State v. Miller

CourtSupreme Court of Arizona
Citation485 P.3d 554,251 Ariz. 99
Docket NumberNo. CR-19-0061-PC,CR-19-0061-PC
Parties STATE of Arizona, Plaintiff/Petitioner, v. William Craig MILLER, Defendant/Respondent.
Decision Date04 May 2021

Mark Brnovich, Arizona Attorney General, Lacey Stover Gard, Chief Counsel, Jeffrey L. Sparks (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona

Tamara Brooks-Primera (argued), Kerri L. Chamberlin, Office of the Legal Advocate, Phoenix, Attorneys for William Craig Miller

VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, JUSTICES BOLICK, and PELANDER (Retired)* joined.

VICE CHIEF JUSTICE TIMMER, opinion of the Court:

¶1 A defendant is deprived of the Sixth Amendment right to counsel if his lawyer provided deficient representation, which prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We are asked to decide whether the failure to challenge an incorrect jury instruction widely used by the legal community at the time of trial and appeal constitutes deficient performance. Although lawyers can be constitutionally deficient for making errors commonly made by others, the record here does not reflect that the defendant's lawyers were deficient by failing to challenge the jury instruction or that any deficiency prejudiced the defense.

BACKGROUND

¶2 In 2011, a jury convicted William Craig Miller of five counts of first-degree murder and other charges. The jury also found four aggravating circumstances: prior conviction of a serious offense, A.R.S. § 13-751(F)(2) (2009); multiple homicides, § 13-751(F)(8) ; young age of one victim, § 13-751(F)(9) ; and witness elimination, § 13-751(F)(12).

¶3 Before trial, Miller disclosed several statutory and non-statutory mitigating circumstances he intended to prove at any penalty phase, including that his "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution." See A.R.S. § 13-751(G)(1) ;1 see also Ariz. R. Crim. P. 15.2(h)(1)(A)(i) (requiring the disclosure). Consequently, without request, objection, or comment by either party, during the penalty phase the court provided the jury with the Revised Arizona Jury Instruction ("RAJI") in effect at the time concerning this statutory mitigator:

It is a mitigating circumstance that the defendant's capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired, but not so impaired as to constitute a defense to prosecution. The defendant has the burden of proving this mitigating circumstance by a preponderance of the evidence.
"Significantly impaired" means that the defendant suffered from mental illness, personality disorder, character disorder, substance abuse, and/or alcohol abuse at or near the time of the offense, that prevented the defendant from appreciating the wrongfulness of the conduct or conforming his conduct to the requirements of the law.
If any juror finds by a preponderance of the evidence that the defendant was significantly impaired, then that juror shall consider this impairment as a mitigating circumstance when determining whether to sentence the defendant to life imprisonment or death.
The effect you give to any mitigation is left to your sound discretion in determining whether there are mitigating circumstances sufficiently substantial to call for leniency.

(Emphasis added.)

¶4 Over a five-day span, Miller presented "a good deal of mitigation, including evidence that he suffered from Bipolar Disorder

I; exhibited troubling behaviors as a child; had a family history of emotional difficulties, drug abuse, and alcohol problems; and had experienced difficulty controlling his impulses throughout his life." State v. Miller , 234 Ariz. 31, 46 ¶ 63, 316 P.3d 1219 (2013). The jury found this evidence insufficient to warrant leniency and returned death sentence verdicts on each murder count. This Court affirmed Miller's convictions and sentences. Id. at 46–47 ¶ 64, 316 P.3d 1219.

¶5 In 2016, Miller petitioned the trial court for post-conviction relief ("PCR") on multiple grounds. Relevant here, he claimed that trial counsel were constitutionally ineffective for failing to object to the RAJI's definition of "significantly impaired," and appellate counsel was ineffective for failing to challenge the instruction on appeal.

¶6 Based solely on the petition and related filings, the PCR court agreed with Miller that the RAJI had misstated the law by using the word "prevented," and trial and appellate counsel were constitutionally ineffective for failing to challenge the RAJI. It noted that the RAJI was revised in 2016, five years after Miller's trial, to replace "prevented the defendant from appreciating" with "substantially reduced the defendant's ability to appreciate." See Rev. Ariz. Jury Instr. (Crim.) Capital Case 3.2, at 626 (5th ed. 2019). The court could "find no reason" for the change to the RAJI other than "recognition that the previous instruction's language imposed the incorrect standard." Because the court also found that counsel's ineffectiveness prejudiced Miller, it granted relief by ordering a new penalty phase trial. The court subsequently denied the State's motion for rehearing, including its request for an evidentiary hearing to explore whether counsel's failure to challenge the RAJI fell below prevailing professional norms.

¶7 We granted the State's petition for review because it raises issues of statewide importance that are likely to recur. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 12-102(A) and 13-4031.

DISCUSSION

¶8 Whether Miller's lawyers provided ineffective assistance is a mixed question of fact and law. See State v. Pandeli , 242 Ariz. 175, 180 ¶ 4, 394 P.3d 2 (2017). We review the PCR court's legal conclusions and constitutional issues de novo. Id. Ultimately, we review a court's ruling on a PCR petition for an abuse of discretion, which occurs if the court makes an error of law. Id.

¶9 The Sixth Amendment guarantees "the right to effective assistance of counsel." Strickland , 466 U.S. at 686, 104 S.Ct. 2052 (quoting McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ). A defendant claiming deprivation of this right must make a two-pronged showing. Id. at 687, 104 S.Ct. 2052. First, he must show that counsel's representation was deficient. Id. Second, he must demonstrate that this deficient performance prejudiced his defense. Id. To prevail, the defendant must satisfy both prongs. Id. at 697, 104 S.Ct. 2052.

I. Deficiency

¶10 A defendant's lawyers are not deficient merely for making errors. Rather, the errors must be "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. To determine deficiency, we ask "whether counsel's representation ‘fell below an objective standard of reasonableness,’ " which is formed by the "practice and expectations of the legal community," Hinton v. Alabama , 571 U.S. 263, 272–73, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (quoting Padilla v. Kentucky , 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ), at the time the lawyer provides representation, see Bobby v. Van Hook , 558 U.S. 4, 8, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009). Representation falls below the "prevailing professional norms" of the legal community if counsel's performance was unreasonable under the circumstances. Hinton , 571 U.S. at 273, 134 S.Ct. 1081 (quoting Padilla , 559 U.S. at 366, 130 S.Ct. 1473 ); see also Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ("The proper measure of attorney performance remains simply reasonableness under prevailing professional norms."). Deficiency must be established by a "demonstrable reality" rather than as a product of speculation. State v. Meeker , 143 Ariz. 256, 264, 693 P.2d 911 (1984). A "strong presumption" exists "that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689, 104 S.Ct. 2052.

¶11 The State does not contest that the RAJI given during the penalty phase incorrectly imposed a higher burden than required to prove the (G)(1) mitigator. See State v. Johnson , 247 Ariz. 166, 185 ¶ 43, 447 P.3d 783 (2019) ("The State concedes that limiting the definition of ‘significantly impaired’ to the defendant being prevented from appreciating the wrongfulness of the conduct was error ...."). Instead, it argues the PCR court erred by finding trial and appellate counsel ineffective for failing to challenge the RAJI because Miller failed to prove that counsel's lapse fell below an objective standard of reasonableness. Miller counters he proved counsel's deficiency by demonstrating they were necessarily ignorant of the (G)(1) mitigator's requirement as no strategic reason existed for failing to challenge the RAJI. He asserts that ignorance of the law governing the impact of his mental health mitigation evidence necessarily fell below the professional norms of the legal community.

¶12 The record does not support a conclusion that Miller proved that his trial and appellate counsel acted unreasonably under the circumstances by failing to challenge the RAJI's inclusion of the "prevented" language. See Hinton , 571 U.S. at 273, 134 S.Ct. 1081. In his PCR petition and reply to the State's response, Miller pointed only to the RAJI's error as proof of counsel's deficiency. He did not provide any evidence, such as affidavits from other defense counsel, suggesting his lawyers’ failure to challenge the RAJI fell below professional norms established by the legal community. See Ariz. R. Crim. P. 32.7(e) ("The defendant must attach to the petition any affidavits, records, or other evidence currently available to the defendant supporting the allegations...

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