Miller v. State, 64S00-9408-PD-00742

• Citation: 702 N.E.2d 1053
• Decision Date: 08 December 1998
• Docket Number: No. 64S00-9408-PD-00742,64S00-9408-PD-00742
• Parties: Perry Steven MILLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 1053

702 N.E.2d 1053

Perry Steven MILLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 64S00-9408-PD-00742.

Supreme Court of Indiana.

Dec. 8, 1998.

Susan K. Carpenter, Public Defender, Ann M. Pfarr, Joanna Green, Deputy Public Defenders, Indianapolis, for Appellant.

Jeffrey A. Modisett, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

Perry Steven Miller appeals the denial of post-conviction relief with respect to his convictions for Murder, ¹ Criminal Confinement, ² Rape, ³ Criminal Deviate Conduct, ⁴ Robbery, ⁵ and Conspiracy to Commit Murder, ⁶ and his sentences of death ⁷ and 220 years. We previously affirmed these convictions and sentences on direct appeal. Miller v. State, 623 N.E.2d 403 (Ind.1993). We now affirm the denial of Miller's petition for post-conviction relief.

Our earlier opinion contains a more complete description of the crimes of which Miller was convicted. Id. Briefly, Miller, William Harmon, and Rodney Wood robbed a convenience store in the early morning hours of November 14, 1990, and then abducted, raped, tortured, and murdered the teenaged female clerk who worked there. We will recite additional facts as necessary.

Discussion

A person convicted of, or sentenced for, a crime by a court of this state has a constitutional right to appeal that conviction or sentence directly to either this Court or the Court of Appeals. Ind. Const. art. VII, §§ 5 & 6. As stated above, Miller exercised his right to a direct appeal and this Court affirmed his convictions and sentences. Miller, 623 N.E.2d 403. After such an appeal, Indiana law permits the person to seek "post-conviction relief" through a special, quasi-civil action in certain circumstances and under certain conditions. Ind.Post--Conviction Rule 1(1). See Lowery v. State, 640 N.E.2d 1031, 1036 (Ind.1994) (post-conviction remedy not substitute for appeal), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995); Weatherford v. State, 619 N.E.2d 915, 916 (Ind.1993) (post-conviction procedures do not provide "super appeal").

To the extent that a person seeking post-conviction relief (usually referred to as the "petitioner") has been denied relief by the post-conviction court, the petitioner appeals from a negative judgment. This is because at the trial on the petition for post-conviction relief, the petitioner has the burden of establishing any grounds for relief by a preponderance of the evidence. P--C.R. 1(5). Such is Miller's situation here. When a petitioner appeals from a negative judgment, he or she must convince the appeals court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the trial court. Roche v. State, 690 N.E.2d 1115, 1120 (Ind.1997); Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995) (citations omitted). This Court will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion. Roche, 690 N.E.2d at 1120; Spranger, 650 N.E.2d at 1120.

I

Miller primarily contends that he was denied his constitutional right to effective assistance of trial and appellate counsel. ⁸ U.S. Const. amend. VI; Ind. Const. art. I, § 13. The United States Supreme Court and this Court have firmly recognized this constitutional right, which requires the effective assistance of both trial and appellate counsel. United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); King v. State, 467 N.E.2d 726, 728-29 (Ind.1984). We analyze claims of both ineffective assistance of trial counsel and ineffective assistance of appellate counsel according to the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Lowery, 640 N.E.2d at 1048 (standard of review for claim of ineffective assistance of appellate counsel identical to standard for trial counsel). First, we require the petitioner to show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Roche, 690 N.E.2d at 1120 (citing Lowery, 640 N.E.2d at 1048). Second, we require the petitioner to show adverse prejudice as a result of the deficient performance. Id. We will find prejudice when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unjust or unreliable. Id. See also Smith v. State, 689 N.E.2d 1238, 1244-45 (Ind.1997).

In the sections of this opinion that follow, we analyze a number of specific situations in which Miller alleges that counsel rendered deficient performance with resulting prejudice of sufficient character to entitle him to post-conviction relief. Although we elect to examine each of these specific situations, we emphasize that to establish both deficient performance and resulting prejudice, a petitioner must show more than isolated poor strategy, bad tactics, a mistake, carelessness or inexperience; the defense as a whole must be inadequate. Davis v. State, 675 N.E.2d 1097, 1100 (Ind.1996) (quoting Terry v. State, 465 N.E.2d 1085, 1089 (Ind.1984)). The United States Supreme Court stated this concept as follows: "[S]ince there are countless ways to provide effective assistance in any given case, unless consideration is given to counsel's overall performance, before and at trial, it will be all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052, internal quotation marks omitted). See also Potter v. State, 684 N.E.2d 1127, 1135 (Ind.1997) (while "there were isolated moments when Potter's trial counsel made what Potter might now term 'mistakes'[, this Court could not say] in looking at the record as a whole ... that these isolated mistakes rendered the representation ineffective"). Cf. Smith v. State, 547 N.E.2d 817, 822 (Ind.1989) ("counsel's compilation of errors in the guilt phase ... rendered appellant's defense so anemic that our confidence in the guilty verdict itself is undermined so as to require reversal of appellant's convictions as well"). Here we find no deficient performance in any of the situations Miller identifies of sufficient character to proceed to the further inquiries of whether prejudice resulted therefrom or whether the defense as a whole was inadequate.

Miller's defense team consisted of trial counsel, an attorney who worked as a research assistant, and trial counsel's son, who served as an investigator of sorts. A different attorney represented Miller in his direct appeal to this Court. The post-conviction court found that Miller had waived the issue of trial counsel ineffectiveness by not raising it in his direct appeal, but nevertheless addressed the merits of Miller's claims. This Court recently held that a claim of ineffective assistance of counsel, "if not raised on direct appeal, may be presented in postconviction proceedings." Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998). Based on Woods, we find that Miller has not waived the issue of ineffective assistance of trial counsel.

Miller contends he was denied the effective assistance of both trial and appellate counsel. We discuss Miller's claims of ineffective assistance of appellate counsel in part II, infra. With respect to trial counsel, Miller advances the following claims of ineffective assistance: (a) trial counsel failed to request a continuance to prepare for, and failed to challenge the State's use of hair, serological and DNA evidence; (b) trial counsel failed to investigate adequately certain tire and shoe print evidence; (c) trial counsel inflamed the jury by refusing to apologize for invading the jurors' privacy; (d) trial counsel failed to investigate and rebut the damaging testimony of a prosecution witness; (e) trial counsel presented psychiatric testimony about Miller's lack of sadistic and aggressive tendencies and opened the door to prejudicial rebuttal testimony from two of Miller's prior rape victims; and (f) trial counsel failed to present during the penalty phase relevant and available mitigating evidence regarding (1) Miller's positive institutional adjustment while in prison for kidnaping and rape, (2) his social history, and (3) the jury's right to consider any residual doubt it might harbor about Miller's involvement in the crimes of which he had been convicted.

A

Miller contends that he was denied his constitutional right to the effective assistance of counsel because of the way in which trial counsel attempted to counter certain hair, serological and DNA evidence offered by the State against Miller. He argues that counsel should have moved for a continuance after receiving the State's witness list and test results with respect to this evidence. He further argues that after receiving this evidence, trial counsel should have retained independent experts to analyze it.

A-1

Trial counsel had moved for a speedy trial and the trial court had granted the motion. Trial counsel had also filed pretrial discovery requests seeking from the State the name of its expert witnesses and the results of their lab tests on the physical evidence. The State did not immediately comply with the discovery request, so trial counsel moved to exclude the results of the State's tests and the physical evidence. The State then moved for a continuance, which the trial court granted. At the outset of the trial, counsel withdrew the motion to exclude, stating that he had been aware of "some...