Miller v. State, 14123

• Decision Date: 02 December 1983
• Docket Number: No. 14123,14123
• Parties: John E. MILLER, Petitioner and Appellant, v. STATE of South Dakota, Respondent and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 78

344 N.W.2d 78

John E. MILLER, Petitioner and Appellant, v. STATE of South Dakota, Respondent and Appellee.

No. 14123.

Supreme Court of South Dakota.

Considered on Briefs Dec. 2, 1983.

Decided Jan. 25, 1984.

John E. Miller, Sioux Falls, pro se.

James D. Leach, Rapid City, for petitioner and appellant.

Thomas H. Harmon, Asst. Atty. Gen., Pierre, for respondent and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

MORGAN, Justice.

This appeal arises from a petition for post-conviction relief filed by appellant John Miller (Miller). The trial court denied relief and Miller appeals. We affirm.

On October 24, 1975, Miller was charged with second-degree rape and assault with a dangerous weapon in the beating and rape of a Rapid City woman (victim). In the attack, the victim also received a knife wound in her hand. Miller was convicted by a jury on December 4, 1975, and was sentenced to twenty-five years in the South Dakota State Penitentiary. On direct appeal, this court affirmed Miller's conviction. State v. Miller, 248 N.W.2d 874 (S.D.1976). Miller filed his first petition for post-conviction relief in June 1978. After a hearing on February 12, 1979, the trial court denied relief on October 16, 1980 and refused to issue a certificate of probable cause for appeal. Ergo that petition is not before this court on this appeal. Miller filed a second petition for post-conviction relief on December 1, 1981. ¹ An evidentiary hearing was held on December 6, 1982, and subsequently the trial court denied relief. The trial court granted a certificate of probable cause and Miller appeals.

Through counsel, Miller raises two issues: (1) that his right to due process was violated by the prosecutor's threat to charge Miller with a more serious offense if Miller received a mistrial; and (2) that his right to due process and effective assistance of counsel were violated by counsel's failure to inform him of mistrial rights and failure to admit evidence of certain laboratory tests. Without his counsel's approval or assistance, Miller personally raises a third issue that the trial judge deprived Miller of his right to effective assistance of counsel.

This court's standard of review in post-conviction proceedings, as stated in Miller v. State, 338 N.W.2d 673 (S.D.1983), is that:

A post-conviction proceeding is not a substitute for a direct appeal. See Rauscher v. State, 292 N.W.2d 106 (S.D.1980). The burden of establishing a basis for post-conviction relief rests upon a petitioner. State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969). The court must make specific findings of fact, and state expressly its conclusions of law on each issue presented. SDCL 23A-34-18. On appeal, this court cannot disturb such findings unless they are clearly erroneous. SDCL 15-6-52(a); Gregory v. State, 325 N.W.2d 297 (S.D.1982); Spirit Track v. State, 272 N.W.2d 803 (S.D.1978).

338 N.W.2d at 675.

The occasion for mistrial arose when, at the outset of the trial, it came to the trial court's attention that Miller had never formally entered a plea to the information. The record reflects that at the arraignment Miller requested a change of counsel. Subsequently, there was a series of discussions between the trial court, counsel, and Miller. Trial court pointed out that, although the conduct gave rise to a presumption of entry of a not guilty plea, Miller could request a mistrial. Miller waived his right to a mistrial. Miller did not at that time nor at any subsequent time claim prejudice by this procedural failure. ²

Miller's first claim is that the prosecutor's threat to charge him with a much more serious offense, if he exercised his right to have a mistrial declared, deprived Miller of due process of law guaranteed by South Dakota Const. art. VI, Sec. 2, and by the United States Const. amend. 14. ³ As noted above, this court has established the rule that issues presented to the court on direct appeal may not be presented again in a post-conviction proceeding. Geelan v. State, 85 S.D. 346, 182 N.W.2d 311 (1970); State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969). On the direct appeal, Miller's brief argued this same contention for five pages. Further, in State v. Miller, supra, this court alluded to this very issue, although not in great detail. 248 N.W.2d at 877. Below, the trial court entered the following findings:

VI.

There is no evidence to support any allegation by the Petitioner of threats off the record by the prosecuting attorney to the Defendant.

VII.

The allegation of the prosecuting attorney's amending the charge to First Degree Rape rather than Second Degree Rape was briefed by the Defendant's attorneys on his direct appeal to the Supreme Court of the State of South Dakota and that the issue was brought before the Supreme Court in State vs. Miller, 248 NW2d 874, 877 (1976).

....

X.

Petitioner's Appeal counsel on Direct Appeal and on prior Post-Conviction proceedings devoted considerable time and effort to the matters and clearly protected the Defendant's Constitutional Rights.

....

XVI.

There were no threats by the prosecuting attorney at the trial [or in] private, off the record conversations between the Defendant and the prosecuting attorney.

These findings are not clearly erroneous from the record. Since this court addressed this issue on direct appeal, this court will not again address it in this proceeding.

The next issue is whether Miller's due process right was violated by ineffective assistance of counsel. ⁴ Miller argues that his counsel failed to provide effective assistance of counsel by giving inadequate advice regarding the mistrial and by failing to introduce evidence of the FBI laboratory reports. Regarding this issue, the court below found:

VIII.

There are no facts to support Petitioner's allegation that his trial counsel was incompetent or that his counsel on appeal was incompetent in any manner.

IX.

The trial counsel devoted considerable time and effort in the preparation of a defense and protected the Defendant's rights to a high degree during the trial.

In Miller v. State, supra, this court held:

Every defendant in a criminal prosecution has a constitutional right to counsel. In Grooms v. State, 320 N.W.2d 149 (S.D.1982), this court held that when reviewing the issue of ineffective assistance of counsel: (1) an attorney is presumed competent; and (2) the party alleging incompetency has a heavy burden of establishing ineffective assistance of counsel. Additionally, the petitioner attempting to show ineffective counsel must also demonstrate that he was prejudiced by the alleged ineffective assistance. State v. Pieschke, 262 N.W.2d 40 (S.D.1978).

338 N.W.2d at 677 (footnote omitted).

Miller's counsel on appeal contends that a prosecutor is precluded from filing a more serious charge in the event of a mistrial and therefore Miller's trial counsel was incorrect when he advised Miller not to seek a mistrial. In support of this contention, Miller cites Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

We disagree. The Supreme Court's most recent examinations of this principle are in United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) and Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). In Goodwin, the Court discussed each of the cases cited by Miller. The cases Miller cited all deal with allegations of vindictiveness made in a post-trial setting. From those cases the general rule arose that "in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to 'presume' an improper vindictive motive." 457 U.S. at 373, 102 S.Ct. at 2489. Such a presumption, however, arises "only in cases in which a reasonable likelihood of vindictiveness exists." Id.

In contrast, Goodwin and Bordenkircher parallel this case and deal with allegations of vindictiveness that arose in a pretrial setting. In Goodwin, the Court held that the presumption of an improper vindictive motive does not generally arise in a pretrial setting for two reasons. First, a "prosecutor's assessment of the proper extent of prosecution may not have crystalized," 457 U.S. at 381, 102 S.Ct. at 2493, and in preparation for trial the prosecutor may discover additional evidence suggesting a further basis for prosecution. Second, at this point in the proceedings defendants invoke certain procedural rights, such as suppression of evidence, or plead affirmative defenses. "It is unrealistic to assume that a prosecutor's probable response to such [procedural] motions is to seek to penalize and to deter." Id. Where these factors are present, this presumption does not arise.

Both of these factors are present in the case before us. According to the record, additional evidence in the form of a taxi driver was discovered only shortly before the trial. Further, a new prosecutor was appointed shortly before trial and from his review of the case he believed that a more serious charge of first-degree rape should have been filed. Considering the additional evidence and the recent appointment of the prosecutor, the extent of prosecution had not been determined when the original charge was filed. Additionally, the failure giving rise to the right to request a mistrial was the lack of formally entering a plea to the information. This right has foundation in the due process clause of our constitution, S.D. Const. art. VI, Sec. 2; see S.D. Const. art. VI, Secs. 7, 10, and is a procedural right which no prosecutor would begrudge a defendant. Goodwin, supra. Under the circumstances before us, it is unrealistic to argue that this prosecutor's response to the possibility of a...