FILED
Jul 13 2018, 9:57 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael A. Miller, July 13, 2018
Appellant-Defendant, Court of Appeals Case No.
28A01-1712-CR-2918
v. Appeal from the Greene Circuit
Court
State of Indiana, The Honorable Erik C. Allen,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28C01-1408-F1-2
Mathias, Judge.
[1] Following a bench trial in Greene Circuit Court, Michael Miller was convicted
of attempted murder. On direct appeal, Miller argued that he was denied his
right to a speedy trial, that the trial court erred by rejecting his insanity defense,
and that the trial court applied the incorrect mens rea of “knowingly” in
convicting him of attempted murder. We rejected Miller’s first two arguments,
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but agreed with the last. Miller v. State, 72 N.E.3d 502, 518 (Ind. Ct. App. 2017)
(“Miller I”), trans. granted. We therefore reversed Miller’s conviction for
attempted murder and remanded for retrial. Id. Our supreme court granted
transfer and disagreed with our determination that a retrial was necessary but
summarily affirmed the remainder of our opinion. Miller v. State, 77 N.E.3d
1196, 1197 (Ind. 2017) (per curiam) (“Miller II”). Instead, the court remanded
with instructions that the trial court apply the appropriate mens rea to the
existing evidence. Id. On remand, the trial court explicitly applied the correct
mens rea and again found Miller guilty of attempted murder. In this second
appeal, Miller presents two issues for our review, which we reorder and restate
as: (1) whether there was insufficient evidence to support Miller’s conviction for
attempted murder, and (2) whether the trial court abused its discretion when it
denied Miller’s motion for a change of judge on remand.
[2] We affirm.
Facts and Procedural History
A. Facts Underlying Miller’s Conviction
[3] The facts underlying Miller’s conviction were set forth in our opinion in his first
direct appeal as follows:
At about 11:30 p.m. on the night of August 10, 2014, Jeremy
Kohn was sitting on the porch of his residence in Bloomfield
with his girlfriend, Kylee Bateman. Kohn and Bateman observed
Miller twice approach a neighboring house, knock on the door or
ring the door bell, and then walk away. Kohn did not know
Miller personally but believed he may have gone to school with
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him. Kohn and Bateman waved at Miller. Bateman was telling
Kohn a story that may have made them both laugh; Miller
apparently believed Kohn and Bateman were laughing at him.
He then approached Kohn “nonchalantly,” drew a pocketknife
with a three-to-four-inch blade, and cut Kohn’s throat without
saying a word. Tr. p. 53. Miller, who had a “blank look” on his
face, then turned around and left, still without saying anything.
Id. The cut to Kohn’s neck was not deep enough to damage his
jugular vein, carotid artery, or trachea, although a slightly deeper
cut could have done so and would have posed a risk of death.
The wound required over forty stitches to close.
On August 13, 2014, Marshall Randy Raney of the Worthington
Police Department responded to a report of a suspicious person
in a local cemetery. Worthington is about twelve miles from
Bloomfield. The suspicious person was Miller. Marshall Raney
believed Miller seemed “backward” and quiet. Id. at 74. Miller
told Marshall Raney that he was trying to hitchhike his way to
Indianapolis. At the time of this encounter with Marshall Raney,
Miller had not yet been identified as a suspect in the attack on
Kohn.
Later on August 13, Miller was arrested in Worthington . . . . As
Miller was being placed in handcuffs by Deputy Harvey Holt of
the Greene County Sheriff’s Department, he said that he knew
why he was being arrested and asked what charges he would
face. Miller then submitted to an interview conducted by Officer
Marvin Holt of the Bloomfield Police Department after waiving
his Miranda rights.
During the interview, Miller said he had been attempting to
return a textbook and some flashcards to a former teacher; Miller
was twenty-four years old at the time of the crime. He
volunteered several times that he was not “paranoid” or
“psychotic” or on drugs, but he also said that people he
encountered often attempted to frighten him or laughed at him.
Ex. 7. He then admitted that he cut Kohn’s throat with a knife
after Kohn and Bateman smiled at him, and Kohn looked at
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Bateman and shook his head. Officer Holt related that family
members had expressed concern about Miller’s mental health
and asked Miller whether he believed he needed help or
medication; Miller denied that he did so and said he believed he
was fine. Miller said that, because he did not hear any sirens after
cutting Kohn’s throat, he assumed neither Kohn nor Bateman
called police or the police did not care, and he decided to go to
Indianapolis, apparently by a combination of walking and
hitchhiking. Miller also engaged Officer Holt in conversation
about why it had taken several days for police to contact him and
said he was aware that what he had done was against the law.
Officer Holt asked Miller whether he wanted to kill Kohn, and
Miller replied that he did not care. He said that he accepted
responsibility for what he had done and that he assumed he
would go to jail and asked Officer Holt if he could bring his Bible
to jail. At one point, after Officer Holt asked Miller whether he
might hurt someone again in the future, Miller explained, “Some
people can view human life the same way but have different
outcomes because of emotion. I don’t have the emotion.” Id. at
15:50. Miller had a calm demeanor during the interview, spoke
throughout in an even and emotionless tone of voice, and ate a
candy bar and drank a soda while he talked to Officer Holt.
Miller I, 72 N.E.3d at 506–07.
B. Miller’s Prosecution and Trial
[4] The State subsequently charged Miller with Level 1 felony attempted murder
and Level 3 felony aggravated battery.1 The charging information for attempted
murder alleged that Miller “did knowingly or intentionally attempt to commit
the crime of Murder, to-wit: to knowingly kill Jeremy Kohn, and Michael A.
1
The State later amended the information to reduce the battery charge to a Level 5 felony.
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Miller did engage in conduct which constituted a substantial step toward the
commission of the crime of murder, to-wit: cut Jeremy Kohn’s throat with a
knife. . . .” Original Appeal App. p. 29.
[5] As explained in our opinion in Miller’s first appeal, “Miller has a lengthy
history of mental illness.” Miller I, 72 N.E.3d at 507. Thus, on August 15, 2014,
Miller’s trial counsel filed a notice of defense of mental disease or defect. Miller
was found incompetent to stand trial on March 16, 2015, and was treated at
Logansport State Hospital. On July 21, 2015, the hospital certified to the trial
court that Miller was competent to stand trial, and he was transported back to
the Greene County Jail to await trial.
[6] At Miller’s January 20, 2016 bench trial, Miller presented evidence from a
psychologist who opined that at the time of the crime, Miller suffered from a
mental disease or defect that affected his ability to appreciate the wrongfulness
of his conduct. This expert testified that, although Miller acknowledged he had
done something wrong, he lacked understanding of why it was wrong. A court-
appointed psychiatrist agreed that Miller suffered from schizophrenia but
believed that Miller “probably did understand the wrongfulness of his actions,”
yet believed that Miller was “unable to resist the strong urge to nevertheless
take those actions at the time that they occurred. . . .” Trial Tr. p. 170 (emphasis
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added). Yet another psychiatrist also testified that Miller was unable to
appreciate the wrongfulness of his conduct.2
[7] On January 27, 2016, the trial court entered detailed, written “Findings,
Conclusions and Judgment of Conviction” (the “Original Findings”). In the
Original Findings, the trial court explained why it was discounting the expert
opinions regarding Miller’s sanity or lack thereof and rejected his defense of
mental disease or defect. It noted that it was relying instead upon its courtroom
observations of Miller, as well as his comportment during the police interview
and his actions and demeanor near the time of the crime.
[8] As we recounted in our original opinion:
The [Original] [F]indings also repeated the language of the
charging information for attempted murder, namely that Miller
“did knowingly or intentionally attempt to commit the crime of
Murder, to-wit: to knowingly kill Jeremy Kohn. . . .” The trial
court found and concluded “that Defendant had the requisite
intent to kill as he used a knife, which is a deadly weapon, to
deliberately cut the victims [sic] throat in a manner that was
likely to cause death or great bodily harm.” The trial court also
expressly found beyond a reasonable doubt that Miller “did
2
This is precisely the conundrum mentally ill criminal defendants face in Indiana. Severe mental illness at
the time of the charged offense can be ignored and the defendant referred to mental health confinement
where psychotropic medications are forcibly administered in order to restore the defendant’s mental health
for trial. The proper protocol should be to use the assessment of mental health professionals immediately
after one or more crimes are charged to consider whether the defendant could have formed the legally
required mens rea to commit the crime charged. If not, the defendant should more properly be committed to
Indiana’s mental health system for treatment, rather than charged with crime(s), where such a defendant
might well spend the rest of her or his life.
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knowingly or intentionally attempt to commit the crime of
Murder, to-wit: to knowingly kill Jeremy Kohn. . . .”
Miller I, 72 N.E.3d at 509–10 (record citations omitted) (emphasis added).
[9] The trial court entered judgments of conviction of guilty but mentally ill for
both Level 1 felony attempted murder and Level 5 felony battery, but at
sentencing merged the battery conviction with the attempted murder
conviction. It then sentenced Miller to a term of thirty years, with twenty years
executed and ten years suspended to probation.
C. Miller’s First Appeal
[10] Miller appealed and argued that the trial court denied his right to a speedy trial
under Indiana Criminal Rule 4(B), that the trial court improperly rejected his
insanity defense, and that the trial court applied the incorrect mens rea in
convicting him of attempted murder. Miller I, 72 N.E.3d at 506. With regard to
Miller’s first argument, this court held, given the complexity of his insanity
defense, the trial court did not abuse its discretion by granting the State’s
request for a continuance and extending the start of Miller’s trial for ninety
days, and that Miller’s trial therefore began within the limits prescribed by
Criminal Rules 4(B) and 4(D). Id. at 513. With regard to his second argument,
we held that “despite substantial evidence of Miller’s serious mental health
problems, there is sufficient evidence to support the trial court’s rejection of his
insanity defense.” Id. at 515. Lastly, we held that the trial court appeared to
have applied the incorrect “knowingly” mens rea in finding Miller guilty of
attempted murder. Id. at 517. Specifically, we held:
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[G]iven the severity of the charge against Miller and the incorrect
language of the charging information, we find it impossible to
ignore the trial court’s findings that clearly misstate the proper
standard for convicting a defendant of attempted murder. In a
jury trial, there is no way to divine a jury’s thought process
except by reference to the jury instructions; here, without jury
instructions, we can divine that process by the trial court’s
findings.
Both the charging information and the trial court’s findings refer
to the long-discredited notion that a “knowing” mens rea was
sufficient to convict Miller of attempted murder. It was not.
Moreover, Miller’s intent was a central issue in this case. Despite
our affirmance of the rejection of Miller’s insanity defense, we
offer no opinion at this time as to whether there is sufficient
evidence that Miller acted with the specific intent to kill Kohn. It
suffices to say that, even if the evidence could have supported
that finding, we believe it also could support the conclusion he
did not act with such intent.
Id. at 517.
[11] We therefore reversed Miller’s conviction for attempted murder. Id. at 518. We
then confronted the question of the appropriate remedy: whether to reverse and
remand for a new trial, or to reverse and remand with instructions for the trial
court to apply the correct mens rea to the evidence presented in the first trial. Id.
We opted for the former option and reversed and remanded for retrial. Id.
[12] Our supreme court granted transfer, and on July 12, 2017, issued an opinion
that summarily affirmed all of our opinion except our choice of remedy. Miller
II, 77 N.E.3d at 1197. Instead, our supreme court held that “the correct remedy
in these circumstances is a remand for reconsideration by the trial court.” Id.
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Accordingly, our supreme court reversed Miller’s conviction for attempted
murder and “remanded this case to Judge Allen with instructions to apply the
appropriate legal standard to the existing evidence.” Id.
[13] On August 11, 2017, Miller filed a petition for rehearing. On August 17, 2017,
prior to our supreme court’s decision on Miller’s petition for rehearing, and
thus prior to the court’s initial opinion having been certified, the trial court
entered revised written findings and conclusions finding Miller guilty under the
proper mens rea required for attempted murder, i.e., acting with the specific
intent to kill. Appellant’s App. Vol. 3, pp. 2–7.
[14] On August 31, 2017, Miller filed in our supreme court a motion for writ in aid
of appellate jurisdiction. In this motion, Miller argued that the trial court lacked
jurisdiction to issue its findings and conclusions prior to the decision of our
supreme court on Miller’s motion for rehearing, i.e., the supreme court’s
opinion was not yet certified, and the trial court could not take any action in
reliance thereon until it was certified. See Ind. Appellate Rule 65(E). In
addition, Miller argued that the trial court was biased against him and
requested that our supreme court appoint a new judge to hear his case and
order a retrial.
[15] On September 28, 2017, our supreme court entered an order granting Miller’s
motion for writ in aid of appellate jurisdiction, noting that its opinion had not
yet been certified and that the trial court therefore did not have jurisdiction to
enter its new findings and conclusions; our supreme court’s order did not
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mention Miller’s requests for the appointment of a new judge or a retrial.3 Thus,
our supreme court did not grant Miller’s requests for a new trial judge and a
new trial. That same day, our supreme court also denied Miller’s petition for
rehearing. Accordingly, the court’s opinion was listed as certified on October 2,
2017.
D. On Remand to the Trial Court
[16] On October 3, 2017, Miller filed in the trial court a motion for change of judge.
The trial court held a hearing on the motion on November 21, 2017, and denied
it on December 4, 2017. Also, on December 4, the trial court issued its revised
Findings, Conclusions, and Judgment of Conviction (“Revised Findings”),
again finding Miller guilty of attempted murder, but this time referencing the
proper mens rea. Miller now appeals.
I. Sufficiency of the Evidence
[17] Miller claims that the evidence was insufficient to support the trial court’s
finding that he acted with the specific intent to kill required to support his
conviction for attempted murder. Our standard of review on challenges to the
sufficiency of the evidence is well settled:
Upon a challenge to the sufficiency of evidence to support a
conviction, a reviewing court does not reweigh the evidence or
judge the credibility of the witnesses, and respects the [fact
finder]’s exclusive province to weigh conflicting evidence. We
have often emphasized that appellate courts must consider only
the probative evidence and reasonable inferences supporting the
3
Miller II, No. 28S04-1707-CR-00468, Docket Entry Sept. 28, 2017, see https://mycase.in.gov.
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verdict. Expressed another way, we have stated that appellate
courts must affirm if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005) (citations and internal
quotations omitted).
[18] Murder is generally defined by statute as knowingly or intentionally killing
another human being. Ind. Code § 35-42-1-1(a). And the general attempt statute
provides that “[a] person attempts to commit a crime when, acting with the
culpability required for commission of the crime, the person engages in conduct
that constitutes a substantial step toward commission of the crime. . . .” Ind.
Code § 35-41-5-1(a). Despite this statutory language, it is well settled that a
conviction for attempted murder requires proof of more than a “knowing” mens
rea; it instead requires proof of specific intent to kill. Spradlin v. State, 569
N.E.2d 948, 950 (Ind. 1991); see also Kadrovach v. State, 61 N.E.3d 1241, 1246
(Ind. Ct. App. 2016), trans. denied. Accordingly, to convict Miller of attempted
murder, the State was required to prove beyond a reasonable doubt that Miller,
acting with the specific intent to kill, engaged in conduct that constituted a
substantial step toward the commission of the crime of murder.
[19] In attacking the sufficiency of the evidence, Miller first contends that the trial
court, yet again, used the improper standard in finding him guilty.4 That is,
4
In attacking the sufficiency of the evidence, Miller claims that the trial court should have permitted him to
reargue his case and claims that the failure of the trial court to do so violated his due process rights and the
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Miller claims that the trial court used the improper mens rea of “knowingly” in
its Original Findings and claims that the trial court’s Revised Findings used the
same standard as it had in the Original Findings. Thus, he contends, the trial
court necessarily used the same, improper legal standard in finding him guilty
on remand. The record does not support Miller’s contention.
[20] The trial court’s Original Findings referenced both the “knowingly” mens rea
and the “intent to kill.” In its Revised Findings, the trial court clearly, explicitly,
and unambiguously found that Miller acted with the requisite specific intent to
kill. See Appellant’s App. Vol. 2, p. 11 (“Without hesitation or reservation, the
Court concludes that the evidence presented and the findings set forth herein
support the conclusion that the State proved beyond a reasonable doubt that the
Defendant had specific intent to kill.”). We therefore reject Miller’s claim that
the trial court applied the improper legal standard on remand.
[21] Miller also claims that the evidence does not support a reasonable inference that
he acted with the specific intent to kill when he cut the victim’s throat. Miller
argues that the trial court’s Revised Findings imply that the trial court thought
that the pocket knife must always be considered a deadly weapon. Again, we
disagree.
Sixth Amendment. However, our supreme court ordered the trial court on remand to “apply the appropriate
legal standard to the existing evidence,” and made no reference to permitting Miller or the State to reargue
the case. Miller II, 77 N.E.3d at 1197. The trial court followed this instruction on remand. We further note
that Miller, in his motion for a writ in aid of appellate jurisdiction, requested that our supreme court appoint
a new trial judge and order a retrial, presenting many of the same concerns that he now presents on appeal.
But our supreme court did not grant Miller’s request for a new trial judge or a retrial. If Miller has an issue
with the remedy ordered by our supreme court, he must take up the issue with that court, as we are in no
position to second-guess the instructions of our supreme court.
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[22] A “deadly weapon” is defined by the criminal code to include:
A destructive device, weapon, device . . . or other material that in
the manner it:
(A) is used;
(B) could ordinarily be used; or
(C) is intended to be used;
is readily capable of causing serious bodily injury.
Ind. Code § 35-31.5-2-86(a)(2).
[23] It is well-settled that a knife may be considered to be a deadly weapon. Indeed,
pocket knives, which Miller used, have been held to be deadly weapons. See
Hollowell v. State, 707 N.E.2d 1014, 1020–21 (Ind. Ct. App. 1999). The case
cited by Miller in support of his argument that a pocket knife is not necessarily a
deadly weapon is readily distinguishable. In Sluss v. State, 436 N.E.2d 907, 911
(Ind. Ct. App. 1982), a pocket knife was used to “tinker” with a door lock, not
cut someone’s throat. Here, Miller used the pocket knife not to tinker with a
lock, but to slit a man’s throat. The knife also had a three- to four-inch blade,
and Miller used it to cut the victim’s throat, requiring over forty-stitches to
close. Although the cut was, fortunately, not deep enough to cut the victim’s
jugular vein or carotid artery, a slightly deeper cut could have done so. Thus,
the trial court did not err by noting that the pocket knife used by Miller was a
deadly weapon.
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[24] Nor did the trial court err by inferring a specific intent to kill from Miller’s use
of the deadly weapon. Typically, a defendant’s mens rea must be inferred from
the circumstances. West v. State, 805 N.E.2d 909, 915 (Ind. Ct. App. 2004),
trans. denied. With regard to the crime of attempted murder, it has long been
held that the specific intent to kill may be inferred from the use of a deadly
weapon in a manner likely to cause death or great bodily harm. Kiefer v. State,
761 N.E.2d 802, 805 (Ind. 2002); Randolph v. State, 516 N.E.2d 24, 25 (Ind.
1987).
[25] Here, Miller slit the victim’s throat with a three- to four-inch knife, requiring the
victim to have over forty stitches to close the wound. The knife narrowly missed
cutting the victim’s jugular vein and carotid artery, and had it been a slightly
deeper cut, would have posed a risk of death. Under these facts and
circumstances, the trial court, acting as the trier of fact, could reasonably
conclude that Miller acted with the specific intent to kill when he slit the
victim’s throat. Under our extremely deferential standard of review on claims of
insufficient evidence, we can only conclude that the State presented evidence
sufficient to support Miller’s conviction for attempted murder.
II. Motion for Change of Judge
[26] Miller also argues that the trial court erred when it denied his motion for a
change of judge. Pursuant to Indiana Criminal Rule 12(B):
In felony and misdemeanor cases, the state or defendant may
request a change of judge for bias or prejudice. The party shall
timely file an affidavit that the judge has a personal bias or prejudice
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against the state or defendant. The affidavit shall state the facts and
the reasons for the belief that such bias or prejudice exists, and
shall be accompanied by a certificate from the attorney of record
that the attorney in good faith believes that the historical facts
recited in the affidavit are true. The request shall be granted if the
historical facts recited in the affidavit support a rational inference
of bias or prejudice.
Ind. Crim. Rule 12(B) (emphasis added). The timeliness of such motions is
governed by Criminal Rule 12(D), which provides:
(D) Time Period for Filing Request for Change of Judge or
Change of Venue. In any criminal action, no change of judge or
change of venue from the county shall be granted except within
the time herein provided.
(1) Thirty Day Rule. An application for a change of judge or
change of venue from the county shall be filed within thirty
(30) days of the initial hearing. Provided, that where a cause
is remanded for a new trial by the court on appeal, such
application must be filed not later than thirty (30) days after
the defendant first appears in person before the trial court
following remand.
(2) Subsequently Discovered Grounds. If the applicant first
obtains knowledge of the cause for change of venue from the
judge or from the county after the time above limited, the
applicant may file the application, which shall be verified by
the party specifically alleging when the cause was first
discovered, how it was discovered, the facts showing the
cause for a change, and why such cause could not have been
discovered before by the exercise of due diligence. Any
opposing party shall have the right to file counter-affidavits
on such issue within ten (10) days, and after a hearing on the
motion, the ruling of the court may be reviewed only for
abuse of discretion.
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[27] Criminal Rule 12(B) provides that the request for a change of judge “shall be
granted if the historical facts recited in the affidavit support a rational inference
of bias or prejudice.” Thus, a change of judge under this rule “is neither
‘automatic’ nor ‘discretionary.’” Sturgeon v. State, 719 N.E.2d 1173, 1181 (Ind.
1999) (quoting Blanche v. State, 690 N.E.2d 709, 714 (Ind. 1998)). The
appropriate standard of review of a trial judge’s decision to grant or deny such a
motion is whether the judge’s decision was clearly erroneous. Id. at 1182.
[28] This clearly erroneous standard, however, applies only to motions made within
the “Thirty Day Rule” set forth in Criminal Rule 12(D)(1), i.e., motions filed
no later than thirty days after the initial hearing or, if the case is remanded for a
new trial by the court on appeal, no later than thirty days after the defendant
first appears in person before the trial court following remand. If the motion for
change of judge is made outside this thirty-day rule, then the motion is
governed by Criminal Rule 12(D)(2), which provides that such motions “may
be reviewed only for abuse of discretion.”
[29] Here, Miller admits that his motion for a change of judge did not fall within the
scope of Criminal Rule 12(D)(1), because it was not filed within thirty days of
his initial hearing, nor was his case remanded for a new trial. Instead, it was
remanded only for the trial court “to apply the appropriate legal standard to the
existing evidence.” Miller II, 77 N.E.3d at 1197. Thus, Miller’s motion falls
within the scope of Criminal Rule 12(D)(2), and as such is, by the explicit
language of this rule, reviewable only for an abuse of discretion.
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[30] In determining whether the trial court abused its discretion in denying Miller’s
motion for a change of judge, we also keep in mind that we presume that a
judge is not biased or prejudiced against a party. Garland v. State, 788 N.E.2d
425, 433 (Ind. 2003). Nor may prejudice be derived from judicial rulings. Id. A
trial judge’s exposure to evidence through judicial sources is, alone, insufficient
to establish bias. Id. (citing Sturgeon, 719 N.E.2d at 1181). Nor does the fact that
a defendant has appeared before a certain judge in prior cases establish the
existence of bias or prejudice. Id. (citing Lasley v. State, 510 N.E.2d 1340, 1341
(Ind. 1987)). A showing of prejudice sufficient to support a motion for a change
of judge must be established from personal, individual attacks on a defendant’s
character, or otherwise. Id. A defendant cannot merely assert prejudice on the
grounds that the judge has ruled against him in a prior proceeding. Id.
[31] In the present case, Miller relies wholly on the Revised Findings the trial court
entered on remand to support his claim for a change of judge. Specifically, he
argues that the substance of the Revised Findings demonstrates the trial judge’s
bias and that the trial judge’s action of entering findings prematurely establish
an appearance of bias or prejudice of the trial judge against him. We disagree.
[32] First, we find no support for a claim of an appearance of bias or prejudice based
on the trial court’s act of prematurely entering its findings on remand. Our
supreme court issued its opinion on July 12, 2017. The trial court entered its
findings on August 17, 2017, over one month after our supreme court’s opinion.
Had Miller not filed a petition for rehearing, this would have been sufficient
time for our supreme court’s opinion to have been certified. But here, Miller
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had already filed a petition for rehearing on August 11, 2017, thereby
postponing the certification until our supreme court could rule on the petition.
The trial court may have been unaware of Miller’s petition for rehearing and
therefore entered its findings prematurely, but this action does not establish any
appearance of bias or prejudice on the part of the trial judge. And the fact that
the premature findings were not in favor of Miller does not support any
inference of bias. Although Miller claims that the premature findings “harmed”
him and benefitted the State, the trial court’s premature findings were vacated
upon Miller’s successful efforts to obtain a writ in aid of appellate jurisdiction.
Thus, he was not harmed by the trial court’s premature actions.5
[33] Miller also claims that the substance of the trial court’s Revised Findings
supports an appearance of bias or prejudice against him. Again, we disagree.
The trial court’s Revised Findings do exactly what the supreme court instructed
the trial court to do on remand: reconsider the evidence under the appropriate
legal standard, i.e., whether the evidence was sufficient to show that Miller
acted with the specific intent to kill.
[34] Miller also complains that the trial court “staunchly contended” that it had
applied the proper legal standard in its original findings. Appellant’s Br. at 28–
5
We find Miller’s citation to State v. Marion Superior Court, 54 N.E.3d 995 (Ind. 2016), to be unavailing. At
issue in that case was Indiana Trial Rule 76(C)(3), which provides for a right to a change of judge in civil
cases. See Marion Superior Court, 54 N.E.3d at 995. Thus, as noted by the State, the court’s holding in Marion
Superior Court was not premised upon the appearance of bias or prejudice.
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29. The trial court’s Revised Findings do attempt to explain and justify the trial
court’s Original Findings. Specifically, the trial court wrote:
This Court has given lengthy and thoughtful consideration to the
appropriate standard for attempted murder, not only at the time
that the [O]riginal Findings, Conclusions and Judgment of
Conviction was entered but also upon remand. The charging
information for Count 1 sets forth the incorrect mens rea, and the
Court recited the charging information verbatim in two places in
the [O]riginal Findings, Conclusions and Judgment of
Conviction. However, the Trial Court’s purpose for reciting the
charging information in original paragraph 2 was to indicate the
charge of Attempted Murder had been filed in Count 1, and the
purpose in original paragraph 8a was to make a finding that
Defendant was guilty of Attempted Murder, a Level 1 felony,
beyond a reasonable doubt. The Court did not consider the
“knowing” standard and this conclusion is supported by the
record of the case and the Court’s [O]riginal Findings,
Conclusions and Judgment of Conviction.
The Court specifically set forth in the [O]riginal Findings,
Conclusions and Judgment of Conviction the following: “The
Court finds and concludes that Defendant had the requisite intent
to kill as he used a knife, which is a deadly weapon, to
deliberately cut the victims throat in a manner that was likely to
cause death or great bodily harm.” This is a specific finding and
conclusion consistent with the Indiana Supreme Court’s Kiefer[6]
opinion . . . which establishes that a trier of fact may infer intent
to kill from the use of a deadly weapon in a manner likely to
cause death or great bodily harm. This identifies the standard
considered by the Court and the Court’s conclusion that
Defendant had specific intent to kill the victim in the instant case.
6
Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002).
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Further, the framework the Court used to consider the evidence
followed the standard clearly identified in the State’s closing
argument . . . .
Contrary to the concerns stated in the opinion of the Court of
Appeals and by Justice Slaughter, this Court would not hesitate
to change the original order if the evidence did not support the
same conclusion under the appropriately stated standard. This
Court specifically states that it did consider the specific intent to
kill standard when deciding the case originally, and also re-
evaluated and reconsidered all of the evidence under the
specific intent to kill standard on remand. Without hesitation
or reservation, the Court concludes that the evidence presented
and the findings set forth herein support the conclusion that
the State proved beyond a reasonable doubt that the Defendant
had specific intent to kill.
Appellant’s App. pp. 10–11 (italic emphasis in original, bold emphasis added).
[35] Although the trial court did defend its Original Findings in its Revised
Findings, we cannot say that this supports an appearance of bias or prejudice
against Miller. The trial court still followed the instructions of our supreme
court and reconsidered the evidence using the proper mens rea. That the trial
court again ruled against Miller is not indicative of bias or prejudice. See
Garland, 788 N.E.2d at 433 (noting that prejudice may not be derived from
unfavorable judicial rulings).
[36] Miller also complains that the trial court excluded him from participation in the
process of reconsidering the evidence on remand. Miller claims that the trial
court should have given him an opportunity to present further “argument,
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evidence, briefs, or other input[.]”7 Appellant’s Br. at 27. But this is not what
our supreme court instructed the trial court to do on remand. Instead, the court
instructed the trial court to simply “apply the appropriate legal standard to the
existing evidence.” Miller II, 77 N.E.3d at 1197. This is what the trial court did. 8
[37] We also disagree with Miller’s contention that the trial court’s Revised Findings
demonstrate that the trial judge was “unable to view the evidence
dispassionately under a different legal standard than that applied in its original
findings.” Id. at 30. To the contrary, the trial court’s Revised Findings clearly
and explicitly reference the correct legal standard, i.e., that Miller acted with the
specific intent to kill. That the trial court also contended that it had found that
Miller acted with the specific intent to kill in its Original Findings does not
mean that the trial court failed to apply the proper legal standard in its Revised
Findings.
[38] Miller also argues that the trial judge was required to disqualify or recuse
himself by the Indiana Code of Judicial Conduct, specifically referring to Rule
2.11(A). This rule provides in relevant part:
7
Contrary to Miller’s claim that the trial was argued under the wrong mens rea, the prosecuting attorney
repeatedly argued at trial that there was sufficient evidence of Miller’s specific intent to kill. See Trial Tr. pp.
203–04. And although Miller’s trial counsel stated one time in closing argument, “This wasn’t something
[Miller] did knowingly or intentionally,” he also repeatedly argued that Miller did not have “the intent to
murder somebody,” and that Miller did not “formulate[] any kind of intent to kill anybody.” Trial Tr. p. 215.
Thus, both parties referenced the correct mens rea in their arguments to the trial court.
8
Again, we note that, to the extent that Miller claims this deprived him of due process or violated his rights
under the Sixth Amendment, his argument is with our supreme court’s instructions on remand, which we are
not at liberty to second guess.
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(A) A judge shall disqualify himself or herself in any proceeding
in which the judge’s impartiality might reasonably be questioned,
including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a
party or a party’s lawyer, or personal knowledge of facts that
are in dispute in the proceeding. . . .
Ind. Code Judicial Conduct Rule 2.11. Miller also cites to the first two
comments to this rule, which provide:
[1] Under this Rule, a judge is disqualified whenever the judge’s
impartiality might reasonably be questioned, regardless of
whether any of the specific provisions of paragraphs (A)(1)
through (6) apply. In many jurisdictions, the term “recusal” is
used interchangeably with the term “disqualification.”
[2] A judge’s obligation not to hear or decide matters in which
disqualification is required applies regardless of whether a
motion to disqualify is filed.
Id., comments [1], [2].
[39] Miller contends that all of his above-referenced arguments show that an
objective person with knowledge of the complete circumstances of his case
would have a reasonable basis for doubting the trial judge’s impartiality. Yet
again, we disagree. The trial court was doing exactly what it was told to do by
the Supreme Court, and simply entering its findings prematurely did not bear
on the question of the trial judge’s presumed impartiality. Furthermore, nothing
in the court’s Revised Findings establishes that the trial judge’s impartiality
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might reasonably be questioned. Thus, the trial judge was not required to recuse
or disqualify himself under the Indiana Code of Judicial Conduct.
[40] In short, the trial court did not abuse its discretion or otherwise err when it
denied Miller’s motion for a change of judge. Nothing in the trial court’s
Revised Findings or the fact that the trial court entered findings prematurely
supports Miller’s claim that there is an appearance that the trial judge was
biased or prejudiced against him.
Conclusion
[41] The evidence was sufficient to support an inference that Miller acted with the
specific intent to kill required to convict him of attempted murder, and the trial
court did not abuse its discretion by denying Miller’s motion for a change of
judge on remand.
[42] Affirmed.
Riley, J., and May, J., concur.
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