Miller v. Secretary, Department of Corrections et al
Filing
22
ORDER denying Miller's 1 Petition for writ of habeas corpus. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk is directed to enter judgment against Miller and close this case. Signed by Judge Thomas P. Barber on 12/11/2020. (JDT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRIS M. MILLER,
Petitioner,
v.
Case No. 8:17-cv-2815-T-60AEP
SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.
__________________________________/
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Miller petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Docs. 1
and 2) and challenges his state court convictions for kidnapping, aggravated
battery, and aggravated assault with a deadly weapon. Upon review of the petition
and supporting memorandum (Docs. 1 and 2), the response and supporting exhibits
(Docs. 7 and 8), and the reply (Doc. 14), the Court finds as follows:
Factual and Procedural Background 1
Miller and his girlfriend had a fight while they were at an outdoor fair
together. When they returned home, Miller beat his girlfriend with a stool leg,
punched her, and kicked her. During the four-hour attack, Miller threatened to kill
the victim with a knife and prevented her from leaving. The victim’s body was
badly bruised. An emergency room doctor was unable to conclude whether the
many bruises on the victim’s body were caused by the leg of the stool or a fist. The
This summary of the facts derives from the state appellate court’s opinion affirming
Miller’s convictions and sentences and the filings in this case.
1
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doctor opined that, while the victim had not sustained permanent injury, the leg of
the stool could have caused serious bodily injury or death.
The jury found Miller guilty, and the trial court sentenced him as a prison
releasee reoffender to life for kidnapping, fifteen years for aggravated battery, and
five years for aggravated assault. The state appellate court affirmed in a written
opinion and the state supreme court denied discretionary review. Miller v. State,
123 So. 3d 595 (Fla. 2d DCA 2013), rev. denied, 139 So. 3d 887 (Fla. 2014).
After the post-conviction court denied relief, Miller filed his federal petition.
The respondent concedes timeliness and exhaustion. (Doc. 7 at 10–11, 16–22).
Legal Standards
A.
AEDPA
Because Miller filed his petition after the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996, AEDPA governs the review of his claims.
Lindh v. Murphy, 521 U.S. 320, 336–37 (1997). AEDPA amended 28 U.S.C.
§ 2254(d) to require:
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
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facts in light of the evidence presented in
the State court proceeding.
Williams v. Taylor, 529 U.S. 362, 412–13 (2000) interprets this constraint on
the power of the federal habeas court to grant a state prisoner’s petition:
Under the “contrary to” clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law or if the state
court decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ
if the state court identifies the correct governing legal principle
from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
“[C]learly established Federal law” encompasses the holdings of the Supreme Court
at the time of the relevant state court decision. Williams, 529 U.S. at 412.
“[A]n unreasonable application of federal law is different from an incorrect or
erroneous application of federal law.” Williams, 529 U.S. at 412 (italics in original).
Even clear error is not enough. Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017).
A federal habeas petitioner must show that the state court’s ruling was “so lacking
in justification that there was an error well understood and comprehended in
existing law beyond any possibility of fairminded disagreement.” Harrington
v. Richter, 562 U.S. 86, 103 (2011). “This is ‘meant to be’ a difficult standard to
meet.” LeBlanc, 137 S. Ct. at 1728 (quoting Richter, 562 U.S. at 102).
A factual determination by a state court is not unreasonable “merely because
the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). A federal habeas court may
grant relief only if “in light of the evidence presented in the state court proceedings,
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no reasonable jurist would agree with the factual determinations upon which the
state court decision is based.” Raleigh v. Sec’y, Fla. Dep’t Corrs., 827 F.3d 938,
948–49 (11th Cir. 2016). Also, a state court’s factual determinations are presumed
correct, and a petitioner has the burden of rebutting that presumption with clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that
state-court convictions are given effect to the extent possible under law.” Bell
v. Cone, 535 U.S. 685, 694 (2002). Consequently, “review under [Section] 2254(d)(1)
is limited to the record that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). Accord Landers
v. Warden, Att’y Gen. of Ala., 776 F.3d 1288, 1294–95 (11th Cir. 2015) (applying
Pinholster to Section 2254(d)(2)).
If the last state court to decide a federal claim explains its decision in a
reasoned opinion, a federal court reviews the specific reasons in the opinion and
defers to those reasons if reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192
(2018). If the last state court decision is without reasons, the federal court “should
‘look through’ the unexplained decision to the last related state-court decision that
does provide a relevant rationale [and] presume that the unexplained decision
adopted the same reasoning.” Id. at 1192.
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B.
Ineffective Assistance of Counsel
Miller asserts ineffective assistance of counsel — a difficult claim to sustain.
Strickland v. Washington, 466 U.S. 668 (1984) explains:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
“There is no reason for a court deciding an ineffective assistance of counsel claim
. . . to address both components of the inquiry if the defendant makes an
insufficient showing on one.” Strickland, 466 U.S. at 697.
“[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.” Id. Strickland requires
that “in light of all the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance.” Id.
“An error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691. To meet this burden the defendant must
show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 691.
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A reasonable probability is a “probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable.”
Strickland, 466 U.S. at 690–91. A defendant cannot meet his burden by showing
that the avenue chosen by counsel was unsuccessful. White v. Singletary, 972 F.2d
1218, 1220–21 (11th Cir. 1992). Accord Jones v. Barnes, 463 U.S. 745, 751 (1983)
(confirming that counsel does not have a duty to raise a frivolous claim). Because
the standards under Strickland and AEDPA are both highly deferential, “when the
two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105. “Given the
double deference due, it is a ‘rare case in which an ineffective assistance of counsel
claim that was denied on the merits in state court is found to merit relief in
a federal habeas proceeding.’” Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298,
1303 (11th Cir. 2019) (quoting Johnson v. Sec’y, Dep’t Corrs., 643 F.3d 907, 911
(11th Cir. 2011)).
Analysis
Ground One
Miller asserts that trial counsel was ineffective for not introducing blood test
results showing that the victim was intoxicated at the time of the crimes. (Doc. 1
at 5). Miller contends that the post-conviction court unreasonably applied
Strickland’s prejudice component. (Doc. 2 at 23–29) The post-conviction court
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denied the ground as follows (Doc. 21-1 at 95–99) (state court record citations
omitted):
Defendant claims that his trial counsel was ineffective for
failing to introduce the results of the victim’s blood alcohol test
or to proffer those results for the record. Defendant further
claims that as a result of counsel’s deficient performance, the
jury was deprived of significant evidence challenging the
victim’s credibility and her ability to accurately perceive the
events which occurred that night. As such, Defendant contends
there is at least a reasonable probability that, but for this
deficient performance, the outcome would have been different.
More specifically, Defendant submits that[,] at trial, the victim
testified that she drank just two beers the entire day of the
incident and split one or two glasses of wine that night with
Defendant at the fair, and that she was not at all intoxicated at
any time. However, Defendant avers that the victim “was an
alcoholic at the time, and she and the Defendant split a full
18-pack of beer that day, had some mixed drinks, and then
split a box of wine.” He further claims that a blood alcohol test
performed at the hospital ten hours after the victim stopped
drinking revealed a blood alcohol level of approximately .05.
Defendant contends that his trial counsel was aware of the
results of the blood alcohol test and of its importance in
attacking the victim’s credibility and challenging her version of
the events. However, as Defendant contends, trial counsel
failed to introduce the results or to otherwise proffer those
results for the record. Defendant concedes in his motion that
counsel attempted to question Dr. Zafari, the emergency room
physician who treated the victim that night, about the results
of the blood alcohol test and to elicit testimony concerning the
victim’s .05 blood alcohol level that night. However, Defendant
alleges that when the State objected on the basis that
Dr. Zafari was not the individual who performed the test, the
Court sustained the State’s objection to this testimony as
hearsay. Defendant claims that thereafter, trial counsel did
not proffer the results of the test for the record.
As there were no eyewitnesses to the incident, Defendant
contends that the victim’s ability to perceive events and her
state of mind and state of sobriety were central to the trial.
Thus, Defendant claims counsel’s failure to investigate, learn,
and call the analyst who performed the test, or to otherwise
ensure the introduction of this critical evidence constituted
deficient performance. Defendant further claims that had
counsel challenged the victim’s credibility with the results of
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the blood alcohol test, there is a reasonable probability that the
outcome of the trial would have been different. The State was
directed to respond to this claim.
In its response, the State contends that this claim is refuted by
Defendant’s own statement at trial that there was no other
evidence he wanted admitted at trial and that he was satisfied
with his counsel’s representation. Additionally, the State
contends that Defendant was not prejudiced by the lack of this
testimony because defense counsel still demonstrated the
victim’s confusion over the events that occurred on the night in
question and there was otherwise overwhelming evidence for
the jury to convict Defendant on his charges.
In Defendant’s reply, he contends that the victim’s testimony
was critical to the jury finding him guilty as charged. Thus, he
further contends that had counsel properly introduced the
results of the victim’s blood alcohol level from the night of the
events, this would have contradicted the victim’s testimony
that she only had a couple of beers and a glass of wine, and was
not drunk. Additionally, Defendant contends that this evidence
would have reflected on her ability to accurately perceive
events and on her credibility and veracity.
The Court finds that although counsel may have been deficient
for failing to properly introduce the victim’s blood alcohol level,
Defendant is unable to show prejudice as required by
Strickland. More specifically, the Court finds that the jury was
not deprived of significant evidence challenging the victim’s
credibility and her ability to accurately perceive the events
which occurred on the night at issue, as Defendant claims. It is
undisputed that Defendant beat the victim on the night at
issue. The defense’s theory, however, was that Defendant did
not commit the crimes charged, but rather committed crimes of
a lesser degree than the ones charged. Counsel highlighted the
fact that the victim had been drinking throughout the day and
night of the events, and even suggested in his closing argument
that the victim’s anxiety medication mixed with alcohol
consumption could have caused her confusion regarding her
recollection of the events that transpired.
Furthermore, counsel pointed out an extensive number of
inconsistencies within the victim’s story, thereby greatly
challenging the victim’s credibility and exposing her confusion
over the events which occurred on the night at issue. More
specifically, in regards to the kidnapping charge, counsel
elicited testimony from the victim that there were multiple
exits to the home and that there were multiple phones in the
home that she could have used to call for help. Counsel also
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suggested that from the victim’s story, there was a lot of time
where she was by herself, and[ ] suggested that the fact that
the victim took a long time to leave the residence and even
returned to the bedroom where [Defendant] was showed that
the victim was not truly being kept in the home against her
will. Additionally, counsel pointed out that when the victim
finally left the residence, she did not immediately call the
police or wake her friends whose house she parked outside of to
tell them that Defendant had kidnapped her, but rather, she
attempted to sleep in her car across the street from where
Defendant was still sleeping.
In regards to the aggravated battery charge, counsel pointed
out that the victim had told multiple officers that Defendant
hid the stool leg in the garage, yet at trial she changed her
story and indicated that she was the one who hid the stool leg
in the garage. Additionally, counsel highlighted the fact that
the victim’s injuries were consistent with being beaten with
Defendant’s hands and feet, and that a stool leg may not have
been used on the victim. Counsel also pointed out that the
victim had previously told one of the officers that she had seen
Defendant break the stool leg off despite being in the next
room. Counsel pointed out that Defendant’s fingerprints were
not found on the stool leg; and, that the permanent
disfigurement [that] the victim claims was from bolts on the
stool leg did not match up to the same distance apart as the
bolts on the stool leg.
Finally, in regards to the aggravated assault charge, counsel
thoroughly attacked this charge by eliciting witness testimony
demonstrat[ing] the victim’s confusion. More specifically,
counsel cross-examined the victim regarding the size and style
of the knife she claimed Defendant held to her, and was able to
demonstrate her confusion over those specifics. Counsel also
showed that no knife was ever turned over to the police or to
the State Attorney’s Office, but rather that the victim merely
drew a trace outline of the knife. Additionally, counsel
demonstrated the victim’s confusion regarding the distance
where Defendant placed the knife in relation to her throat and
also where Defendant placed the knife after holding it up [to]
the victim.
In light of the foregoing, the record reflects that counsel was
able to thoroughly and adequately attack the victim’s
credibility and her recollection of the events at issue even
without the results of the victim’s blood alcohol level. Given the
number of inconsistencies defense counsel exposed, [ ]
including exploiting the fact that alcohol was consumed by the
victim throughout the day and night of the events at issue, the
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Court finds that the record refutes Defendant’s claim that
there is a reasonable probability that the outcome of the trial
would have been different had counsel properly admitted the
victim’s blood alcohol level into evidence. Defendant fails to
meet the prejudice prong, and this claim is therefore denied.
See Maxwell, 490 So. 2d at 932 (stating that if the defendant
fails to satisfy one prong of the analysis, then the inquiry ends,
and the court need not determine whether the defendant has
satisfied the other prong).
At trial, the victim admitted that she drank a few beers before the fair and
drank wine at the fair. (Doc. 21-1 at 151–53) In closing argument, trial counsel
challenged the victim’s ability to perceive the events because she had mixed the
alcohol with her anxiety medication. (Id. at 202–03) Also, trial counsel told the
jury that the victim was confused over critical details about the crimes. (Doc. 21-1
at 97–98) Trial counsel exposed the victim’s confusion over (1) whether she could
have left the home or called for help during and after the attack, (2) whether she or
Miller hid the stool leg after the crimes, (3) whether or not she saw Miller break the
stool leg off of a chair before the crimes, and (4) whether she accurately saw the
type and size of the knife that Miller had and how he used it. (Id. at 97–98) Trial
counsel also pointed out that (5) the configuration of the bolts on the stool leg
refuted the victim’s claim that she had been beaten with the stool leg and (6) police
never recovered a knife. (Id. at 97–98)
The blood test results did not directly exculpate Miller and only would have
further impeached the victim’s credibility. Fla. Stat. § 90.608(4), (5); Edwards
v. State, 548 So. 2d 656, 658 (Fla. 1989). Because trial counsel raised serious
doubts about the victim’s credibility even without the blood test results, the state
court did not unreasonably apply Strickland. Holsey v. Warden, Ga. Diag. Prison,
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694 F.3d 1230, 1260–61 (11th Cir. 2012) (“[E]vidence presented in postconviction
proceedings is ‘cumulative’ or ‘largely cumulative’ to or ‘duplicative’ of that
presented at trial when it tells a more detailed version of the same story told at
trial or provides more or better examples or amplifies the themes presented to the
jury.”); Rose v. McNeil, 634 F.3d 1224, 1243 (11th Cir. 2011) (“Obviously,
a petitioner cannot satisfy the prejudice prong of the Strickland test with evidence
that is merely cumulative of evidence already presented at trial.”). Ground One is
denied.
Ground Two
Miller asserts that trial counsel was ineffective for not objecting to the trial
prosecutor’s comment in closing argument that the jury did not need to
unanimously agree on the elements of aggravated battery. (Doc. 1 at 7). Miller
contends that the post-conviction court unreasonably applied Strickland’s prejudice
component. (Doc. 2 at 30–35) The post-conviction court denied the ground as
follows (Doc. 21-1 at 3–5):
Defendant claims his trial counsel was ineffective for failing to
object, correct, or otherwise challenge the State’s explanation to
the jury during closing arguments that they need not reach
a unanimous verdict. Defendant further claims that but for this
deficient performance, there is at least a reasonable probability
that the outcome of the trial would have been different.
....
Defendant’s charge of aggravated battery was based on his
striking the victim while in the kitchen, and was presented
under both authorized theories set forth in § 784.045(1)(a),
Florida Statutes: 1) that he used a deadly weapon, i.e., the leg
of the stool, and 2) that he knowingly inflicted great bodily
harm, permanent impairment, or disfigurement. As to the
latter theory, Defendant claims that after the trial court found
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there was insufficient evidence to prove great bodily harm or
permanent impairment, it granted [judgments of acquittal] as
to those theories and left for the jury to determine only
whether there was permanent disfigurement. Thus, the jury
was permitted to decide that the stool leg was not a deadly
weapon or that the victim’s injuries did not constitute
permanent disfigurement.
However, Defendant claims the State erroneously informed the
jurors that they need not all find guilt based on the same
theory. Defendant claims the prosecutor made the following
improper argument during closing:
Now, members of the jury, according to that
aggravated battery charge, let’s say three of you
go back and say I don’t think she was
permanently disfigured, but I do believe that she
was beaten with that stool. Even if she was hit
once, well, that’s aggravated battery with a
deadly weapon.
Well, let’s say the other three of you say, you
know, I don’t think she was hit by a stool, but I
do think that scar or that tooth — that’s
permanently disfigured by him, even if it was
just by a fist if you believe that. Well, then your
verdict still has to be guilty on aggravated
battery because if it’s one or the other, you could
both come to [ ] different conclusions but reach
the same result and that she — that he is guilty
of aggravated battery.
Thus, the State explained to the jury that it did not need to
reach a unanimous verdict on all of the elements of the charged
offense. Defendant claims counsel did not object to this
improper argument or otherwise take steps to ensure that the
jury was correctly advised that they must have a unanimous
finding on one theory or on the other in order to support a
guilty verdict on this charge.
This claim is without merit as the Court finds that Defendant
fails to establish prejudice. Defendant previously challenged
the State’s improper argument on direct appeal, asserting that
it encouraged a non-unanimous verdict and constituted
fundamental error. While the Second [District Court of Appeal]
agreed the State’s argument was improper and created a risk
that the jury’s verdict was not unanimous, it determined it
[was not] fundamental error because the jury could have
reached a lawful verdict under either theory. See Miller,
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123 So. 3d [at] 595. The Second [District Court of Appeal]
further stated:
Although it is possible that the jury reached a
non-unanimous verdict in this case, given the
strength of the evidence, it is more likely that the
jurors were unanimous on one or both theories.
Especially as to the theory that the stool leg was
deadly weapon, the evidence seems compelling to
this court. Because the jury could easily have
reached a lawful verdict in this context under
either theory, and indeed under both theories, we
conclude that we should not apply the doctrine of
fundamental error.
Id. Thus, the Second [District Court of Appeal] concluded that
the jury could have easily reached a unanimous guilty verdict
on at least one, if not both, of the proffered theories. For similar
reasons, this Court finds that Defendant is unable to establish
prejudice. “A deadly weapon is: any instrument which, when
used in the ordinary manner contemplated by its design, will or
is likely to cause death or great bodily harm; or any instrument
likely to cause great bodily harm because of the way it is used
during a crime.” C.A.C. v. State, 771 So. 2d 1261, 1262 (Fla. 2d
DCA 2000). The jury could have easily determined that the
stool leg was a deadly weapon based on the way the victim
testified that Defendant used it against her. Therefore, there is
no reasonable probability that the outcome of the trial would
have been different[,] and[ ] Defendant’s claim is denied.
The prosecution had to prove that Miller either caused permanent
disfigurement or used a deadly weapon. (Doc. 9, Ex. A at 713) The state court
concluded that the jury would have unanimously agreed that Miller used a deadly
weapon. (Doc. 21-1 at 5) The victim testified that Miller hit her with the stool leg
at least twenty times on the head and all over her body. (Doc. 9, Ex. A at 267,
270–71, 278–79) The victim identified in photographs bruises and red marks all
over her body that Miller inflicted with the stool leg. (Doc. 9, Ex. A at 315–20,
331–35) The emergency room doctor who treated the victim opined that the stool
leg could have caused serious bodily injury or death. (Doc. 21-1 at 182) The
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victim’s testimony, corroborated by the photographs and the emergency room
doctor’s opinion, proved that the stool leg was a deadly weapon. Coronado v. State,
654 So. 2d 1267, 1269–70 (Fla. 2d DCA 1995); J.M.C. v. State, 331 So. 2d 366, 367
(Fla. 3d DCA 1976).
When assessing prejudice under Strickland, a court presumes that the jury
followed the law. Strickland, 466 U.S. at 695 (“The assessment of prejudice should
proceed on the assumption that the decisionmaker is reasonably, conscientiously,
and impartially applying the standards that govern the decision.”). Because the
jury would have unanimously agreed that Miller used a deadly weapon to batter the
victim and the outcome at trial would not have changed even if trial counsel had
objected, the state court did not unreasonably apply Strickland. Strickland, 466
U.S. at 694. Accord Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (“Under our
decisions, a criminal defendant alleging prejudice must show ‘that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.’”) (quoting Strickland, 466 U.S. at 687); Pope v. Sec’y, Fla. Dep’t Corrs.,
752 F.3d 1254, 1270 (11th Cir. 2014) (“Pope has not established a reasonable
probability that the outcome would have been different if counsel had objected to
the prosecutor’s remarks, let alone that the [state court’s] determination on this
point was unreasonable.”).
Miller argues that the state court unreasonably applied Strickland by
concluding the jury “could have” found that Miller used a deadly weapon. (Doc. 14
at 10) Miller further argues that the state appellate court on direct appeal
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concluded that “it [was] possible that the jury reached a non-unanimous verdict in
this case” (Docs. 2 at 34 and 14 at 10–11) and the respondent conceded on federal
habeas that trial counsel’s deficient performance “‘may have created a risk that the
jury’s verdict was not unanimous.’” (Doc. 14 at 11) (quoting Doc. 7 at 4) Miller
asserts that these statements confirm that the prosecutor’s comment was
prejudicial. (Docs. 2 at 34 and 14 at 11)
Under Strickland, “[i]t is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding.” Strickland,
466 U.S. at 693. Rather, Miller had the burden to show a “probability sufficient to
undermine confidence in the outcome” of the trial. Strickland, 466 U.S. at 694. The
state court recited the correct standard for prejudice under Strickland. (Doc. 21-1
at 5) Despite the state court’s shorthand reference to what the jury’s verdict “could
have” determined, the state court did not unreasonably apply Strickland. Holland
v. Jackson, 542 U.S. 649, 654–55 (2004) (“We have held that such use of the
unadorned word ‘probably’ is permissible shorthand when the complete Strickland
standard is elsewhere recited.”) (citing Woodford v. Visciotti, 537 U.S. 19, 23–24
(2002)). Ground Two is denied.
Ground Three
Miller asserts that trial counsel was ineffective for not objecting to the trial
prosecutor’s comments in closing argument that the jury could find Miller guilty of
kidnapping based on the earlier attack in the kitchen. (Doc. 1 at 8). The
post-conviction court denied the ground as follows (Doc. 21-1 at 5–6):
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. . . Defendant contends trial counsel was deficient for failing to
challenge the State’s improper argument that the jury could
return a less-than-unanimous verdict on the charge of
kidnapping. Specifically, Defendant contends that the State
advised the jury that Defendant’s specific intent for kidnapping
could be satisfied through either his intent on the aggravated
battery or aggravated assault charges (which occurred prior to
the “confinement”), or they could look to acts committed at the
same time or after the kidnapping to determine intent.
The crime of kidnapping in this case was based on confining,
abducting, or imprisoning another person “with intent to inflict
bodily harm upon or to terrorize the victim or another person.”
See Fla. Stat. § 787.01(1)(a)(3). Accordingly, Defendant argues
that the statute requires that at the very point in time when
the defendant unlawfully confines, abducts, or imprisons, he
does so with the intent to inflict bodily harm or to terrorize the
victim. See Johnson v. State, 969 So. 2d 938, 955 (Fla. 2007)
(stating that “[k]idnapping requires proof of both confinement
and criminal intent underlying the confinement.”)[.] Relying on
this analysis, Defendant submits that the aggravated battery
and aggravated assault charges had already occurred prior to
the confinement amounting to the kidnapping charge. Thus,
Defendant contends the intent related to those two charges
could not be used to satisfy the specific intent element of the
kidnapping charge.
In his motion, Defendant assumes that the confinement began
when Defendant grabbed the victim by her arm and pulled her
into the bedroom, thus precluding the State from relying on the
acts that occurred prior to this time as evidence of intent to
inflict bodily harm upon or to terrorize the victim. However,
the record does not reflect that the State was limiting the
kidnapping charge to acts occurring subsequent to Defendant’s
pulling of the victim into the bedroom from the curtains.
Defendant further submits that any confinement or movement
that occurred during the aggravated battery and aggravated
assault acts would have been merely incidental to those crimes.
Thus, Defendant contends [that] the State improperly informed
the jurors that they could use the intent related to the offenses
of aggravated battery and aggravated assault, which occurred
separately from and temporally before the kidnapping, to
satisfy the specific intent for kidnapping. In support of this
contention, Defendant relies on Conner v. State, 19 So. 3d 1117
(Fla. 2d DCA 2009). In Conner, the defendant was convicted of
kidnapping and attempted murder based on his pulling up to
the victim at a bus stop, hopping out of his van, and pushing
the victim to the ground and strangling her[,] the entire
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criminal episode lasting less than a minute. Id. at 1119, 1124.
The Court in Conner stated that “[i]n considering whether
conduct involving another crime also amounts to a kidnapping,
our supreme court teaches that one must ‘closely examine[ ] the
facts to determine whether the confinement or movement was
incidental to the [other charged crime] or whether it took on an
independent significance justifying a kidnapping conviction.’”
Id. at 1124–25 (citing Mobley v. State, 409 So. 2d 1031, 1035
(Fla. 1982)[)]. Accordingly, the Court concluded that Conner’s
brief act of holding his victim on the ground had no significance
independent of the attempted murder, was merely incidental to
the choking, and amounted to a mere momentary restraint,
insufficient to support a conviction for kidnap[p]ing.
The facts in Conner are significantly different than the facts of
the present case. Here, the victim was beaten inside of her
home over the course of several hours with Defendant’s fists,
feet, and a wooden stool leg, assaulted with a knife, knocked to
the ground, pulled into a bedroom and beaten again, then
physically restrained from moving in the bed. Thus, the
victim’s confinement was not merely incidental to the assault
and battery. Rather the victim’s confinement to her home by
being beaten to the ground with a stool leg and assaulted with
a knife took on an independent significance justifying a
kidnapping.
Furthermore, Defendant cannot show prejudice. Even if the
confinement began at the point in time where Defendant pulled
the victim into the bedroom from the curtains, the evidence
demonstrates that after that point, Defendant again hit the
victim, strangled her, smothered her with a pillow, and reverse
bear-hugged her until [she] fell asleep. The jury could have
easily reached a unanimous verdict for kidnapping based either
on acts related to the aggravated assault and aggravated
battery, or on acts occurring after Defendant pulled the victim
to the bedroom. As such, the claim is denied.
Whether the acts in the kitchen were relevant to prove intent for kidnapping
is an issue of state law, and a state court’s determination of state law receives
deference in federal court. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have
repeatedly held that a state court’s interpretation of state law . . . binds a federal
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court sitting in habeas corpus.”). Miller challenged the following comment by the
prosecutor in closing argument (Doc. 9, Ex. A at 629–31):
This is the victim, and this is what makes this a kidnapping
and not a false imprisonment. He acted with intent to inflict
bodily harm upon or to terrorize the victim or another person.
She used the word “terror.” He committed that terror upon her.
Again, he terrorized her. She said it. Those are her words. He
hit her with the stool leg, inflict[ed] bodily harm. He hit her
with his fists. He kicked her. He strangled her. He smothered
[her]. She had to go to the hospital because of the bruises and
the cut that the doctor told you about.
He pulverized her. He pulverized her, terrorized. He beat her
and when she lost control of her bodily functions, did he have
mercy on her? No. He tells her she can’t even take a good
beating, and then he forces her to clean it up.
He told her he would pop her eye out and not only did he tell
her that he would pop her eye out, he tried to pop her eye out.
And the picture she took herself later on after the bruises
developed even more, you will see a picture of her holding her
eye down and a red mark from where he tried to pop her eye
out. He told her he’d punch her teeth out, and he punched her.
He tried to do it. And one of those teeth that on the date she
didn’t realize was broken, she later found out it had turned
black and she lost it.
He told her, I’ll let you live for now, b*tch. But I promise I will
kill you. I will let you live for now, but I promise I will kill you.
He held that knife to her throat. Now, whether it’s up against
her throat or this far from her throat, that’s to her throat.
He tried to smother her with a pillow. He tried to strangle her.
She had to beg for her life. She kept begging for her life, for her
children. She just kept begging. Terrorized, that’s what
make[s] this a kidnapping and not a false imprisonment.
The victim testified that Miller beat her with his fists, his feet, and the stool
leg and assaulted her with a knife immediately before he physically confined her.
(Doc. 9, Ex. A at 266–82) When the victim tried to call for help from a window near
the kitchen, Miller pulled the victim into the bedroom where no one could hear her
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and continued to beat her. (Docs. 9, Ex. A at 282–83) When Miller fell asleep and
the victim tried to leave, Miller woke up, told her, “B*tch, you’re not going
anywhere,” and beat her some more. (Doc. 9, Ex. A at 287–88)
The beating and assault before Miller confined the victim were relevant to
show that Miller had the continued intent to terrorize and inflict bodily harm on the
victim after he confined her. State v. Wright, 74 So. 3d 503, 506 (Fla. 2d DCA 2011).
Accord J.G. v. State, 915 So. 2d 274, 276 (Fla. 4th DCA 2005) (“It is well-settled that
specific intent is rarely shown by direct evidence and is properly left to the trier of
fact to glean from the surrounding circumstances.”). Miller’s confinement of the
victim was not incidental to the aggravated battery and aggravated assault. Perry
v. State, 57 So. 3d 910, 912–13 (Fla. 1st DCA 2011) (“[T]he beating administered by
Appellant lasted at least seven minutes and involved the victim being beaten in one
room, dragged by her hair into another room where the beating continued, and then
dragged by her neck or hair outside where the beating concluded. These facts are
sufficient to establish confinement . . . .”). Because an objection to the prosecutor’s
comment would not have succeeded, the state court did not unreasonably apply
Strickland. Meders v. Warden, Ga. Diag. Prison, 911 F.3d 1335, 1354
(11th Cir. 2019) (“It is not ineffective assistance of counsel to fail to make an
objection that is not due to be sustained.”).
Also, in closing argument, the prosecutor argued that the beating and threats
after Miller confined the victim proved that he had the specific intent to terrorize
and inflict bodily harm on the victim. (Doc. 9, Ex. A at 629–32, 686–89) Because
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these acts after Miller confined the victim proved intent even without the acts
before he confined the victim, the state court did not unreasonably apply
Strickland’s prejudice component. Pope, 752 F.3d at 1270.
Miller argues that the state court unreasonably concluded that the
prosecution never limited the kidnapping charge to acts occurring after the beating
and assault in the kitchen. (Doc. 14 at 15) Miller contends that, at a hearing before
trial, the prosecutor advised that the kidnapping occurred after the aggravated
assault and aggravated battery in the kitchen. (Docs. 14 at 12–13, 15 and 14-1
at 9–10) Miller argues that the prosecutor’s comments were contrary to this
position. (Doc. 14 at 12–13, 15)
The information charged Miller with kidnapping the victim “on or between
the 13th day and the 14th day of March, . . . two thousand ten.” (Doc. 21-1 at 223)
The information did not allege specific facts or theories for the kidnapping charge.
Fla. R. Crim. P. 3.140(b), (d). Allegations in the information tracked the language
of the kidnapping statute. (Doc. 21-1 at 223) The victim told police and testified in
her deposition about the threats and violent acts before and after Miller confined
her. (Docs. 2 at 36–37 and 14-1 at 3) Because Miller was neither surprised by the
prosecutor’s comments nor hampered in preparing his defense, the comments were
not improper. Tingley v. State, 549 So. 2d 649, 651 (Fla. 1989).
Miller also argues that the state court unreasonably applied Strickland by
concluding that the jury “could easily have” reached a unanimous verdict. (Doc. 14
at 16) Miller contends that Strickland’s prejudice component requires a reasonable
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probability that the outcome would have been different. (Doc. 14 at 16) The state
court recited the correct standard for prejudice under Strickland. (Doc. 21-1 at 3)
Despite the state court’s shorthand reference to what the jury “could have”
determined, the state court did not unreasonably Strickland. Jackson,
542 U.S. at 654–55. Ground Three is denied.
Ground Four
Miller asserts that trial counsel was ineffective for not objecting to testimony
by the emergency room doctor that the stool leg was a deadly weapon. (Doc. 1
at 10). The post-conviction court denied this ground as follows (Doc. 21-1
at 99–102) (state court record citations omitted):
Dr. Hisham Zafari, one of the State’s expert witnesses, was the
emergency room doctor who treated the victim. Defendant
contends that during the State’s direct examination of
Dr. Zafari, the State showed Dr. Zafari the stool leg that the
victim claimed was used to strike her, and elicited his opinion,
without objection, that this item was a deadly weapon; that it
could cause serious bodily injury or death. Defendant further
contends that the State later highlighted that testimony in its
closing, informing the jury that expert opinion said the stool leg
was a deadly weapon.
“A deadly weapon is: [1] any instrument which, when used in
the ordinary manner contemplated by its design, will or is
likely to cause death or great bodily harm; or [2] any
instrument likely to cause great bodily harm because of the
way it is used during a crime.” C.A.C. v. State, 771 So. 2d 1261,
1262 (Fla. 2d DCA 2000). Because a stool leg is not designed or
ordinarily used as a weapon for causing death or great bodily
harm, only the second definition applied in this case.
Defendant claims that counsel was deficient for failing to object
to Dr. Zafari’s testimony that the stool leg was a deadly weapon
because there was no predicate for such “expert” testimony.
Specifically, Defendant contends that Dr. Zafari was not
provided sufficient facts to render an opinion as to whether the
stool leg was a deadly weapon. Defendant claims that in order
for Dr. Zafari to have properly given an expert opinion that the
stool leg was a deadly weapon, he would have had to have been
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provided sufficient facts, such as the manner in which
Defendant used the stool leg, the amount of force, and the
angle of the blows, in order to render such an opinion.
Additionally, Defendant claims that counsel was deficient for
failing to object to this testimony because the State failed to
demonstrate whether the expert’s opinion was beyond the
scope of an ordinary juror’s knowledge and understanding, as
required by [S]ection 90.702, Florida Statutes. See Nardone
v. State, 798 So. 2d 870, 873–74 (Fla. 4th DCA 2001) (holding
that the admission of police officer’s opinion testimony that a
metal planter strip used by defendant during the assault was a
deadly weapon was not warranted as expert opinion where
there was no predicate; i.e., there was no evidence presented as
to how defendant used the strip, and there was no showing that
such factual determination was not within the realm of
ordinary juror’s knowledge and understanding); see also
§ 90.702, Fla. Stat. (2015) (providing that before an expert can
testify, the subject matter must be beyond the common
understanding of the average layman). Therefore, Defendant
argues that an appropriate objection would have either been
sustained by the trial court or preserved for appeal. Had trial
counsel lodged the appropriate objection, Defendant contends
that the outcome of the trial would have been different. The
State was direct to respond to this claim.
In its response, the State contends that counsel was not
ineffective for failing to object to this testimony by Dr. Zafari
because the witness was qualified to give such testimony. More
specifically, the State indicates that the standard for whether
someone can give expert testimony is laid out in Section 90.702
of the Florida Statutes, which states:
If scientific, technical, or other specialized
knowledge will assist the trier of fact in
understanding the evidence or in determining
a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or
education may testify about it in the form of an
opinion or otherwise, if:
(1)
The testimony is based upon
sufficient facts or data;
(2)
The testimony is the product of
reliable principles and methods;
and
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(3)
The witness has applied the
principles and methods reliably to
the facts of the case.
Fla. Stat. § 90.702 (2015). The State argues that at the time of
trial, Dr. Zafari had been practicing medicine in an emergency
room setting for twenty-six years and had seen an estimated
50,000 patients. The State further argues that Dr. Zafari
testified that generally when someone is beaten with a blunt
instrument it could cause bodily injury or death. The State
contends that after being shown the stool leg, Dr. Zafari
further testified that the stool leg could cause serious bodily
injury or death. Thus, the State contends that based on
Dr. Zafari’s knowledge and experience with trauma patients,
he was qualified to make such statements and they were
necessary because the State had to prove beyond a reasonable
doubt that the weapon used by Defendant was “likely to
produce death or great bodily harm.” Accordingly, the State
further contends that counsel was not deficient because any
objection by the defense on this issue would have been
overruled.
In Defendant’s reply, he asserts that he does not dispute
whether or not Dr. Zafari was in fact an expert, but rather he
contends that it was improper for Dr. Zafari to provide expert
testimony on a factual matter falling within the realm of an
ordinary juror’s knowledge and understanding. He further
contends that even if it was a matter appropriate for expert
testimony, Dr. Zafari was not provided sufficient facts to
render his expert opinion.
Defendant’s claim is without merit. The Court finds that
Dr. Zafari’s testimony regarding the stool leg was properly
admitted as expert opinion and that counsel was therefore not
deficient. As the State correctly points out, Dr. Zafari was an
extremely experienced emergency room doctor with experience
in dealing with injuries caused by blunt objects. Thus, Dr.
Zafari was qualified as an expert. At trial, the victim provided
testimony and a visual demonstration as to how the stool leg
was used on her. Additionally, Dr. Zafari testified that he had
examined the victim’s injuries immediately following her
beating by Defendant. Thus, Dr. Zafari was provided sufficient
facts from which to render his expert opinion.
Furthermore, the Court rejects Defendant’s argument that
Dr. Zafari’s opinion testimony was within the common
understanding of the jury, and finds that because Dr. Zafari
had extensive training and experience in trauma injuries, his
expert testimony was helpful to the jury. See McWatters
- 23 -
v. State, 36 So. 3d 613, 629–31 (Fla. 2010); see also North
v. State, 65 So. 2d 77, 87–88 (Fla. 1952)[,] aff’d sub nom. North
v. State of Florida, 346 U.S. 932, 74 S. Ct. 376, 98 L. Ed. 423
(1954). Dr. Zafari did not conclusively opine that the victim was
beaten with the stool leg, rather he opined that [ ] based on his
experience and training, and on the victim’s injuries and the
manner in which Defendant allegedly used the stool leg, it
could cause serious bodily injury or death. Dr. Zafari also
testified that the victim’s injuries were equally as consistent
with being caused by merely hands and feet. Thus, Dr. Zafari’s
testimony was offered to help the jury; however, it was still up
to the jury to decide whether the victim had in fact been beaten
by the stool leg, or whether she was beaten by Defendant’s
hands and feet. Any objection by defense counsel on this
subject would have been overruled. Accordingly, counsel cannot
be deemed ineffective for failing to raise a meritless objection.
See Ferrell v. State, 29 So. 3d 959, 976 (Fla. 2010) (stating that
counsel “cannot be deemed ineffective for failing to raise
a meritless argument[ ]”). As counsel was not deficient and
Defendant was not prejudiced, this claim is denied.
Whether the testimony by the doctor was admissible is an issue of state law,
and a state court’s determination of state law receives deference in federal court.
Fla. Stat. § 90.702; Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)
(“The federal courts must defer to a state court’s interpretation of its own rules of
evidence and procedure.”). The doctor testified that he was board certified and
worked in the emergency room since 1985. (Doc. 21-1 at 176) The doctor treated
approximately 50,000 patients during his career. (Doc. 21-1 at 176) The doctor
observed the victim’s injuries and treated the victim. (Doc. 21-1 at 179–80) The
victim told the doctor that someone beat her with the stool leg. (Doc. 21-1 at 179)
During trial, the doctor examined the stool leg and opined that the stool leg could
cause serious bodily injury or death. (Doc. 21-1 at 182) The doctor was qualified to
give that opinion and had specialized knowledge that assisted the jury in
understanding the evidence. Fla. Stat. § 90.702; McWatters, 36 So. 3d at 629–31.
- 24 -
Accord Fla. Stat. § 90.703 (“Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it includes an ultimate issue to be
decided by the trier of fact.”). Because an objection to the testimony would not have
succeeded, the state court did not unreasonably apply Strickland. Meders, 911 F.3d
at 1354.
Miller argues that the state court unreasonably applied Nardone v. State,
798 So. 2d 870 (Fla. 4th DCA 2001). (Doc. 2 at 39–41) Nardone is a state court
opinion, and Miller must show that the state court unreasonably applied a Supreme
Court opinion. 28 U.S.C. § 2254(d); Taylor, 529 U.S. at 412. Also, in Nardone,
a police officer opined that an aluminum strip was a “deadly weapon”; in Miller’s
case, the medical doctor opined that the stool leg could “cause serious bodily injury
or death.” (Doc. 21-1 at 182) Nardone, 798 So. 2d at 872. In Nardone, the police
officer did not base her opinion on her own observations; in Miller’s case, the
medical doctor observed and treated the victim’s injuries. Nardone, 798 So. 2d
at 872. In Nardone, when the prosecution called the police officer to testify, the jury
had not heard evidence about how the defendant had used the aluminum strip; in
Miller’s case, the jury had heard evidence about how Miller had used the stool leg.
Nardone, 798 So. 2d at 873–74. Consequently, the state court unreasonably applied
neither Nardone nor Strickland. (Doc. 9, Ex. A at 422–45) Ground Four is denied.
Ground Five
Miller asserts that trial counsel was ineffective for not objecting to testimony
by the victim about the diagnosis and treatment of her tooth. (Doc. 1 at 14). The
- 25 -
post-conviction court denied the claim as follows (Doc. 21-1 at 104–06) (state court
record citations omitted):
. . . Defendant claims that his trial counsel was ineffective for
failing to challenge the victim’s hearsay testimony. Specifically,
Defendant claims that the victim repeated numerous hearsay
statements from her dentist that went directly to a highly
disputed issue of whether she sustained a permanent injury,
disability, or disfigurement of her tooth. Defendant challenges
the following statement:
[Victim]: It started throbbing and throbbing.
After a bit I went to the dentist. He
said it was broken.
Defendant next contends that on redirect, the victim testified
that the dentist told her:
[Victim]: You have to go to the endodontist. You
need a root canal. It’s a dead tooth.
The tooth is dead. So then I went to an
endodontist and had that surgery
done.
...
And I had the procedure done, and
fortunately the guy did a good job. But
I looked at it and I said why is this
stump so black? Is it going to come
back? Is it going to come back normal?
He said, I don’t know.
Because my gums are all black and he
said — I said, well, why is it like that?
He said, you received such a
tremendous trauma, such a
tremendous trauma to that tooth, and
that’s why it is such a black — it’s just
a black stump.
Defendant concedes that after this lengthy recitation of
hearsay, his trial counsel finally raised an objection, which the
Court sustained. However, Defendant claims that the harm
was already done because the hearsay was already before the
- 26 -
jury. Thus, Defendant contends that trial counsel was deficient
for failing to request a curative instruction to the jury given
that the jury had already heard the inadmissible hearsay.
Defendant further claims that because the declarants of this
hearsay were experts in dentistry, the jurors likely attributed
added credibility to those opinions that the victim sustained
“tremendous trauma” that it “killed” the root and required a
root canal. Thus, Defendant claims that had counsel not been
deficient in this respect, there is at least a reasonable
probability that the outcome of the trial would have been
different. The State was directed to respond to this claim.
In its response, the State contends that Defendant was not
prejudiced by the victim’s testimony relating to the damage to
her tooth. First, the State alleges that the victim would have
been allowed to testify that after she was beaten, her tooth
turned brown and black and ultimately had to be removed.
Thus, the State claims that the jury would have heard that her
healthy tooth suddenly needed to be removed regardless of any
objection by counsel. Second, the State alleges that the absence
of any supporting documentation or a dentist as a testifying
witness strengthened the defense’s theory that the victim was
exaggerating her injuries. Lastly, the State contends that the
victim suffered additional permanent disfigurement in the form
of the marks on her leg made by the screws on the stool leg.
Thus, the State claims that [the] jury could have relied on
those injuries to find serious bodily injury.
In his reply, Defendant concedes that the victim was permitted
to testify about what she observed her tooth doing. However,
Defendant points out that the victim’s hearsay testimony
bolstered her own credibility.
Defendant’s claim is without merit. Initially, the Court notes
that counsel did in fact object to this testimony on the basis of
hearsay. Thus, Defendant claims counsel was deficient for
merely failing to request a curative instruction. The Court
finds that if the jury had been given a curative instruction,
there is not a reasonable probability that it would have
returned a different verdict. As the State contends, the victim
would have been permitted to testify that her tooth turned
brown and black and that she ultimately lost her tooth.
Therefore, the only improper testimony was what her dentist
and endodontist told her. See Harris v. State, 37 So. 3d 285,
286–87 (Fla. 2d DCA 2010) (holding that the victim’s testimony
as to what he was told at the hospital concerning the extent of
his injuries was inadmissible hearsay). Although the hearsay
might have served to bolster the victim’s testimony regarding
- 27 -
the extent of her injuries, the Court finds that the jury could
have easily returned the same verdict even absent the hearsay
testimony.
The victim testified that the State’s Composite Exhibit 10A–F
[was] photographs of her when she was brought to the
emergency room, and she pointed out her “broken tooth.” Thus,
the jury was already aware that the victim suffered a broken
tooth following her beating by Defendant. Counsel
cross-examined Deputy McDowell regarding what she
perceived when she encountered the victim seven days after
the incident. Counsel elicited testimony that the tooth did not
look chipped or broken and was still intact in the victim’s
mouth. Additionally, in closing argument, counsel pointed out
to the jury that “the only reason we have to believe that
something happened to her teeth or to her tooth was her
testimony. We didn’t hear from a dentist. We didn’t see any
dental records.” Counsel also pointed out that after searching,
the victim “finally found a dentist that said [ ] there was
something wrong with her tooth. I don’t even know if that’s
true.” Therefore, even absent a curative instruction, counsel
advised the jury that the victim was in essence bolstering her
own testimony without any actual evidence to support such
statements.
Moreover, the victim testified that she sustained scarring on
her leg from the bolts on the stool leg. She even stood up and
showed the jury the marks that were still on her leg from being
hit with the stool leg. The jury could have easily found the
scars on the victim’s leg to be permanent disfigurement; or,
also as easily determined that the stool leg was a deadly
weapon. Therefore, there is not a reasonable probability that
but for counsel’s failure to request a curative instruction, the
outcome of the trial would have been different. For all of the
aforementioned reasons, Defendant was not prejudiced and
this claim is denied.
Trial counsel objected to the victim’s testimony as hearsay. (Doc. 21-1 at 174)
The trial court sustained the objection but trial counsel did not ask for a curative
instruction. (Doc. 21-1 at 174) Whether the victim properly testified about her own
observations of her tooth is an issue of state law, and a state court’s determination
- 28 -
of state law receives deference in federal court. Fla. Stat. § 90.604; Machin,
758 F.2d at 1433.
The victim identified her broken tooth in photographs taken at the
emergency room. (Doc. 21-1 at 149–50) The victim testified, “And I said I’ve got to
go see a dentist, and it took awhile to get the right one.” (Doc. 21-1 at 172–73)
During closing argument, trial counsel capitalized on both this admission by the
victim and the absence of dental records and testimony by a dentist to raise doubts
that the victim’s tooth was broken. (Doc. 21-1 at 211) The trial court instructed the
jury (Doc. 9, Ex. A at 718):
[Court:]
Weighing the evidence, it is up to you to decide
what evidence is reliable. You should use your
common sense in deciding which is the best
evidence and which evidence should not be relied
upon in considering your verdict. You may find
some of the evidence not reliable or less reliable
than other evidence.
Because trial counsel showed the jury why the victim’s hearsay statements were
unreliable even without a curative instruction, the state court did not unreasonably
apply Strickland. Lundberg v. Sec’y, Fla. Dep’t Corrs., 808 F. App’x 725, 737–38
(11th Cir. 2020); Johnson v. Sec’y, Dep’t Corrs., 737 F. App’x 438, 441–42
(11th Cir. 2018).
Also, the victim testified that she had scars on her leg from the wounds that
Miller inflicted with the stool leg. (Doc. 21-1 at 174–75) The victim showed the
scars to the jury. (Doc. 21-1 at 175) The scars proved permanent disfigurement
even without the hearsay testimony about the victim’s broken tooth. Because the
outcome at trial would not have been different even if trial counsel had asked for
- 29 -
a curative instruction, the state court did not unreasonably apply Strickland.
Morgan v. United States, 785 F. App’x 682, 686–87 (11th Cir. 2019); Austin v. Sec’y,
Dep’t Corrs., 730 F. App’x 760, 764–65 (11th Cir. 2018).
Miller argues that the state court unreasonably applied Strickland by
concluding that the jury “could easily have” returned the same verdict. (Docs. 2
at 43 and 14 at 21–22) The state court recited the correct standard for prejudice
under Strickland. (Doc. 21-1 at 106) Despite the state court’s shorthand reference
to what the jury “could have” determined, the state court did not unreasonably
Strickland. Jackson, 542 U.S. at 654–55. Ground Five is denied.
Ground Six
Miller asserts that trial counsel was ineffective for not objecting to comments
by the prosecutor during closing argument. (Doc. 1 at 14) Miller contends that the
prosecutor shifted the burden of proof (“sub-claim A”), commented on his right to
silence (“sub-claim B”), commented on facts not in evidence (“sub-claim C”), and
inflamed the jury (“sub-claim D”). (Docs. 1 at 14 and 2 at 44–45)
Sub-claim A
Miller asserts that the prosecutor shifted the burden of proof during closing
argument and trial counsel was ineffective for not objecting. (Doc. 2 at 44–45) The
post-conviction court denied the claim as follows (Doc. 21-1 at 11–12):
Defendant alleges that the State improperly shifted the burden
of proof by advising the jury that their verdict was going to be
“[their] chance to tell the truth.” . . .
Defendant relies on Gore v. State in support of his contention
that this was improper burden-shifting. 719 So. 2d 1197
(Fla. 1998). In Gore, the Florida Supreme Court held that the
- 30 -
prosecutor impermissibly shifted the State’s burden of proof
during closing argument by stating, “If you believe
[defendant’s] story, he’s not guilty. If you believe [defendant is]
lying to you, he’s guilty. It’s that simple.” Id. at 1200. The
Florida Supreme Court went on to reason that it is error for a
prosecutor to make statements that shift the burden of proof
and invite the jury to convict the defendant for some reason
other than that the [S]tate has proved its case beyond
a reasonable doubt. Id.
Whereas in Gore, the prosecutor explicitly exhorted the jurors
to convict the defendant if they disbelieved his testimony, the
prosecutor’s statement in the present case that the jury’s
verdict was going to be “your chance to tell us the truth” does
not rise to that level. Rather, it appears as though the State
was asking the jury to weigh the credibility of the witnesses
and their version of the events. As such, the State did not
impermissibly shift its burden of proof or invite the jury to
convict Defendant for some reason other than that the State
has proved its case beyond a reasonable doubt. Accordingly,
Defendant was not prejudiced.
Whether the prosecutor’s comment shifted the burden of proof is an issue of
state law, and a state court’s determination of state law receives deference in
federal court. Ford v. Norris, 364 F.3d 916, 918–19 (8th Cir. 2004) (“In Mr. Ford’s
case, the Arkansas Supreme Court came to the conclusion that had Mr. Ford’s
attorney objected to the prosecutor’s statements, the objection, as a matter of
Arkansas law, would probably have been overruled. . . . [T]he Arkansas Supreme
Court was applying Arkansas law to the facts of Mr. Ford’s case.”). In the
beginning of rebuttal closing argument, the prosecutor told the jury (Doc. 9,
Ex. A at 681):
[Prosecutor:] Now, verdict, what you’re going to decide today,
guilty or not guilty. Verdict means veritas
[dictum] which means the truth to speak. What
is the truth? It’s a chance for you to tell us what
is the truth. What happened on that night?
- 31 -
Under state law, the comment did not shift the burden of proof. Lucas v. State,
67 So. 3d 332, 336 (Fla. 4th DCA 2011) (“[T]he prosecutor ‘neither insinuated that
[the] defendant needed to prove anything, nor invited the jury to convict the
defendant for a reason other than the State proving [the] defendant’s guilt by
evidence beyond a reasonable doubt.’”) (quoting Dunlap v. State, 21 So. 3d 873, 876
(Fla. 4th DCA 2009)). Because an objection to the comment would not have
succeeded, the state court did not unreasonably apply Strickland. Meders,
911 F.3d at 1354.
Sub-claim B
Miller asserts that the prosecutor commented on his right to silence during
closing argument and trial counsel was ineffective for not objecting. (Doc. 1 at 14)
The post-conviction court denied the claim as follows (Doc. 21-1 at 106–07) (state
court record citations omitted):
Defendant alleges that the State improperly shifted the burden
of proof by advising the jury that their verdict was going to be
“[their] chance to tell the truth.” Defendant further alleges that
the State[ ] immediately afterward[ ] commented on
Defendant’s right to remain silent, arguing:
There are only two people who know what
happened in that house. That’s [the victim] and
the defendant in this case. And [the victim] told
you — she took the stand and told you what
happened. What defendant told you through
[D]eputy Schafer was I know I did something
wrong but a first[-]degree felony?
. . . Defendant [ ] claims that these statements by the State
during closing argument were improper comments on his right
to remain silent. Defendants in all criminal cases have the
absolute constitutional right not to incriminate themselves.
See Fla. Const. art. I, §9; U.S. Const. amend. V. An accused
may invoke this right to remain silent without fear that the
- 32 -
invocation will be used against the accused at trial. See Green
v. State, 27 So. 3d 731, 735 (Fla. 2d DCA 2010). If a comment
made at trial “is fairly susceptible of being construed by the
jury as a comment on the defendant’s exercise of his or her
right to remain silent, it violates the defendant’s right to
silence.” Id. The State was directed to respond to this claim.
In its response, the State contends that it was not commenting
on Defendant’s right to remain silent because, in context,
Defendant did not remain silent. The State claims that
Defendant made a spontaneous statement to law enforcement,
and that the State had a right to argue what Defendant meant
by that statement.
In his reply, Defendant reiterates his contention that any
comment which is even “fairly susceptible” of being interpreted
as a comment on silence will be treated as such.
Defendant’s claim is without merit. The Court agrees with the
State that taken in context, the statements at issue really
comment on the fact that Defendant did not remain silent
— that he admitted to doing something wrong to Deputy
Schafer — and that Defendant’s statements to police undercut
the defense’s theory that the victim is a woman scorned who
planted evidence. Therefore, the Court finds that this comment
was not “fairly susceptible” of being interpreted as a comment
on silence. For the aforementioned reasons, Defendant cannot
demonstrate that counsel was deficient or that he was
prejudiced.
Whether the trial prosecutor’s comment was “‘fairly susceptible’ of being
interpreted as a comment on silence” is an issue of state law, and a state court’s
determination of state law receives deference in federal court. State v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986) (“In Florida, we have adopted a very liberal rule
for determining whether a comment constitutes a comment on silence: any
comment which is ‘fairly susceptible’ of being interpreted as a comment on silence
will be treated as such.”). At trial, the deputy testified (Doc. 9, Ex. A at 470):
Deputy:
[Miller] knocked on the window to get my
attention. I was, I guess, in a sense babysitting.
I was just standing outside the car while Deputy
- 33 -
McDowell was doing his investigation. He got my
attention by knocking on the window, and
I walked up to him and said, “What?”
He says, “Do you know what my charge is?”
I said, “No, I don’t.”
And he asked, “Well, is it aggravated battery?”
“I don’t know.”
He said, “Well, I know I did something wrong but
a first-degree felony,” was his question.
I said, “I don’t know. I don’t have a clue.”
Miller’s admission was relevant and admissible. Fla. Stat. § 90.803(18); State
v. Binion, 637 So. 2d 952, 952–53 (Fla. 4th DCA 1994). The prosecutor fairly
commented on Miller’s admission — not on his failure to testify. Minnis v. State,
505 So. 2d 17, 17 (Fla. 3d DCA 1987) (“[The prosecutor] commented on the
defendant’s oral statement to the arresting police officer, noting that the defendant
did not assert an alibi in this statement. This is a perfectly permissible comment on
the defendant’s statement to the police, and in no sense amounts to a comment on
the defendant’s exercise of his right to remain silent.”). Because an objection would
not have succeeded, the state court did not unreasonably apply Strickland. Meders,
911 F.3d at 1354.
Sub-claim C
Miller asserts that the prosecutor commented on facts not in evidence four
times during closing argument and trial counsel was ineffective for not objecting.
(Doc. 2 at 44–45) The post-conviction court denied the claim for each comment as
follows.
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Comment One
Defendant alleges the prosecutor misrepresented Dr. Zafari’s
testimony by informing the jury[,] “One blow could have killed
her. That’s what the doctor said. That’s a deadly weapon.”
However, Defendant claims Dr. Zafari never testified as to the
amount of blows with the stool leg that could cause death.
Although Dr. Zafari did not specifically comment on the
number of blows from a wooden stool leg it would take to cause
death, he did indicate that based on his medical experience, the
wooden stool leg is an object that could cause serious bodily
injury or death. The State was permitted to argue reasonable
inferences from the testimony presented at trial. See Miller
v. State, 926 So. 2d 1243, 1254–55 (Fla. 2006) (“[A]n attorney is
allowed to argue reasonable inferences from the evidence.”).
Thus, Defendant was not prejudiced.
(Doc. 21-1 at 12) (state court record citations omitted)
The doctor opined that the stool leg could cause serious bodily injury or
death. (Doc. 21-1 at 46) Whether the prosecutor fairly commented on this
testimony is an issue of state law, and a state court’s determination of state law
receives deference in federal court. Ford, 364 F.3d at 918–19. The prosecutor
reasonably inferred from the doctor’s testimony that one strike with the stool leg
could have killed the victim. The jury could have come to the same conclusion
based on its own observation of the stool leg. Consequently, the state court did not
unreasonably apply Strickland’s prejudice component. Pope, 752 F.3d at 1270.
Bryant v. State, 45 Fla. L. Weekly D1954, D1955 (Fla. 1st DCA Aug. 17, 2020)
(“Given the evidence presented at trial, the jury could infer that a BB gun can cause
great bodily harm, including an injury to a person’s eye. Thus, the State’s
references to the admonition from A Christmas Story that a BB gun could ‘shoot
your eye out’ is a logical inference . . . .”).
- 35 -
Comment Two
. . . Defendant alleges the prosecutor mischaracterized the
victim’s testimony by informing the jurors that Defendant
“dragged” her to the bedroom from the window, when the
victim actually testified that Defendant “pulled” her from
where she was standing at some curtains separating the
kitchen from the sitting room area. Defendant also alleges that
contrary to the prosecutor’s claim that it was “testified to” that
the gates in the backyard were “closed by padlock,” there was
in fact no testimony or other evidence to that effect. Several
times during closing argument, the State correctly stated that
Defendant “pulled” the victim and substituted the word
“dragged” for “pulled” just one time. Additionally, although it
was not “testified to” that the back gate was closed by padlock,
the victim did testify that the back gate was secured [and]
locked. She also testified that it would be pretty hard to get out
that way. The State was permitted to argue reasonable
inferences from the testimony presented at trial. See Miller,
926 So. 2d at 1254–55 (“[A]n attorney is allowed to argue
reasonable inferences from the evidence.”). Thus, Defendant
was not prejudiced.
(Doc. 21-1 at 12–13) (state court record citations omitted)
The victim testified that, during Miller’s attack, she tried open the curtains
in the kitchen so that someone outside could see her and help. (Doc. 9, Ex. A at 282)
Miller “grabbed [her] by the arm” and “pull[ed] [her] into the bedroom that’s in the
back of the house where no one [could] hear anything.” (Doc. 9, Ex. A at 282–83)
During closing argument, the prosecutor told the jury several times that Miller
grabbed the victim and pulled her back. (Doc. 9, Ex. A at 627, 628, 683) Also, the
prosecutor told the jury that Miller “dragged [the victim] all the way to the back
bedroom where nobody could see her.” (Doc. 9, Ex. A at 686) The prosecutor
concluded, “[d]ragging [the victim] into another room to beat her is the exact
definition of the intent to terrorize and the intent to confine and the intent to inflict
bodily harm.” (Doc. 9, Ex. A at 689) Because the prosecutor reasonably inferred
- 36 -
from the victim’s testimony that Miller “pulled” or “dragged” the victim, the state
court did not unreasonably apply Strickland’s prejudice component. Pope, 752 F.3d
at 1270.
The victim further testified that sliding doors exited to the backyard which
was enclosed by a fence and a gate in the backyard was “always secured and
locked.” (Doc. 21-1 at 37, 38) The victim acknowledged that the gate was locked
from the inside and she could have unlocked the gate to leave. (Doc. 9, Ex. A
at 389–90) Nonetheless, the victim explained that, because “it would be pretty hard
to get out that way,” she left through the garage door. (Doc. 21-1 at 37) During
closing argument, the prosecutor told the jury, “She could have maybe gone out the
sliding doors. Bear in mind in this backyard these gates were closed by padlock.
That was testified to.” (Doc. 9, Ex. A at 686) Because the prosecutor reasonably
inferred from the victim’s testimony that she could have exited the house through
the sliding doors but could not have easily unlocked the gate to escape, the state
court did not unreasonably apply Strickland’s prejudice component. Pope, 752 F.3d
at 1270.
Comment Three
Defendant next challenges the following in the State’s closing
argument: “Defense counsel said there is no feces in the
bedroom. That doesn’t matter one way or the other. Whether
there [are] no feces in the bedroom does not go to an element of
the crime.” Defendant claims that this account misrepresented
defense counsel’s argument and was also a misrepresentation
of the law. Specifically, Defendant alleges that defense
counsel’s argu[ment] [about] the lack of feces in the bedroom
went [to] the victim’s credibility since she claimed that after
she soiled herself, Defendant reverse bear-hugged her in the
bed. Defendant further claims the prosecutor misled the jury as
to their ability to consider this evidence when assessing the
- 37 -
victim’s credibility by incorrectly advising the jurors that the
evidence could only be considered if it went to an element of the
crime. Although the prosecutor pointed out that this evidence
did not go to an element of the crime, the prosecutor did not
specifically advise the jurors that the evidence could only be
considered if it went to an element of the crime. Thus,
Defendant was not prejudiced.
(Doc. 21-1 at 13) (state court record citations omitted)
During closing argument, the prosecutor did not tell the jury that the absence
of feces in the bedroom could only be considered if relevant to an element of a crime.
(Doc. 9, Ex. A at 692) The prosecutor explained, “What matters is that — why is
there feces. Because he beat her so severely that she defecated herself.” (Doc. 9,
Ex. A at 692) The prosecutor replied to trial counsel’s argument that the victim
must have been lying that Miller “bear-hugged” her on the bed after she defecated
in the kitchen because the victim never cleaned herself and the bedsheets did not
have feces on them. (Doc. 9, Ex. A at 648–49) The trial court instructed the jury to
weigh the evidence by considering whether a witness’s testimony agreed with other
evidence in the case. (Doc. 9, Ex. A at 718) Because the prosecutor fairly replied to
trial counsel’s comment and did not impede the jury from considering the absence of
feces when assessing the victim’s credibility, the state court did not unreasonably
apply Strickland’s prejudice component. Pope, 752 F.3d at 1270. Walls v. State,
926 So. 2d 1156, 1166 (Fla. 2006).
Comment Four
. . . Defendant claims the prosecutor misrepresented the
defense’s case by informing the jurors that the defense’s theory
was that the victim was a woman scorned who planted
evidence and made all of it up. Defendant argues, however,
that defense counsel never claimed that the victim was making
all of it up, but that he admitted to the assault and battery,
- 38 -
and that the victim was exaggerating and was untruthful
about the true nature of their altercation. This claim is refuted
by the record. During closing arguments, defense counsel told
the jury that the victim was a jealous woman scorned, who was
a victim, but exaggerated. Thus, the State fairly [and]
accurately summarized defense counsel’s theory.
(Doc. 21-1 at 13–14) (state court record citations omitted)
During closing argument, trial counsel told the jury (Doc. 21-1 at 73):
[The victim’s] statements are inconsistent. She is
a victim. But it doesn’t mean that she can’t lie and she
can’t exaggerate because what she also admittedly is
a jealous woman scorned, a woman whose boyfriend was
hand feeding, sensually feeding another woman food.
Because trial counsel’s comments refuted the claim, the state court did not
unreasonably apply Strickland.
All Comments
Furthermore, “[c]losing argument is an opportunity for counsel
to review the evidence and to explicate those inferences which
may reasonably be drawn from the evidence.” See Merck
v. State, 975 So. 2d 1054, 1061 (Fla. 2007). The parties are
provided wide latitude “so that they may ‘advance all
legitimate arguments and draw logical inferences from the
evidence.’” See Rivera v. State, 840 So. 2d 284, 286 (Fla. 5th
DCA 2003) (quoting McArthur v. State, 801 So. 2d 1037, 1040
(Fla. 5th DCA 2001)). When evaluating a prosecutor’s
comments during closing argument, the remarks “should be
reviewed within the context of the closing argument as a whole
and considered cumulatively within the context of the entire
record.” Id. at 287. Consequently, “a comment standing alone
may be viewed as inappropriate, but when considered within
the context of the entire closing argument and the record, it
may be a fair comment.” Id.
Prior to closing argument, the Court reminded the jury that
closing argument is not evidence or instruction on the law.
Defense counsel also told the jury that they get to judge the
credibility of the witnesses that testified. Additionally, the
prosecutor specifically told the jury during closing argument,
“Just because counsel says something, whether it’s myself,
Ms. Mootmaw, the Defendant — what we say is not evidence.
- 39 -
It’s argument.” Thus, Defendant is unable to demonstrate
prejudice and this claim is therefore denied.
(Doc. 21-1 at 14) (state court record citations omitted)
Because the trial court instructed the jury that “what the attorneys say is not
evidence or your instructions on the law” (Doc. 21-1 at 56) and the prosecutor fairly
commented on the evidence, the state court did not unreasonably apply Strickland.
Strickland, 466 U.S. at 694 (“In making the determination whether the specified
errors resulted in the required prejudice, a court should presume, absent challenge
to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted
according to law.”); Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is
presumed to follow its instructions.”).
Sub-claim D
Miller asserts that the prosecutor inflamed the jury during closing argument
and trial counsel was ineffective for not objecting. (Doc. 2 at 44–45) The
post-conviction court denied the sub-claim as follows (Doc. 21-1 at 107–10) (state
court record citations omitted):
Defendant claims the prosecutor engaged in inflammatory and
abusive behavior by “repeatedly and forcefully, with all his
might, loudly and aggressively” striking his hand with the stool
leg that was claimed to be used to hit the victim. Defendant
claims that these actions were designed to evoke an emotional
response from the jury. Defendant further claims that the
prosecutor conceded in his closing that he was hitting his hand
and the air with the stool leg to illustrate to the jurors how
violent the incident was.
Defendant claims that trial counsel rendered deficient
performance by failing to object to the prosecutor’s
demonstration. He further claims that this demonstration in
combination with the above-detailed prosecutorial arguments
were cumulatively improper. See Taylor v. State, 640 So. 2d
- 40 -
1127, 1134–35 (Fla. 1st DCA 1994) (holding that the
prosecutor’s act of striking a table with the murder weapon and
his conjecture concerning the child’s dying words were harmful
error as they were designed to evoke an emotional response to
the crimes or to the defendant, and fell outside the realm of
proper argument); see also Nardone, 798 So. 2d at 874–75
(cumulative effect of prosecutor’s conduct in repeatedly striking
the table with the aluminum strip with such force as to send
drywall scattering around the courtroom, coupled with
improper opinion testimony, was harmful error; however, it
was unnecessary to decide whether the prosecutor’s
demonstration, standing alone, was so egregious as to warrant
a new trial); Ayalavillamizar v. State, 134 So. 3d 492, 498
(Fla. 4th DCA 2014) (finding that the prosecutor’s conduct of
repeatedly slamming appellant’s hammer down in order to
demonstrate the blows to the victim’s head was designed to
evoke an emotional response to the crime and fell outside the
realm of proper argument; however, although improper, it was
not so egregious, standing alone, to warrant a new trial).
He further claims that but for trial counsel’s deficient
performance, there is at least a reasonable probability that the
outcome of the trial would have been different. The State was
direct to respond to this claim.
In its response, the State contends that demonstrations by the
State are permitted when, as here, the demonstrative exhibits
are relevant to the issues in the case and they constitute an
accurate and reasonable reproduction of the object involved.
The State argues that the State’s demonstration was an
accurate reproduction of how the stool leg was used.
Additionally, the State contends that Defendant was not
prejudiced. More specifically, the State contends that
Defendant’s claim is not analogous to Taylor or Nardone. The
State alleges that the cause of death was uncontested in Taylor
and the issue before the jury in that case was whether the
defendant was insane at the time, and therefore the
demonstration was clearly disturbing and only used to incite
the emotions of the jury. The State further alleges that Taylor
concerned a pattern of prosecutorial misconduct, which
included the improper demonstration. The State alleges that
Nardone similarly involved a pattern of prosecutorial
misconduct. Additionally, the State alleges that the
demonstration in Nardone did not accurately reflect how
Defendant used the tool, which was a highly contested issue in
the case. In contrast to those cases, the State contends that
there was not a pattern of prosecutorial misconduct present in
Defendant’s trial. The State further contends that here, the
State accurately portrayed how Defendant used the stool leg;
and, that one of the issues before the jury was whether or not
- 41 -
Defendant beat the victim with the stool leg. The State argues
that the present case is more closely akin to, although less
severe than, Ayalavillamizar2, Spriggs3, and Clark4, which all
held that like demonstrations were harmless error.
Ayalavillamizar v. State, 134 So. 3d 492, 497
(Fla. 4th DCA 2014) (admonishing the State for
loudly striking a hammer used by the defendant
against the podium, a chair, and a marble
surface but finding it did not require a new trial).
2
Spriggs v. State, 392 So. 2d 9, 10 (Fla. 4th DCA
1980) (admonishing prosecutor for picking up
knife admitted into evidence and striking it into
jury rail during closing argument, but finding the
error harmless).
3
Clark v. State, 553 So. 2d 240, 242 (Fla. 3d DCA
1989) (finding that prosecutor’s conduct in
aiming unloaded murder weapon at jury and
pulling the trigger was error, but holding the
error harmless).
4
In his reply, Defendant contends that the State’s
demonstration was more than a mere professional
demonstration, that the “prosecutor repeatedly and forcefully,
with all his might, loudly and aggressively struck his hand
with the stool leg in a manner that resulted in jurors being
visibly affected by it.”
The Court agrees with the State that Defendant’s claim is
without merit. First, this Court has already denied Defendant’s
allegations that the State committed several improper
prosecutorial acts. Thus, there was no pattern of prosecutorial
misconduct as in Taylor and Nardone. Second, the prosecutor
in Defendant’s trial merely repeated the victim’s testimony and
the victim’s demonstration of the beating with the stool leg.
Because the jury had already watched the victim demonstrate
how Defendant beat her with the stool leg, the Court finds that
the prosecutor merely reminded the jury during closing
argument of the way that the victim demonstrated her own
beating. As such, the prosecutor’s demonstration was an
accurate portrayal of how Defendant used the stool leg. Third,
whether Defendant beat the victim with the stool leg and
whether the stool leg constituted a deadly weapon were highly
contested issues in this case. Therefore, the actions here were
not done solely to evoke an emotional response from the jury
and were not so egregious as to undermine the reliability of the
jury’s verdict. Accordingly, any objection by counsel would have
- 42 -
been overruled. Consequently, counsel was not deficient for
failing to raise a meritless argument. For the aforementioned
reasons, the claim is denied.
Whether the prosecutor’s comments during closing argument inflamed the
jury is an issue of state law, and a state court’s determination of state law receives
deference in federal court. Ford, 364 F.3d at 918–19. During trial, the victim stood
up and showed the jury how Miller held the stool leg and beat her. (Doc. 21-1
at 137) The victim identified the parts of her body that Miller beat with the stool
leg. (Doc. 21-1 at 137–39) The victim said that Miller beat her with the stool leg at
least twenty times. (Doc. 21-1 at 138) Because the prosecutor accurately portrayed
the victim’s demonstration and description of the beating, an objection to the
prosecutor’s comments would not have succeeded. Consequently, the state court did
not unreasonably apply Strickland. Meders, 911 F.3d at 1354. Brown v. State,
550 So. 2d 527, 529 (Fla. 1st DCA 1989) (“As to the state’s use of the demonstrative
exhibits during closing argument, when the prosecutor inserted the knife into the
styrofoam head, the record does not establish any alleged inaccuracy of this
replication sufficient to demonstrate error.”). Ground Six is denied.
Ground Seven
Miller asserts that trial counsel was ineffective for not adequately
impeaching the victim. (Doc. 1 at 14) Miller identified inconsistencies between the
victim’s testimony and physical evidence (“sub-claim A”), inconsistencies between
the victim’s testimony and other evidence (“sub-claim B”), and inconsistencies
between the victim’s testimony and prior statements (“sub-claim C”). The
post-conviction court denied the claim as follows (Doc. 21-1 at 15–16):
- 43 -
Defendant claims ineffective assistance of counsel for failing to
impeach the victim with prior inconsistent statements, and to
otherwise ensure that inconsistencies were brought to the
jury’s attention, which would have weakened her credibility
and supported his theory that she exaggerated the allegations.
Defendant identifies a host of prior inconsistent statements
made by the victim as well as other inconsistencies within the
victim’s accounts of the events. Defendant claims that the
evidence supporting the State’s charges on all three counts
came solely from the victim’s testimony as to what occurred the
night of the incident. Therefore, Defendant claims her
credibility was a critical issue. Defendant further claims that
trial counsel failed to elicit “many substantial inconsistencies”
that would have “erased any confidence the jury had in the
truthfulness of her version(s) of events.” Thus, Defendant
claims that because this case hinged on the victim’s credibility,
there is at least a reasonable probability that the jury would
have doubted her story had defense counsel impeached the
victim with her prior inconsistent statements, and therefore
the outcome of trial would have been different. As Defendant
identifies both prior inconsistent statements as well as
inconsistencies in general, the Court will individually address
each point Defendant makes in his motion.
Sub-claim A
Miller asserts that trial counsel was ineffective for not impeaching the victim
with inconsistencies between her testimony and physical evidence. The
post-conviction court denied the claim for each inconsistency as follows:
Defendant’s first “category” of inconsistencies is that the
physical evidence does not support even the core of the victim’s
story. The Court notes that this list does not contain prior
inconsistent statements, but rather, examples of where the
victim’s testimony is incongruent with other evidence.
Defendant alleges:
i.
The victim claims she did not hear Defendant
enter the house, yet there was only a set of
curtains between where the victim was standing
in the kitchen and where Defendant supposedly
came into the house (through a very loud front
door) in a blind rage and ripped off a stool leg.
Defense counsel highlighted this inconsistency
during closing argument. As such, the jury was
- 44 -
aware of this inconsistency and Defendant was
not prejudiced. Thus, this claim is denied.
ii.
The stool leg was splintered, yet there was no
evidence of shards or splinters of wood anywhere
in the house denoting that Defendant in fact
ripped the stool leg from the stool. During
cross-examination of Deputy McDowell, defense
counsel elicited testimony exposing this
incongruity. As such, the jury was aware of this
inconsistency and Defendant was not prejudiced.
Thus, this claim is denied.
iii.
Despite the victim’s testimony that she was
struck a minimum of 30 times with the stool leg
(that had two bolts sticking out of it) to the head,
face, and body, she suffered only bruising and
one small laceration. As testified to by the ER
doctor and the investigating officer, the victim’s
injuries were every bit as consistent with being
hit by Defendant’s hands and feet alone. Defense
counsel exploited this discrepancy several times
during closing argument. As such, the jury was
aware of this inconsistency and Defendant was
not prejudiced. Thus, this claim is denied.
(Doc. 21-1 at 16–17) (state court record citations omitted)
iv.
The victim testified at trial that the laceration
she received on her head was bleeding and that
she was bleeding all over the house, even
identifying a bloody handprint in the kitchen as
being from her and a sweater that she said was
“full” of her blood. Yet, the pillow with which
Defendant allegedly used to smother the victim
presented no visible or forensic sign of blood. The
State was directed to respond to this claim.
In its response, the State contends that counsel
would not have been able to produce a pillow
that anyone could represent was in the same or
substantially the same condition at the time of
the crime because none of Defendant’s or the
victim’s belongings were collected by law
enforcement at the time of Defendant’s arrest,
and the victim testified that she did laundry and
cleaned up the house once Defendant was
arrested. Furthermore, the State contends that
- 45 -
law enforcement documented extensive bleeding
throughout the crime scene and Dr. Zafari noted
a laceration on the victim’s head at the time that
he cared for the victim.
The Court finds that counsel’s failure to point out
that the victim’s pillow did not contain any sign
of blood did not impact the reliability of the
result in the trial court. As both Defendant and
the State indicate, there was extensive evidence
demonstrating that the victim had a laceration
on her head and that there was a large amount
of blood throughout the residence. Pointing out
that no blood was found on the pillow would not
have diminished the extent of the injuries that
the victim received at the hands of Defendant.
Furthermore, whether or not the victim was
smothered by a pillow was not material to any of
the crimes charged. See Pearce, 880 So. 2d
at 569. For the aforementioned reasons,
Defendant was not prejudiced and this claim is
denied.
(Doc. 21-1 at 111) (state court record citation omitted)
v.
The victim testified that she soiled herself and
was covered in feces; that she and her clothes
were “filthy” and “disgusting” with feces. Yet,
there was no evidence of feces in the bed or the
bedroom at all where Defendant was supposedly
holding the victim in a tight bear hug from
behind. Defense counsel called attention to this
inconsistency on more than one occasion during
closing argument. As such, the jury was aware of
this inconsistency and Defendant was not
prejudiced. Thus, this claim is denied.
vi.
There was no blood on the stool leg. Defense
counsel highlighted this incongruity at least
twice during closing argument. As such, the jury
was aware of this inconsistency and Defendant
was not prejudiced. Thus, this claim is denied.
vii.
Additionally, there were no palm prints or
fingerprints recovered from the stool leg, and no
presence of amino acids on it. (The analyst noted
that amino acids come from sweat and blood, and
would have been present in significant amounts
- 46 -
had someone held the stool leg in his hand for
hours, physically beating someone else.)
Likewise, defense counsel highlighted this
inconsistency during closing argument. As such,
the jury was aware of this inconsistency and
Defendant was not prejudiced. Thus, this claim is
denied.
viii.
None of the victim’s clothing was collected,
despite her claims that they were covered in
blood and bodily fluids. Defense counsel elicited
testimony to this effect from Deputy Jacobs on
cross-examination and then pointed to this fact
during closing argument. As such, the jury was
aware of this inconsistency and Defendant was
not prejudiced. Thus, this claim is denied.
(Doc. 21-1 at 17) (state court record citations omitted)
Trial counsel highlighted the inconsistencies identified by Miller in
sub-claims (A)(i) through (A)(iii) and sub-claims (A)(v) through (A)(viii). (Doc. 21-1
at 51, 55, 64–66, 70–73, 74, 77–78, 85–87) Because additional impeachment about
the same inconsistencies would not have changed the outcome at trial, the state
court did not unreasonably apply Strickland. Meders, 911 F.3d at 1354.
For sub-claim (A)(iv), Miller asserted that trial counsel was ineffective for not
confronting the victim with the absence of blood on a pillow in the bedroom. The
victim identified in photographs blood on her face, a bloody handprint in the
kitchen, and blood on mattress sheets and a comforter in the bedroom. (Doc. 9,
Ex. A at 316, 322, 324–26) Police officers observed blood in the kitchen and the
bedroom and blood on Miller’s clothes, fingers, and feet. (Doc. 9, Ex. A at 469,
486–87, 492–93) The doctor who treated the victim testified that the victim had
a laceration on her forehead. (Doc. 9, Ex. A at 426) Because the absence of blood on
- 47 -
a pillow would not have changed the outcome at trial, the state court did not
unreasonably apply Strickland. Meders, 911 F.3d at 1354.
Sub-claim B
Miller asserts that trial counsel was ineffective for not impeaching the victim
with inconsistencies between her testimony and other evidence. The
post-conviction court denied the claim for each inconsistency as follows:
Defendant’s second category of inconsistencies contains the
victim’s inconsistent statements that the jury heard. This list is
not exclusively prior inconsistent statements but also contains
further inconsistencies between the victim’s testimony and the
other evidence. Defendant alleges:
i.
The victim told the police who arrived at her
house that night that Defendant hid the stool leg
in a rolled up carpet in the garage. But at trial,
she said that she was the one who hid the stool
leg there, to preserve it as evidence for the police.
Defense counsel pointed out this variation during
cross examination of the victim. Defense counsel
again exposed this discrepancy during
cross-examination of Deputy McDowell.
Furthermore, during closing argument, defense
counsel exploited this inconsistency. As such, the
jury was aware of this inconsistency and
Defendant was not prejudiced. Thus, this claim is
denied.
ii.
The victim told police who responded to her
house that she actually saw Defendant break off
the stool leg. Yet, at trial she testified that she
did not hear Defendant come into the house or
break the stool leg; but, that he just suddenly
appeared in the kitchen with the leg in his hand
and attacked her. Defense counsel exposed this
inconsistency during cross-examination of the
victim. Defense counsel also pointed out this
inconsistent statement during cross examination
of Deputy Stein. As such, the jury was aware of
this inconsistency. Thus, Defendant was not
prejudiced, and this claim is denied.
- 48 -
iii.
The victim testified at trial that she was told by
the ER staff that she suffered a concussion, that
she needed stiches for her scalp laceration, and
that they wanted to admit her for overnight
observation. Yet, the ER doctor testified at trial
that the victim was never diagnosed with a
concussion, that she was not informed she
needed stitches because she did not, and that at
no time did he believe she required admission to
the hospital or any further observation. While
this is not a prior inconsistent statement, defense
counsel still exploited this contradiction during
closing argument. As such, the jury was aware of
this inconsistency and Defendant was not
prejudiced. Thus, this claim is denied.
iv.
Defendant did not inform the 911 operator or the
police who responded to her house that
Defendant threatened her with a knife. Yet, she
told the police at the hospital that Defendant
used a knife to threaten her. Defense counsel
called attention to this discrepancy during
closing argument. As such, the jury was aware of
this inconsistency and Defendant was not
prejudiced. Thus, this claim is denied.
(Doc. 21-1 at 18–19) (state court record citations omitted)
v.
The victim never told Dr. Zafari about a knife or
about being smothered by a pillow. The State
was directed to respond to this claim.
Although the State failed to respond to this
claim, the Court finds that Defendant was not
prejudiced here. First, Defendant did not
actually use the knife on the victim so it is
reasonable that the victim did not recount this
portion of the beating to Dr. Zafari as it would
not have assisted him in treating her. Second,
being smothered by a pillow, unless until the
point of death, would not have left the victim
with any injuries that a doctor would need to
treat; so, it is again reasonable that the victim
did not tell Dr. Zafari about this. Accordingly, the
Court finds that the fact that the victim did not
tell Dr. Zafari about a knife or about being
smothered by a pillow to not be prior inconsistent
statements. See Pearce, 880 So. 2d at 569 (“To be
- 49 -
inconsistent, a prior statement must either
directly contradict or be materially different from
the expected testimony at trial. The
inconsistency must also involve a material,
significant fact rather than mere details.”); State
v. Smith, 573 So. 2d 306, 313 (Fla. 1990)
(“Omissions must be of a material, significant
fact rather than mere details.”).
Additionally, in light of the overwhelming
evidence against Defendant that was presented
at trial and detailed throughout this order, and
considering the numerous inconsistent
statements and inconsistencies in evidence that
counsel did point out during trial and detailed
throughout this order, the Court finds that
Defendant was not prejudiced by counsel’s
failure to point out these two minor inconsistent
details. Therefore, this claim is denied.
(Doc. 21-1 at 112)
vi.
When the victim told the police at the hospital
that Defendant threatened her with a knife, she
could not describe the knife. When pressed by
police, she [described] the knife as a “steak
knife.” But eight months later, she gave the
police a drawing and a photocopy of a large
butcher knife. During cross-examination of the
victim, defense counsel exposed this
inconsistency at length. Then, defense counsel
emphasized this inconsistency during closing
argument. As such, the jury was aware of this
inconsistency and Defendant was not prejudiced.
Thus, this claim is denied.
vii.
The victim testified in her pretrial deposition
that Defendant held the knife “to her neck.” Yet,
at trial she said that he held it about two feet
away from her. This claim is directly refuted by
the record. At trial, the victim testified that
Defendant held the knife up to her throat.
Furthermore, even if Defendant were to argue
that the victim wavered in her description of this
account, defense counsel highlighted possible
variations of this detail during closing argument.
As such, the jury was aware of the potential
- 50 -
existence of differing accounts, and Defendant
was not prejudiced. Thus, this claim is denied.
(Doc. 21-1 at 19) (state court record citations omitted)
viii.
The police observed spots of blood in the front
entryway to the house. But, in listing all of the
rooms she went into that night, the victim did
not state that she had been in the front
entryway. The State was directed to respond to
this claim.
In its response, the State alleges that law
enforcement merely testified that they observed
what appeared to be blood in the front entryway,
but that they had not taken any swabs of the
spots believed to be blood. Additionally, the State
argues that the victim drew a diagram of where
she was in the house, which would be the best
evidence for the jury to see how blood might have
landed in various places around the house.
Initially, the Court notes that as discussed
elsewhere in Ground Six, this is not a prior
inconsistent statement. See Pearce, 880 So. 2d
at 569; Smith, 573 So. 2d at 313. Additionally, as
the State correctly points out, law enforcement
merely testified that they observed what
appeared to be blood in the front entryway but
that no swabs were taken of the spots believed to
be blood; and thus, the Court is not persuaded
that there exists a reasonable probability that,
but for counsel’s performance, the result of the
proceeding would have been different. At trial,
the State presented a great deal of evidence of
Defendant’s guilt, and impeaching this portion of
the victim’s testimony would not have impacted
the trial. Rainey v. State, 938 So. 2d 632, 635
(Fla. 5th DCA 2006); see also Hannon v. State,
941 So. 2d 1109, 1123 (Fla. 2006). As Defendant
was not prejudiced, this claim is denied.
(Doc. 21-1 at 112–13) (state court record citations omitted)
ix.
Despite saying that she was in mortal fear of
immediate death at Defendant’s hands, the
victim testified that she did not immediately
leave the house when he fell asleep. Defense
- 51 -
counsel highlighted this incongruity more than
once during closing argument. As such, the jury
was aware of this inconsistency and Defendant
was not prejudiced. Thus, this claim is denied.
x.
The victim claimed she went back into the
bedroom because she needed her cell phone to
call police. But, she admitted — and photos
taken by police that night demonstrated — that
there were phones all over the house, including
cell phones. Defense counsel illuminated this
disharmony during closing argument. As such,
the jury was aware of this inconsistency and
Defendant was not prejudiced. Thus, this claim is
denied.
xi.
The victim testified at trial that when she
returned home from the hospital, she washed the
clothes that got dirty from feces and blood that
night, including a sweater, two robes, and a
night gown. Yet, Pat Oliveira, who helped the
victim clean those clothes, testified at trial that
they only washed one robe. Defense counsel
specifically addressed this conflicting testimony
during closing argument. As such, the jury was
aware of this inconsistency and Defendant was
not prejudiced. Thus, this claim is denied.
xii.
The victim testified that Defendant pushed her
into bushes in front of Pat. Yet, Pat made no
mention of this in her testimony. Defense counsel
emphasized this conflicted testimony twice
during closing argument. As such, the jury was
aware of this inconsistency and Defendant was
not prejudiced. Thus, this claim is denied.
xiii.
The victim claimed to be in mortal fear of
immediate death at Defendant’s hands. Yet, she
drove just two houses down, and tried for about
25 minutes to go to sleep in her car. Defense
counsel drew attention to this incongruity during
closing argument. As such, the jury was aware of
this inconsistency and Defendant was not
prejudiced. Thus, this claim is denied.
(Doc. 21-1 at 20) (state court record citations omitted)
- 52 -
Trial counsel highlighted the inconsistencies identified by Miller in
sub-claims (B)(i) through (B)(iv), sub-claim (B)(vi), and sub-claims (B)(ix) through
(B)(xiii). (Doc. 21-1 at 22–23, 39–43, 47–48, 52–53, 61–63, 68, 76, 78–81, 83, 86–87)
Because additional impeachment about the same inconsistencies would not have
changed the outcome at trial, the state court did not unreasonably apply Strickland.
Meders, 911 F.3d at 1354.
For sub-claim (B)(v), Miller contended that the victim did not tell the doctor
that Miller had threatened her with a knife and smothered her with a pillow.
Miller asserted that trial counsel was ineffective for not impeaching her with those
omissions. Whether either omission was negative impeachment is an issue of state
law, and a state court’s determination of state law receives deference in federal
court. Fla. Stat. § 90.608(1); Machin, 758 F.2d at 1433. The victim would not have
naturally mentioned to the doctor that Miller threatened her with the knife or
smothered her with the pillow because the victim did not suffer physical injury from
either. (Doc. 21-1 at 112) Consequently, trial counsel was not ineffective and the
state court did not unreasonably apply Strickland. Hawn v. State, 300 So. 3d 238,
242 (Fla. 4th DCA 2020) (“[A]n omission in a previous out-of-court statement about
which the witness testifies at trial can be considered an inconsistent statement for
impeachment purposes, if the omission is a material, significant fact rather than
mere details and would naturally have been mentioned.”) (citation and quotations
omitted).
- 53 -
For sub-claim (B)(vii), Miller contended that the victim testified at trial that
Miller held a knife two feet from her neck. Miller asserted that trial counsel was
ineffective for not impeaching the victim with her deposition testimony that Miller
held the knife “to her neck.” Trial counsel impeached the victim with her prior
statement to police that Miller held the knife “to [her] throat.” (Doc. 21-1 at 42)
Because impeachment about the same inconsistency would not have changed the
outcome at trial, the state court did not unreasonably apply Strickland. Meders,
911 F.3d at 1354.
For sub-claim (B)(viii), Miller contended that the victim never testified that
she went into the front entryway of the house. Miller asserted that trial counsel
was ineffective for not impeaching the victim with evidence of blood in the front
entryway of the house. A police officer testified that he observed “a red substance
on that [entryway] flooring appearing to be blood” but explained that police never
tested the spots for blood. (Doc. 21-1 at 196–97) Consequently, the impeachment
value of the spots in the entryway was weak. Because trial counsel impeached the
victim with other material, significant facts, the state court did not unreasonably
apply Strickland. Meders, 911 F.3d at 1354.
Sub-claim C
Miller asserts that trial counsel was ineffective for not impeaching the victim
with additional prior inconsistent statements. The post-conviction court denied the
claim for each inconsistency as follows:
Defendant’s third category of inconsistencies contains the
victim’s inconsistent statements that the jury did not hear.
As in the second category, this list is not exclusively prior
- 54 -
inconsistent statements but also contains further
inconsistencies between the victim’s testimony and the other
evidence. Defendant alleges:
i.
Defendant claims trial counsel failed to fully
articulate a timeline of events and failed to point
out that the victim failed to account for at least
three hours of missing time in both her account
of the events at her deposition and in her account
of the events at trial. He further claims that the
impression the timelines give is that the victim
was beaten for six hours, which, if true, means
she would have sustained much more significant
injuries than she did. During closing argument,
defense counsel commented on the victim’s
testimony that she was beaten for roughly four
hours, yet did not suffer injuries of someone who
was beaten for that length of time. Additionally,
although defense counsel did not use specific
“missing three hours” language, counsel did
highlight the fact that she had extra time
between when Defendant stopped beating her
and when she left the house, enough time to
“stage a crime scene.” Accordingly, defense
counsel was not deficient and Defendant cannot
show prejudice. This claim is denied.
ii.
Defendant claims an inconsistency existed
between how police described the victim when
they responded to the scene and the victim’s trial
testimony. Specifically, Defendant claims that
according to the police, when they responded to
the scene, the victim did not have any blood on
her hands, arms, or face and that the victim’s
trial testimony was contradictory to this. This
claim is refuted by the record. Deputy McDowell
testified that it was dark when he came upon the
victim, but that he could see blood around her
head area. Accordingly, Defendant cannot show
prejudice. This claim is denied.
iii.
The victim never provided the police with the
knife. But eight months later, she gave the police
a drawing and a photocopy of a large butcher
knife. On crossexamination of the victim,
defense counsel exposed this inconsistency at
length. Defense counsel again highlighted this
point during closing argument. Accordingly,
- 55 -
defense counsel was not deficient and Defendant
was not prejudiced. Thus, this claim is denied.
(Doc. 22-1 at 20–21) (state court record citations omitted)
iv.
Defendant claims the victim made several
statements for the first time during her
deposition that she had not before informed the
police, the hospital, or anyone else of:
1.
That Defendant attempted to “pop” her
eyeballs out. The State was directed to
respond to this claim.
In its response, the State merely contends
that counsel is not required to impeach
a witness on every conceivable
inconsistency, but that counsel did
impeach the victim extensively on issues
which could have resulted in a conviction
on a lesser included offense. Thus, the
State contends that there was no
prejudice by counsel’s failure to impeach
on this issue because Defendant was
“clearly guilty” of the lesser-included
simple battery, which is the conviction for
which sticking a finger in the victim’s eye
would have supported.
The Court agrees with the State and finds
that Defendant cannot demonstrate that
counsel’s performance was deficient as the
statements made by the victim did not
rise to the level of inconsistent statements
subject to impeachment. See Pearce, 880
So. 2d at 569 (“To be inconsistent, a prior
statement must either directly contradict
or be materially different from the
expected testimony at trial. The
inconsistency must also involve
a material, significant fact rather than
mere details.”). The Court finds this detail
to be immaterial and insignificant,
especially in light of all of the other
inconsistencies that counsel pointed out
during trial and detailed throughout this
order. Accordingly, there does not exist
a reasonable probability that, but for
- 56 -
counsel’s performance, the result of the
proceeding would have been different.
This claim is therefore denied.
2.
That Defendant busted her tooth. The
State was directed to respond to this
claim.
In its response, the State argues that the
victim testified that it took time for the
tooth to die and then additional time for
her to discover the cause and have it
corrected. Thus, the State contends that
there is no evidence to suggest that all of
this had occurred by the time of her
deposition, which was four months after
the incident.
The Court agrees with the State and finds
that Defendant was not prejudiced. As the
State points out, the victim testified that
it took time for the tooth to die and
additional time to have it corrected.
Accordingly, it is not unreasonable that
the victim did not inform anyone that
Defendant had busted her tooth until
several months later because she did not
discover that Defendant had in fact
busted her tooth until several months
later. As such, the victim or the State
could have easily explained this
“inconsistency.” Therefore, there does not
exist a reasonable probability that, but for
counsel’s performance, the result of the
proceeding would have been different.
This claim is denied.
(Doc. 21-1 at 113–15) (state court record citations omitted)
3.
That Defendant was violent with her in
the bedroom — that he beat her and
smothered her and strangled her there.
Defense counsel elicited testimony
exposing this inconsistency during
cross-examination of Deputy McDowell.
Defense counsel exposed this
inconsistency during closing argument.
- 57 -
Accordingly, Defendant was not
prejudiced; and, this claim is denied.
v.
Defendant claims the victim made several
statements at trial for the first time.
1.
The victim claimed she was “screaming”
for help when at the curtains. This claim
is refuted by the record. At her deposition,
the victim indicated that she was
screaming for help when at the curtains.
Thus, she did not make this allegation for
the first time at trial; and, defense
counsel would have had no grounds to
expose this non-existent inconsistency.
Accordingly, this claim is denied.
(Doc. 21-1 at 22) (state court record citations omitted)
2.
That Defendant kicked her. The State was
directed to respond to this claim.
In its response, the State argues that
defense counsel wanted the jury to believe
that the injuries sustained by the victim
had been caused by Defendant’s body and
not by the stool leg. Accordingly, the State
contends that if counsel had pointed this
out, the jury would have had to consider
that Defendant’s hands alone caused all of
the victim’s injuries, a much less likely
scenario. Thus, the State further contends
that counsel should not be deemed
deficient for failing to point out something
that would have hurt Defendant’s theory
of defense.
Again, the Court finds the State’s
argument persuasive and therefore finds
that counsel was not ineffective for failing
to impeach the victim with this alleged
inconsistency. The defense theory was
that Defendant used only his body to beat
the victim, and that he did not use the
stool leg. If counsel had pointed this
inconsistency out at trial, it would have
discounted the defense’s theory given the
victim’s extensive bruising covering the
- 58 -
entirety of her body. Accordingly, there
does not exist a reasonable probability
that, but for counsel’s performance, the
result of the proceeding would have been
different. This claim is denied.
(Doc. 21-1 at 115) (state court record citations omitted)
3.
That the victim changed into a nightie
when she got into the bedroom. Defendant
claims this is inconsistent with her
testimony that she was pulled into the
bedroom and beaten and held down at all
times. Also, this is inconsistent with her
deposition testimony that she grabbed
only a pink robe to put on. During closing
argument, defense counsel highlighted
the inconsistency between the victim’s
story that she changed into a nightie and
the lack of time for multiple wardrobe
changes, as well as being inconsistent
with Pat Oliviera’s testimony that they
only washed one pink robe. As such,
Defendant was not prejudiced; and, this
claim is therefore denied.
4.
That the victim put on a “different robe”
because the first one she put on was
filthy. Defendant claims this is
inconsistent with her testimony that she
was pulled into the bedroom and beaten
and held down at all times. Defendant
claims that this is also inconsistent with
her deposition testimony that she grabbed
only a pink robe to put on. During closing
argument, defense counsel highlighted
the inconsistency between the victim’s
story that she changed multiple times and
the lack of time for multiple wardrobe
changes, as well as being inconsistent
with Pat Oliviera’s testimony that they
only washed one pink robe. Thus,
Defendant was not prejudiced.
Defendant’s claim is denied.
5.
That the victim was wearing a sweater
and shorts the night of the incident.
During closing argument, defense counsel
- 59 -
pointed out that the victim seemed to be
changing her story with regard to what
she was wearing when she got home.
Accordingly, Defendant was not
prejudiced. Thus, this claim is denied.
(Doc. 21-1 at 22–23) (state court record citations omitted)
6.
That Defendant punched and strangled
her while she was in the kitchen. Yet, at
her deposition, she failed to mention the
strangling in the kitchen and claimed that
the punching came after the kitchen
incident was over. The State was directed
to respond to this claim.
In its response, the State contends that in
regards to being punched in the kitchen,
Defendant’s claim is refuted by the
victim’s deposition. As far as strangling,
the State contends that Defendant was
not prejudiced by the lack of this
distinction because the victim consistently
testified that she was strangled by
Defendant at some point, so whether it
was in the kitchen or in the bedroom,
Defendant was still guilty.
The record reflects that the victim had
previously testified to being punched in
the kitchen. Thus, counsel was not
deficient for failing to point out an
inconsistency that did not exist.
Additionally, after reviewing the record, it
is apparent that the victim never testified
— either at her deposition or during trial
— to being strangled in the kitchen, as
Defendant claims. Rather, the victim
consistently testified that she was
strangled by Defendant in her bedroom.
Thus, counsel was not deficient for
pointing out an inconsistency that did not
exist. For the aforementioned reasons,
this claim is denied.
vi.
Defendant claims that the victim told Deputy
McDowell that Defendant was already home
when she got home from the fair. However,
- 60 -
Defendant claims that in all other accounts, the
victim arrived home first. The State was directed
to respond to this claim.
In its response, the State contends that the
victim could not be impeached with the police
affidavit because it is written by law
enforcement, not the victim, and is therefore
hearsay. Additionally, the State contends that
the value of raising this issue during Deputy
McDowell’s testimony would have been minimal.
Defendant’s claim is without merit. Defendant
cannot demonstrate that counsel’s performance
was deficient as the statements made by the
victim did not rise to the level of inconsistent
statements subject to impeachment. See Pearce,
880 So. 2d at 569 (“To be inconsistent, a prior
statement must either directly contradict or be
materially different from the expected testimony
at trial. The inconsistency must also involve
a material, significant fact rather than mere
details.”). The Court notes that in her deposition
and at trial, the victim consistently testified that
she arrived home first. Although she may have
told Deputy McDowell at some point prior to her
deposition that Defendant arrived home first, the
Court finds that the minor detail of who arrived
home first to not be material or significant. In
light of the overwhelming evidence against
Defendant that was presented at trial and
detailed throughout this order, and considering
the numerous inconsistent statements and
inconsistencies in evidence that counsel did point
out during trial and detailed throughout this
order, the Court finds that Defendant was not
prejudiced by counsel’s failure to point out this
minor prior inconsistent statement. Therefore,
this claim is denied.
vii.
Defendant claims that the victim also told
Deputy McDowell that she watched Defendant
fall asleep and wake up again “over the course of
the next few hours.” But, in her deposition and at
trial, she testified that he was only asleep for 30
minutes before she left. The State was directed to
respond to this claim.
- 61 -
In its response, the State contends that the base
timeline in this case was fairly solid with
everything else being, admittedly, estimations.
The State further argues that the victim
explained that she could not see what time it was
during the criminal acts. Thus, the State further
contends that any inconsistencies in how long
Defendant was asleep could easily have been
explained with a single question by the State,
“Are these times estimates/speculation?” The
answer to which, as the State alleges, would
have been yes.
The Court agrees with the State that much of the
timeline consisted of estimations. The Court
further agrees that had counsel pointed out this
inconsistency, the State could have easily
explained it. Furthermore, the Court notes that
the victim did in fact testify at trial that
Defendant had fallen asleep, awoken, and then
fallen back asleep. Thus, the Court finds that the
victim’s prior statement to Deputy McDowell did
not directly contradict or materially differ from
her testimony at trial. See Pearce, 880 So. 2d
at 569 (“To be inconsistent, a prior statement
must either directly contradict or be materially
different from the expected testimony at trial.
The inconsistency must also involve a material,
significant fact rather than mere details.”).
Accordingly, counsel was not deficient and
Defendant was not prejudiced.
viii.
Defendant claims that the victim testified at her
deposition that Defendant hit her while she was
losing her bowels. However, at trial, Defendant
claims that the victim testified that Defendant
did not hit her while it was occurring, only after.
The State was directed to respond to this claim.
In its response, the State merely contends that
pointing out this inconsistency would have been
inconsequential.
Defendant’s claim is without merit. The victim’s
prior statement in her deposition did not directly
contradict or materially differ from her testimony
at trial. See Pearce, 880 So. 2d at 569 (“To be
inconsistent, a prior statement must either
directly contradict or be materially different from
- 62 -
the expected testimony at trial. The
inconsistency must also involve a material,
significant fact rather than mere details.”).
Accordingly, counsel was not deficient and
Defendant was not prejudiced.
(Doc. 21-1 at 115–18) (state court record citations omitted)
Trial counsel highlighted the inconsistencies in sub-claim (C)(i), sub-claim
(C)(iii), sub-claim (C)(iv)(3), and sub-claim (C)(v)(3) through sub-claim (C)(v)(5).
(Doc. 21-1 at 40–43, 54, 69–71, 76, 79–81, 83, 87) Because additional impeachment
about the same inconsistencies would not have changed the outcome at trial, the
state court did not unreasonably apply Strickland. Meders, 911 F.3d at 1354.
For sub-claim (C)(ii), Miller asserted that trial counsel was ineffective for not
impeaching the victim with police officers’ observations that the victim did not have
blood on her hands, arms, or face. The victim identified photographs showing a
bloody handprint in the kitchen, a sweater that she was wearing that was “all full
of blood,” and blood spots on mattress sheets and a comforter. (Doc. 9, Ex. A
at 324–26) The doctor who treated the victim testified that the victim had a
laceration on her forehead. (Doc. 9, Ex. A at 426) A police officer testified that the
victim had some blood on her head. (Doc. 9, Ex. A at 500) Because the absence of
blood on the victim’s hands and arms would not have changed the outcome at trial,
the state court did not unreasonably apply Strickland. Meders, 911 F.3d at 1354.
For sub-claim (C)(iv)(1), Miller contended that the victim testified for the first
time at her deposition that Miller tried to “pop” her eyeballs out. Miller asserted
that trial counsel was ineffective for not impeaching the victim with her omission of
this detail in her statement to police. Whether the omission was negative
- 63 -
impeachment is an issue of state law, and a state court’s determination of state law
receives deference in federal court. Fla. Stat. § 90.608(1); Machin, 758 F.2d at 1433.
Because Miller was charged with aggravated battery (Doc. 21-1 at 223, 225) and the
victim’s testimony about Miller’s attempts to “pop” her eyeballs out — an attempted
battery — did not concern a material, significant fact, trial counsel was not
ineffective and the state court did not unreasonably apply Strickland. Hawn,
300 So. 3d at 242.
For sub-claim (C)(iv)(2), Miller contended that the victim testified for the first
time at her deposition that Miller busted her tooth. Miller asserted that trial
counsel was ineffective for not impeaching the victim with her omission of this
detail in her statement to police. The victim testified that her tooth started
hurting, she found a dentist after several weeks, and her gums turned black after
the dentist treated the tooth. (Doc. 21-1 at 172–74) Because the victim did not
become aware of her injured tooth until weeks after she spoke to police, trial
counsel was not ineffective and the state court did not unreasonably apply
Strickland.
For sub-claim (C)(v)(1), Miller contended that the victim testified for the first
time at trial that she screamed for help while she was at the curtains. Miller
asserted that trial counsel was ineffective for not impeaching the victim with her
omission of this detail at her deposition. At her deposition, the victim testified
(Doc. 21-1 at 92):
[Counsel:]
From the kitchen, is there a window that faces
the street where people are walking?
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[Victim:]
Two tall windows and it’s blocked by curtains. So
I’m trying to open them up while he’s coming
after me, and I’m screaming at the top of my
lungs, [“]help me[,] help me,[”] and praying to
God someone would hear me. No one heard me.
...
Because this deposition testimony refuted the claim, the state court did not
unreasonably deny the claim.
For sub-claim (C)(v)(2), Miller contended that the victim testified for the first
time at trial that Miller kicked her. Miller asserted that trial counsel was
ineffective for not impeaching the victim with her omission of this detail in her
statement to police and at her deposition. Miller was charged with committing
aggravated battery with the stool leg. (Doc. 21-1 at 223) At trial, the defense
claimed that Miller used his hands and feet — not the stool leg — to inflict injuries
on the victim. (Doc. 9, Ex. A at 660) Because the victim’s testimony supported this
defense, trial counsel was not ineffective and the state court did not unreasonably
apply Strickland.
For sub-claim (C)(vi), Miller asserted that trial counsel was ineffective for not
impeaching the victim with her statement to police that Miller was already home
when she got back from the fair. Miller contends that the victim testified at her
deposition and at trial that she arrived home first. Because who arrived at home
first did not concern a material, significant fact, trial counsel was not ineffective
and the state court did not unreasonably apply Strickland.
For sub-claim (C)(vii), Miller asserted that trial counsel was ineffective for
not impeaching the victim with her statement to police that she watched Miller fall
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asleep for a few hours and wake up. Miller contends that the victim testified at her
deposition and at trial that Miller was asleep for 30 minutes. Whether the
statement to police was a prior inconsistent statement is an issue of state law, and a
state court’s determination of state law receives deference in federal court.
Fla. Stat. § 90.608(1); Machin, 758 F.2d at 1433. Because the victim testified that
Miller “bear-hugged” her, fell asleep, and woke up (Doc. 21-1 at 143–47), the
victim’s testimony was not materially different from her statement to police and the
state court did not unreasonably apply Strickland.
For sub-claim (C)(viii), Miller asserted that trial counsel was ineffective for
not impeaching the victim with her statement at her deposition that Miller hit her
while she defecated. Miller contends that the victim testified at trial that Miller hit
her after she defecated. Whether the statement at her deposition was a prior
inconsistent statement is an issue of state law, and a state court’s determination of
state law receives deference in federal court. Fla. Stat. § 90.608(1); Machin,
758 F.2d at 1433. Because when the victim defecated does not concern a material,
significant fact, the state court concluded that the statement was not a prior
inconsistent statement. Consequently, trial counsel was not ineffective and the
state court did not unreasonably apply Strickland.
For sub-claim (C)(v)(6), Miller contended that the victim testified for the first
time at trial that Miller punched and strangled her while she was in the kitchen.
Miller asserted that trial counsel was ineffective for not impeaching the victim
because the victim omitted the detail about the strangling in the kitchen at her
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deposition and testified that Miller punched her only after the beating in the
kitchen concluded. The state court clarified the ruling on the claim on rehearing as
follows (Doc. 21-1 at 234–36) (state court record citations omitted):
Defendant alleges that at trial, the victim testified that
Defendant punched and strangled her while she was in
the kitchen; but, that in her deposition, she made no
mention at all of a strangling in the kitchen and claimed
that the punching came after the kitchen incident was
over. In its response, the State contends that in regards
to being punched in the kitchen, Defendant’s claim is
refuted by the victim’s deposition. As far as strangling,
the State contends that Defendant was not prejudiced
by the lack of this distinction because the victim
consistently testified that she was strangled by
Defendant at some point, so whether it was in the
kitchen or in the bedroom, Defendant was still guilty.
The record reflects that the victim had previously
testified to being punched in the kitchen. Thus, the
Court finds that counsel was not deficient for failing to
point out an inconsistency that did not exist. This claim
is denied to the extent that Defendant claims counsel
was ineffective for failing to impeach the victim or
otherwise point out to the jury the victim’s inconsistent
statements relating to when the punching occurred.
As to the victim’s inconsistency relating to where
exactly Defendant strangled her, the Court finds that
counsel was not deficient for failing to object and
Defendant was not prejudiced by counsel’s failure to
otherwise point out this inconsistency. First, the Court
notes that Defendant was neither charged with nor
convicted of any crimes relating to his strangling of the
victim in the kitchen, or anywhere else throughout the
house. Moreover, the defense’s theory at trial was that
Defendant conceded to beating the victim, but was only
challenging the degree of his beating that occurred
throughout the night at issue. Thus, the victim’s trial
testimony that Defendant strangled the victim in the
kitchen was merely a detail, and not a material,
significant fact.
Second, the Court finds that the victim’s failure to
mention the strangulation in the kitchen at her
deposition and then the inclusion of such act during
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trial to not be direct contradictions of one another, nor
to be materially different statements. The victim’s
deposition testimony as to which acts by Defendant
occurred where and in what order are substantially the
same as her trial testimony. While the Court agrees
with Defendant that [absent from] the victim’s
deposition is [ ] any mention of her being strangled in
the kitchen, the victim did admit during her deposition
that everything was happening so fast. Additionally, at
trial, the victim mentioned the kitchen strangling
almost in passing as she was describing the punching
and the eye gouging, which was otherwise consistent
with her deposition testimony. Furthermore, the victim
testified consistently that Defendant strangled her at
some point throughout the night. Thus, the Court finds
that Defendant cannot demonstrate that counsel’s
performance was deficient as the complained of
statements made by the victim at her deposition and
during trial did not rise to the level of inconsistent
statements subject to impeachment. See Pearce,
880 So. 2d at 569 (“To be inconsistent, a prior statement
must either directly contradict or be materially different
from the expected testimony at trial. The inconsistency
must also involve a material, significant fact rather
than mere details.”); State v. Smith, 573 So. 2d 306, 313
(Fla. 1990) (“Omissions must be of a material,
significant fact rather than mere details.”).
Finally, in light of the overwhelming evidence against
Defendant that was presented at trial and detailed
throughout this Court’s prior orders (adopted and
incorporated by reference), and considering the
numerous inconsistent statements and inconsistencies
in evidence that counsel did point out during trial and
detailed throughout this Court’s prior orders, the Court
finds that Defendant was not prejudiced by counsel’s
failure to point out this minor inconsistency. In other
words, Defendant cannot demonstrate that the outcome
of the trial would have been different had counsel
pointed out this minor inconsistency. At trial, the State
presented a great deal of evidence of Defendant’s guilt,
and pointing out this minor inconsistency from the
victim’s deposition to her trial testimony would not have
impacted the trial. Rainey v. State, 938 So. 2d 632, 635
(Fla. 5th DCA 2006); see also Hannon v. State,
941 So. 2d 1109, 1123 (Fla. 2006). Because the Court
finds that counsel was not deficient and Defendant was
not prejudiced, this claim is denied.
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At her deposition and at trial, the victim testified that Miller punched her in
the kitchen while she was cleaning up her feces and vomit. (Docs. 9, Ex. A
at 278–81 and 21-1 at 252) Because the victim’s deposition testimony was not
materially different from her trial testimony, trial counsel was not ineffective and
the state court did not unreasonably apply Strickland.
Whether the omission at her deposition about the strangulation in the
kitchen was negative impeachment is an issue of state law, and a state court’s
determination of state law receives deference in federal court. Fla. Stat.
§ 90.608(1); Machin, 758 F.2d at 1433. At her deposition, the victim testified that
Miller strangled her with his hands in the bedroom. (Doc. 21-1 at 256–57) At trial,
the victim testified that Miller punched and strangled her in both the kitchen and
the bedroom. (Doc. 9, Ex. A at 280, 283–84)
Miller was charged with (1) kidnapping, (2) aggravated battery either with a
deadly weapon or by causing great bodily harm or permanent disfigurement, and
(3) aggravated assault with a knife. (Doc. 21-1 at 223) At trial, the defense
conceded that Miller beat up the victim but denied that Miller (1) physically
confined the victim or (2) used a deadly weapon or caused great bodily injury or
permanent disfigurement. (Doc. 9, Ex. A at 223, 655–57, 660–64) Because where
Miller strangled the victim did not concern a material, significant fact, the state
court concluded that the omission was not negative impeachment. Consequently,
trial counsel was not ineffective and the state court did not unreasonably apply
Strickland.
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For sub-claim (B)(v), sub-claim (B)(viii), sub-claim (C)(v)(6), and
sub-claim (C)(vi), the state court concluded that Miller did not demonstrate
prejudice under Strickland partly because “overwhelming evidence of guilt”
supported the convictions. (Doc. 21-1 at 112–13, 116–17, 236) Miller argues that
the state court unreasonably determined that “overwhelming evidence of guilt”
supported the convictions. (Docs. 2 at 46–47 and 14 at 24–25) Because the state
court also concluded that Miller did not demonstrate deficient performance for each
sub-claim (Doc. 21-1 at 112–13, 116–17, 236) and Miller had the burden to
demonstrate both deficient performance and prejudice, Miller is not entitled to
relief. Strickland, 466 U.S. at 697.
Also, evidence of Miller’s guilt was overwhelming. Miller conceded that he
beat the victim. (Doc. 9, Ex. A at 223) The victim testified that Miller repeatedly
beat her with a stool leg and his fists and feet, held a knife to her neck and
threatened to kill her, pulled her into the bedroom when she tried to escape, and
continued to beat her. (Doc. 9, Ex. A at 266–90) The jury saw photographs of the
victim’s injuries taken at the hospital after the attack. (Doc. 9, Ex. A at 312–20)
The jury observed permanent scars on the victim’s body caused by the stool leg.
(Doc. 9, Ex. A at 409–10) The doctor who treated the victim substantiated her
many injuries and opined that the stool leg could have caused serious bodily injury
or death. (Doc. 9, Ex. A at 425–29) Miller’s conviction was based on both the
victim’s testimony and this additional unrebutted evidence. The state court did not
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unreasonably determine that evidence of Miller’s guilty was overwhelming. Ground
Seven is denied.
Conclusion
Because Miller fails to meet his heavy burden under AEDPA, his petition for
the writ of habeas corpus (Doc. 1) is DENIED. The clerk must enter a judgment
against Miller and CLOSE the case.
Certificate of Appealability and Leave to Appeal In Forma Pauperis
A prisoner seeking a writ of habeas corpus is not absolutely entitled to appeal
a district court’s denial of his application. A district court must first issue
a certificate of appealability. A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). If the district court denies a claim on procedural grounds,
a petitioner must show that reasonable jurists would find debatable both the merits
of the underlying claims and the procedural issues. Slack v. McDaniel,
529 U.S. 473, 478 (2000). Because Miller does not meet his burden under Section
2253(c)(2) or Slack, a certificate of appealability and leave to appeal in forma
pauperis are DENIED. Miller must obtain permission from the court of appeals to
appeal in forma pauperis.
DONE and ORDERED in Chambers, in Tampa, Florida, this 11th day of
December, 2020.
____________________________________
TOM BARBER
UNITED STATES DISTRICT JUDGE
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