Miller v. Leapley, s. 93-2248

• Decision Date: 15 July 1994
• Docket Number: Nos. 93-2248,93-2255,s. 93-2248
• Parties: Todd M. MILLER, Appellee/Cross-Appellant, v. Walter LEAPLEY, Warden, South Dakota State Penitentiary; Mark W. Barnett, Attorney General, State of South Dakota, Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 582

34 F.3d 582

Todd M. MILLER, Appellee/Cross-Appellant, v. Walter LEAPLEY, Warden, South Dakota State Penitentiary;

Mark W. Barnett, Attorney General, State of South

Dakota, Appellants/Cross-Appellees.

Nos. 93-2248, 93-2255.

United States Court of Appeals,

Eighth Circuit.

Submitted March 14, 1994.

Decided July 15, 1994.

Mark Smith, Asst. Atty. Gen., Pierre, SD, argued, for appellant.

David Vrooman, Sioux Falls, SD, argued, for appellee.

Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Todd M. Miller filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, attacking the validity of his state court convictions for first-degree murder, aggravated kidnapping, possession of ransom money, and forgery. The district court granted the writ in part, finding that the evidence presented at trial was insufficient to support the guilty verdicts on the murder and kidnapping counts. The Warden of the South Dakota State Penitentiary and the Attorney General of the State of South Dakota (collectively referred to as "the state") appeal the district court's grant of the writ. Miller cross-appeals, arguing that although the district court properly granted the writ, the court also should have granted the writ on the ground that improper expert testimony denied Miller a fair trial. We reverse the district court's grant of habeas relief and affirm on the cross-appeal.

I. Background

The facts underlying Miller's convictions are set forth at some length in the opinion of the Supreme Court of South Dakota in Miller's direct appeal. See State v. Miller, 429 N.W.2d 26 (S.D.1988). We presume them to be correct, see 28 U.S.C. Sec. 2254(d), and summarize them for the purposes of this opinion as follows:

Miller's state court convictions evolved out of the disappearance and death of 19-year-old Michael Kinney. Kinney and Miller were acquaintances. Miller and his father were in the horse business near Aberdeen, South Dakota. On May 8, 1985, Kinney left home as usual to attend a college class in nearby Aberdeen and never returned. The next day, his car was found abandoned on a side road near his home. On May 10, 1985, his mother received a phone call from an unidentified male who instructed her to retrieve an envelope left under a pay phone in an Aberdeen bar to find out what had happened to her son. The envelope contained a ransom note demanding $200,000 in exchange for Kinney's safe return. Three days later, the caller again contacted Kinney's mother and designated a park in Aberdeen where she should deliver the ransom money at 9:00 p.m. that night. The caller said that Kinney was okay, the caller knew what Kinney had been wearing when he disappeared, and the caller said that Kinney could not speak to her until "I get the money."

State and federal law enforcement officers observed Miller retrieve the money from the designated drop spot in an Aberdeen park. Miller was driving a blue Oldsmobile. He transferred to a Camaro, picked up his 17-year-old sister, and drove across the state border. Law enforcement officers arrested Miller in Minnesota in possession of most of the ransom money.

After his arrest, Miller began to weave a tangled web of explanations. At first, Miller explained that he was travelling to Alexandria, Minnesota, because a man named Jacobs intended to buy a horse from him and that Jacobs had given him some travelling money in advance. At that point, officers asked Miller where "Mike" was without mentioning the victim's last name or that "Mike" was in any sort of trouble. Miller responded, "I wouldn't hurt Mike McNeil. He's my best friend." ¹ Next, Miller changed the story by telling officers that Jacobs had asked him to pick up a package in the park, deliver the package, and in exchange, Mr. Jacobs would buy a horse from Miller for $45,000. Miller said that he assumed Jacobs was involved with illegal drugs. In a third version, Miller said that Jacobs had instructed him by telephone to call Kinney's mother, deliver the envelope to the bar, retrieve the money, and then deliver it to a motel in Alexandria. This time Miller admitted that he fabricated the horse purchase as a cover story and asserted that Jacobs threatened to harm Kinney or Miller's newborn child if Miller refused to cooperate. Based on this story, agents took Miller to the hotel to wait for Jacobs under observation, but Jacobs never showed up. Law enforcement officers then took Miller back to South Dakota where Miller told a totally new story involving two unknown men who accosted him at an Aberdeen bar on May 7, 1985. According to Miller, the men threatened to harm Kinney and Miller's baby unless Miller delivered the envelope to Kinney's mother and delivered the ransom money to them in Minnesota. On May 18, 1985, Miller offered his fifth and final version of the story, implicating Kinney, the victim, as the initiator of an extortion scheme against his own mother. Again Miller claimed that he was threatened into cooperation, and he admitted that he had written the ransom note and made the calls to Kinney's mother as part of the scheme.

On May 28, 1985, a farmer found Kinney's bludgeoned, maggot-ridden corpse in an old icehouse seven miles west of Aberdeen. Kinney had been shot three times with a .22 caliber gun, and there was evidence of head wounds apparently inflicted by blows from a square-edged instrument. Either the gunshots or the blows would have inflicted death, but the gunshots were the actual cause of death. There was no indication that Kinney had been killed in the icehouse; the body appeared merely to have been dumped there.

At trial, Miller attempted to present an alibi defense based upon his expert's estimate of the time of death. A forensic entomologist, expert witness for the defense, testified that Kinney died around May 21 or May 22, 1985. Miller argued that because he was in jail from May 14 through May 23, he could not have accomplished the murder. The prosecution presented testimony of the doctor who performed the autopsy on Kinney's body. He testified that some food particles found in Kinney's stomach were consistent with the last meal Kinney was known to have eaten on May 8, 1985. This doctor estimated that the body could have been dead for from one to four weeks when discovered on May 28. Given this estimation of the time of death, the jury could have found that Kinney's death occurred before Miller's arrest. A forensic anthropologist estimated the time of death to have been 18 to 20 days before the body was found. This estimate also would support the prosecution's theory, but this estimate was later found by the Supreme Court of South Dakota to be scientifically incompetent.

Other testimony at trial indicated that Miller's father was in severe financial difficulty, that Miller wanted to help him, and that a land payment was delinquent and due on May 14, 1985, the day after Miller retrieved the ransom money. Hair, fiber, and blood samples were found in the trunk of Miller's blue Oldsmobile. The hair and fiber samples matched samples taken from Kinney's body and clothes. Based upon the hair and fiber samples tested, an expert testified that there was only a very small chance that Kinney's body had not been in the trunk of the blue Oldsmobile. The blood stain found in the trunk appeared to match the sample taken from Kinney's body, but the blood from the trunk had deteriorated so that the test was not conclusive. Miller's handwriting matched handwriting on a forged check drawn on Kinney's account after Kinney disappeared. Kinney had been carrying his checkbook at the time he disappeared, but it was never found. Witnesses had seen Miller washing the blue Oldsmobile at least twice after Kinney disappeared, once in the rain. A tire iron (a square-edged instrument) was missing from the trunk of the Oldsmobile. A live .22 caliber round was found in Miller's Camaro. The bullet could not be conclusively matched to the ones that killed Kinney because those were deformed on impact.

The trial court instructed the jury on the crimes charged against Miller and also gave an aiding and abetting instruction. During deliberations, the jury asked whether Miller could be found guilty of murder if he aided and abetted only the kidnapping, and the trial court answered affirmatively. The jury convicted Miller of (1) first-degree murder while perpetrating a kidnapping, (2) kidnapping for ransom and by inflicting gross permanent physical injury on the victim, (3) possession of ransom money, and (4) forgery. The trial court sentenced Miller to life imprisonment on the murder and kidnapping charges, 15 years of imprisonment for possession of ransom money, and 5 years on the forgery count, all to run concurrently.

The Supreme Court of South Dakota affirmed Miller's convictions holding, in part, that the trial court did not err in failing to change the venue, that admission of the forensic anthropologist's incompetent testimony was not prejudicial but merely cumulative, that the evidence was sufficient to sustain Miller's convictions, and that the trial court did not err by submitting an aiding and abetting instruction. 429 N.W.2d at 36-42. Miller subsequently filed a state habeas action, alleging ineffective assistance of counsel, which was denied. The Supreme Court of South Dakota affirmed the denial of Miller's habeas petition, finding that Miller's trial counsel "did an exemplary job in vigorously representing" Miller. Miller v. Leapley, 472 N.W.2d 517, 519 (S.D.1991).

Having exhausted his state court remedies, Miller sought a writ of habeas corpus in federal district court challenging the constitutionality of his convictions. As grounds for granting the writ, Miller claimed ineffective assistance of trial counsel, the trial court's failure to grant a change of venue, insufficient evidence to support the murder and kidnapping convictions,...