Miller v. Mullin

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.

21
 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.
22
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”

24
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.

28