Maggie, I am
sorry. I always wanted to tell you but I just didn't know
how. I have been praying for y'all. I hope that y'all find
the peace that y'all have been wanting. Lord, thank you for
all my family, all my friends, and all my brothers on the
row. Thank you for my spiritual family. Lord, be merciful
with those who are actively involved with the taking of my
life, forgive them as I am forgiving them. Be merciful to me
a sinner. Protect us Lord as we stay awake and watch over us
as we sleep as we wake may we may keep watch with Christ and
sleep rest in His peace. All right, Warden. I am ready to go
Miller was sentenced to death for the November 11, 1988 kidnapping,
rape and murder of 7-year-old April Marie Wilson of Merkel, Texas.
April's mother, Marjorie Howlett, asked her cousin and his
girlfriend to babysit that night. Miller also lived with them and
joined the rest of the small community in searching for April the
following morning when she was reported missing. Her body was found
by hunters in a nearby field the same day.
During interrogation by police, 21 year old Miller confessed that he
had returned home after drinking and found April sleeping on the
couch. He woke her up and took her "for a ride". He drove to a
remote area where he raped her, choked her and then bludgeoned her
Traces of the child's blood were found on the tailgate of his pickup.
An insanity defense was unsuccessful at trial.
Texas Attorney General
Tuesday, November 28, 2000
MEDIA ADVISORY -
Gary Dean Miller Scheduled To Be Executed.
AUSTIN - Texas Attorney General John Cornyn
offers the following information on Gary Dean Miller who is
scheduled to be executed after 6 p.m., Tuesday, December 5th:
In September 1989, Gary Dean Miller was convicted
and sentenced to death for the November 1988 rape and murder of
seven-year old April Marie Wilson. Miller confessed to the rape and
murder of April Marie Wilson. Miller's description of the manner of
April's death was consistent with the pathologist's testimony at
FACTS OF THE CRIME
On the morning of November 11, 1988, two men were
quail hunting in a pasture in a rural area of Jones County, Texas.
As they were walking through the pasture, the men found children's
clothing, a blanket, a Raggedy Ann doll, a bottle of Jergen's lotion,
and some paper towels.
Some of the items appeared to have blood on
them. Knowing that a little girl was missing, the men called law
enforcement authorities with this information and April's body was
subsequently located in the pasture.
In his written confession, Miller stated that,
after working and socializing on the evening of November 10, 1988,
he returned to his home in Merkel, Texas about 1:30 a.m., knowing
that April, a seven-year old child, was spending the night there.
According to Miller, he had been drinking alcohol
and did not want to stay 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."
claimed that he "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, raped
her and engaged in oral sex. Miller said that he panicked and
started choking April and hitting her with something he had picked
up from the ground.
Miller stated that April stopped fighting, and
he, apparently believing she was dead, used coat hangers to drag her
body into some brush. Miller went back to his home to get April's
belongings to dump with her body; however, he could not locate the
body when he returned to the scene.
Miller said he "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, then pretended to
assist in the efforts to locate her.
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
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 and
excessive damage to body cavities caused by the sexual assault.
At the guilt-innocence phase of trial, Miller
presented an insanity defense. Miller presented testimony from lay
witnesses who stated that the offense was out of character for
Miller and that he simply must not have known right from wrong at
the time of the offense.
Miller also presented testimony from
psychologist Kevin Karlson, who opined that Miller was suffering
from a mental disorder at the time of the offense, a dissociative
episode. The jury ultimately rejected the insanity defense and found
Miller guilty of capital murder.
PUNISHMENT PHASE TESTIMONY
A State's medical and psychiatric expert
confirmed the pathologist's opinion regarding the extensive
mutilation to April's genitalia. This expert also testified that
Miller represented a continuing threat to society based upon the
extremely brutal murder, a murder "as brutal as he had ever seen in
The expert noted that the murder was totally unprovoked
and that Miller was meticulous during the killing and in his actions
following the killing.
Miller also presented expert psychological
evidence at the punishment phase of trial. Again Miller's expert
testified that Miller was suffering from a dissociative episode at
the time of the offense and could not have consciously,
intentionally, or deliberately planned the rape and murder. However,
even Miller's expert acknowledged that if Miller were in the same
circumstance again, the same or a similar crime could occur.
To date, seven separate courts both state and
federal including the United States Supreme Court, have reviewed
Miller's case and rejected his appeals.
Garry Dean Miller
Garry Dean Miller, 33, was executed by lethal
injection on 5 November in Huntsville, Texas for the abduction,
rape, and murder of a 7-year-old girl.
On 11 November 1988, Marjorie Howlett asked her
cousin and his girlfriend to babysit for her daughter, April Marie
Wilson. When the girl asked if she could spend the night, her mother
agreed, since she was not scheduled to end work until 10:00 p.m.
Garry Miller, then 21, also lived at the house, and he came home
that night drunk on tequila. When he saw the girl sleeping on the
couch, he awoke her and began talking to her. He told the girl he
was depressed and she gave him a hug.
Miller then convinced her to
go for a ride with him. He drove her to a remote area of Jones
County where he raped her on the tailgate of his pickup, choked her,
and then bludgeoned her to death.
On the day that Wilson was reported missing,
Miller joined with the rest of the small community of Anson in
searching for her body. Howlett recalls how Miller hugged her and
expressed sympathy for her missing daughter. Wilson's body was found
by two hunters the same day. Miller confessed the murder to police
while being questioned. Traces of the child's blood were found on
the tailgate of his pickup.
When the U.S. Supreme Court declined to review
his case in October, Miller asked his attorney not to pursue any
"Maggie, I am sorry," Miller said to Howlett in
his last statement. "I always wanted to tell you, but I just didn't
know how." He then said a short prayer asking for forgiveness both
for himself and for those "actively involved with the taking of my
life." He was pronounced dead at 6:23 p.m.
Garry Dean Miller
December 5, 2000
HUNTSVILLE, Texas (AP) - A man convicted in the rape and murder of a
7-year-old girl was executed by lethal injection Tuesday in Texas'
38th execution of the year, the most by any state in U.S. history.
Two more killers have execution dates this week, so the record could
reach 40. They are the last executions scheduled in Texas this year.
Texas carried out 37 executions in 1997, the previous U.S. record.
Garry Dean Miller, 33, was condemned to die for
the 1988 slaying of April Marie Wilson, who was raped, choked and
beaten to death. Her body was dragged through clumps of cactus, then
left in a clump of brush outside Abilene. A blanket and a Raggedy
Ann doll were found nearby.
"I've got no mercy for this guy," Jones County
District Attorney Gary Brown said. "Too bad they can't draw and
quarter him. Too bad they can't put him up here on the sand and skin
him for a couple of days and let him be tortured like she was."
Miller, a former bartender and laborer, confessed and then ordered
his lawyers to not pursue appeals after the U.S. Supreme Court
refused to review his case. He repeatedly refused reporters'
requests for interviews.
According to Michael Radelet, chairman of
sociology at the University of Florida and the keeper of a database
on U.S. executions, Texas' total would be the highest number of
executions carried out by a state in American history. No request
for clemency was made to Gov. George W. Bush, who had authority to
grant a one-time 30-day reprieve. Only once in his nearly six years
in office has Bush used that power to stop an execution, and that
inmate was eventually put to death.
Since the state resumed carrying out capital
punishment in 1982, 236 condemned murderers preceded Miller to the
death house, 147 of them during Bush's tenure.
Garry Miller was sentenced to die for the
November 11, 1988 kidnapping, rape and murder of 7-year-old April
Marie Wilson of Merkel, Texas.
April was spending the night at a home that
Miller shared with another man and a female co-worker of April's mom.
Miller told the police that he returned home and
found April sleeping on the couch. He woke her up and took her "for
a ride". He drove to a remote area where he raped her, choked her
and then bludgeoned her to death. Her body was found by two hunters
later that day. Miller confessed to April's murder.
The pickup truck tailgate where 7-year-old April
Marie Wilson was raped and murdered served as a lectern at the trial
of her accused killer. An 8-by-10 photograph of her was displayed on
the prosecution table. "She was the prettiest little thing," retired
Jones County District Attorney Jack Willingham recalled. "I set her
picture up on the counsel table as a witness that couldn't be there."
Garry Dean Miller was convicted of choking and
fatally bludgeoning her. "I don't take any pride in this," said
Willingham, who retired four years ago. "But it was just a terrible
thing. You just can't imagine a human being can do that to a child."
"I don't have too much mercy for these guys," said Gary Brown, who
succeeded Willingham as district attorney in Jones County, north of
Abilene, and responded to Miller's appeals.
"They're dying a better
way than their victim. That's my attitude. It's too bad you can't
walk in and one day they don't know about and just say: 'OK. Bye!'
And just kill them - just like they did their victim. I've got no
mercy for this guy. There's no reason for this stuff, for what he
did to her."
Miller, who worked as a bartender and laborer,
was believed to have been drinking heavily when he returned to his
girlfriend's house in Merkel, about 15 miles west of Abilene, in the
early morning hours of Nov. 11, 1988.
April Wilson was the girlfriend's cousin, was
staying at her house and was asleep on a couch when Miller arrived.
In a confession to authorities, Miller said he woke up the girl and
asked if she wanted to go for a ride.
In a cotton field to the north in Jones County,
he raped her on the pickup tailgate, then choked her and hit her
with an object he picked up from the ground. "He said she began to
cry and holler," Willingham said. "This little girl ... he held her
on the tailgate of his pickup and raped her. I remember him saying:
'I told her it wouldn't hurt long.' I won't ever forget, I used it
in my closing argument," Willingham added.
Miller said he used coat hangers to drag the
girl's body through some prickly pear and left her corpse in some
brush. When Miller's girlfriend awoke the next morning and April was
gone, police were notified and a search began with Miller among the
Her body was found by quail hunters and Miller
was tied to her death. Blood evidence from the tailgate was used
against him. "He'd been drinking tequila," Brown said. "God knows
what he shoved down his throat that night. Too bad it wasn't a .357
Miller, who declined repeated requests for
interviews with reporters, ordered his attorneys to not pursue
appeals once the U.S. Supreme Court refused to review his case.
38th Inmate Executed, Setting Record For Year
By Richard Stewart -
After asking for forgiveness from the mother of
his 7-year-old victim and saying a short prayer, convicted killer
Garry Dean Miller was executed Tuesday, setting a national record
for executions in a single year. Miller, 33, was the 38th Texas
inmate executed this year, eclipsing the record of 37 set by Texas
three years ago.
His death came calmly, almost clinically, 11
years after the jury's sentence. Miller nodded toward his spiritual
adviser, the Rev. Stephen Walsh. The Catholic priest held a small
crucifix up to the window separating a witness room and the death
chamber as Miller was executed.
Miller closed his eyes, let out a
couple of sighs and was pronounced dead 12 minutes after a lethal
dose of three chemicals began flowing into his outstretched arms. A
large Bible was on his abdomen under a sheet. Miller's death did not
draw the protesters or crowds that other, more high-profile
executions this year did.
"Maggie, I am sorry," Miller said in his last
statement. "I always wanted to tell you but I just didn't know how.
I have been praying for y'all. I hope that y'all find the peace that
y'all have been wanting." Then he prayed. "Lord, thank you for all
my family, all my friends and all my brothers on the row. Thank you
for my spiritual family. Lord, be merciful with those who are
actively involved with the taking of my life, forgive them as I am
forgiving them. Be merciful to me a sinner."
Then Miller turned to Warden Jim Willett and said,
"All right warden, I am ready to go home." Marjorie Howlett, the
mother of the murdered little girl, stood, crying quietly as Miller
died. "I'm glad I came," she said. "After all these years I finally
got an apology from him."
Miller told authorities he was drunk on tequila
the night of Nov. 11, 1988, when he returned to the house he shared
with a girlfriend in the town of Merkle, near Abilene, and found
April asleep on a sofa. April was his girlfriend's cousin. Miller
woke the little girl and convinced her to go on a ride with him.
Miller was convicted of taking her to a remote
area of Jones County, raping her, then choking and bludgeoning her
to death. Her body was found later that day after hunters spotted
some bloody clothes and a Raggedy Ann doll.
Miller later confessed that he'd killed the girl.
Traces of her blood were found on the tailgate of his pickup. Miller,
a bartender and laborer, had no prior criminal record. He had taken
college courses in law enforcement. Miller asked his attorneys not
to pursue any more appeals after the U.S. Supreme Court declined to
review his case last month.
When his death date was set in August, Miller
asked that he not be brought back to the Jones County Courthouse in
Anson because he didn't want to embarrass his family, Jones County
District Attorney Gary Brown said.
He was the only person sent to death row from the
small Northwest Texas town in the modern era of executions, which
began in 1976. Brown said Miller's case was particularly cruel. "After
what he did to that little girl, I'd like to bring him back here and
put him on the courthouse square and skin him alive," Brown said.
Howlett said the cruelest part of her daughter's
death was that on the day she was reported missing Miller joined in
the search like many others in the small town of Merkle. "He came up
on my porch, and he gave me a hug and was crying. He told me he was
sorry," she said.
Fight the Death Penalty USA
Texas prison officials conducted a record 38th
execution Tuesday evening, putting condemned killer Garry Dean
Miller to death for the rape-slaying of a 7-year-old West Texas girl.
In a last statement, Miller turned to his victim's mother Marjorie
Howlett and said, "Maggie I am sorry. I always wanted to tell you,
but I just didn't know how. I have been praying for y'all. I hope
that y'all find the peace that y'all have been wanting," he said as
Howlett sobbed quietly.
Then he prayed, asking God for peace and thanking
the Lord for his family, for "my brothers on the row" and for his
spiritual family. "Be merciful to me a sinner," he added after
asking for mercy for those who were "actively involved with the
taking of my life."
Then he looked at Warden Jim Willett and said, "All
right warden, I am ready to go home." He took a deep breath then
gasped slightly and stopped breathing. He was pronounced dead 12
minutes later, at 6:23 p.m. CST.
His execution topped the previous record of 37
set 3 years ago. Miller wasn't likely to hold the record long. 2
more executions were set for the next 2 nights, with a convicted cop
killer scheduled to die Wednesday and the convicted murderer of a
liquor store owner set for lethal injection Thursday. Their
punishments would close out the state's record execution tally at
40, 5 more than last year.
At least 7 condemned killers already have
execution dates set for 2001, 3 of them in January. According to the
Washington-based Death Penalty Information Center, the Texas total
is the highest in a state since 1862 when 39 Native Americans were
hanged on a single day in Minnesota. Those executions, however, were
carried out by the military and not the state, the records indicate.
Miller, 33, a former bartender and laborer, was
convicted and sentenced to die for the death of April Marie Wilson,
who was raped, choked and fatally bludgeoned on the tailgate of a
pickup truck, then had her body dragged by hangers through clumps of
prickly pear cactus before it was left in some brush in a cotton
field in Jones County, northwest of Abilene.
"I've got no mercy for this guy," Jones County
District Attorney Gary Brown said. "Too bad they can't draw and
quarter him. Too bad they can't put him up here on the sand and skin
him for a couple of days and let him be tortured like she was and
cut that sucker up and stuff it down his throat and let him choke on
it to death. "That's my attitude. It might not be a Christian one,
but there's no reason for this stuff, for what he did to her."
Miller was believed to have been drinking heavily
when he returned to his girlfriend's house in Merkel, about 15 miles
west of Abilene, in the early morning hours of Nov. 11, 1988. April
Wilson was the girlfriend's cousin, was staying at her house and was
asleep on a couch when Miller arrived.
In a confession to authorities, Miller said he
woke up the girl and asked if she wanted to go for a ride. In the
Jones County cotton field, he raped her on the pickup tailgate, then
choked her and hit her with an object he picked up from the ground.
When Miller's girlfriend awoke the next morning
and April was gone, police were notified and a search began with
Miller among the participants. Quail hunters aware of the missing
girl called police after they found blood-spattered items that
included children's clothing, a blanket and a Raggedy Ann doll. Her
body then was discovered.
Miller was tied to her death and blood evidence
from the tailgate was used against him. Miller, who declined
repeated requests for interviews with reporters, ordered his
attorneys to not pursue appeals once the U.S. Supreme Court refused
to review his case.
No clemency request was made to Gov. George W.
Bush, who had authority to grant a one-time 30-day reprieve. Only
once in his nearly 6 years in office has Bush used the power to stop
an execution and that inmate subsequently was put to death.
At one time Miller had worked with young people
at a Methodist Church-run camp near Merkel. He also had taken
community college courses in law enforcement.
"Apparently he had ambition," said Jack
Willingham, the now-retired district attorney who prosecuted Miller.
"He missed it by a little. Willingham described Miller as a "nice
appearing young man" who had no previous criminal record and who
cooperated with authorities. "I would think there could be a lot
more to him," he said. "I don't know why he kidnapped this little
girl... She was the prettiest little thing, just a pretty little
girl." Willingham said while testifying at his trial, Miller "started
puckering up, tearing up, putting on some emotion. "I walked up and
shook my finger at him and told him to dry that up... I said it's
time for the needle."
Miller becomes the 150th condemened inmate to be
put to death during the tenure of GOvernor George Bush, who assumed
office in January 1995.
(sources: Associated Press & Rick Halperin)
United States Court of Appeals
For the Fifth
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, Respondent-Appellee.
January 5, 2000
Appeal from the United
States District Court for the Northern District of Texas
Before EMILIO M.
GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
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.
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'
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
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
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
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
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
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.
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.
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
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."
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
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.
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 theweek 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
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
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 a "robot," Miller may have committed the
crimes but that he would not have acted deliberately
and that he did not believe that Miller would commit
criminal acts of violence in the future.
Patricia Edwards, testified that Miller was a good
son, was never violent, and would not do "something
like this again." Bill Miller, Miller's father,
testified that Miller did not ever try to "con"
people and that he always was more of a "giver" than
a "taker." Bill Miller testified that he had "a bad
drinking problem" when his son was young and that he
had a violent temper when he was drinking. He would
"slap [Miller's mother] around" while he was
drinking. In his opinion, his son needed psychiatric
treatment and would never repeat this behavior if
such treatment was provided. He did not think that
Miller did this deliberately.
Miller's stepfather, testified that Miller was "absolutely
trouble free" during the twelve years he had known
him. Miller was obedient and well disciplined. He
testified that under normal conditions, it would be
impossible for Miller to have committed the crimes.
He had never seen Miller mistreat an animal. Miller
was "real kind and considerate to animals and people."
Edwards did not think that Miller would commit
criminal acts of violence in the future.
punishment hearing, the jury answered affirmatively
the special issues regarding the deliberateness of
Miller's conduct and the probability of his future
and the court sentenced Miller to death.
On May 12, 1993,
the Texas Court of Criminal Appeals affirmed
Miller's conviction and sentence in an unpublished
opinion, and the Supreme Court denied Miller's
petition for a writ of certiorari. Miller, through
counsel, filed a state application for a writ of
habeas corpus. The trial court issued findings of
fact and conclusions of law, recommending that
Miller's habeas application be denied.
The "findings of
fact" consisted of a brief recitation of the
procedural history of the case and a statement that
Miller's first amended state habeas application did
not allege any new points of error concerning
jurisdictional defects or denials of fundamental
constitutional rights or set forth any new case law
that in the court's opinion would change the opinion
of the Texas Court of Criminal Appeals on direct
appeal. The Texas Court of Criminal Appeals, after
reviewing the record, determined that the findings
and conclusions entered by the trial court were
supported by the record and issued a written
unpublished order denying the habeas application.
On May 21, 1998,
Miller, through counsel, filed the instant federal
petition for a writ of habeas corpus. The respondent
answered and moved for summary judgment, stating
that it believed that Miller had exhausted state
remedies but declining to waive the exhaustion
The district court heard oral argument on the
summary judgment motion. At the hearing, defense
counsel conceded that as to any one of the alleged
instances of ineffective assistance, he probably had
not demonstrated that the ineffective assistance was
"material enough to change the outcome of the trial."
Counsel argued, however, that the court should
assess the representation as a whole.
Miller filed a
response to the motion for summary judgment. The
district court denied Miller's habeas petition,
explaining its decision in a written order. Miller
filed a motion for a COA, which the district court
denied. Miller now requests a COA from this Court.
A. STANDARDS OF
Miller filed his
section 2254 application for habeas relief on May
21, 1998, which was after the April 24, 1996
effective date of the Antiterrorism and Effective
Death Penalty Act (AEDPA). His application is
therefore subject to the AEDPA. Lindh v. Murphy, 521
U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481
(1997). Under the AEDPA, a petitioner must obtain a
COA. 28 U.S.C. 2253(c)(2). A COA will be granted
only if the petitioner makes "a substantial showing
of the denial of a constitutional right." 28 U.S.C.
To make such a
showing, a petitioner "must demonstrate that the
issues are debatable among jurists of reason; that a
court could resolve the issues [in a different
manner]; or that the questions are adequate to
deserve encouragement to proceed further." Barefoot
v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383,
3394 n.4 (1983) (citation and internal quotation
marks omitted). Any doubt regarding whether to grant
aCOA is resolved in favor of the petitioner, and the
severity of the penalty may be considered in making
this determination. Fuller v. Johnson, 114 F.3d 491,
495 (5th Cir. 1997).
prescribes the following standards of review:
(d) An application
for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that
was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--
(1) resulted in a
decision that was contrary to, or involved an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States; or
(2) resulted in a
decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
section 2254(d) applies only to issues that have
been adjudicated on the merits in state court.
In the context of federal habeas proceedings, a
resolution (or adjudication) on the merits is a term
of art that refers to whether a court's disposition
of the case was substantive, as opposed to
procedural. Green v. Johnson, 116 F.3d 1115, 1121
(5th Cir. 1997).
We must determine
whether Miller's claims were adjudicated on the
merits by considering these factors: (1) what state
courts have done in similar cases; (2) whether the
case's history suggests that the state court
recognized any ground for not resolving the case on
the merits; and (3) whether the state courts'
opinions suggest reliance on procedural grounds
rather than an adjudication of the merits.
As for the claims
that Miller now raises that were raised on his
direct appeal, the Texas Court of Criminal Appeals
did hold that one of the claims, prosecutorial
misconduct, was procedurally barred. In regard to
Miller's state habeas proceedings, the state did not
raise a procedural bar in its answer to Miller's
application for state habeas relief, and the trial
court's denial of relief does not expressly mention
the imposition of a procedural bar.
After a review of
the record, the Court of Criminal Appeals "denied"
Miller's application for state habeas relief. Under
Texas law a denial of relief by the Court of
Criminal Appeals serves as a denial of relief on the
merits of the claim. Ex parte Torres, 943 S.W.2d 469
(Tex.Crim.App. 1997). As such, except for the claim
of prosecutorial misconduct, we are persuaded that
the state courts did adjudicate Miller's claims on
This Court reviews
pure questions of law and mixed questions of law and
fact under 2254(d)(1) and reviews questions of fact
under 2254(d)(2). Drinkard v. Johnson, 97 F.3d 751,
767-68 (5th Cir. 1996). Under 2254(d)(1), "an
application of law to facts is unreasonable only
when it can be said that reasonable jurists
considering the question would be of one view that
the state court ruling was incorrect." Drinkard, 97
F.3d at 769. Thus, this court "can grant habeas
relief only if a state court decision is so clearly
incorrect that it would not be debatable among
reasonable jurists." Id. State court findings of
fact are presumed to be correct, and the petitioner
has the burden of rebutting the presumption of
correctness by clear and convincing evidence.
ASSISTANCE OF COUNSEL
Miller raises nine
claims of ineffective assistance of counsel, stating
that he isoffering these examples as a "general
cross-section of the record as a whole." The
district court determined that all Miller's
allegations of counsel's deficient performance were
conclusory and that he had failed to make any
specific demonstration of prejudice as a result of
counsel's deficient performance. Miller fails to
challenge the district court's conclusion on appeal.
This Court has made clear that conclusory
allegations of ineffective assistance of counsel do
not raise a constitutional issue in a federal habeas
proceeding. Ross v. Estelle, 694 F.2d 1008, 1012
(5th Cir. 1983). "In the absence of a specific
showing of how these alleged errors and omissions
were constitutionally deficient, and how they
prejudiced his right to a fair trial, we [can find]
no merit to these [claims]." Barnard v. Collins, 958
F.2d 634, 642 (5th Cir. 1992).
In regard to three
of the nine claims of ineffective assistance, the
entire text of Miller's argument is simply that "[t]rial
counsel failed to preserve error for appellate
review." He then provides approximately twenty-nine
cites to the record. Because Miller failed to set
forth the nature of any of the errors trial counsel
purportedly failed to preserve and did not assert
any resulting prejudice, the district court properly
determined that these three claims of ineffective
assistance were conclusory.
As to the
remaining six claims of ineffective assistance, the
district court also addressed the merits of the
claims, and, exercising an abundance of caution, we
will do the same. To prevail on an ineffective
assistance of counsel claim, Miller must show that
his counsel's performance was deficient and that the
deficiency prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064
argument set forth in regard to his fourth
allegation of ineffective assistance is that his
attorney "denigrated and withdrew Appellant's Motion
to Transfer Venue." A review of the record indicates
that Miller filed a motion for change of venue,
arguing that he could not obtain a fair trial
because of publicity prior to trial and local
prejudice. The motion was supported by an affidavit
signed by counsel's secretary and Miller's sister-in-law.
Subsequently, counsel attempted to withdraw the
motion but the trial court refused.
We agree with the
district court's conclusion that Miller failed to
demonstrate that his counsel's actions were
unreasonable in light of counsel's apparent
inability to find impartial witnesses to support the
motion. Moreover, Miller has not shown that a re-urged
motion would have been granted in the absence of any
elaboration, Miller next claims that counsel "attempted
to make an objection to the State's voir dire
regarding probation or parole ramifications on
sentencing and never does articulate an appropriate
objection so that the trial court can rule." The
record indicates that counsel filed a motion in the
trial court, and the essence of counsel's argument
was that the prosecutor should be prohibited from
implying that if Miller received a life sentence, he
would be eligible for parole within a short period
of time. The trial court denied the motion, stating
that it would not "restrict either party in the voir
dire examination from [discussing] the full range of
punishment." The court noted, however, that the
issue of parole was not part of the court's ruling
as to the motion. The court observed that the issue
of parole was not properly raised in other cases and
the court did not know why this case would be an
As the district
court recognized, counsel made a motion and obtained
a ruling on that motion. Indeed, in response to
counsel's motion, the court made clear that parole
was not a proper issue for voir dire. Miller has not
demonstrated that counsel's performance was
deficient or that he was prejudiced.
asserts that the prosecutor "interjected his belief
that putting Appellant to death is proper. Trial
counsel objected and his objection was sustained but
[counsel] did not go further to perfect this point
individual voir dire of juror Jay Baccus, the
prosecutor stated the following:
I believe the
evidence will show that she was raped, vaginally and
anally; do you see?
And during the
commission of this rape that she was murdered. I
believe the evidence will show that she was choked
but she didn't die, that she was bludgeoned with a
blunt instrument until her head was crushed. I
believe the evidence will show that, and I believe
if selected as a juror that is what you will hear. I
believe that if you believe that beyond a reasonable
doubt that is what the evidence is, I believe that
you too would believe that Garry Dean Miller needs
to be killed; do you see?
objected, arguing that the prosecutor's statements
assumed facts not in evidence and were an attempt to
commit the juror to a course of action. The court
sustained the objection. The court instructed Baccus
that no one was "trying to tie you down to making a
decision today. You can't do it because you don't
have any evidence in front of you." The prosecutor
then stated to the juror that he "certainly [was]
not trying to commit you to anything."
questioning, the prosecutor asked the juror if he
would be able to return an affirmative answer to the
issue of Miller's future dangerousness based solely
upon the instant crime. Defense counsel again
objected, and the court ruled that the prosecutor
had a right to delve into the special issues.
Counsel obtained a running objection. The juror
responded that he would be able to answer yes as to
future dangerousness based solely upon the instant
then stated, "I believe you can. I believe you can
and I believe under the evidence that you will if
selected as a juror." Defense counsel again objected,
and the court sustained the objection. Counsel asked
the court to instruct the juror to disregard the
prosecutor's last comment. In response to counsel's
request, the court again instructed the juror that
he should not be tied down to a specific course of
conduct because he could not make a decision at that
The district court
reasoned that if Miller's claim was that counsel
should have objected on the ground that the
prosecutor improperly was stating his personal
opinion, the claim lacked merit because the
prosecutor was stating that the evidence would
support a death-sentence verdict, which was not
improper under Texas law. The court reasoned that
because any objection on this basis would have been
overruled, Miller was not prejudiced.
Citing Miller v.
the court further reasoned that even assuming the
comments violated due process, trial counsel was not
ineffective for failing to preserve error because
prosecutorial misconduct that rises to the level of
a due process violation does not require an
objection to be preserved for appeal under Texas law.
The district court
reasoned, alternatively, that if Miller's claim was
that counsel should have preserved for appeal the
objection that counsel did make, the claim still
failed because reasonable counsel could have decided
that the first comment by the prosecutor was not so
prejudicialafter the objection was sustained that a
curative instruction was necessary.
The district court
also concluded that the prosecutor did not actually
seek a commitment from the juror, but stated only
that he believed that the evidence would convince
the juror that Miller needed to be sentenced to
death. The district court reasoned that the
prosecutor's second statement that he believed that
the juror would find future dangerousness under the
evidence again did not seek to commit the juror. As
to this second comment, defense counsel did request
an instruction but the court refused to give an
instruction. The district court properly found that
Miller has shown neither deficient performance nor
Miller argues that
trial counsel was ineffective in failing to object
to the introduction of the State's exhibit 95,
Officer Drumheller's offense report. The State
recalled Officer Drumheller during the guilt-innocence
of the trial, who testified as to the requirements
of a business record for State's exhibit 95, a Texas
Department of Public Safety data sheet, containing
handwritten and typewritten information regarding
Miller and the instant crime.
testified that he maintained the forms in the
regular course of business of the Texas Department
of Public Safety. After the State offered the
exhibit, defense counsel stated that he had no
objection, "subject to prior agreement." Drumheller
then testified as to various statements Miller made
to him regarding his physical and mental condition,
which questions and answers, Drumheller testified,
were accurately reflected in the exhibit. Defense
counsel then cross-examined Drumheller.
The district court
determined that defense counsel apparently had
reached an agreement with the State not to oppose
the admission of the document. Although the
agreement was not reflected in the record, the court
presumed that counsel's conduct fell within the
range of reasonable assistance, "especially in the
case of a conscious and informed decision of trial
strategy." The court further noted that Miller made
no attempt to demonstrate why the document was
Miller does not
explain on appeal on what ground counsel could have
objected or argue that the result of the trial was
rendered unreliable as a result of counsel's failure
to object. Miller has shown neither deficient
performance nor prejudice.
Miller also argues
that his counsel failed to object to the
prosecutor's statement to the venire panel that a
verdict of not guilty by reason of insanity allows
the accused to "walk" away "totally free," despite
the fact that the prosecutor's statements violated
Tex. Code Crim. P. Ann. art. 46.03 1(e). During voir
dire, the prosecutor stated that, "if you are insane
at the time of the commission of the offense, sane
at the time of trial you walk. You are through, a
complete and total defense." Defense counsel did not
object. Defense counsel did, however, state later
during voir dire that:
said temporary insanity. If you return a verdict of
temporary insanity Gary Miller walks. That's not
true. That is a totally incorrect statement of the
law. He does not walk. He is subject to psychiatric
incarceration, supervised by the statutes.
defense counsel commented on the issue of temporary
insanity as follows:
Let's go back to
temporary insanity just a minute. This imposes three
types of considerations on the jury: Number one, it
imposes an issue on you individually on how you feel
about temporary insanity. Because if it is brought
up, then it must be considered by you. And the law
will require you to consider it. It is a legal issue
because it is presented as a legal defense. That
does not mean that the defendant walks as [the
prosecutor] said. He does not.
then objected to counsel's statements as purported
misstatements of the law, and defense counsel
responded that they could "read the statute rightnow."
The prosecutor then said, "[r]ead the statute," and
the court responded, "I will instruct the jury on
what the law is with regard to the insanity defense.
The jury has already been instructed that the law
will come from the Court."
presence of the venire panel, defense counsel and
the prosecutor discussed the issue of the
consequences of a verdict of not guilty by reason of
insanity. Defense counsel asked the court to
instruct the jury that the prosecutor misstated the
law by implying that a verdict of not guilty by
reason of insanity would result in Miller going
"free as a bird." The court stated that it could
instruct the jury that neither the prosecutor nor
the defense may inform a juror or prospective juror
of the consequences to the defendant of a verdict of
not guilty by reason of insanity. The court also
stated that it could instruct the jury that any
comments made in voir dire by either attorney should
On direct appeal,
the Texas Court of Criminal Appeals, although
observing that neither attorney should have
commented on the consequences of a verdict of not
guilty by reason of insanity, held that Miller had
not shown prejudice. The court presumed that defense
counsel believed his remark to the venire was
strategically the best method to address the State's
improper comment and that defense counsel believed
that this cured any harm.
Miller has failed
to demonstrate that counsel acted unreasonably. Once
the prosecutor made the comments, defense counsel
could have reasonably believed that an objection, at
best, would have resulted in an instruction to
disregard, in light of article 46.03 1(e), Tex. Code
Crim. P., which prohibits the court, the prosecutor,
or defense counsel from informing the jury of the
consequences of an insanity verdict. As the district
court concluded, it was not unreasonable for counsel
to believe that responding to the prosecutor's
remarks would be more effective in removing any
possible taint from the jury than a simple
instruction to disregard.
Indeed, by not
objecting, counsel used the opportunity to put
before the jury favorable information that he would
not have been allowed to had he made an objection.
Defense counsel used the prosecutor's misstatement
to inform the jury that, in the event Miller was
found not guilty by reason of insanity, Miller would
not be set "free." Such strategy was not
unreasonable. Miller has not demonstrated that
counsel's performance was constitutionally deficient.
Miller argues that
his counsel was ineffective in failing to object
when the prosecutor asked him on cross-examination
if it was "time to get the needle." During the
cross-examination of Miller, the following exchange
Garry, let's quit this -- this is the first time you
have ever pulled a deal like this, isn't it?
Miller: No, sir,
it's not the first time I have cried.
first time anybody has ever seen you?
haven't been over at the jail, sir, watching me.
are scared, aren't you?
Miller: Yes, sir.
I believe anybody would be scared.
time to get the needle, isn't it?
Miller: Sir, I am
testifying because I have to say what I remember.
That's the reason I am testifying, sir.
are testifying trying to save your life, aren't you?
Miller: Sir, I
don't know if I want to live or die, to be honest
with you, sir.
want to tell this jury to put the needle in me, then?
Miller: I will
leave that up to them to judge, sir.
continued regarding Miller's written confession. On
direct appeal, the Texas Court of Criminal Appeals
determined that although the State's remarksmay have
been improper, Miller failed to show how the remarks
prejudiced his defense; the court refused to
speculate as to prejudice.
Miller has not
provided any argument as to why the questioning was
objectionable or in what specific way his trial was
rendered unreliable by the lack of an objection. The
district court reasoned that the questions were a
proper method of impeaching the purported basis for
Miller's emotional outburst by suggesting that
Miller was crying because of the impending
punishment, not because of his own remorse. Under
those circumstances, Miller has failed to show that
counsel's performance was deficient or that he
suffered any prejudice.
Miller has not made a substantial showing of the
denial of a federal right. Miller therefore is not
entitled to a COA on these claims.
OF EVIDENCE TO SUPPORT SPECIAL ISSUE TWO
that the evidence was insufficient to support the
jury's affirmative answer to the second special
issue during the punishment phase, namely, whether
there is a probability that Miller would commit acts
of violence constituting a continuing threat to
society beyond a reasonable doubt. He asserts that
the evidence introduced to demonstrate his future
dangerousness was confined largely to the brutal and
vicious nature of the murder. If that is sufficient,
he argues, then virtually any murder involving the
aggravated sexual assault of a child would also
support such a verdict.
examines all the evidence in the light most
favorable to the verdict to determine whether any
rational trier of fact could have found the issue in
controversy to have been proven beyond a reasonable
doubt. Callins v. Collins, 998 F.2d 269, 276 (5th
Cir. 1993). We apply this standard looking to the
state's substantive law, giving great weight to the
state court's determination. Foy v. Donnelly, 959
F.2d 1307, 1313-14 (5th Cir. 1992). Under Texas law,
although a number of factors may be considered in
making the determination as to future dangerousness,
the facts of the crime alone, if severe enough, can
be sufficient to support the affirmative finding to
the special issue. Vuong v. State, 830 S.W.2d 929,
935 (Tex.Crim.App. 1992).
On Miller's direct
appeal, the Texas Court of Criminal Appeals opined
The evidence was
sufficient to support the jury's affirmative finding
to special issue number two for numerous reasons.
While some evidence does militate against this
finding (appellant's clean criminal record), any
such evidence is far outweighed by the aggravating
The facts of the
murder itself show that appellant was just shy of
twenty-one years of age, whereas, the victim was
only seven. While these facts do not indicate that
the murder was premeditated, they do illustrate that
appellant brutally raped the victim, vaginally and
anally, before he very deliberately and repeatedly
choked and beat her to death.
still working alone, appellant attempted to conceal
the murder and faked concern by appearing to help
look for the girl when she was reported missing.
Additionally, while allegedly mitigating evidence of
appellant's good behavior in school, work, and
prison was presented, evidence was also presented
that appellant could be "violent and disruptive
psychiatric evidence was presented by Dr. E. Clay
Griffith that, based upon the brutal facts of the
murder, the attempt at concealing the occurrence,
and the subsequent lying to maintain the charade,
there was every reason to believe that some sort of
violence would occur again in the future. Viewed in
its entirety the evidence was such that a rational
trier of fact could have found beyond a reasonable
doubt that appellant would probably commit criminal
acts of violence that would constitute a continuing
threat to society.
The evidence in
this case is that Miller acted alone and that his
conduct in committing the crime was very deliberate.
The pathologist 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 and
multiple times. Numerous contusions and abrasions
had been inflicted on the seven-year old victim's
face; her right jaw was fractured, and there were
injuries on the ball of her foot, indicating that
she had put her foot down, possibly while being
dragged. She sustained excessive injuries to both
the anal (a five-inch tear in her colon) and vaginal
cavities that, in the pathologist's opinion, were
caused by an object, other than a penis, in excess
of five inches.
Dr. Griffith, a
psychiatrist called by the State, testified that it
was his opinion that 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 as to his actions
following the killing.
Also, the defense
called a psychologist, Dr. Karlson, who testified
that Miller had committed the crimes during a
dissociative episode. Karlson disagreed with
Griffith's conclusion that Miller had an antisocial
personality. He did not believe that Miller
consciously, intentionally, or deliberately planned
a rape and murder because he was acting on "automatic
pilot." Karlson did however acknowledge the
possibility that Miller would commit criminal acts
of violence in the future, but he thought there was
little likelihood of future violence because prior
to the murder Miller was nonviolent. Karlson
believed that treatment would virtually guarantee
that Miller would not continue to commit violent
Although there was
some evidence militating against a finding of future
dangerousness, the evidence must be viewed in the
light most favorable to the verdict. Here, the
evidence of Miller's deliberateness and brutality in
the execution of this heinous crime, coupled with
the psychiatric testimony, amply support an
affirmative finding to the issue of future
dangerousness. See Vuong, 830 S.W.2d at 935 (explaining
that crime was of such a calculated and brutal
nature that, even without expert psychiatric
testimony and prior extraneous offenses, a rational
jury could have found that the defendant was a
continuing threat to society).
Miller has failed
to make a substantial showing of the denial of a
federal right. Indeed, the state court's conclusion
that the evidence was sufficient to support an
affirmative findingregarding Miller's future
dangerousness did not result in a decision that was
contrary to, or involve an unreasonable application
of clearly established federal law, as determined by
the Supreme Court of the United States. 28 U.S.C.
INSTRUCTIONS REGARDING EFFECT OF A "NO" VOTE
At the punishment
phase, the jurors were instructed that if all twelve
jurors find that the State has proven a special
issue beyond a reasonable doubt, the presiding juror
will record the jury's answer of "yes." The charge
instructed that if ten or more jurors vote "no,"
then the answer of the jury shall be "no" to that
Miller argues that
because the jurors were not instructed that the
consequences of a failure to reach either of the
above two options was a life sentence,
the risk that one or more jurors would change a vote
to satisfy the majority is too great to pass muster
under the Eighth Amendment. More specifically, he
contends that the charge mislead the jury regarding
the effect of a "no" vote by a single juror as to
either special issue.
He asserts that the jurors were instructed that they
had only two options: either the jurors would
unanimously agree to answer all of the special
issues affirmatively, which would result in the
imposition of a death sentence; or at least ten
jurors would agree to answer one or more of the
special issues negatively, which would result in the
imposition of a life sentence.
Miller's assertion, the jury at his trial was
instructed what to do if they did not reach
agreement as set forth in the charge. The jury
instructions provided that if there was any special
issue on which the vote of the jurors was not
unanimously 'yes' or not at least ten in favor of an
answer of 'no,' there should be no answer for that
special issue and the presiding juror should not
sign his or her name to any answer form for that
relying on Mills v. Maryland, 486 U.S. 367, 108 S.Ct.
1860 (1988), Miller asserts a reasonable juror could
have believed that their individual vote was not
meaningful unless some threshold number of jurors
were in agreement on that particular special issue.
This claim will afford Miller no relief.
In Mills, the
Supreme Court held that the Eighth Amendment was
violated because the jury instructions may have
precluded the jury from considering mitigating
evidence unless all twelve jurors agreed that a
particular circumstance was supported by the
evidence. 486 U.S. at 384, 108 S.Ct. at 1870.
Subsequent to Mills, the Supreme Court has explained
that "Mills requires that each juror be permitted to
consider and give effect to mitigating evidence when
deciding the ultimate question whether to vote for a
sentence of death." McKoy v. North Carolina, 494
U.S. 433, 442-43, 110 S.Ct. 1227, 1233 (1990).
This Court has
explained that Mills is not applicable to the
capital sentencing scheme in Texas. We have
concluded that "[u]nder the Texas system, all jurors
cantake into account any mitigating circumstance.
One juror cannot preclude the entire jury from
considering a mitigating circumstance." Jacobs v.
Scott, 31 F.3d 1319, 1329 (5th Cir. 1994). "Mills
does not require a certain number of jurors to agree
to impose the death penalty." Id. Miller's jury was
instructed in conformity with Texas law. In light of
our precedent, Miller has not made a substantial
showing of the denial of a constitutional right.
Moreover, our precedent precludes him from
demonstrating that the state court's resolution of
this claim involved an unreasonable application of
clearly established federal law as determined by the
E. PENRY CLAIM
Miller argues that
the jury charge did not allow the jury to express a
proper moral reaction to the mitigating evidence. He
contends that the evidence that he was suffering
from a severe mental illness, a dissociative episode,
during the offense, should have been considered by
the jury during its deliberations on punishment. He
argues that the charge instructed that the jury
could not consider such evidence as sufficient to
answer negatively on either punishment issue. Miller
argues that the jury instructions were
unconstitutional under Penry v. Lynaugh, 492 U.S.
302, 109 S.Ct. 2934 (1989).
but was denied, the following instruction on
punishment, "[a]ny evidence that is concluded
mitigating against the imposition of the death
penalty may be sufficient to require a no answer to
the issues." The jury was instructed, in part, as
You are instructed
that if you return an affirmative finding on each of
the special issues submitted to you, the Court shall
sentence the defendant to death. You are further
instructed that if you return a negative finding on
any special issue submitted to you the Court shall
sentence the Defendant to the Texas Department of
Corrections for life. You are therefore instructed
that your answers to the special issues which
determines the punishment to be assessed the
Defendant by the Court should be reflective of your
finding as to the personal culpability of the
Defendant, Garry Dean Miller, in this case.
You are instructed
that when you deliberate on the questions posed to
you in the special issues you are to consider
mitigating circumstances, if any, supported by the
evidence presented in both phases of the trial
whether presented by the State or by the Defendant.
A mitigating circumstance may include but is not
limited to any aspect of the Defendant's character
and record or circumstances of the crime which you
believe could make a death sentence inappropriate in
If you find that
there are any mitigating circumstances in this case
you must decide how much weight they deserve, if any,
and thereafter give effect and consideration to them
in assessing the Defendant's personal culpability at
the time you answer the special issue. If you
determine when giving effect to the mitigating
evidence, if any, that a life sentence as reflected
by a negative finding to the issue under
consideration rather than a death sentence is an
appropriate response to the personal culpability of
the Defendant a negat ive finding should be given to
the special issue under consideration.
The jury at the
punishment phase of a capital case must be permitted
to give effect to any constitutionally relevant
mitigating evidence. See Green v. Johnson, 116 F.3d
1115, 1126 (5th Cir. 1997) (citing Eddings v.
Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875
(1982)). In Penry, the Supreme Court reversed a
death sentence on the ground that, although the
evidence regarding the defendant's mental
retardation and childhood abuse was presented to the
jury at the penalty phase of the trial, the special
issues prescribed by Texas statute preventedthe jury
from giving mitigating effect to that evidence.
Penry, 492 U.S. at 328, 109 S.Ct. at 2952.
On direct appeal,
the Texas Court of Criminal Appeals acknowledged
that the mitigating evidence, that Miller was
suffering from a "'very severe mental disorder'" at
the time of the offense which "'interfered with his
knowing right from wrong,'" "may or may not have
been considered mitigating evidence of the type
contemplated by the Supreme Court in Penry." The
Court concluded that the trial court's instruction
on mitigating circumstances provided the jury with
an adequate vehicle to express and to give effect to
its "reasoned moral response" to Miller's mitigating
evidence, if any existed.
In Penry, "[t]he
jury was never instructed that it could consider the
evidence offered by Penry as mitigating evidence and
that it could give mitigating effect to that
evidence in imposing sentence." 492 U.S. at 320, 109
S.Ct. at 2947. The Supreme Court rejected "the
State's contrary argument that the jury was able to
consider and give effect to all of Penry's
mitigating evidence in answering the special issues
without any jury instructions on mitigating evidence."
Id. at 322, 109 S.Ct. at 2948.
unlike Penry's, was instructed that it should
consider mitigating evidence when deliberating on
the special issues and that a mitigating
circumstance may include, but is not limited to, any
aspect of Miller's character and record or
circumstances of the crime which the jury believed
could make a death sentence inappropriate.
The jury was
instructed that if it identified any mitigating
circumstances, it should weigh them and give effect
and consideration to them in assessing Miller's
personal culpability. The jury was instructed that
if it determined when giving effect to the
mitigating evidence, if any, that a life sentence
rather than a death sentence was an appropriate
response to Miller's personal culpability, a
negative finding should be given to the special
issue under consideration. Miller has not
demonstrated that his requested instruction was
required under Penry or that the challenged
instructions were barred by Penry. He has not shown
that the jury was prevented from considering the
evidence of his dissociative condition at the time
of the offense. Therefore, we conclude that he has
not made a substantial showing of the denial of a
JURY REGARDING PAROLE ELIGIBILITY
Miller argues that
his due process and Eighth Amendment constitutional
rights were violated because the trial court failed
to inform the jury during the punishment phase of
the trial that he would not be eligible for parole
for fifteen years if he received a life sentence.
Relying on Simmons v. South Carolina, 512 U.S. 154,
114 S.Ct. 2187 (1994), Miller argues that, had the
jury been informed that a life sentence would
require him to spend fifteen calendar years in
prison before becoming eligible for parole, a member
of the panel could have been convinced that he would
not pose a future danger.
In Simmons, the
Supreme Court held that if the defendant's future
dangerousness is at issue and state law prohibits
the defendant's release on parole, due process
requires that the sentencing jury be informed that
the defendant is ineligible for parole. 512 U.S. at
156, 114 S.Ct. at 2190. This Court has explained
that Simmons requires that a jury be informed about
a defendant's parole ineligibility only when (1) the
state argues that a defendant represents a future
danger to society, and (2) the defendant is legally
ineligible for parole. Allridge v. Scott, 41 F.3d
213, 222 (5th Cir. 1994) (footnote omitted). Miller
concedes that Simmons is distinguishable because
Simmons was not eligible for parole and "would have
effectively spent his natural life in the
penitentiary." More to the point, because Miller
would have been eligible for parole under Texas law
if sentencedto life, we find his reliance on Simmons
In addition to
asserting a due process claim, Miller argues that
the jury should have been instructed as to parole
eligibility in regard to a life sentence under the
Eighth Amendment. "We have consistently held,
however, that neither the due process clause nor the
Eighth Amendment compels instructions on parole in
Texas." Johnson v. Scott, 68 F.3d 106, 112 (5th Cir.
Once again, in
light of this Court's precedent, Miller has not made
a substantial showing of the denial of a
constitutional right with respect to this claim.
Further, he cannot show that the state court's
denial of relief on this claim involved an
unreasonable application of clearly established
federal law as determined by the Supreme Court.
Miller argues that
an erroneous statement of law by the prosecutor
during voir dire as to the consequences of a verdict
of not guilty by reason of insanity violated his
constitutional rights. As discussed above in the
context of an ineffective assistance of counsel
claim, during voir dire, the prosecutor stated, "you
see, if you are insane at the time of the commission
of an offense, sane at the time of trial you walk.
You are through, a complete and total defense."
As Miller asserts,
under Tex. Code Crim. Proc. Ann. art. 46.03 1(e), "[t]he
court, the attorney for the state, or the attorney
for the defendant may not inform a juror or
prospective juror of the consequences to the
defendant if a verdict of not guilty by reason of
insanity is returned." On Miller's direct appeal,
the Texas Court of Criminal Appeals opined that "[a]s
no timely objection was made, nothing has been
preserved for our review."
The court below
therefore held that this claim was procedurally
barred. If a state court has explicitly relied on a
procedural bar, a state prisoner may not obtain
federal habeas relief absent a showing of cause for
the default and actual prejudice that is
attributable to the default. Coleman v. Thompson,
111 S.Ct. 2546, 2565 (1991). Miller does not
specifically argue that he has shown cause and
prejudice sufficient to lift the procedural bar.
discussed previously in a separate argument, he does
contend that counsel rendered ineffective assistance
by failing to object to these remarks. Because we
have determined that counsel did not render
ineffective assistance, Miller cannot demonstrate
cause and prejudice to overcome the procedural bar.
Miller has not made a substantial showing of the
denial of a constitutional right and is not entitled
to a COA on this claim.
In sum, Miller has
not shown that any of his claims are debatable among
jurists of reason, that a court could resolve the
issues in a different manner, or that the questions
are adequate to deserve encouragement to proceed
further. Drinkard, 97 F.3d 751, 755-56 (5th Cir.
1996). Because Miller has failed to make a
substantial showing of the denial of a
constitutional right, we DENY his request for a COA.