Bieghler v. State

• Decision Date: 28 December 2005
• Docket Number: No. 34S00-0511-SD-679.,34S00-0511-SD-679.
• Citation: 839 N.E.2d 691
• Parties: Marvin BIEGHLER, Petitioner, v. STATE of Indiana, Respondent.
• Court: Indiana Supreme Court

839 N.E.2d 691

Marvin BIEGHLER, Petitioner, v. STATE of Indiana, Respondent.

No. 34S00-0511-SD-679.

Supreme Court of Indiana.

December 28, 2005.

COPYRIGHT MATERIAL OMITTED

PUBLISHED ORDER CONCERNING SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF IN CAPITAL CASE

Introduction

Marvin Bieghler remains convicted of two murders and sentenced to death after having completed the judicial review to which he is entitled as a matter of right. After the State moved to set an execution date, Bieghler tendered papers asking permission to litigate three additional claims concerning Indiana's lethal-injection method of execution, the length of time since his conviction, and the evidence of his guilt. Because we conclude Bieghler has not shown a reasonable possibility he is entitled to relief on any of these claims, we deny his request to litigate them. A date for execution of the sentence will be set by separate order.

Background

The victims, 21-year-old Tommy Miller and his pregnant 19-year-old wife, Kimberly, were found dead in their rural Howard County trailer by Miller's brother on the morning of December 11, 1981. Tommy Miller had been shot six times; Kimberly Miller, twice. A dime was found near each victim. Their 2-year-old child was in the trailer, but had not been shot. Bieghler was charged with two counts of intentional murder and one count of burglary. See Ind.Code §§ 35-42-1-1(1) (murder), 35-43-2-1 (burglary) (2004). The State sought the death penalty, alleging two aggravating circumstances that rendered Bieghler eligible for a death sentence: (1) an intentional murder during a burglary, and (2) the multiple murders. See I.C. §§ 35-50-2-9(b)(1), -9(b)(8) (2004).

Evidence at trial showed the following. Bieghler, a drug dealer, was effectively put out of business when someone gave information to the police leading to the arrest of an associate and the confiscation of a large amount of marijuana. Bieghler had said that if he discovered who had "dropped a dime" on him (that is, who had informed to the police), Bieghler would "blow him away." Bieghler later expressed the belief that Tommy Miller had been the informant and said he would get Miller.

Harold "Scotty" Brook, Bieghler's friend and another drug-business associate, cut a beneficial deal with the prosecutor in exchange for testifying against Bieghler. According to Brook, he and Bieghler spent the afternoon and evening of December 10th drinking alcohol and smoking marijuana. At about 10:30 that evening, the two men, along with Brook's brother, drove to Miller's trailer. Bieghler entered the trailer; Brook soon followed. Upon entering, Brook saw Bieghler pointing his pistol into one of the rooms, although Brook testified he had not heard anything, neither gunshots nor the cry of the Millers' small child whom Brook saw standing up in his nearby crib with a crying expression on his face. Within a short time, Bieghler ran from the trailer carrying a plastic garbage bag with items from the trailer, and Brook followed. They returned to Kokomo, picked up Bieghler's girlfriend from work at about 11:15 p.m., then drove to a tavern, and later to the girlfriend's house. Bieghler was seen to be distraught, and announced he was driving to Florida. The pistol was not introduced at trial, but nine shell casings found at the murder scene matched casings found in a rural location where Bieghler was known to have fired his pistol for target practice.

Bieghler denied having been at the trailer that night, and testified he had been on his way to Florida when the murders occurred. He testified that his pistol had gone missing before the murders. Several witnesses testified about icy road conditions that might have prevented the round trip to the Miller trailer during the time Brook specified. Others testified they spoke with Tommy Miller on the phone that evening after 11:00.

After considering the conflicting evidence, the jury found Bieghler guilty as charged and unanimously recommended the death sentence. See I.C. § 35-50-2-9(e) (providing that a jury may recommend the death penalty only if it finds the state has proved an aggravating circumstance beyond a reasonable doubt and that any mitigating circumstances are outweighed by the aggravating circumstances). The Howard Superior Court followed the jury's recommendation and sentenced Bieghler to death.

The convictions and sentence were affirmed at each stage of subsequent review. We affirmed the death sentence on direct appeal in Bieghler v. State, 481 N.E.2d 78 (Ind.1985), reh'g denied, cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986). Bieghler sought collateral relief in a state trial court, but the trial court denied his post-conviction petition and we affirmed in Bieghler v. State, 690 N.E.2d 188 (Ind.1997), reh'g denied, cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). Bieghler then sought relief in federal courts. The United States District Court for the Southern District of Indiana denied Bieghler's petition for a writ of habeas corpus in Bieghler v. Davis, IP 98-490-C-M/S, slip op. (S.D.Ind. July 7, 2003). The United States Court of Appeals for the Seventh Circuit affirmed in Bieghler v. McBride, 389 F.3d 701 (7th Cir.2004), reh'g and reh'g en banc denied (2005), cert. denied, 546 U.S. ___, 126 S.Ct. 430, 163 L.Ed.2d 327 (Oct. 11, 2005).

Bieghler has thus received the review of the convictions and death sentence to which he is entitled as a matter of right. We have jurisdiction because he is sentenced to death. See Ind. Appellate Rule 4(A)(1)(a).

Indiana's Post-Conviction Rule

As just indicated, Bieghler has already availed himself of our rule that permits a person convicted of a crime in an Indiana state court one collateral review of a conviction and sentence in a post-conviction proceeding. See Ind. Post-Conviction Rule 1.

To litigate another or "successive" post-conviction claim, he needs our authorization. We will permit such a proceeding to go forward only "if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief." P-C.R. 1 § 12(b). In deciding whether Bieghler has made the required showing, we consider the applicable law, the petition, materials from his prior appeals and post-conviction proceedings, including the record, briefs and court decisions, and any other material we deem relevant. See id.

By counsel, Bieghler has filed a "Memorandum In Support Of Motion For Leave To File Successive Petition For Post-Conviction Relief" and a "Form For Successive Post-Conviction Relief Rule 1 Petitions," and has tendered a "Petition For Post-Conviction Relief." The State filed its "State's Verified Response In Opposition To Motion For Permission To Proceed On A Successive Post-Conviction Relief Petition." Bieghler was allowed to file a "Reply To State's Response In Opposition To Motion For Leave To File Successive Petition For Post-Conviction Relief."

The Claims

1. Bieghler has not shown a reasonable possibility that Indiana's method of execution violates the federal or state constitution. Indiana administers the death penalty by lethal injection. See I.C.

§ 35-38-6-1 (2004). Three drugs are injected in sequence: sodium pentothal, a fast-acting anesthetic intended to render the prisoner unconscious; pancuronium bromide, which stops a person's breathing; and potassium chloride, which stops a person's heart.

Bieghler's claim relates to the anesthetic. According to materials Bieghler has submitted, a person's age, gender, body weight, level of anxiety, or history of substance abuse may, in some circumstances, affect the amount of the sodium pentothal needed to produce a continued state of anesthesia. (See Mem. In Supp. Of Mot. For Leave To File Successive Pet. For Post-Conviction Relief (hereafter "Mem."), 2 & Exh. B (L.G. Koniaris, M.D., et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365 The Lancet 1412 (Apr. 16, 2005)).) Bieghler asserts that such adjustments can be appropriately performed only by a person trained in the field of clinical anesthesiology but that Indiana's protocol does not include the assistance of a person with such training for Bieghler's execution. Therefore, he argues, Indiana's method of execution "inflicts unnecessary pain and agony" because it lacks the assurance that his execution will be "pain free." Mem. at 2, 5. This lack of guarantee for a "pain-free" execution violates several provisions in the federal and state constitutions, Bieghler concludes. (See Pet. for Post-Conviction Relief (hereafter "Pet.") at ¶ 8(a).)¹

Bieghler cites no authority for the proposition that he is entitled to a "pain free" execution, and we have found none. Compare Johnson v. State, 584 N.E.2d 1092, 1107 (Ind.1992) (fact that electrocution may not cause instantaneous and painless death does not mean that method involves the unnecessary and wanton infliction of pain).

Both the federal and state constitutions prohibit "cruel and unusual punishment." Punishment may not include torture, lingering death, or the unnecessary and wanton infliction of pain; the method must be compatible with contemporary standards of society. See, e.g., Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); accord Moore v. State, 771 N.E.2d 46, 55-56 (Ind.2002). Claims that lethal injection violates the prohibition against cruel and unusual punishment have been rejected by courts throughout the county in states that appear to have a drug protocol the same as or similar to Indiana's. See, e.g., Beardslee v. Woodford, 395 F.3d 1064, 1076 (9th Cir.2005), cert. denied, ___ U.S. ___, 125 S.Ct. 982, 160 L.Ed.2d 910 (2005); Cooper v. Rimmer, 379 F.3d 1029, 1031-33 (9th Cir.2004); Reid v. Johnson, 333 F.Supp.2d 543, 552-53 (E.D.Va.2004); State v. Webb, 252 Conn. 128, 750 A.2d 448, 454-56 (2000), cert. denied, 531 U.S. 835, 121 S.Ct. 93, 148 L.Ed.2d 53 (2000); Sims v. State, 754 So.2d 657, 666-68 (Fla.20...