Miller v. Johnson

• Decision Date: 05 January 2000
• Docket Number: No. 98-10916,98-10916
• Citation: 200 F.3d 274
• Parties: (5th Cir. 2000) GARRY DEAN MILLER, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 274

200 F.3d 274 (5th Cir. 2000)

GARRY DEAN MILLER, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

No. 98-10916

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 5, 2000

Revised February 23, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Texas

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Petitioner Garry Dean Miller, convicted of capital murder in Texas and sentenced to death, requests from this Court a Certificate of Appealability (COA) pursuant to 28 U.S.C. 2253(c)(2). Miller raises several arguments on appeal, including ineffective assistance of counsel, insufficient evidence to support an affirmative answer to the second special issue, misleading penalty phase jury instructions, and prosecutorial misconduct. Finding that Miller has not made a substantial showing of the denial of a constitutional right, we DENY the COA.

I. BACKGROUND

Garry Dean Miller was indicted on November 30, 1988, on charges of the capital murder, murder, and aggravated sexual assault of April Marie Wilson (April), a child younger than fourteen years of age, on or about November 11, 1988. Miller was tried before a jury on a plea of not guilty by reason of insanity.

The facts adduced during the guilt-innocence phase of the trial are set forth in the Texas Court of Criminal Appeals' opinion¹ on direct appeal and reflect the following: In Miller's written confession, he stated that he arose early on the morning of November 10, 1988, and went to work. At about 11:00 a.m., Miller went home and prepared lunch for his girlfriend, after which his girlfriend returned to school and he went to a friend's house. Miller subsequently went home and apparently began drinking alcohol and continued to do so after arriving at his second job at the Merkel Country Club. After completing his shift, Miller went to a bar and drank more and played pool. He returned home about 1:30 a.m. on November 11, 1988, knowing that April, a seven-year-old child, was spending the night there.

Miller did not want to remain at home so he woke April to see if she wanted to go "riding around." Eventually, Miller and April stopped riding around, and April hugged him because he "was depressed." Miller "did not know what happened," but he started abusing April. He placed April on the tailgate of the truck; even though she was scared, he told her to remove her clothes. April was crying, and Miller told her to be quiet. He then removed his own clothes and raped her using hand lotion as a lubricant. Miller had to hold April down forcibly and did not stop even though she told him it hurt. After intercourse, Miller performed oral sex on April and forced her to perform oral sex on him by holding her head down. Miller again attempted to have intercourse with her. Miller panicked and started choking April and hitting her with something he had picked up from the ground.

April ceased fighting, and Miller, apparently believing she was dead, used coat hangers to drag her body into some brush. Miller went back to his home to retrieve April's belongings to dump with her body; however, he could not locate the body when he returned to the scene. Miller "passed out" after again returning home. Later that morning, the other individuals who lived with Miller noticed that April was missing. When Miller was asked if he had seen her, Miller stated that he had not; he then pretended to look for her. During Miller's subsequent confession, he expressed shame and sorrow that he had killed April.

The pathologist who performed the autopsy testified that the cause of death was "multiple blunt force injuries of the head, neck, and trunk." The fractures to the head were such that the blows had to be delivered with "extreme force," multiple times. Many contusions and abrasions had been inflicted on April's face; her right jaw was fractured, which was consistent with being hit. There were bruises on and thorns in the ball of April's foot, indicating that April had put her foot down, possibly while being dragged. The pathologist described the appearance of trauma to both the vaginal and anal canals. In the pathologist's opinion, the excessive injuries to both the anal and vaginal cavities were caused by an object, other than a penis, in excess of five inches. Based on the above evidence, the jury found Miller guilty of capital murder.

During the punishment phase of the trial, the trial court readmitted all evidence admitted during the guilt-innocence phase. The following additional evidence was introduced during the punishment phase. The State introduced the testimony of Dr. Griffith, a psychiatrist, who taught medical school anatomy for several years before teaching psychiatry. He testified that the State's exhibit 87, which depicted April's genitalia, reflected that her anal opening was "totally destroyed," "almost mutilated." In Griffith's opinion, the five-inch tear in her colon could not have been caused by a penis and was caused by some other foreign object. In Griffith's opinion, Miller represented a continuing threat to society based upon the extremely brutal murder, a murder "as brutal as [Griffith] [had] ever seen in a child." Griffith observed that the murder was totally unprovoked and that Miller was meticulous during the killing and in his actions following the killing.

During the cross-examination of Griffith, defense counsel introduced an article from a psychiatric journal that suggested that no significant difference existed in the accuracy of diagnostic predictions of future dangerousness of psychiatrists and those of laymen. Counsel introduced a portion of another article which recommended that the courts no longer ask experts to opine on future dangerousness because such opinions lacked reliability.

Dr. Karlson, a psychologist who testified at length on Miller's behalf during the guilt-innocence phase of the trial, testified during the punishment phase that he disagreed with Dr. Griffith's assessment that Miller was antisocial. Miller did not have the typical characteristics of a person with an antisocial personality, such as a long history of illegal acts prior to the age of eighteen, problems in school, truancy, cruelty to animals, petty theft, or a total lack of remorse. Karlson testified that Miller's behavior after the murder reflected the confusion of a troubled and very upset person who was not thinking clearly. In Karlson's opinion, Miller could not have consciously, intentionally, or deliberately planned a rape and murder because he was acting on "automatic pilot," during a dissociative episode.

Karlson acknowledged the possibility, however, that Miller would commit criminal acts of violence in the future that would constitute a continuing threat to society. He testified that if Miller were in the same circumstances again, a similar crime could occur, but that the likelihood was extremely small because prior to the murder Miller was nonviolent. In Karlson's opinion, Miller had a tendency to try to please people and did not get angry or express anger in an appropriate way. In the days and months preceding the murder, Miller had been under a lot of pressure. Testimony indicated he was working three jobs, going to school, under financial pressure, had moved, and the week prior to the murder, had broken up with a serious girlfriend, someone with whom he was "very much in love." In Karlson's opinion, treatment would virtually guarantee no recurrence of the violent behavior. Although Karlson supported capital punishment for career criminals who lacked remorse, he was not in favor of the death penalty in this case because Miller, due to his mental disease or defect, was out of control for a short period of time. Karlson testified that the solution was confinement and treatment.

Miller also called numerous witnesses to offer testimony in mitigation of the death penalty. Ms. Townsend, Miller's former school teacher, testified Miller was a "fine outstanding young man." In Townsend's opinion, Miller did not commit the crimes deliberately and would not commit criminal acts of violence in the future. Miller never violated any of her classroom's rules. He was "an extremely good friend, a giver and not a taker," and was "just always such a friendly, nice kid, a nice guy always." She would have been proud to have him as her son.

Alice Carter, an employee at Camp Butman, worked with Miller for five years and testified that she would ask the jury to consider that Miller's conduct was not deliberate. Miller needed help and a life sentence would be appropriate.

Shirley Ann Miller, Miller's stepmother, testified that Miller was not rebellious and was a very caring child who never got out of line and always "minded." He did not have violent reactions toward her and was not disrespectful. She testified that Miller could not have done something like this deliberately and that Miller would not commit criminal acts of violence in the future.

Randy Davis testified that Miller was his best friend and that Miller did not "con" or use him. Davis was aware that Miller drank and that he had been drinking that night. He testified that Miller could not have done this deliberately and that alcohol could have affected his behavior. Davis testified that if Miller got help, more likely than not, he would not commit violent acts in the future.

Don Russom, who used to work with Miller at a fire department, testified that he had never heard of Miller committing antisocial acts and that although he did not know whether Miller would be a continuing threat to society, he believed that a life sentence would be a more appropriate sentence than death.

Roy Smith, a friend of Miller's family, had known Miller since Miller was seven or eight years old. Smith testified that as...