Bieghler v. State
| Decision Date | 18 December 1997 |
| Docket Number | No. 34S00-9207-PD-583,34S00-9207-PD-583 |
| Citation | 690 N.E.2d 188 |
| Parties | Marvin BIEGHLER, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Kenneth L. Bird, Deputy Public Defender, Lorinda Meier Youngcourt, Special Assistant, Indianapolis, for Appellant.
Jeffrey Modisett, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.
Marvin Bieghler appeals the denial of post-conviction relief concerning his 1983 conviction and death sentence for the murders of Tommy Miller and his pregnant wife, Kimberly. Bieghler raised eighteen claims in his direct appeal, and this Court affirmed in all respects. Bieghler v. State, 481 N.E.2d 78 (Ind.1985). On post-conviction, Bieghler raises a collection of claims under the rubric of seven arguments:
I. Ineffective assistance of appellate counsel in his direct appeal;
II. Ineffective assistance of counsel at trial;
III. Improper instruction on accomplice testimony;
IV. Error in the jury instructions;
V. Improper jury selection and jury misconduct;
VI. Cumulative error during the penalty phase, rendering his death sentence unreliable; and
VII. Constitutionality of capital sentencing statute.
We affirm the post-conviction court.
Tommy and Kimberly Miller were found dead in the bedroom of their trailer on the morning of December 11, 1981. Tommy Miller sold marijuana supplied to him by Bieghler, who was a marijuana "wholesaler" in the greater Kokomo area. The couple had been shot with nine rounds from an automatic .38 calibre pistol at point-blank range. A dime was found near each body.
Harold "Scotty" Brook was Bieghler's partner in his marijuana business, accompanying Bieghler on numerous occasions to Florida where Bieghler received large quantities of the drug for transportation back to Kokomo. Brook and others testified that someone had "dropped a dime" on one of Bieghler's main distributors (i.e., informed the police on him) resulting in the distributor's arrest and the confiscation of a large amount of marijuana "fronted" to him by Bieghler. This loss effectively put Bieghler out of business. The witnesses testified that Bieghler repeatedly declared he would "blow away" whoever had "dropped a dime" on his distributor. According to Brook, after Tommy Miller became the suspected "snitch," Bieghler stated on many occasions that he would get Miller.
Brook, who cut a beneficial deal with the prosecutor on unrelated charges in exchange for his testimony, testified that he and Bieghler spent the afternoon and evening of December 10, 1981, drinking beer and smoking marijuana. They eventually wound up at a bar in Galveston, Indiana, a small town in the southeast corner of Cass county. At around 10:30 p.m. Brook, Bieghler, and Brook's brother Bobby John left the bar and traveled to the Millers' trailer, which was located in a rural part of southwestern Howard county near Russiaville. Bieghler parked down the road from the trailer, walked across a field and entered. Brook was following. Upon entering the darkened trailer, Brook saw Bieghler, standing, pointing his "super .38" into one of the rooms. Brook claims he did not hear anything while in the trailer, neither gunshots nor the cry of the Millers' small child who Brook saw standing up in his nearby crib with a crying expression on his face.
Bieghler ran out of the trailer and back to the car with Brook in tow. The group proceeded to Kokomo where they picked up Bieghler's girlfriend, Thelma McVety, from work at around 11:10--11:15 p.m. After dropping McVety off at her house, Brook, his brother, and Bieghler went to the Dolphin Tavern in Kokomo, arriving at 11:30 p.m. Brook and Bieghler then went back to McVety's, where Bieghler tearfully told her that he had to go to Florida, and then left for Florida alone.
Bieghler's "super .38" was never introduced at trial, but nine shell casings found at the murder scene matched casings found at a remote rural location where Bieghler fired his gun for target practice. An expert testified that the two sets of casings were fired from the same gun, which had to have been one of only three types of automatic .38 calibre pistols, one of which was the "super .38."
Bieghler's trial counsel vigorously argued that Bieghler could not have committed the crimes during the time Brook testified the pair went to the Millers' trailer. He called several witnesses who testified about the extremely hazardous, icy road conditions around the Miller trailer that night which would have prevented a round trip from Galveston, to the trailer, and then to McVety's workplace in forty-five minutes. He also called several witnesses who said they spoke with Tommy Miller on the phone that evening after 11 p.m. Nevertheless, the jury found Bieghler guilty of two counts of murder and one of burglary, and recommended the death penalty. The trial judge sentenced Bieghler to death for the murders, but did not sentence him for the burglary.
Bieghler claims he was denied effective assistance of counsel on his direct appeal. After reviewing his allegations, we conclude that Bieghler received constitutionally adequate representation.
We have applied the two-pronged standard for evaluating the assistance of trial counsel first enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to appellate counsel ineffective assistance claims. Lowery v. State 640 N.E.2d 1031, 1048 (Ind.1994). 1 Under this standard, "[j]udicial scrutiny of counsel's performance must be highly deferential," Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As the Strickland court said:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance....
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Bieghler faces an additional burden as one appealing from an adverse ruling of a post-conviction court.
First, we require the defendant or 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. [Lowery, 640 N.E.2d at 1041.] This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind.1991)). Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. This showing is made by demonstrating that counsel's performance was so prejudicial that it deprived the defendant or petitioner of a fair trial. Lowery, 640 N.E.2d at 1041. We will conclude that a fair trial has been denied when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unreliable. Id. (citing Best v. State, 566 N.E.2d 1027, 1031 (Ind.1991)).
As Professor Lissa Griffin points out, case law indicates three basic categories of alleged appellate counsel ineffectiveness. Lissa Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L.Rev. 1, 21-22 (1994). We discuss these three below.
The first, and most serious, sort of appellate counsel error occurs when counsel's nonfeasance or malfeasance acts to deprive the appellant entirely of his right to review. Id. at 22. Examples of such malfeasance or nonfeasance include violating jurisdictional time limits in initiating the appeal, see, e.g., Ind.Appellate Rule 2(A) (listing time limits), or failing to file necessary instruments to perfect the appeal, see, e.g., Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (). Where an appellant's right to be heard on appeal is completely denied him by his counsel's performance, concerns of judicial economy and repose are little implicated.
A second category of ineffective assistance claims involve appellate counsel who did not raise issues which the convict later argues should have been raised. 2 Although the convict in this instance received appellate review of at least some issues, the procedural prejudice from this type of error can still be formidable. For example, we have often said that "[i]ssues which were or could have been raised on direct appeal are not available for review in post-conviction." Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993) (citing Brown v. State, 261 Ind. 619, 308 N.E.2d 699 (1974)).
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