deficient performance.” Id. On the other hand, “if the omitted issue has
merit but is not so compelling, [we must assess] the issue relative to the rest of the
appeal, and deferential consideration must be given to any professional judgment
involved in its omission; of course, if the issue is meritless, its omission will not
constitute deficient performance.” Id. (citing Smith, 528 U.S. at 288). Because we
must examine the merits of the omitted issues to evaluate Mr. Miller’s ineffective
assistance of appellate counsel claim, we shall address these claims in a
consolidated manner .
20
a. Forensic chemist testimony
Mr. Miller contends that counsel was (a) unprepared to rebut the testimony of
Ms. Taylor, the prosecution’s forensic chemist, regarding the presence of the H
antigen on Mr. Miller’s sandal; and (b) should have requested a hearing pursuant to
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Mr. Dodd had
A type blood in which the A antigen would be found. Ms Taylor testified that no A
antigen was found in the blood sample. She also testified that the H antigen is part
of all the blood types and that acid could cause the H antigen to fall away from the
primary antigens such as A or B. Thus, she could not exclude any bleeder,
including Mr Dodd. Mr. Miller’s counsel cross-examined Ms. Taylor on this point,
and she agreed that she could not draw a conclusion as to the possible mixing of
blood types, and she also agreed that Mr. Miller’s blood type (type AB) was absent
from each of the samples.
As to the necessity of a Daubert hearing, we agree with the district court’s
statement that challenges to the conclusions drawn by Ms. Taylor regarding her
examination of exhibits and methodology goes to her credibility and is properly left
to the jury to determine what weight, if any, to give to her testimony. Counsel’s
cross-examination of Ms. Taylor sufficiently challenged her credibility on each of
these issues. Mr. Miller cannot establish deficient performance under Strickland.
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b. Failure to investigate the negotiation of the check by Ms.
Carriger
Next, Mr. Miller contends counsel was ineffective for failing to investigate
the date of the negotiation of the check written by Stephanie Carriger to Mr. Miller.
The check was used by the prosecution to establish that Mr. Miller in fact visited
the Central Plaza Hotel hours before the homicide, on the evening of September 16,
1994.
Mr. Miller’s postconviction counsel discovered that Mr. Miller cashed the
check from Mrs. Carriger on September 16, 1994. Doc. 32, ex.3. The bank must
have accepted the check during the bank’s business hours on September 16, 1994.
There is no dispute that Mr. Miller received the check after the night he visited the
Central Plaza hotel. Thus, the date of the check’s negotiation indicates that in fact
Mr. Miller’s visit to the Central Plaza Hotel preceded the close of business on
September 16, 1994. Because there is no dispute that the check was negotiated after
Mr. Miller’s visit to the Central Plaza hotel with Mr. Carriger and Mr. Collman,
those who recalled the date of the trip as being on the night of September 16, 1994,
including Mr. Miller, were in error.
Mr. Miller contends that the fact that the check was negotiated before the date
of the crime would have undermined the testimony of those who recalled Mr. Miller
being at the hotel shortly before the crime. The State points out that Mr. Miller told
his attorney that he went to the hotel with Mr. Carriger and Mr. Collman on the
night of the murder. In addition, counsel relied on statements provided by Mr.
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Carriger, Mr. Collman, and Mrs. Carriger that supported Mr. Miller’s statements.
Although investigation of the check might have proven helpful, standing alone,
under Strickland, counsel’s failure to do so cannot be said to have prejudiced Mr.
Miller.
c. Failure to object to the prosecutor’s closing argument
regarding the purported “JAy” and “J” identification in the blood
smears
Mr. Miller next contends that counsel’s failure to object to the “JAy”
comments was ineffective. We recognize that often, “any effort by the State to
deflect responsibility for prosecutorial misconduct or to discount the resultant
prejudice by blaming defense counsel for not objecting to/curing the errors would
support petitioner’s case for relief in connection with his associated allegations of
ineffective assistance.” Cargle, 317 F.3d at 1217.
Here, however, we have already addressed the Oklahoma Court of Criminal
Appeals’ determination that the prosecutor’s use of the transparencies was not plain
error. Even assuming defense counsel was deficient in failing to object to the
prosecutor’s final closing arguments, Mr. Miller cannot establish that there is
reasonable probability the jury would have acquitted him. See Spears v. Mullin, 343
F.3d 1215, 1249 (10th Cir. 2003) (“Even assuming defense counsel was deficient in
failing to make these objections, [the defendant] again cannot establish that, had the
prosecutor not made these comments, there is a reasonable probability that the jury
23
would have acquitted him of first-degree murder.”). There is ample evidence in the
record to support the jury’s verdict.
Because we hold that Mr. Miller’s ineffective assistance of trial counsel claim
lacked merit, his appellate counsel was not objectively unreasonable in failing to
assert any portion of these claims on direct appeal. See Cargle, 317 F.3d at 1202.
Thus, we reject Mr. Miller’s ineffective assistance of appellate counsel claims.
3. The heinous, atrocious or cruel aggravating circumstance
Third, Mr. Miller argues that the trial court’s instruction that defined the
especially heinous, atrocious, or cruel aggravating circumstances was
unconstitutionally vague and failed to limit the jury’s discretion. The jury was
instructed:
As used in these instructions, the term “heinous” means extremely
wicked or shockingly evil;“atrocious” means outrageously wicked and
vile; “cruel” means pitiless, or designed to inflect a high degree of
pain, utter indifference to, or enjoyment of, the sufferings of others.
The phrase “especially heinous, atrocious, or cruel” is directed to those
crimes where the death of the victim was preceded by torture of the
victim or serious abuse.
Orig. Rec. vol. IV, at 668, Instruction No. 5.
The Oklahoma Court of Criminal Appeals recognized that the instruction
omitted the word “physical” from the its definition of “heinous, atrocious, or cruel”
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as directed at those crimes that involved “serious physical abuse.” Miller, 977 P.2d
at 1112 (“The court should have instructed the jury this aggravating circumstance is
directed to those crimes ‘where death of the victim was preceded by torture of the
victim or serious physical abuse.’” (quoting Okla. Unif. Jury Instr.– Crim. 2d,
4-73)). The court determined that, given the brutal nature of the attack, including
the use of muriatic acid and the protracted consciousness of Mr. Dodd, such
omission constituted harmless error. The Oklahoma Court of Criminal Appeals thus
rejected Mr. Miller’s claim that the definition of the aggravating circumstance is
unconstitutionally vague and overbroad.
Here, we are considering whether the heinous, atrocious, and cruel
aggravator, as delineated by the trial court, was unconstitutionally vague, in
violation of Maynard v. Cartwright, 486 U.S. 356, 363 (1988). Since Maynard,
“[w]e have repeatedly held that Oklahoma’s current definition of ‘especially
heinous, atrocious or cruel’ aggravating circumstance is not unconstitutionally
vague.” Workman v. Mullin, 342 F.3d 1100, 1115 (10th Cir. 2003). Mr. Miller
concedes that we have “routinely upheld the constitutionality of this aggravating
circumstance.” Id. (citing Romano v. Gibson, 239 F.3d 1156, 1176 (10th Cir. 2001);
Thomas v. Gibson, 218 F.3d 1213, 1226 (10th Cir. 2000); Medlock v. Ward, 200
F.3d 1314, 1319 (10th Cir. 2000); Moore v. Gibson, 195 F.3d 1152, 1175-76 (10th
25
Cir. 1999); Smallwood v. Gibson, 191 F.3d 1257, 1274 (10th Cir. 1999); Hooks v.
Ward, 184 F.3d 1206, 1239-40 (10th Cir. 1999); Foster v. Ward, 182 F.3d 1177,
1194 (10th Cir. 1999); Duvall v. Reynolds, 139 F.3d 768, 793 (10th Cir. 1998).
We agree that although we have repeatedly upheld the application of the
aggravating circumstance, to be constitutional the aggravating circumstance must
adequately perform a narrowing function. See Medlock, 200 F.3d. at 1324 (“[I]n
order to conduct a proper analysis of the sentencer’s application of the ‘heinous,
atrocious, or cruel’ aggravator, I think it essential to set forth the Oklahoma test for
conscious suffering we have found to satisfy the requirements of the Eighth
Amendment. Thus, to evaluate whether the ‘heinous, atrocious, or cruel’
aggravating circumstance was properly applied, we must examine the state court’s
findings as to the duration of conscious suffering on the part of the victim.”)
(Lucero, J., concurring).
We agree with the Oklahoma Court of Criminal Appeals that, despite the
omission of the word “physical,” from the instruction, the instruction still
performed its required narrowing function and imposed restraint upon the sentencer.
See Maynard, 486 U.S. at 363 (striking down former definition of Oklahoma’s
heinous, atrocious, and cruel aggravator because “[t]here is nothing in these few
words, standing alone, that implies any inherent restraint on the arbitrary and
26
capricious infliction of the death sentence”). Therefore, we must reject Mr. Miller’s
claim.
4. Cumulative error
Finally, Mr. Miller contends that we must reevaluate the effect of cumulative
error in this case. “Cumulative error is present when the cumulative effect of two or
more individually harmless errors has the potential to prejudice a defendant to the
same extent as a single reversible error.” Workman, 342 F.3d at 1116 (internal
quotation marks omitted). “A cumulative-error analysis merely aggregates all the
errors that individually have been found to be harmless, and therefore not
reversible, and it analyzes whether their cumulative effect on the outcome of the
trial is such that collectively they can no longer be determined to be harmless.” Id.
(internal quotation marks omitted).
Here, the Oklahoma Court of Criminal Appeals found five errors and
determined their individual and aggregate effects to be harmless:
1) the trial judge did not hold a hearing to determine the admissibility
of the DNA evidence; 2) an evidentiary harpoon informed the jury
[Mr.] Miller had been physically abusive to his wife; 3) the State
presented two crimes not shown to involve the use or threat of force
against a person to support the “prior violent felony conviction”
aggravator; 4) the trial court omitted the word “physical” from the
definition of “heinous, atrocious or cruel” as directed at those crimes
which involve “torture or serious physical abuse”; and, 5) the victim
27
impact statement made by Mrs. Dodd contained inadmissible
references to her dead son appearing to her in dreams.
Miller, 977 P.2d at 1114.
We have found no additional errors, and thus we only review the Oklahoma
Court of Criminal Appeals’ decision under our deferential AEDPA standard. See
Cargle, 317 F.3d at 1206. Given this level of deference, we cannot determine that
the Oklahoma Court of Criminal Appeals’ evaluation of the impact of the trial court
errors was contrary to or an unreasonable application of clearly established federal
law.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s denial of a writ
of habeas corpus.
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