Gerald Miller v. George Baldwin ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD WESLEY MILLER, No. 16-35587
Petitioner-Appellant, D.C. No. 3:96-cv-00114-CL
v.
MEMORANDUM*
GEORGE BALDWIN,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted November 9, 2017
Portland, Oregon
Before: TASHIMA and W. FLETCHER, Circuit Judges, and LASNIK,**
District Judge.
We write primarily for the parties who are familiar with the facts. Appellant
Gerald Miller was convicted of murdering his two wives after they both
disappeared five years apart under similarly suspicious circumstances. His federal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
habeas petition chiefly challenged the trial court’s ruling that evidence of each
wife’s disappearance was relevant and cross-admissible in the case of the other’s
murder, and that the two murder charges should be joined in one trial. The district
court denied relief,1 and granted a certificate of appealability. Mr. Miller appealed.2
We review a district court’s denial of habeas relief de novo, and we may
affirm on any ground supported by the record. Washington v. Lampert, 422 F.3d
864, 869 (9th Cir. 2005). Mr. Miller’s claims pre-date the Antiterrorism and
Effective Death Penalty Act. We review de novo state courts’ conclusions of
federal law and mixed questions of law and fact, Burton v. Davis, 816 F.3d 1132,
1140 (9th Cir. 2016), but we are bound by state courts’ determinations of state law,
Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1994).
Mr. Miller’s challenges relate to root claims that: (1) the cross-admission of
evidence deprived him of a fair trial; (2) joinder of the murder charges deprived
him of a fair trial; (3) there was insufficient evidence supporting his convictions;
(4) trial counsel was constitutionally ineffective for mentioning but never calling
1
The district court held that four of Mr. Miller’s claims were
procedurally defaulted, which depends on the peculiar timing of his trial, appeal,
and significant decisions in Oregon’s appellate courts. Given that idiosyncrasy and
our conclusion that the claims fail regardless, we will not address the issue of
procedural default. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).
2
The district court had jurisdiction under 28 U.S.C. § 2254, and we
have jurisdiction under 28 U.S.C. § 2253.
2
an expert witness; and (5) the trial court violated his right to counsel by admitting
certain statements he made to law enforcement.
Mr. Miller also appeals the denial of derivative claims of ineffective
assistance of counsel. Those claims require showing that counsel’s performance
fell below an objective standard of reasonableness, Strickland v. Washington, 466
U.S. 668, 687–88 (1984), and “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different,” id.
at 694.
1. Mr. Miller raises several challenges related to the cross-admission of
each wife’s disappearance as evidence in the case of the other wife’s murder.3
Admitting otherwise inadmissible evidence violates due process “only if there are
no permissible inferences the jury may draw from the evidence,” McKinney v.
Rees, 993 F.2d 1378, 1384 (9th Cir. 1993), as amended (Jun. 10, 1993) (citation
omitted), and if “the erroneously admitted evidence was of such quality as
necessarily prevents a fair trial,” id. (citation omitted) (emphasis in original).
3
This group of challenges covers claims that: the trial court deprived
him of a fair trial by admitting the evidence, and that his various attorneys were
ineffective for failing to adequately challenge that ruling; he was deprived of a fair
trial by the prosecution relying on a “theory of probabilities”; his various attorneys
were ineffective for failing to challenge comments by the prosecutor during closing
arguments; and his trial attorney was ineffective for failing to adequately challenge
the trial court’s answer to a question the jury asked during deliberations.
3
It is a permissible inference, referred to as the “doctrine of chances,” to
consider two otherwise independent events that, taken together, are unlikely to be
coincidental. See Estelle v. McGuire, 502 U.S. 62, 69 (1991). That differs from the
inference covered by the character evidence rule, which prohibits inferring a
defendant’s guilt based on an evil character trait. See Michelson v. United States,
335 U.S. 469, 475–76 (1948). The Supreme Court has referred to the former
inference in the context of admitting a deceased child’s previous injuries as
evidence the death was not accidental. See Estelle, 502 U.S. at 68–69 (explaining
the evidence “demonstrated that [the victim’s] death was the result of an
intentional act by someone, and not an accident”); see also Lisenba v. California,
314 U.S. 219, 227–28 (1941) (affirming constitutionality of testimony about first
wife’s death as evidence in trial for second wife’s murder). Circuit courts of
appeal4 and state appellate courts5 have relied on these inferences as well.
4
See, e.g., United States v. Henthorn, 864 F.3d 1241, 1252 n.8 (10th
Cir. 2017) (“[T]he doctrine of chances is merely one name to call a common sense
observation that a string of improbable incidents is unlikely to be the result of
chance . . . .” (internal marks omitted)), cert. denied, No. 17-7008 (Jan. 8, 2018).
5
See, e.g., Commonwealth v. Hicks, 156 A.3d 1114, 1132 (Pa. 2017)
(“[M]ost jurisdictions recognize the ‘doctrine of chances’ . . . as a theory of logical
relevance that does not depend on an impermissible inference of bad character, and
which is most greatly suited to disproof of accident or mistake.”).
4
Here, the trial judge found the evidence was admissible to show “the deaths
were not accidental or from natural causes or that the disappearances were not a
coincidence.” That was a permissible inference relevant to an essential element of
the crime charged. See Estelle, 502 U.S. at 69; McKinney, 993 F.2d at 1384.
Contrary to Mr. Miller’s assertions, the jury could have permissibly inferred that
the disappearances resulted from “intentional act[s] by someone, and not [by]
accident.” Estelle, 502 U.S. at 69. It did not require a character-based inference to
reach that conclusion or the conclusion that the “someone” was Mr. Miller.
Because each disappearance was admitted for a permissible purpose in the
case of the other murder, the district court did not err in denying Mr. Miller’s claim
that admitting the evidence violated due process, or his derivative claims of
ineffective assistance of counsel. See Strickland, 466 U.S. at 687–88. For the same
reason, the district court did not err in denying Mr. Miller’s claim that he was
deprived of a fair trial by the prosecution relying on a “theory of probabilities.”
The district court did not err in denying Mr. Miller’s claims related to the
prosecutor’s comments in closing arguments. The prosecutor stated the jury could
consider evidence of one wife’s disappearance in the other’s murder case, and
referenced a phrase from the defense closing that “lightning doesn’t strike twice.”
Mr. Miller asserted trial and appellate counsel were ineffective for failing to
adequately challenge those comments. Given our evidentiary conclusion above,
5
Mr. Miller makes no showing of a different outcome had trial or appellate counsel
challenged the comments. See id.Finally, the district court did not err in denying Mr. Miller’s claim that trial
counsel was ineffective for failing to challenge the answer to the jury’s question.
The judge had instructed not to infer guilt for one murder “because the defendant
ha[d] been charged with the [other] murder.” The jury asked if that meant “charged
only.” The judge responded “the instruction means exactly what it says.” As noted,
the jury could permissibly consider each disappearance as evidence of the other
murder. Mr. Miller cannot show deficient performance or prejudice. See id.
2. Mr. Miller appeals the district court’s denial of his claims related to
the joinder of his murder charges.6 For joinder to be constitutionally impermissible,
“[t]he simultaneous trial of more than one offense must actually render [the] state
trial fundamentally unfair.” Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998)
(citation omitted). “[P]rejudice is shown if the impermissible joinder had a
substantial and injurious effect or influence in determining the jury’s verdict.”
Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2005). It risks undue prejudice
when joinder allows the introduction of otherwise inadmissible evidence, or when
a strong evidentiary case is joined with a weak one. Id.6
These claims asserted that joinder deprived him of a fair trial, and that
various attorneys were all ineffective for failing to properly challenge it.
6
Here, Mr. Miller was not unduly prejudiced. We are bound by the Oregon
courts’ rulings that the evidence for his two charges was cross-admissible on state
grounds, compare Bean, 163 F.3d at 1083, and, as noted, those rulings do not
contravene due process. Further, other than characterizations in Mr. Miller’s briefs,
nothing in the record indicates an evidentiary disparity between the two cases.
Mr. Miller asserts he suffered prejudice to his rights to testify and to remain
silent, because he wished to testify in one wife’s case and remain silent in the
other’s. We have required a stronger showing than Mr. Miller’s for such arguments
in the context of misjoinder claims under Federal Criminal Rule 8. See, e.g.,
United States v. Nolan, 700 F.2d 479, 483 (9th Cir. 1983). In addition, the trial
court ruled he could testify regarding one wife and avoid cross-examination on
other. The circumstances did not “render [the] . . . trial fundamentally unfair,”
Bean, 163 F.3d at 1084, or “ha[ve] a substantial and injurious effect or influence
[on] . . . the jury’s verdict,” Sandoval, 241 F.3d at 772. The district court did not
err in denying Mr. Miller’s claims related to misjoinder.
3. The district court did not err in denying Mr. Miller’s claims based on
the sufficiency of the evidence.7 In evaluating sufficiency-of-the-evidence claims,
7
This group of claims asserted the trial court violated due process when
it denied his motion for judgment of acquittal, and that trial and appellate counsel
were ineffective for failing to challenge that ruling on federal grounds.
7
“the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). Mr. Miller’s trial lasted more than
one month, and included many witnesses and exhibits. Having reviewed the
evidence included in the record, there was sufficient evidence for a rational juror to
find Mr. Miller guilty beyond a reasonable doubt. The district court properly
denied relief on Mr. Miller’s claims related to the sufficiency of the evidence.
4. The district court did not err in rejecting Mr. Miller’s claims related to
his trial counsel’s decision to mention an expert witness during opening statements
who the defense ultimately never called. Mr. Miller asserted that trial counsel was
ineffective for not calling the expert, and for failing to object when the state
emphasized the expert’s absence in closing. Mr. Miller’s attorney later explained
that the testimony was no longer needed, because the state’s expert had adjusted
his theory. Counsel’s decision did not fall outside an objectively reasonable range
of representation, see Strickland, 466 U.S. at 688, and Mr. Miller does not show a
reasonable probability that calling the expert would have changed the trial’s
outcome, see id. at 694.
5. The district court did not err in denying Mr. Miller’s claim that the
trial court violated his right to counsel by admitting statements he made to a
8
detective without knowing he had been indicted. A defendant can waive his Sixth
Amendment right to counsel if the waiver is “knowing and intelligent.” Patterson
v. Illinois, 487 U.S. 285, 292 (1988). A valid Miranda warning8 will generally
“sufficiently apprise[] [a defendant] of the nature of his Sixth Amendment rights,
and of the consequences of abandoning [them].” Id. at 296. If a defendant has been
indicted, we have disavowed a categorical rule requiring he be notified of the
indictment. Norman v. Ducharme, 871 F.2d 1483, 1487 (9th Cir. 1989). Instead,
the inquiry is contextual and a waiver is valid if the circumstances indicate the
defendant was apprised of his rights, the criminal liability he potentially faced, and
the gravity of his situation. Id.When Mr. Miller made the statements in question, he was fully apprised of
his right to consult counsel and signed a valid Miranda form indicating he
understood that right. He also chose to answer some questions and wait for legal
counsel to answer others. The context and circumstances indicate that Mr. Miller’s
waiver was knowing and voluntary, that he appreciated the gravity of the legal
situation he faced, and that he understood the implications of talking to law
enforcement. The district court did not err in denying Mr. Miller’s claim.
AFFIRMED.
8
Miranda is a Fifth Amendment case that applies regardless of whether
the suspect has been charged.
9