Miller, Perry S. v. Anderson, Rondle ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-2979
    Perry Steven Miller,
    Petitioner-Appellant,
    v.
    Rondle Anderson,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of Indiana, South Bend Division.
    No. 99 C 258--Allen Sharp, Judge.
    Argued May 8, 2001--Decided June 29, 2001
    Before Posner, Easterbrook, and Ripple,
    Circuit Judges.
    Posner, Circuit Judge. Miller was
    convicted in an Indiana state court of
    the rape, torture, and murder of a young
    woman and was sentenced to death. After
    exhausting his state remedies in Miller
    v. State, 
    623 N.E.2d 403
     (Ind. 1993), and
    Miller v. State, 
    702 N.E.2d 1053
     (Ind.
    1998), he sought habeas corpus in federal
    district court, it was denied, and he
    appeals, arguing that his trial counsel
    was ineffective and so he is entitled to
    a new trial. The Indiana Supreme Court
    ruled that Miller’s counsel had not been
    ineffective, and we must decide whether
    the ruling was an unreasonable
    application of federal constitutional law
    as declared by the U.S. Supreme Court, 28
    U.S.C. sec. 2254(d)(1); Williams v.
    Taylor, 
    529 U.S. 362
    , 404-05 (2000);
    Denny v. Gudmanson, No. 98-4275, 
    2001 WL 527626
     at *2 (7th Cir. May 18, 2001);
    Tenner v. Gilmore, 
    184 F.3d 608
    , 610,
    614-16 (7th Cir. 1999); Mask v. McGinnis,
    No. 99-2396, 
    2001 WL 568120
     at *2 (2d
    Cir. May 25, 2001) (per curiam)--
    specifically whether the Indiana court
    was unreasonable to reject Miller’s claim
    that his lawyer’s representation of him
    at trial fell below the minimum level of
    competence required in the representation
    of a criminal defendant and, if so,
    whether with minimally competent
    representation Miller would have had a
    significant, not merely a theoretical,
    chance of acquittal.
    The victim, who worked at an all-night
    convenience store, was seized late at
    night from the otherwise empty store,
    taken to a secluded spot, tortured,
    raped, and then killed by a shot from a
    shotgun at close range. There were no
    witnesses. Two teenagers, Wood and
    Harmon, who lived with Miller, were
    arrested the next day. Wood confessed,
    implicating both Harmon and Miller--the
    last, Wood stated, having orchestrated
    the entire atrocious crime, as well as
    participating in it, although Harmon had
    been the one who shot the victim. Wood
    testified against Miller at Miller’s
    trial, pursuant to a plea
    agreementwhereby Wood’s sentence was
    capped at 60 years. (Harmon, who was also
    prosecuted and convicted, did not testify
    at Miller’s trial.) Wood’s testimony was
    the centerpiece of the state’s case, but
    it was not entirely satisfactory. It
    contained some contradictions; it had
    been induced, in part anyway, by the
    state’s promise not to seek the death
    penalty for him; and despite his youth he
    was already an accomplished criminal when
    the rape and murder occurred. The state
    wanted corroboration and found it in the
    testimony of its expert witness that a
    pubic hair found on the victim’s thigh
    almost certainly was Miller’s. The
    prosecution harped on this evidence in
    closing argument. Miller’s lawyer did not
    consult with a hair expert, let alone
    call one as a witness, but was content to
    cross-examine the state’s expert. In the
    postconviction proceedings, however, new
    counsel for Miller retained a far more
    experienced hair expert than the state’s
    and this expert testified that the hair
    was like the victim’s hair and unlike
    Miller’s. The prosecution at Miller’s
    trial had also presented DNA evidence
    that it admitted was inconclusive and had
    not presented tire-tread and footprint
    evidence that it had said in opening
    argument it would present. Had Miller’s
    lawyer called his own DNA, tiretread, and
    footprint experts, they would have
    testified not that the evidence was
    inconclusive but that it provided
    absolutely no basis for supposing Miller
    present at the scene of the crime.
    Of course Miller’s trial lawyer, even if
    he had searched conscientiously for
    expert witnesses to testify about hair,
    DNA, tiretreads and footprints, might not
    have found experts that would give
    impressive testimony favorable to Miller,
    even if such experts existed. The fact
    that Miller’s postconviction counsel was
    able to find a highly experienced hair
    expert to testify in Miller’s favor
    doesn’t mean that minimally competent
    trial counsel, shopping for an expert
    whom the court would appoint (since
    Miller could not afford to hire an expert
    in the market for high-priced expert
    witnesses), could have found as effective
    a witness to counter the prosecution’s
    expert evidence. But the government makes
    nothing of this point; it is content to
    argue that Miller’s lawyer was entitled
    to rely on cross-examination to undermine
    the prosecution’s experts, and to make no
    effort to obtain his own experts. This
    argument would be convincing in some
    cases, but not in this one; cross-
    examination alone could weaken the
    prosecution’s expert evidence, but not to
    the point of denying it the essential
    corroborative value for which the
    prosecutor was using it.
    A hardware clerk testified that Miller
    had purchased shotgun shells the day
    before the murder. She based this
    testimony in part on her recollection of
    having received a check in Miller’s name,
    and the state sought to corroborate her
    recollection by introducing a check and
    cash register record with the name
    "Miller" on it. The check was numbered
    1204 and the witness testified that she
    was positive that "Miller 1204" was the
    defendant. In fact the check was from a
    different person, as Miller’s lawyer
    would have discovered had he subpoenaed
    the bank’s records from the bank. He did
    obtain Miller’s copy of those records,
    which contained no trace of such a check;
    and while the prosecutor argued that
    Miller might have had another bank
    account on which he had written the
    check--an argument with no basis in the
    evidence--the prosecutor could have made
    the same argument had Miller’s lawyer
    obtained bank records, since the lawyer
    could not have obtained the records of
    every bank in which Miller might have had
    another account. But only with the bank’s
    records could the lawyer have shown that
    "Miller 1204" was a different Miller from
    the defendant.
    The lawyer further failed to point out
    to the jury that while the clerk
    testified that she had sold Miller
    Remington shotgun shells, the shells
    found at the scene of the crime were of
    another make. The lawyer did elicit from
    Miller’s wife testimony that Miller had
    not written the check; but since in
    closing argument the lawyer stated that
    Miller’s wife would lie for him, the
    testimony was unlikely to have helped
    Miller--and incidentally that comment in
    closing argument demolished Miller’s
    alibi defense, for which the sole
    evidence was his wife’s testimony.
    Most questionable of all the lawyer’s
    fumbles was his decision to call a
    psychologist to testify that Miller was
    incapable of the kind of violence that
    had been perpetrated against the victim.
    The lawyer did this knowing that Miller
    had been previously convicted of
    kidnapping, rape, and sodomy and at the
    time of the crime for which he was being
    tried had been free on parole from a life
    sentence for kidnapping. The state
    brought these facts out on cross-
    examination of the psychologist and they
    not only destroyed the psychologist’s
    credibility but almost certainly and
    perhaps decisively bolstered the jury’s
    confidence in Miller’s guilt. (The state
    had made no effort to place his prior
    convictions in evidence to demonstrate a
    modus operandi.) At the postconviction
    proceedings, the lawyer was unable to
    articulate a coherent reason for having
    put the psychologist on the stand, given
    the inevitability of the destruction of
    the psychologist and of Miller himself if
    the jury was told about the prior
    convictions. Nor did the Indiana courts
    give any reason for supposing it an even
    minimally intelligent tactic. The fact
    that it was a tactic obviously does not
    immunize it from review in a challenge to
    the lawyer’s effectiveness. Tactics are
    the essence of the conduct of litigation;
    much scope must be allowed to counsel,
    but if no reason is or can be given for
    a tactic, the label "tactic" will not
    prevent it from being used as evidence of
    ineffective assistance of counsel. United
    States v. Zarnes, 
    33 F.3d 1454
    , 1473 (7th
    Cir. 1994); Jackson v. Roth, 
    24 F.3d 1002
    , 1004-05 (7th Cir. 1994); United
    States v. Booker, 
    981 F.2d 289
    , 295 (7th
    Cir. 1992); Wade v. Franzen, 
    678 F.2d 56
    ,
    58 (7th Cir. 1982); Kellogg v. Scurr, 
    741 F.2d 1099
    , 1102 (8th Cir. 1984).
    Although the lawyer’s conduct must be
    evaluated as a whole, United States v.
    Lindsay, 
    157 F.3d 532
    , 534-35 (7th Cir.
    1998); Schiro v. Clark, 
    963 F.2d 962
    , 971
    (7th Cir. 1992), aff’d on other grounds,
    
    510 U.S. 222
     (1994), since mistakes at
    some points in the trial might be
    redeemed by wise tactics at other points,
    there were no bright spots in his
    representation of Miller. His closing
    argument, for example, was a shambles,
    quite apart from the irresponsible and
    unhelpful suggestion that Miller’s wife
    would lie for Miller under oath.
    The clearest respect in which the
    lawyer’s representation fell below the
    minimum level was the decision to put the
    psychologist on the stand, knowing what
    the lawyer knew. He also had no excuse
    for failing to inquire whether the
    defendant was "Miller 1204," since if he
    was not--and he was not--the clerk’s
    testimony would be seriously undermined,
    given the great emphasis she placed on
    her recollection of the check. And, in
    the circumstances (an essential
    qualification), there was also no excuse
    for the lawyer’s failure to consult
    experts on hair, DNA, treadmarks, and
    footprints. A defendant’s lawyer does not
    have a duty in every case to consult
    experts even if the government is
    proposing to put on expert witnesses.
    United States v. Anderson, 
    61 F.3d 1290
    ,
    1298-99 (7th Cir. 1995); Yohey v.
    Collins, 
    985 F.2d 222
    , 228 (5th Cir.
    1993). There may be no reason to question
    the validity of the government’s proposed
    evidence or the evidence may be so weak
    that it can be demolished on cross-
    examination. But since Miller’s defense
    was that he had not been at the scene of
    the crime, and he could not testify in
    opposition to Wood because to do so would
    enable the state to bring in the
    devastating evidence of his prior
    convictions, and the government was going
    to put great weight on expert evidence in
    order to bolster Wood’s testimony,
    Miller’s only chance was to establish so
    far as it was possible to do that there
    was no objective evidence placing him at
    the scene of the crime. A DNA expert and
    a treadmark and footprint expert would
    have so testified, and probably a hair
    expert more credible than the state’s
    would have so testified as well because
    the expert that Miller’s new counsel
    found was far more qualified than the
    state’s and, as we noted earlier, the
    state does not argue that Miller’s
    postconviction expert was superior to the
    average expert that competent trial
    counsel might have found. In these
    circumstances, it was irresponsible of
    the lawyer not to consult experts.
    Wallace v. Stewart, 
    184 F.3d 1112
    , 1117
    (9th Cir. 1999); Bean v. Calderon, 
    163 F.3d 1073
    , 1079 (9th Cir. 1998); cf.
    Strickland v. Washington, 
    466 U.S. 668
    ,
    690-91 (1984) (duty of reasonable
    investigation).
    It remains only to consider whether
    Miller would have had a reasonable shot
    at acquittal had his lawyer been
    minimally competent. We think so. The
    minimally competent lawyer would have
    presented expert evidence that there was
    no physical evidence of Miller’s presence
    at the crime scene, would have greatly
    undermined the hardware clerk’s evidence,
    would not have undermined the alibi
    testimony of Miller’s wife, would by
    forgoing psychological evidence (unlikely
    in any event to impress a jury) have kept
    the evidence of Miller’s previous crimes
    from the jury, and would thus have forced
    the state to rely entirely on Wood’s
    questionable testimony. The jury might
    have concluded that Wood was trying to
    save his life by portraying himself
    falsely as the tool of an older man. This
    is far from certain; indeed, we think the
    chance of an acquittal would still have
    been significantly less than 50 percent;
    but it would not have been a negligible
    chance, and that is enough to require us
    to conclude that the lawyer’s errors of
    representation were, in the aggregate,
    prejudicial. 
    Id. at 694
    ; Washington v.
    Smith, 
    219 F.3d 620
    , 632-33 (7th Cir.
    2000); Hernandez v. Cowan, 
    200 F.3d 995
    ,
    999-1000 (7th Cir. 2000); Gonzalez-
    Soberal v. United States, 
    244 F.3d 273
    ,
    277 (1st Cir. 2001).
    The judgment is reversed with directions
    that the state either release Miller or
    retry him within 120 days. In addition,
    we are sending this opinion to the
    Indiana attorney disciplinary authorities
    for consideration of whether attorney
    Ronald V. Aungst’s deficient
    representation of Miller at his trial
    warrants disciplinary proceedings.
    Reversed.