Bieghler has last clemency hearing

By Jason Miller - Michigan City News Dispatch

January 21, 2006

During a clemency hearing at the Indiana State Prison on Friday, Marvin Bieghler blamed police, his former bodyguard and his number-one drug distributor for the double murder for which he was sentenced to death in 1983.

The tales of court corruption, dirty police and lying associates the 58-year-old relayed, though, might not make a difference to the Indiana Parole Board. “We have no ability to investigate. That's not our role,” Parole Board Chairman Raymond Rizzo said Friday. “Our role is the question of clemency. We take everything into consideration, but the ultimate decision is the governor's.”

Bieghler, convicted of killing Tommy Miller and Miller's pregnant wife, Kim, in a Kokomo home in the early 1980s, asked the parole board at his final clemency hearing Friday to set him free. He's scheduled to be executed in the early morning Jan. 27.

Bieghler asked for a new trial or a release from prison Friday, saying he couldn't spend the rest of his life in prison for a crime he says he didn't commit. “I'm not here begging you people for my life,” Bieghler said. “Life without parole for something I didn't do ... I'd rather die. “I'd rather you just put me on that gurney. If I can't get out and go fishing and hunting, the courts can kiss my Marine Corps ass.”

Bieghler was convicted of killing the couple in retribution for what police said was Bieghler's contention that Tommy Miller had turned Bieghler in to police. Bieghler - who was a middle-man for a Florida-based marijuana business - spent nearly three hours Friday refuting the claim, telling the board his marijuana distributor paid Bieghler's then bodyguard and partner - Harold “Tommy” Brook - to kill the pair. He claimed the distributor blamed Tommy Miller for “snitching,” leading to the distributor's arrest.

Bieghler said he never dealt with any drug customers except the distributor and added the distributor and Tommy Miller “had a beef” for years. Bieghler also claimed prosecutors suppressed evidence and that police were involved in drug dealing.

He said he possesses information that will prove his innocence. “I didn't kill those kids,” he said. “I can't get anyone to believe me. I've got proof, but the court said it's irrelevant. It's not irrelevant to me.”

Bieghler sat before the parole board in a red, prison-issue jumpsuit, continually rubbing a raised piece of cloth on his thigh between his thumb and forefinger.

The chain on the shackles that bound his ankles just above the top of his white, New Balance sneakers noisily dropped onto the floor each time he'd raise his legs to stretch. His attorney, Lorinda Youngcourt, sat next to Bieghler, smiling or turning her head at nearly every word he spoke.

At times Bieghler laughed, as did board members, who jovially commented about the life of a drug dealer and of a former soldier. Bieghler served a combat tour in Vietnam and blamed, in part, that service on his turn toward drugs.

He told members he was a heavy marijuana smoker and had done other drugs in the past. At the end of Friday's hearing, Bieghler said his 23 years of appeals were likely done. “If I can't get out, let's just get at it,” he said. “I told the truth. That's all I can do.”

Bieghler v. State, 481 N.E.2d 78 (Ind. July 31, 1985) (Direct Appeal).

Defendant was found guilty in the Superior Court, Howard County, Dennis Perry, J., of two counts of intentional murder and one count of burglary. Defendant appealed. The Supreme Court, Pivarnik, J., held that: (1) evidence was sufficient to allow jury to reasonably determine that defendant intentionally killed both victims; (2) evidence was sufficient to prove breaking and entering and to support conviction for burglary; (3) lack of requirement that jury enter written findings to justify death recommendation did not preclude finding that jury had sufficient reason to so recommend and did not prevent Supreme Court from adequately reviewing imposition of death penalty; (4) two jurors who were opposed to death penalty and stated unequivocally that they could not vote for death penalty under any circumstances, were properly excused for cause; (5) coroner was not qualified to give opinion on time of death; (6) arguments as to propriety of certain rulings of trial court concerning admission of certain testimony and physical evidence had been waived; (7) prosecutor did not make any improper remarks during final argument; (8) videotape available to all counsel informed defense counsel as to all items of physical evidence at scene of crime; (9) capital punishment scheme is not unconstitutional; (10) trial court did not commit reversible error by refusing defendant's request for second voir dire of jury after verdicts and before sentencing; (11) defense counsel was not ineffective; and (12) imposition of death penalty was appropriate. Affirmed; remanded.

PIVARNIK, Justice.

Defendant-Appellant Marvin Bieghler was found guilty by a jury in Howard Superior Court of two counts of intentional murder and one count of burglary. The jury moreover recommended that the death sentence be imposed on both counts of murder.

The trial judge found that the jury had properly and lawfully found the death sentence appropriate and accepted the jury's recommendation. The trial judge then imposed the death sentence on Appellant Bieghler. The trial judge did not sentence Bieghler on the burglary conviction.

The facts adduced during Appellant's trial show that at approximately 10:30 a.m. on December 11, 1981, Kenny Miller went to the trailer near Kokomo occupied by his brother, twenty-one year old Tommy Miller, and sister-in-law, nineteen year old Kimberly Miller, and found both of them dead. Kimberly, pregnant with child, was lying in the doorway to their bedroom and Tommy was lying dead at the end of the bed.

The evidence also showed that Tommy Miller sold drugs for Appellant and Appellant admitted he was in the business of buying drugs in Florida and selling them in the Kokomo area.

One of Appellant's constant companions was his bodyguard, Harold "Scotty" Brook. Brook testified, as did others, that someone had informed the police and caused the arrest of one of Appellant's chief operatives thereby causing the confiscation of a large amount of his marijuana.

The expression in the drug culture for informing or "snitching" on an operation is "dropping a dime." Appellant had many times made the statement that if he ever discovered who "dropped a dime" on him, he would "blow him away."

It developed that Tommy Miller became suspect as the one who had informed and Appellant many times stated to Brook and other people that he was going to get Miller. Appellant was known to carry an automatic pistol described as a "super .38."

On the evening of December 10, 1981, Brook testified that he and Appellant smoked marijuana and drank alcoholic beverages. During this evening, Appellant spoke of getting Tommy Miller. Finally, at around 11:00 p.m., Appellant said, "Let's go," and he and Brook went out to Appellant's automobile.

Appellant drove to the neighborhood of Miller's trailer where Brook said he tried to stop Appellant but could not hold him back. Appellant went to the trailer, opened the door and walked to the bedroom door with his pistol in his hand. Brook's testimony equivocated as to whether or not he heard any shots at this time.

At one time, he told the police he did hear shots but at another time, and on the witness stand, he said he did not hear any shots. It is not clear whether Brook says none were fired or just that he didn't hear them.

Notwithstanding, Brook said that the gun in Appellant's hand was leveled at something in the room and he saw the baby's face with an expression which suggested the baby was crying but he did not hear any cries.

Appellant then came out of the room smiling and rushed from the trailer. Appellant later was distraught and crying and said he had to leave town immediately. He very shortly left for Florida.

Eighteen issues are alleged and presented for our review in this direct appeal as follows: 1. insufficiency of the evidence; 2. failure of Indiana's capital punishment scheme to require written findings by the jury; 3. improper jury selection; 4. denial of Appellant's motion for an increased number of peremptory jury challenges; 5. exclusion of the coroner's testimony as to time of death; 6. improper evidentiary rulings; 7. prosecutorial misconduct; 8. improper cross-examination of Appellant; 9. granting of a motion in limine concerning testimony of witness Brook; 10. failure to bring Appellant to trial within 120 days of his extradition; 11. improper discovery by State; 12. improper vesting of power in the prosecutor to elect who should receive the death penalty; 13. improper guidelines for the sentencing trial judge; 14. no meaningful and sufficient appellate review afforded one receiving the death penalty; 15. improper scheme by which death penalties can be initiated by information rather than indictment; 16. denial of Appellant's motion to re-voir dire the jury between the guilt and penalty phases of his trial; 17. modification of Appellant's tendered instruction No. 30 and trial court's refusal to give certain other instructions tendered by Appellant; and 18. incompetency of counsel. I

Appellant first claims that the State's evidence was insufficient to convict him in that the State failed to prove that the alleged crimes occurred during the period of time specified in the State's response to his notice of alibi. The State's response indicated that it intended to prove Appellant committed the alleged crimes between 10:30 p.m. and 1:00 a.m. during the night of December 10-11, 1981.

Appellant's argument is based on the fact that there apparently is a conflict of evidence regarding the time these crimes occurred. In a sufficiency question, of course, this Court will not reweigh the evidence nor judge the credibility of witnesses. We consider only that evidence most favorable to the State together with all reasonable inferences to be drawn therefrom.

If there is substantial evidence of probative value to support the conclusion of the trier of fact, even though there is some conflict in that testimony, the verdict will not be overturned. Fielden v. State, (1982) Ind., 437 N.E.2d 986. This is because the resolution of conflicts in the evidence is within the province of the jury.

Brook testified that he spent the evening with Appellant, leaving a tavern around 11:00 p.m. He stated that after Appellant murdered the Millers, they picked up Appellant's girlfriend, Thelma McVety, from her work by 11:15 p.m. McVety said she left her work area at a few minutes after 11:00 p.m. expecting to be immediately picked up by Appellant.

There was testimony from McVety and a co-worker that McVety became upset because Appellant was late. McVety testified that she was picked up by Appellant between 11:15 and 11:20 p.m. Fay Nova, Tommy Miller's mother, testified that she talked to Miller at about 11:20 p.m.

Appellant's argument is that considering the testimony of Nova and McVety, Tommy Miller would still have been alive after the time that Brook said he and Appellant were at the trailer. Therefore, Appellant's argument follows, Brook's testimony that Appellant murdered the Millers shortly after 11:00 p.m. cannot be believed.

An examination of all of the testimony of these witnesses, however, shows that none of them testified with any particular accuracy. Instead, each spoke generally of the time sequences involved but did not indicate that they looked at a watch or compared the time with that of some other incident which would exactly fix the time of each event. Whatever the case, the variance of time suggested by the testimonies of all of these witnesses amounts to no more than fifteen or twenty minutes.

The jury could reasonably find that none of the witnesses was testifying about an exact minute and thereby could have resolved all of their testimony in that manner.

This alleged conflict therefore does not amount to insufficiency of the evidence warranting reversal but rather amounts to a minor conflict in the evidence that we will not disturb on appeal.

Appellant further claims insufficiency of the evidence with regard to the only eyewitness, Scotty Brook. Appellant first attacks Brook's testimony as lacking credibility due to his character and his testimony that he was drinking alcohol and ingesting marijuana on the night in question.

Questions about the character or sobriety of a witness, of course, go to the weight of that witness' testimony and not to its admissibility.

Only when certain testimony is inherently improbable or coerced, equivocal, wholly uncorroborated, or of incredible dubiosity, will the appellate court impinge on the jury's prerogative of decision. Rodgers v. State, (1981) Ind., 422 N.E.2d 1211. No such inherent improbability appears in Brook's testimony.

Appellant also claims that Brook's testimony does no more than show that Appellant was present at the victims' trailer and had an opportunity to commit these crimes. He cites us to Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657 [Justices Givan and Arterburn dissenting] and Manlove v. State, (1968) 250 Ind. 70, 232 N.E.2d 874, reh. denied 250 Ind. 70, 235 N.E.2d 62. In Manlove, the defendant and the deceased were seen together in public leaving a tavern and the deceased subsequently was found dead in a canal about twelve hours later.

There was no evidence that the defendant was near the canal or at the scene of the crime during the time of its commission and the evidence therefore was found insufficient. In Glover, the evidence showed only that the defendant was in the general area of the crime: on a public street near a crowded tavern and on a natural route to the parking lot. Some scuffle had been witnessed between the defendant and the deceased earlier but no one put him at the actual scene of the crime.

The court accordingly found no evidence from which a reasonable jury could infer that the defendant stabbed the victim and therefore reversed the conviction.

In this case, however, Brook testified that he accompanied Appellant to the trailer with Appellant stating his intent to kill Miller. When the bodies were found the next morning at 10:30, some rigor mortis had set in indicating the victims had been dead for some time although the pathologist, Dr. Pless, said it was impossible to determine the exact time of death.

Brook testified that Appellant had with him at the crime scene his super .38 caliber pistol. Shell casings found at the scene were of the super .38 variety as were the slugs found in the bodies of the victims and in the woodwork of the room. Brook's only equivocation was that he did not hear any shots. He did not explain whether he meant no shots were fired or whether he just didn't hear them. His description of the scene indicated that Appellant fired his pistol but Brook said he could not recall hearing sounds, including the baby crying.

A dime was found near the body of each victim which was considered significant since Appellant was known to talk about someone "dropping a dime" on him. Appellant told Brook and many others that he intended to "blow [Miller] away" and also told Brook when they headed toward the trailer that he was going to do it then.

His subsequent actions in being distraught and in immediately leaving the area further confirmed this. Brook's testimony therefore did more than simply place Appellant at or near the scene of the crime. Accordingly, we find sufficient evidence from which the jury could reasonably determine that Appellant intentionally killed both of the Millers.

Appellant further claims that there was not sufficient evidence to find him guilty of burglary. Ind.Code § 35-43-2-1 (Burns 1985) dictates that to prove a burglary requires the showing of a breaking and entering of the building or structure of another person with intent to commit a felony therein.

The evidence above clearly establishes that Appellant entered the Millers' trailer with an intent to kill the Millers. There need not be a showing of actual fracturing or of some physical damage to an entryway in order for there to be an illegal entry.

Brook testified that Appellant put his hand in his jacket pocket and gripped the doorknob through his jacket so as not to leave fingerprints. He then simply turned the knob and opened the door, indicating that the door was not locked. This was sufficient to prove a breaking and entering.

* * *

Having disposed of all of the issues raised by Appellant we now review the propriety of the death penalty in Appellant's case pursuant to our responsibility to do so.

An examination of the record of this cause clearly supports the conclusion of the trial court that the imposition of the death penalty was appropriate considering the nature of the offense and the character of the defendant. The trial judge made very detailed findings and demonstrated his reasons for coming to the judgment he did.

Appellant was upset when he concluded that Miller had informed on him causing him to lose a great deal of his drug supplies and placing him in jeopardy because he was not able to pay the considerable debts he owed to his Florida suppliers. Appellant openly expressed an intent to "blow [Miller] away" and obtained the weapon to do so. The facts amply demonstrated beyond a reasonable doubt that Appellant killed both the Millers in their bedroom with that weapon.

The trial court found that the Millers were murdered in execution style since each was shot while standing and then again while lying on the floor of their bedroom; whether either was conscious or unconscious, we shall never know. They were shot several times and the angle of trajectory indicates the person who did the shooting was standing directly above each victim.

This is not a case of a shooting involving a burglar who was surprised while burglarizing a home. The facts established that Appellant entered the house trailer in the manner of a classical burglary but with a state of mind bent upon liquidating the occupants.

The trial court then found that the State had proved beyond a reasonable doubt the aggravating circumstances and carefully reviewed all potential mitigating circumstances finding that the mitigating circumstances did not in any way affect the conclusions mandated by the aggravating circumstances. The trial court found the jury recommendation to be proper and lawful and accepted that recommendation and imposed the death penalty.

The trial court fully complied with the proper procedures mandated in the statute and case law on this subject and we find that the imposition of death recommended by the jury and imposed by the trial court was not arbitrarily or capriciously arrived at and is reasonable and appropriate considering the nature of this offense and the character of this offender. We affirm the trial court in its judgment including its imposition of the death penalty.

This cause is remanded to the trial court for the sole purpose of setting a date for the death sentence to be carried out. GIVAN, C.J., and DeBRULER and PRENTICE, JJ., concur. HUNTER, J., not participating.

Bieghler v. State, 690 N.E.2d 188 (Ind. 1997) (PCR)

After his murder convictions and sentence of death were affirmed, 481 N.E.2d 78, defendant petitioned for postconviction relief. The Howard Superior Court, Bruce C. Embrey, Special Judge, denied relief, and defendant appealed.

The Supreme Court, Shepard, C.J., held that: (1) defendant did not receive ineffective assistance on direct appeal or at trial; (2) instructions on accomplice testimony and reasonable doubt were proper; and (3) reading of Bible by juror during sequestration did not deprive defendant of fair trial. Affirmed.

SHEPARD, Chief Justice.
Marvin Bieghler appeals the denial of post-conviction relief concerning his 1983 conviction and death sentence for the murders of Tommy Miller and his pregnant wife, Kimberly. Bieghler raised eighteen claims in his direct appeal, and this Court affirmed in all respects. Bieghler v. State, 481 N.E.2d 78 (Ind.1985).

On post-conviction, Bieghler raises a collection of claims under the rubric of seven arguments: I. Ineffective assistance of appellate counsel in his direct appeal; II. Ineffective assistance of counsel at trial; III. Improper instruction on accomplice testimony; IV. Error in the jury instructions; V. Improper jury selection and jury misconduct; VI. Cumulative error during the penalty phase, rendering his death sentence unreliable; and VII. Constitutionality of capital sentencing statute. We affirm the post-conviction court.

Facts

Tommy and Kimberly Miller were found dead in the bedroom of their trailer on the morning of December 11, 1981. Tommy Miller sold marijuana supplied to him by Bieghler, who was a marijuana "wholesaler" in the greater Kokomo area.

The couple had been shot with nine rounds from an automatic .38 calibre pistol at point-blank range. A dime was found near each body.

Harold "Scotty" Brook was Bieghler's partner in his marijuana business, accompanying Bieghler on numerous occasions to Florida where Bieghler received large quantities of the drug for transportation back to Kokomo.

Brook and others testified that someone had "dropped a dime" on one of Bieghler's main distributors (i.e., informed the police on him) resulting in the distributor's arrest and the confiscation of a large amount of marijuana "fronted" to him by Bieghler.

This loss effectively put Bieghler out of business. The witnesses testified that Bieghler repeatedly declared he would "blow away" whoever had "dropped a dime" on his distributor.

According to Brook, after Tommy Miller became the suspected "snitch," Bieghler stated on many occasions that he would get Miller.

Brook, who cut a beneficial deal with the prosecutor on unrelated charges in exchange for his testimony, testified that he and Bieghler spent the afternoon and evening of December 10, 1981, drinking beer and smoking marijuana. They eventually wound up at a bar in Galveston, Indiana, a small town in the southeast corner of Cass county.

At around 10:30 p.m. Brook, Bieghler, and Brook's brother Bobby John left the bar and traveled to the Millers' trailer, which was located in a rural part of southwestern Howard county near Russiaville.

Bieghler parked down the road from the trailer, walked across a field and entered. Brook was following. Upon entering the darkened trailer, Brook saw Bieghler, standing, pointing his "super .38" into one of the rooms.

Brook claims he did not hear anything while in the trailer, neither gunshots nor the cry of the Millers' small child who Brook saw standing up in his nearby crib with a crying expression on his face.

Bieghler ran out of the trailer and back to the car with Brook in tow. The group proceeded to Kokomo where they picked up Bieghler's girlfriend, Thelma McVety, from work at around 11:10--11:15 p.m. After dropping McVety off at her house, Brook, his brother, and Bieghler went to the Dolphin Tavern in Kokomo, arriving at 11:30 p.m.

Brook and Bieghler then went back to McVety's, where Bieghler tearfully told her that he had to go to Florida, and then left for Florida alone. Bieghler's "super .38" was never introduced at trial, but nine shell casings found at the murder scene matched casings found at a remote rural location where Bieghler fired his gun for target practice.

An expert testified that the two sets of casings were fired from the same gun, which had to have been one of only three types of automatic .38 calibre pistols, one of which was the "super .38."

Bieghler's trial counsel vigorously argued that Bieghler could not have committed the crimes during the time Brook testified the pair went to the Millers' trailer.

He called several witnesses who testified about the extremely hazardous, icy road conditions around the Miller trailer that night which would have prevented a round trip from Galveston, to the trailer, and then to McVety's workplace in forty-five minutes.

He also called several witnesses who said they spoke with Tommy Miller on the phone that evening after 11 p.m. Nevertheless, the jury found Bieghler guilty of two counts of murder and one of burglary, and recommended the death penalty. The trial judge sentenced Bieghler to death for the murders, but did not sentence him for the burglary.

* * *

Trial Counsel's Performance. Specifically, Bieghler claims that although appellate counsel raised this issue and discussed seven separate instances in support of it, appellate counsel did not argue some of them well, and there were other examples appellate counsel should have raised and argued.

For example, Bieghler says Scruggs should have objected to testimony concerning Bieghler's character and prior bad acts.

Appellate counsel did allude to two types of "prior bad act" evidence elicited by the prosecutor to which trial counsel failed to object: evidence about Bieghler's drug-dealing business, and evidence of Bieghler's drug-using lifestyle.

While appellate counsel forcefully argued that the prosecution's impermissible use of this evidence throughout the entire trial significantly prejudiced Bieghler, he did not provide examples from or citation to the record in support of this claim. (See P.C.R. at 4618, Br. at 58-59, 102-105.)

The State's brief, in addressing this allegation, focussed on the prosecution's admission of evidence pertaining to Bieghler's drug-dealing business and correctly argued that such information was admissible as pertaining to motive, and trial counsel was thus not ineffective for failing to object to its admission or argue for its limitation.

The other line of prosecutorial questions on Bieghler's drug- using lifestyle was not addressed by the State as part of its IAC rebuttal.

Likewise, our opinion only addresses this claim of ineffectiveness in terms of evidence admitted to show Bieghler's drug-dealing business and related activities, and does not mention the admission of evidence about Bieghler's drug-using lifestyle and habits. See Bieghler, 481 N.E.2d at 97.

The prosecution questioned a number of witnesses about their personal experience with taking different types of drugs, the effects the different drugs had on them, with taking drugs with Bieghler, and the observed effects drugs had on him, (Nutt, see T.R. at 2354, 2356, 2358-60, 2387; Brook, see T.R. at 2679-85, 2729-2731).

After laying this foundation regarding Bieghler's drug habit and the effects that the drugs normally had on Bieghler prior to December 10, 1981, the prosecutor asked Scotty Brook about the events of December 10th. Much of this inquiry centered around when, what type, and how many drugs the two consumed that entire day. (See T.R. at 2371, 2733-37.) The prosecution's questioning of Bieghler followed much the same pattern. (See T.R. at 3052, 3083-86.)

This testimony was elicited in an attempt to establish Bieghler's probable state of mind on the night of the murder, as exemplified by its use in the State's closing argument. For instance, Bieghler admitted smoking marijuana and drinking around fifteen beers the afternoon of the murders, (T.R. at 3020- 3024), and the prosecutor argued, "Bobby Nutt said that he'd seen Marvin Bieghler mix alcohol and marijuana and he said when he did that Marvin Bieghler was wild-like and obnoxious," (T.R. at 3132-33).

Addressing the defense argument that Bieghler could not have driven fast on the slick, icy roads, the prosecutor argued, They were drunk. They were high all day. They were drinking all night. They were taking pills. They were intoxicated....

How many times have you been driving down the highway on an icy road and have some idiot whiz by you like you were standing still? Ice doesn't stop everybody from driving fast. It stops people that have any sense about them from driving fast. Think it would stop a drunk? An intoxicated high person? Total disregard for everything, I would say, the state of his mind that night, the Defendant. (T.R. at 3152-53.)

Finally, as to what might have finally pushed Bieghler into committing the murders, the State argued, Do you remember what Scotty Brook said right before they left the Tavern, Dusty's? He said something that went like this, "I'm tired of hearing about it. If you're going to do something, do it, or quit talking about it."

This is at a time when this man's got fifteen plus beers, he's high on marijuana, he's taking speed and some other pills we don't know about. I suggest he was mad, said, "All right. I'll show you. I can do it. Let's get in the car. Come on." And in a rage he drove out there and did it. (T.R. at 3218.)

Bieghler's drug use and the effect it potentially had on him the night of the murders was central to understanding his state of mind at that time and explaining some of his alleged actions. Thus, the evidence was relevant, and its relevance was not outweighed by the potential unfair prejudice it engendered against Bieghler.

In fact, both the State and the defense found this evidence useful. Much of Bieghler's testimony about his personal drug use was elicited by his trial counsel. (See T.R. at 3003- 04, 3021, 3024.) Then, in his closing argument, defense counsel argued that Bieghler could not have committed the murders because of his intoxicated state:

Scotty says that they left on the county road and drove straight across 22 at sixty miles per hour and the evidence is there was ice everywhere. Marvin's had fifteen to seventeen beers.... How do you explain the fact that they drove from Galveston to Dusty's Tavern to the scene of this crime in twenty minutes in the intoxicated condition that the defendant was in without crashing, when Scott Pitcher crashed at twenty miles an hour. Same roads. (T.R. at 3181, 3183.)

He also argued that Bieghler's intoxicated state would have impaired his shooting ability: "Nine shots were fired and every one of them found their mark. In a dark trailer? By someone as drunk as he's supposed to have been?" (T.R. at 3189.)

Thus, both sides saw the relevance of this evidence as it pertained to their versions of the case. Given this, and trial counsel's strategy of complete candor, it was not unreasonable for trial counsel to let it come in, and appellate counsel should not be faulted for failing to cite this evidence in support of his ineffectiveness claim.

On the other hand, we see a colorable argument regarding some of the State's questioning of Bieghler, of his girlfriend's daughter, Theresa McVety, and the State's use of this evidence in its closing argument.

The evidence suggested that Bieghler was pretty casual about marijuana use by teenagers, including Theresa's. By its own admission, the State was trying to show Bieghler's disregard for the law as it pertained to kids and marijuana, an issue with no relevance to proving whether he murdered the Millers.

The State was clearly attempting to use Bieghler's prior bad acts to paint him as an immoral miscreant exceedingly different from the jurors, a pariah that should be eliminated from the jurors' community for being "unworthy of membership [in] the human race,"

* * *

Thorough post-conviction review of the proceedings leading to Marvin Bieghler's conviction and sentence reveals no constitutional error by the trial court or in the performance of counsel either at trial or in his direct appeal. In addition, no reversible error has been found in the proceedings of the post-conviction court. The conviction and sentence of death are affirmed. DICKSON, SULLIVAN, SELBY and BOEHM, JJ., concur.

Bieghler v. McBride, 389 F.3d 701 (7th Cir. November 18, 2004) (Habeas)

Background: Following affirmance of his murder conviction and death sentence on direct appeal, 481 N.E.2d 78, and denial of state postconviction relief, 690 N.E.2d 188, petitioner sought writ of habeas corpus. The United States District Court for the Southern District of Indiana, Larry J. McKinney, J., denied relief, and petitioner appealed.

Holdings: The Court of Appeals, Terence T. Evans, Circuit Judge, held that:
(1) prosecutor did not impermissibly comment on defendant's post-arrest silence in violation of due process, and
(2) state appellate court did not unreasonably apply federal law in rejecting ineffective assistance of counsel claims. Affirmed.

TERENCE T. EVANS, Circuit Judge.

Twenty-three years ago, Kenny Miller went to visit his 21-year-old brother, Tommy, who lived with his pregnant 19-year-old wife, Kimberly, in a trailer near Kokomo, Indiana. When he arrived, he discovered a gruesome scene: Tommy and Kimberly had been shot to death, Tommy with six bullets and Kimberly with three.

Marvin Bieghler was eventually tried, convicted, and sentenced to death for the two murders in 1983. His convictions and death sentence were upheld by the Indiana Supreme Court, both on direct appeal 2 years later, Bieghler v. Indiana, 481 N.E.2d 78 (Ind.1985), and 12 years after that on appeal from the denial of a petition for postconviction relief, Bieghler v. Indiana, 690 N.E.2d 188 (Ind.1997).

Bieghler moved to federal court in 1998 and is here today appealing the district court's denial of his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254.

First, the senseless facts as determined by the state courts, which we accept as true on this collateral review. Bieghler was a major drug supplier in Kokomo. He obtained his drugs in Florida and had others, including Tommy Miller, distribute them in the Kokomo area.

Several witnesses, including a Bieghler bodyguard named Harold “Scotty” Brook, testified that prior to the murders, someone within Bieghler's drug-dealing operation gave information to the police which led to the arrest of a distributor and the confiscation of some dope.

An incensed Bieghler declared repeatedly that when he found out who blew the whistle, he would “blow away” the informant. Eventually, Bieghler began to suspect that Tommy Miller was the snitch: he told associates that he was going to get him.

A major portion of the State's case rested on the testimony of Brook, who was not prosecuted for his role in the events. According to that testimony, Bieghler and Brook spent the day of the murders drinking beer and getting high on marijuana.

During the evening, Bieghler spoke of getting Tommy Miller. Around 10:30 or 11:00 p.m. they left a tavern and drove to Tommy's trailer. Bieghler got out of the car and went inside carrying an automatic pistol.

Brook followed and saw Bieghler pointing the weapon into a room. Bieghler and Brook then ran back to the car and drove away. Later that night, a distraught Bieghler tearfully announced that he was leaving for Florida. Tommy's and Kimberly's bullet-ridden bodies were discovered the next morning.

Police learned that nine shell casings found at the murder scene matched casings from a remote rural location where Bieghler fired his pistol during target practice. At trial, an expert testified that the two sets of casings were fired from the same gun.

Bieghler contends that the prosecution violated his due process rights by exploiting, at trial, his failure to talk to the police after his arrest. He also claims that he was denied effective assistance of counsel. Because Bieghler's petition was filed after April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs our analysis.

Under the AEDPA, a federal court may not grant a writ unless a final state court decision in the case was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,”28 U.S.C. § 2254(d)(1), or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2).

A state court decision is “contrary to” established Supreme Court precedent when the state court reaches a legal conclusion opposite to that of the Court or decides a case differently than the Court despite “materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An “unreasonable application” of Supreme Court precedent occurs when the state court identified the correct rule of law but applied it unreasonably to the facts. Id.

According to Bieghler, the prosecution, during its cross-examination of him and again during closing argument, exploited the fact that, after being advised of his Miranda rights, he elected to remain silent and not give arresting officers the version of the night's events he related on the witness stand.

If so, this was a constitutionally impermissible tactic under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). As applicable here, Doyle holds that the prosecution violates a defendant's due process rights when it uses post-arrest silence to impeach an exculpatory story told at trial.

See United States v. Shue, 766 F.2d 1122 (7th Cir.1985). This is so because it is fundamentally unfair to assure a defendant, with Miranda warnings, that his silence will not be used against him, and then turn around and do exactly that.

Bieghler cites several references by the prosecutor to his post-arrest, post- Miranda-warning silence. His trial counsel, however, did not object to these references and therefore forfeited subsequent challenges to them. E.g., United States v. Jacques, 345 F.3d 960, 962 (7th Cir.2003).

Ordinarily, when a claimed error is forfeited, we only analyze whether the trial court plainly erred by allowing the prosecutor's comments. Id. But here we evaluate Bieghler's claim “without the screen of the plain error standard” because the State has not argued that it applies. United States v. Cotnam, 88 F.3d 487, 498 n. 12 (7th Cir.1996) (internal quotations omitted); United States v. Leichtnam, 948 F.2d 370, 375 (7th Cir.1991).

At trial, Bieghler took the stand and denied complicity in the murders. He testified about being at other places with other people when the Millers were killed. On this appeal, he complains about several questions put to him by the state's attorney during cross-examination.

The prosecutor asked: “[P]rior to the beginning of this trial, did you ever tell the story that you've told today to anyone besides your attorneys?”, “Were you ever given any opportunity to tell the story to anyone?”, and “Did you give it?” In response to the last question, Bieghler answered, “No, I exercised my Miranda rights.”

The prosecutor then asked three questions concerning Bieghler's understanding of his Miranda rights before moving on to another subject. It is the State's contention that no reference was made to Bieghler's silence. He was merely fairly cross-examined, says the State, about his direct testimony for the purpose of testing his credibility as a witness.

In an argument that's a little hard to follow, Bieghler contends that this snippet from the prosecutor's closing remarks to the jury ran afoul of the rule announced in Doyle: Kenny Cockrell's the one that took the Fifth. Kenny Cockrell's the one that wouldn't answer when I asked if he was doing something to Bobby Nutt because a deal went bad. He took the Fifth. Didn't want to be discriminated against. I'm growing to hate that train.

As a matter of fact, that train came by during my examination of the Defendant. I don't know, maybe it was my imagination, maybe I wanted to see it, but did you see him, about right before the train came by started to get, his voice was a little different about the time when he left Dusty's? You can talk about that. Maybe I only saw it because I wanted to. A little later, Bieghler sees error in this statement from the prosecutor's closing argument:

The Defendant denies that he was there. And even though it's not testimony, looking through it in the opening statement, [Defense Counsel] Mr. Scruggs said that he, the Defendant went there that night to Bobby Nutt's. Now the only person that's important to me is, I was looking, I was listening, waiting to hear so that I would know what the Defendant was going to say. You know, I didn't hear him until he sat up here, and you heard him just like I did. He had everything I had but I could never talk to him. I couldn't use prior inconsistent statements to impeach him because I didn't have any. He never said anything.

The State contends that the prosecutor's statements in closing argument were meant to show that Bieghler had an opportunity to hear the State's evidence, and make an assessment of it, before he elected to take the stand and give his testimony. It was fair game, the State says, to argue that it gathered and presented its evidence without knowing what Bieghler's version of the events would be until he revealed it during the trial.

We do not believe that the questions and closing argument comments ran afoul of Doyle. In none did the prosecutor equate Bieghler's silence with guilt, the evil condemned in Doyle as undermining the privilege against self-incrimination.

The prosecutor, in closing argument, did say that Bieghler “never said anything ···”, which runs close to the Doyle line, but we don't think he crossed it, and we emphasize there was no explicit invitation for the jury to infer guilt from Bieghler's decision to stay quiet after he was arrested; at best, any reference was very indirect.

Indeed, the prosecution's conduct in this case was a far cry from what transpired in Doyle, which featured repeated and blatant exploitation of the defendants' post-arrest silence. In that case, Jefferson Doyle and Richard Wood were arrested together and charged with selling marijuana to an informant named William Bonnell. Bonnell had arranged to buy 10 pounds from the defendants for $1,750, but narcotics agents could only muster $1,320.

Under the watchful eye of four agents, Bonnell met Doyle and Wood in a parking lot and completed the transaction. Minutes later, the two discovered that they had been shorted and began circling the neighborhood looking for Bonnell. Agent Kenneth Beamer promptly arrived at the scene, arrested Doyle and Wood, and gave them Miranda warnings. Police then found $1,320 in the car.

Both defendants said for the first time at trial that Bonnell had framed them and that they were buyers, not sellers. Each testified that they originally agreed to buy 10 pounds of marijuana from Bonnell but decided at the last minute to buy a lesser amount.

When they informed Bonnell of the change of heart, Bonnell grew angry, threw $1,320 into their car, and left the parking lot with the 10 pounds of marijuana in hand. Perplexed, Doyle and Wood went looking for Bonnell to find out why he had thrown the money into the car.

During cross-examination, the prosecution asked them why they had not told the frame-up story right away to Agent Beamer. The prosecution asked questions like “I assume you told [Beamer] all about what happened to you?”; “[i]f that is all you had to do with this and you are innocent, when Mr. Beamer arrived at the scene why didn't you tell him?”; “[b]ut in any event you didn't bother to tell Mr. Beamer anything about this?”; “[t]hat's why you told the police department and Kenneth Beamer when they arrived ··· about your innocence?”; “[y]ou said nothing at all about how you had been set up?”; and “[b]ut you didn't protest your innocence at that time?”

The Court concluded that these questions were attempts to use the defendants' silence against them, which deprived them of due process in violation of the Fourteenth Amendment. Unlike the questions asked in Doyle, the prosecution here did not use Bieghler's silence against him.

The prosecution's questions and statements in this case were also far less egregious than those in other cases where Doyle violations were found to have occurred.

For instance, in Lieberman v. Washington, 128 F.3d 1085 (7th Cir.1997), a defendant charged with rape testified for the first time at trial that he was with his mother when the crime was committed. He also testified that he was “severely questioned” by police the night he was arrested.

During cross-examination and closing argument, the prosecution attacked the veracity of his testimony by pointing out that he had not made his alibi known at the time of his arrest. Most troubling was its argument that “[y]ou heard [the state's attorney] ask him questions, did you tell the police you were with your mother on December the 17th, 1979? No. That's where he says he was today, ladies and gentlemen. Did he tell the police when he was severely questioned, according to him? Absolutely not, absolutely not.”

Similarly, in Feela v. Israel, 727 F.2d 151 (7th Cir.1984), the prosecution emphasized in cross-examination and closing argument that the defendant, Douglas Feela, had presented an unusual alibi for the first time on the witness stand. Feela, on trial for the armed robbery of a liquor store, testified that at the time of the crime he was walking into a town when an armed assailant stuck a gun into his back, handed him “something,” and ordered him to run.

Feela then heard a gunshot and saw snow fly up near him, so he ducked into a basement, only to discover that the “something” now in his possession were the vest, gun, and gloves that had been used in the robbery. Police later discovered Feela in the basement with these materials.

The prosecution asked Feela repeatedly whether he had given this account at the time of arrest and then emphasized his post-arrest silence during closing argument: “We are not told ··· that I [Feela] have got no reason to fear that because a mysterious man put this stuff in my arms, and I was forced to carry it over there. We never heard that until today.”

Nor is this case anything like United States ex rel. Allen v. Franzen, 659 F.2d 745 (7th Cir.1981). In that case, the prosecution repeatedly questioned whether the defendant, Eddie Allen, told investigators that he killed his wife in self-defense, a story he told from the witness stand.

And during closing argument, the prosecution hammered home the fact that Allen had not mentioned to investigators that he acted in self-defense: Now, when by the way, did the defendant first say self-defense? Did he say this to officer Terry Melloy, I just shot my wife, I had to do it, she came at me with a knife in the kitchen! Did he say that? Did he say, she was going into her purse, I thought she had a gun, I had to shoot her! Or did he even say, I shot my wife in self-defense. No, none of these.

* * * * * *

After he shot his wife five times and stood over her and sent the hammer home on an empty cylinder, did he then say, oh my God, I had to do it. I thought she was going for a gun. No, what he said was, she's dead now. The defendant could not say self-defense because there was no self-defense. The defendant is a cold blooded, brutal murderer.

The prosecutor's comments and questions in our case were nothing like this diatribe.FN1 FN1. Our case is also less egregious than those in which alleged Doyle violations occurred after the defendant opened the door to government questioning by commenting on his own post-arrest behavior.

In these cases, the prosecution went beyond impeaching the defendant's testimony regarding his post-arrest conduct, which is proper, and instead argued that the defendant's silence was inconsistent with his claim of innocence. See United States v. Gant, 17 F.3d 935, 943 (7th Cir.1994) (government argued that defendant's silence was consistent with behavior of confederate to crime); United States v. Shue, 766 F.2d 1122, 1128-29 (7th Cir.1985) (government argued that defendant “refused to talk to the FBI, refused. And no one ever heard of this preposterous, incredible story of a frame until he hit the witness stand.”).

In contrast to Doyle and these other cases, the prosecution here did not argue that Bieghler's initial silence undermined the reliability of his trial testimony nor at any point did it use his silence as evidence of guilt. As we explained in Splunge v. Parke, 160 F.3d 369 (7th Cir.1998), “what Doyle stands for is that arrest-time silence not be used to impeach trial-time testimony by asking something like: ‘If the version of events to which you have just testified is true, why didn't you tell this to the police as soon as you were arrested?”

Like in Splunge, the prosecution's questions and argument regarding Bieghler's post-arrest conduct were not aimed at impeaching Bieghler's trial testimony.FN2

FN2. Bieghler also cites a comment by the prosecutor that the motive for remaining silent is to avoid being incriminated. But this comment was made in the context of discussing the testimony of another witness, not Bieghler. See Hough v. Anderson, 272 F.3d 878, 902 (7th Cir.2001) (reference to defendant's silence is necessary to demonstrate Doyle violation); United States v. Ramos, 932 F.2d 611, 616 (7th Cir.1991) (same).

Moreover, even if we were moved to conclude that a Doyle violation occurred, we would have to find that it was harmless because it did not have a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

Bieghler cannot demonstrate that the prosecutor's questions and comments undermined the integrity of the jury's guilty findings in light of the substantial evidence of his guilt.

This evidence included Brook's damning testimony, the matching shell casings, testimony that Bieghler had threatened to kill Tommy, and testimony regarding Bieghler's distraught and panicked behavior after the slayings.

As we see it, the questions and statements that are challenged here were but a mere blip in a lengthy trial, comprising roughly 2 pages of a 3353-page transcript. See Lieberman, 128 F.3d at 1096 (concluding that limited references during a lengthy trial were harmless); United States v. Scott, 47 F.3d 904, 907 (7th Cir.1995) (remark comprising one paragraph in 10-page closing argument deemed harmless).

Bieghler complains that any Doyle error here was prejudicial because the government's case rested on the testimony of Brook, an unsavory and shady character. But the jury obviously accepted Brook's testimony, warts and all, and it is not our place to second-guess that assessment.

Bieghler's remaining arguments center on the performances of his lawyers. He claims that he was denied the effective assistance of counsel because his lawyers failed to: (1) object to evidence of his past drug usage; (2) present mitigating evidence during the penalty phase of his trial; and (3) present alibi evidence. To establish a claim of ineffective assistance of counsel, Bieghler has to show two things.

First, he must demonstrate that his lawyers performed deficiently, i.e., that their mistakes were so serious that they deprived him of “counsel” within the meaning of the Sixth Amendment. Second, he must show prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish prejudice, Bieghler must show that there is a reasonable probability that the result of the trial would have been different absent counsels' shortcomings. Bieghler must also surmount the strong presumption that his counsel performed adequately.

The Indiana Supreme Court's rejection of Bieghler's claims of ineffective assistance of counsel under Strickland was eminently reasonable.FN3 Although Bieghler's lawyers did not object to evidence of his past drug use, they held back for strategic reasons.

One of Bieghler's lawyers testified that they decided to pursue a strategy of “candor and sincerity” in order to bolster Bieghler's credibility in the eyes of the jury, a reasonable tactical decision that courts will not second-guess. See id. at 689, 104 S.Ct. 2052; Valenzuela v. United States, 261 F.3d 694, 698 (7th Cir.2001). The remaining errors advanced by Bieghler were also reasonably rejected as bases for a viable Sixth Amendment claim.

Citing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), he complains that counsel failed to conduct a reasonable investigation into: (1) mitigating evidence of his good character and of posttraumatic stress disorder from his service in Vietnam; and (2) finding a potential alibi witness. But counsel did present witness testimony regarding Bieghler's good character, as well as the violent nature of his service in Vietnam and how that affected his personality upon his return.

Bieghler fails to demonstrate that additional mitigating evidence would have made any difference, let alone that counsels' investigation into these matters fell below objective standards of professional conduct. See Conner v. McBride, 375 F.3d 643, 662-63 (7th Cir.2004).

The same is true regarding counsels' failure to uncover a potential alibi witness. Bieghler acknowledges that counsel thoroughly reviewed the police and FBI reports, interviewed several witnesses, and pursued an independent investigation into witnesses from Tennessee who might have aided his defense.

He also admits that the potential alibi witness did not come forward before or during trial and that she was discovered by chance later on. Under these circumstances, counsels' failure to find the alibi witness was understandable and not a product of a constitutionally deficient investigation.

FN3. Bieghler contends that the Indiana Supreme Court applied the wrong legal standard in evaluating his claims, but that is folly. Indeed, the language cited by Bieghler from the state court's adjudication comes directly from Strickland.

For all these reasons, the judgment of the district court denying Bieghler's petition for a writ of habeas corpus is Affirmed.