Tuesday, February 20, 2007

Media Advisory: Donald Miller Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Donald Anthony Miller, who is scheduled to be executed after 6 p.m. Tuesday, February 27, 2007. Miller was sentenced to death for the 1982 murders of Michael Mozingo and Kenneth Whitt.

FACTS OF THE CRIME

On February 3, 1982, fisherman Charlie Sylvester found the bodies of Michael Mozingo and Kenneth Whitt on the side of a road near Lake Houston. Both men had been shot to death. The hands of both victims were tied in front of their bodies, with one body stretched out face down, the other in a fetal position. Bloody footprints were visible near the bodies and the forestock of a shotgun was found in the heavily wooded area. The victims appeared to have been killed at the scene. Mozingo and Whitt, who were in the furniture business, traveled to different parts of the country to resell furniture. At the time of the murders, Mozingo was driving an 18-wheel tractor-trailer loaded with furniture, and he was carrying between $5,000 and $6,000 in cash.

On February 2, 1982, Donald Miller and Danny Woods arranged for Mozingo and Whitt to deliver a substantial amount of furniture to Eddie Segura’s house. Segura was an acquaintance of Miller and Woods. When Mozingo and Whitt arrived at Segura’s house, Miller, brandished a pistol, telling the victims, “Just do what I say and put the furniture down and lay on the floor.” Woods then pulled out the sawed-off shotgun. While the victims were lying face down, Miller removed Whitt’s wallet and Woods took Mozingo’s wallet and wrist watch. Miller then instructed the men to take off their boots, and told Woods and Segura to bind the men’s hands with black electrical tape.

Woods took off his jacket and wrapped it around the sawed-off shotgun. The victims were then forced to return to their truck, where their hands and feet were tied with rope, and their feet were tied to the inside of the truck such that their feet were elevated and attached to the truck. Mozingo and Whitt were later moved to Segura’s car and driven to an isolated location in the Lake Houston area while the victims pleaded for their lives.

After stopping the car, Miller assured the victims they would not be harmed, and told them to go across the fence. However, as soon as they started walking, but before they reached the fence, Woods began firing at the victims with the shotgun and Miller began shooting them with his pistol. Miller shot his pistol approximately five times, first shooting Mozingo in the head then shooting Whitt and continued to pull the trigger which made a clicking noise about three more times. The shotgun stock came off while Woods was firing it and the shotgun was later discarded into a canal.

On their way back to Miller’s house, the three men divided the money from Mozingo’s wallet. Miller, Woods and Segura were eventually arrested by authorities.

CRIMINAL HISTORY AND PUNISHMENT EVIDENCE

The State introduced Miller’s penitentiary packet reflecting Miller’s conviction, sentence of probation and subsequent revocation of probation for third-degree felony theft of a truck. The penitentiary packet also reflected that on October 7, 1980, Miller was convicted of third-degree theft of a motor vehicle and sentenced to three years in prison.

Ray McCall testified that he visited with Miller on the Sunday after he was arrested for capital murder. According to McCall, Miller said that Edward Segura was “talking, and that he needed to be shut up. Miller asked McCall to “see what [he] could do.” When McCall said that there was nothing he could do, Miller said “Well, see if you can talk to somebody.” McCall also testified that Miller and an accomplice robbed a drug dealer. According to McCall, when the man came out after they knocked on the door, the accomplice held a gun to him and Miller went in and stole marijuana.

Tony Tate, a social visitor at Miller’s house, testified that he heard Miller talking to another man about a robbery that Miller was planning. According to Tate, the plan was to break down a lady’s door and steal prescription drugs that she had. Miller believed that the woman had several thousand dollars worth of Mandrex.

PROCEDURAL HISTORY

In October 1982, Miller was convicted by a jury of capital murder and sentenced to death for murdering Michael Dennis Mozingo. The Texas Court of Criminal Appeals affirmed the conviction and sentence on direct appeal.

Defendant was convicted before the 232nd Judicial District Court, Harris County, Richard Stephnow, J., of capital murder, and he appealed. The Court of Criminal Appeals, Teague, J., held that: (1) member of venire was properly stricken for cause, when she made it clear that she could not vote to inflict the death penalty in any case, with the exception of one where the victim was her mother; (2) there was no error into admitting into evidence videotape which showed pictures of route taken to where victims were murdered, and pictures of murder scene itself; and (3) defendant did not establish that outburst by relative of one of the murder victims, which occurred during opening statement by prosecutor, interfered with the jury's verdict. Affirmed.

TEAGUE, Judge.

The record reflects that Donald Anthony Miller, who we will refer to as appellant, was indicted, tried, and convicted for murdering Michael Dennis Mozingo while committing or attempting to commit the aggravated robbery of Mozingo, which elevated the offense of murder to capital murder. See V.T.C.A., Penal Code, 19.03. After the jury answered the special issues submitted to it by the trial judge, pursuant to the provisions of Article 37.071, V.A.C.C.P., in the affirmative, the trial judge assessed appellant's punishment at death.

Appellant's attorneys present for review in the well written brief they filed in this cause twelve “grounds of error”, which we recharacterize as “points of error” in order to comport with the present Texas Rules of Appellate Procedure, see Rule 210(b) and Rule 74(d).

They are as follows: (1) “The [Trial] Court erred in excusing venire member Beverly Prince on the State's challenge for cause, because the record does not show that she was unfit to serve on a capital murder jury, [and] this error denied appellant his right to an impartial jury under the United States and Texas Constitution”; (2) “Appellant was denied a fair trial by the use of a videotaped reenactment of the automobile ride to the scene of the killing”; (3) “The trial court erred in refusing to allow Appellant to cross-examine the accomplice witness about the effect of his testimony of his knowledge that a co-defendant had received a life sentence when the accomplice was awaiting PSI [presentence investigation report] and assessment of punishment”; (4) “The trial court erred in failing to give a cautionary instruction on the nature of the accomplices as defendants awaiting PSI and the risks that such status creates”; (5) “The trial court erred in denying a mistrial following an outburst in the courtroom by the deceased's family during the prosecutor's opening statement after the defense had asked to have all witnesses removed [from the courtroom]”; (6) “Numerous instances of improper jury arguments at guilt-innocence constituted cumulative reversible error despite lack of appellant's trial objection”; (7) “The trial court erred in allowing the prosecutor to impeach two of his key witnesses, over objection, thereby in effect bolstering their testimony”; (8) “Appellant was denied due process of law because the cumulative improper arguments at punishment rendered his trial unfair”; (9) “The trial court improperly limited appellant's right to make a timely bill of exceptions on the issue of jury tampering”; (10) “The trial court improperly limited appellant's right to make a timely bill of exceptions on the issue of a sleeping juror at trial”; (11) “The trial court erred in allowing the prosecutor to testify, in the guise of questioning, over objection, that Ray Mc Call could not be ‘filed on’ for other criminal acts to which he had confessed to the D.A. [District Attorney or prosecuting attorney]”; and (12) “The trial court erred in overruling appellant's request for an additional verdict form on the issue of parties”.

Finding that none of appellant's points of error rise to the level of reversible error, we will expressly overrule each of them and affirm the trial court's judgment of conviction and sentence of death. Although appellant does not challenge the sufficiency of the evidence as to either guilt or punishment, because of several of his points of error we will briefly summarize the facts of this case.

Much of the following comes from the testimony of Eddie Segura, who had prior to trial pleaded guilty to two counts of aggravated robbery arising out of the senseless killings that were committed by appellant and another co-defendant, Danny Woods, who received two life sentences for his participation in the crimes that were committed.

Mozingo and Kevin Whitt, his brother-in-law, two young men, much like many others then did each week, left High Point, North Carolina with approximately $6,000 in cash, in a 45? drop crane 18 wheeler tractor, with a 45? trailer, which were valued at approximately $18,000, loaded with furniture valued at approximately $23,000, to sell the furniture that they had purchased directly from the manufacturer in North Carolina. Unknown to Mozingo and Whitt, they then embarked on a trip to Houston from which they would not return alive.

After they arrived in Houston, Mozingo and Whitt solicited business establishments and set up shop on the side of the road in order to sell the furniture. They were soon to meet, not persons who were interested in legitimately purchasing North Carolina furniture, but evil minded persons, appellant, Eddie Segura, and Danny Woods, who pretended to be legitimate purchasers of their furniture.

Using this pretext, appellant, Woods, and Segura, who testified for the State, no doubt to save his hide, lured Mozingo and Whitt to Segura's house, where they were first robbed, then bound and gagged, and then placed in the back of their eighteen-wheeler. Ultimately, they were driven in an automobile to a location near Lake Houston where they were murdered by appellant and Woods, who shot them after they had pled for their lives.

For several days, appellant, Segura, Woods, their girlfriends and friends, appeared to live the good life with money taken from Mozingo and Whitt. During this time, the culprits also unsuccessfully attempted to sell Mozingo and Whitt's truck, trailer, and the furniture, and actually gave to one of their friends Mozingo's watch and gave other friends of theirs some of the furniture that had been stolen from Mozingo and Whitt's trailer.

Testimony at the punishment hearing reflects that while in jail appellant, who was also shown to have been previously convicted and had a reputation for not being a peaceable and lawabiding person, unsuccessfully attempted to get another person, who was not then incarcerated, to kill Segura, who was also not in jail at that time.

*****

Appellant's attorneys on appeal claim in their second point of error that appellant “was denied a fair trial by the use of a videotaped reenactment of the automobile ride to the scene of the killing.” We again must disagree with counsel. The videotape, which appellate counsel describe as “a videotaped reenacted ‘death ride’ ”, shows a partial reenactment of the route the automobile in which appellant, Segura, and Woods, with their victims, Monzingo and Whitt, were riding, took to the location where appellant and Woods murdered them.

It also showed pictures of the murder scene. Appellate counsel concede that appellant's trial counsel stated into the record that “he had no objection to the video portion offered by the State”, but claim on appeal that appellant should be able to belatedly object on appeal because the law on this subject has changed since his trial occurred. We disagree. We first find and hold that because trial counsel failed to object to the showing of the video tape in the trial court his claimed error is not properly before this Court for review.

We further find that the videotape does not depict any staged, re-enacted criminal acts. We agree in principle with what the Fort Worth Court of Appeals stated in its opinion of Lopez v. State, 651 S.W.2d 413 (Tex.App.-Ft. Worth 1983), which was withdrawn, see Lopez v. State, 667 S.W.2d 624 (Tex.App.-Ft. Worth 1984), which original decision was reversed on other grounds by this Court, see Lopez v. State, 664 S.W.2d 85 (Tex.Cr.App.1985), upon which counsel rely, that “any staged, re-enacted criminal acts or defensive issues involving human beings are impossible to duplicate in every minute detail and are therefore inherently dangerous, offer little in substance and the impact of re-enactments is too highly prejudicial to insure the State or the defendant a fair trial.”

In this instance we find that the videotape that the jury saw does not come within the above prohibition. The videotape in this instance was merely a series of pictures of the route taken to where the victims were murdered by appellant and Woods, and pictures of the scene itself.

Furthermore, as appellate counsel admit, “[Segura, one of appellant's co-defendants,] had [previously in his testimony] described the route in great detail, giving names of streets and descriptions of traffic, buildings and time of night. He had used a map, a diagram and aerial photographs. The jury saw photos of the crime scene itself.” (Page 16 of appellant's brief.) We cannot say that the videotape was either inherently or highly prejudicial to appellant. Also see Buxton v. State, 699 S.W.2d 212 (Tex.Cr.App.1985). Appellant's second point of error is overruled.

Appellant's counsel assert in their third point of error that “The Trial Court erred in refusing to allow appellant to cross-examine the accomplice witness [Segura] about the effect on his testimony of his knowledge that a co-defendant [Woods] had received a life sentence when [Segura] was awaiting PSI [presentence investigation] and assessment of punishment.” We disagree. Woods, appellant's co-defendant, did not testify at appellant's trial.

The record reflects that the jury was made aware of the fact that Segura had pled guilty to two counts of aggravated robbery arising out of the robberies, kidnappings, and murders of Mozingo and Whitt, and at that time he had not been sentenced because sentencing had been delayed in order for the trial judge, who is the same trial judge in this cause, to obtain a presentence investigation report on Segura. Appellant's counsel claim that the trial judge erred when he refused to permit appellant's trial counsel to question Segura about the fact that “Segura was aware that Woods had pleaded guilty to two counts of capital murder in exchange for concurrent life sentences since Segura agreed that such knowledge affected his testimony at Appellant's trial.” (Page 20-21 of appellant's brief.) We disagree.

Segura testified that he and the prosecution had not entered into any “deal” or “guarantee” in exchange for his testimony, regarding what his expected punishment might be, although like anyone who might find themselves in a like position he “hoped” he would get a “light sentence.” This record does not reflect what punishment Segura actually received. The jury was not made aware of the punishment, life imprisonment on two cases, Woods had received.

*****

Appellant's counsel assert in their fifth point of error that “The trial court erred in denying a mistrial following an outburst in the courtroom by the deceased's family during the prosecutor's opening statement after the defense had asked to have all witnesses removed.” We disagree.

Although we disagree with counsel that the trial judge should have declared a mistrial, we do agree with counsel in the principle that conduct from bystanders or friends or relatives of the victim or the accused which interfere with the normal proceedings of a trial must not be tolerated in a court of law, and the parties and the trial judge should always be on the alert to see that such misconduct does not occur during a defendant's trial. Such offensive conduct, of course, always subjects the offending party to punishment for contempt of court, and the trial judge should always appropriately deal with any person who intentionally disturbs the trial proceedings.

However, misconduct of bystanders or friends or relatives of the victim or the defendant, even though it might temporarily interfere with the normal proceedings of the trial, will not necessarily result in reversible error. It is incumbent upon the defendant to show a reasonable probability that the conduct interfered with the jury's verdict. See Landry v. State, 706 S.W.2d 105, 112 (Tex.Cr.App.1985). In this instance, we cannot conclude from this record that such has been established.

The record reflects that during the opening statement by the prosecutor, a relative of one of the murdered victims, Mozingo, who was not then scheduled to testify during appellant's trial, may have conducted himself in an offensive and contemptuous manner by attempting to get to appellant in the courtroom, “by going over the rail.”

Out of the presence of the jury, the trial judge overruled appellant's motion for mistrial and ordered the offending person to remain outside the courtroom for the remainder of the trial, which we assume he did, and also admonished all persons in the courtroom “not to show any emotions or any outburst of emotions during the testimony of this trial. I'm not going to allow that behavior to interfere with a fair trial of this defendant.” One spectator requested and was granted permission to leave the courtroom.

Appellant's counsel did not ask the trial judge to instruct the jury to ignore what might have occurred in the courtroom. Indeed, appellant does not assert that the jury ever saw or had any knowledge of the above “outburst”, nor does the record so reflect. Based upon this record, it is absolutely unclear just what, if anything, the jury might have seen or heard.

It was incumbent upon appellant to establish, by competent evidence, the probability of injury to himself as a result of what had occurred during the prosecutor's opening statement to the jury. We find and hold that appellant has failed to show that any prejudice resulted from the above “outburst”. The record is simply insufficient to permit us to sustain appellant's contention that he was denied a fair trial because of the above “outburst”. Appellant's fifth point of error is overruled.

In their sixth point of error, appellant's counsel assert: “Numerous instances of improper jury arguments at guilt-innocence constituted cumulative reversible error despite lack of appellant's trial objection.” Counsel candidly admits that “Possibly none of the three complained of arguments would compel reversal, since not objected to, if standing alone.” (Page 38, appellant's brief). However, counsel argues that “their cumulative effect denied Appellant a fair trial.” (Page 38, appellant's brief). We disagree.

Counsel acknowledges the general rule that there must usually be a timely, proper, and specific objection to the prosecutor's complained about jury argument in order for a defendant to preserve the complaint for appellate review purposes. See, for example, Borgen v. State, 672 S.W.2d 456, 457 (Tex.Cr.App.1984); Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982); Sanchez v. State, 589 S.W.2d 422 (Tex.Cr.App.1979); Duffy v. State, 567 S.W.2d 197, 206 (Tex.Cr.App.1978); Miller v. State, 566 S.W.2d 614, 619, 621 (Tex.Cr.App.1978); Cain v. State, 549 S.W.2d 707, 715 (Tex.Cr.App.1977).

However, an exception to the general rule is that improper argument may present a Fourteenth Amendment due process claim if the prosecutor's argument so infected the trial with unfairness as to make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Also see Romo v. State, supra; Smith v. State, 541 S.W.2d 831 (Tex.Cr.App.1976); Rodriguez v. State, 530 S.W.2d 944 (Tex.Cr.App.1975). Two of the unobjected to arguments about which complaint is now made on appeal follow:

The judge says that Edward Segura is an accomplice, and that is true as a matter of law. And I want you to understand that everything in this charge is not because the judge is giving his opinion on anything, but because it's requested by either side, and if there's any reasonable opinion on anything, but because it's requested by either side, and if there's any reasonable opinion, it could be such, the judge, by law, has to put it in the charge and have the jury decide and so he puts it in the charge; you decide whether Ray Mc Call is an accomplice. And I tell you, all the evidence you heard and to when you read that definition of an accomplice, he is not.

Because that young man [Mc Call], at twenty-one years of age, sat on that witness stand that you saw for approximately three hours and almost cried to testify against his best friend, almost a member of the family. And you know, he wasn't lying. Because he didn't want to testify, and because he, too, could have gotten out of it, if it wasn't the truth, by saying someone else did it. But, he finally, on September the 3rd, decided to tell all the truth and not cover Donny [appellant] because he was already in trouble. And how is it, if Mc Call is such a liar, that he can produce this-I mean, am I holding something here? Did I miss something during this trial? Is this really a figment of my imagination? The third complained of argument consists of 8 1/2 letter size pages. We find that to set it out would unnecessarily elongate this opinion, and decline to do so for this reason.

Although we find that several of the statements that the prosecuting attorney made in his argument were highly improper, and do not come within the general areas of proper jury argument as set out in, for example, Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980), we also find that an instruction by the trial judge would have been sufficient to cure any error. See, for example, Logan v. State, 698 S.W.2d 680 (Tex.Cr.App.1985).

Reversible error occurs only when statements to the jury, either individually or collectively, are so extreme, manifestly improper, inject new and harmful facts into the case, or violate a mandatory statutory provision, see Duffy v. State, supra, that they deprive the accused of a fair and impartial trial. Given the record as a whole, and without an objection, we cannot conclude that the prosecutor's statements, either singularly or collectively, although in several instances erroneous, were so prejudicial as to reflect a violation of due process or due course of law to the extent that they deprived appellant of a fair and impartial trial. Appellant's sixth point of error is overruled.

Appellant's counsel contend in their seventh point of error that “The trial court erred in allowing the prosecutor to impeach two of his key witnesses, over objection, thereby in effect bolstering their testimony.” Again, we must disagree with counsel.

The record reflects that over objection the prosecuting attorney was permitted to ask one of his witnesses, whether when he, the prosecutor, had previously spoken with the witness, that he, the witness, had not told him, the prosecutor, “all of the facts at one time that you've just related in this courtroom”, and, as to another of his witnesses, whether he, the witness, had left out in his prior statements that he gave to law enforcement officials items about which he had testified to in court. The witnesses testified that indeed this had occurred.

We are unable to understand how the above constitutes either impeachment or bolstering, as appellant's counsel assert. Generally, “bolstering” occurs when a party is allowed to introduce a prior consistent statement of an unimpeached witness to enhance the witness' credibility, see, for example, Pless v. State, 576 S.W.2d 83 (Tex.Cr.App.1978). “Impeachment” usually occurs when a party uses a prior inconsistent statement of a witness to attack the witness' credibility. See, for example, Jackson v. State, 516 S.W.2d 167, 175 (Tex.Cr.App.1974); Brown v. State, 475 S.W.2d 938, 952 (Tex.Cr.App.1971). In this instance, we cannot conclude that the witnesses' testimony was either impeached or bolstered by the prosecutor's questioning. Appellant's seventh point of error is overruled.

Appellant's counsel assert in their eighth point of error that he “was denied due process of law because the cumulative improper arguments [of the prosecutor] at punishment rendered his trial unfair.” Counsel concede that either no objections or extremely general objections were made to the complained about jury arguments.

We have carefully examined the complained about jury arguments, which we do not set out in this opinion because to do so would only unnecessarily elongate this opinion, and although we find that some of them might be considered highly improper, we conclude that, either individually or collectively, in light of the record as a whole, and without a proper and timely objection, they were not so prejudicial as to reflect a violation of due process or due course of law to the extent that they deprived appellant of a fair and impartial trial.

*****

Having carefully reviewed each of appellant's points of error, and finding that none contain reversible error, the trial court's judgment of conviction and sentence of death are affirmed.

Miller v. Dretke, 404 F.3d 908 (5th Cir. 2005) (Habeas).

Background: State prisoner convicted of murder and sentenced to death petitioned for federal habeas relief on Brady and ineffective assistance grounds. The United States District Court for the Southern District of Texas, Kenneth M. Hoyt, J., denied Brady claim, as it related to guilt/innocence phase of petitioner's trial, denied ineffective assistance claims, and declined to issue certificates of appealability (COA) on these claims, and petitioner sought COAs from the Court of Appeals in order to appeal.

Holdings: The Court of Appeals, Rhesa Hawkins Barksdale, Circuit Judge, held that:
(1) state prisoner petitioning for habeas relief was not entitled to certificate of appealability (COA) on Brady claim as it related to guilt/innocence phase of his trial, based upon state's failure to disclose impeachment evidence that cast doubt on whether it was he or one of his fellow conspirators who shot victims following robbery;
(2) prisoner was not entitled to certificate of appealability (COA) on ineffective assistance claim, based on his trial counsel's failure to object to admission of evidence of extra-judicial confession of his alleged coconspirator; and
(3) prisoner was not entitled to certificate of appealability (COA) on ineffective assistance claim, based on his trial counsel's failure to object to remarks made by prosecutor during his closing argument at punishment phase of capital murder case. COAs denied.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue is whether to grant a certificate of appealability (COA) to Donald Anthony Miller on any of three claims for habeas relief denied by the district court. See 28 U.S.C. §§ 2253, 2254. Miller was convicted in Texas state court of capital murder and sentenced to death. Federal habeas relief was conditionally granted by the district court on one claim, but only for sentencing: that, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the State violated due process by withholding exculpatory evidence ( Brady-claim). For all claims for which it denied relief, including the same Brady-claim as applied to guilt/innocence, the district court denied, sua sponte, a COA.

The State appeals; Miller seeks a COA in order to cross-appeal. For the latter, the following COA requests are now at issue. First, Miller claims the district court erred by limiting to sentencing the granted habeas relief on his Brady-claim. He maintains the same evidence-withholding also entitles him to relief for the guilt/innocence phase of his trial. In addition, Miller makes two ineffective assistance of counsel claims. He maintains his trial counsel provided ineffective assistance, violative of the Sixth Amendment, by failing to object: (1) to a non-testifying co-conspirator's confession admitted through testimony of another; and (2) to the State's closing argument.

A COA is DENIED for each of the three issues. A subsequent opinion will address the State's appeal from the habeas relief granted for sentencing, pursuant to the Brady-claim.

In early 1982, Michael Mozingo and Kenneth Whitt, traveling furniture salesmen, were approached by Miller, Eddie Segura, and Danny Woods, who feigned interest in purchasing furniture. After Mozingo and Whitt were lured to Segura's house to deliver the furniture, they were robbed, bound, and gagged. Miller, Segura, and Woods drove Mozingo and Whitt to Lake Houston in Harris County, Texas, where they were murdered by Miller and Woods.

In October 1982, Miller was convicted for capital murder, and sentenced to death, for murdering Mozingo while in the course of committing, and attempting to commit, aggravated robbery. Segura testified against Miller; Woods did not testify. (Before Miller's trial, Woods had pleaded guilty to murder; Segura, to aggravated robbery. Woods was sentenced, before Miller's trial, to two life sentences. Segura was sentenced, after Miller's trial, to 25 years in prison.)

The Texas Court of Criminal Appeals affirmed. Miller v. State, 741 S.W.2d 382 (Tex.Crim.App.1987) (en banc). The Supreme Court denied a writ of certiorari. Miller v. Texas, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 935 (1988).

Miller requested state habeas relief, presenting numerous claims. The state district court entered findings of fact and conclusions of law and recommended denial of relief on each claim. Ex Parte Miller, No. 350303-A (232d Dist. Ct., Harris County, Tex. 7 May 1997). The Court of Criminal Appeals adopted those findings and conclusions and denied relief. Ex Parte Miller, Application No. 36140-01 (Tex.Crim.App.1998) (unpublished order).

In February 1999, Miller requested federal habeas relief, presenting five claims. Following an evidentiary hearing, the district court conditionally granted habeas relief for the Brady-claim, but only for the punishment phase. Miller v. Johnson, H-99-0405 at 24 (S.D. Tex. 2 February 2004) ( USDC Opn.). For the other claims, including the Brady-claim as applied to guilt/innocence, the district court granted the State's summary judgment motion and denied, sua sponte, a COA for those claims. The district court stayed its judgment pending appeal.

And think to yourself as you look at this and think of this case; what does Marsha Mozingo tell her kids? “Mommy, why isn't Daddy here? Mommy, is Daddy ever going to come back? Mommy, why did that bad man have to kill Daddy? Mommy, my birthday is coming up, will Daddy be there? Mommy, where does somebody go after he's been killed? Mommy, help me understand; Mommy, tell me the truth, Mommy, are there very many people in the world like Donald Miller? Mommy, will anyone else ever have to die because of Donnie Miller?”

The district court stated: the prosecutor speculated about how one of the victims' wives would explain the killing to their child, despite having elicited no testimony about the impact of the killings on the families. USDC Opn. at 36. Although it characterized the comments as “immature and constitut [ing] pandering to the victims' families”, the district court held they did not violate Strickland's “but for” standard. Id. (Again, Strickland requires, inter alia, showing “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. (emphasis added).)

Although the district court stated there was no evidence about the impact of Mozingo's death on his family, there was testimony from which the impact could reasonably be inferred by the jury. Segura testified that, while Mozingo was in Segura's car en route to being murdered, Mozingo asked Woods, Miller, and Segura to look at the picture of his family in his wallet. Likewise, McCall testified: Segura told him Mozingo asked the men not to kill him “because he had a wife and a kid at home”. And Mozingo's wife testified they had two children.

In this regard, there was sufficient evidence about Mozingo's family for the jury to consider the victim impact argument. Reasonable jurists would not debate the ruling that, had these comments not been made, there is no reasonable probability that the death penalty verdict would have been different.

Part of the other challenged comments follow:

Is it going to be your vote for saving the life of a murderer or saving the innocent life of a person such as Kenneth Whitt and Michael Mozingo? ... I would like for you, before anybody votes no to this case, make sure you understand what it would be like for some victim in the future that might be with this Defendant in the future, under the same or similar circumstances, put yourself in their position and decide whether you feel conscientiously you could say no to the questions knowing you would be risking some other person's life....

In denying habeas relief on the challenged comments, the district court noted the context of the above-quoted comments, but did not address them specifically. USDC Opn. at 35. As discussed above, the district court held the closing argument was not prejudicial for Strickland purposes. Id. at 36. Again, based on this record, reasonable jurists could not debate that, had these comments not been made, there is no reasonable probability that the death penalty verdict would have been different.

The same conclusion is compelled when the combined effect of the contested comments is considered. Reasonable jurists would not debate that there was no Strickland prejudice.

For the foregoing reasons, a COA is DENIED for each of the three COA requests. A subsequent opinion will address the State's appeal from the conditional habeas relief granted Miller for his Brady-claim, as it concerns sentencing. COA DENIED.

Miller v. Dretke, 431 F.3d 241 (5th Cir. 2005) (Habeas).

Background: Following affirmance of his conviction capital murder conviction and death sentence on direct appeal, 741 S.W.2d 382, petitioner sought federal habeas relief. The United States District Court for the Southern District of Texas, Kenneth M. Hoyt, J., conditionally granted petition for sentencing purposes on Brady grounds, but denied other claims, and declined to issue certificates of appealability (COA), and petitioner sought COAs from the Court of Appeals in order to appeal. The Court of Appeals, 404 F.3d 908, denied application for COAs. State appealed the conditional grant of habeas relief.

Holdings: The Court of Appeals, Rhesa Hawkins Barksdale, Circuit Judge, held that:
(1) police detective's notes were not material with respect to sentencing, for Brady purposes; (2) transcript from police interview with prosecution witness who testified that he viewed bodies on night of murder was not material with respect to sentencing, for Brady purposes;
(3) notes from police interview with prosecution witness who testified that petitioner borrowed gun from him just before the murders were not material with respect to sentencing, for Brady purposes; and
(4) affidavits of four nontestifying witnesses were not material with respect to sentencing, for Brady purposes. Conditional grant of habeas relief vacated. Emilio M. Garza, Circuit Judge, filed dissenting opinion.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In 1982, Donald Anthony Miller was convicted in Texas state court of capital murder and sentenced to death. In 2004, federal habeas relief was conditionally granted for sentencing, the district court concluding that the State violated due process by withholding evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (due process violation for prosecution to suppress favorable material evidence) ( Brady-claim). It denied relief for the other claims, including the same Brady-claim as applied to guilt/innocence. For those claims, a certificate of appealability (COA) was denied by the district court.

The State appealed. Seeking leave to cross-appeal, Miller requested a COA from this court on three claims; it was denied. Miller v. Dretke, 404 F.3d 908 (5th Cir.2005). Therefore, at issue is the State's appeal from the conditional relief on sentencing. Any suppressed evidence was not material for sentencing. JUDGMENT VACATED; RELIEF DENIED.

(The following is in large part a repetition of the facts in our first opinion. Id. at 911-12.) On 2 February 1982, Michael Mozingo and Kenneth Whitt, traveling furniture salesmen, were approached by Miller, Eddie Segura, and Danny Woods, who feigned interest in purchasing furniture. After Mozingo and Whitt were lured to Segura's house to deliver the furniture, they were robbed, bound, and gagged. Miller, Segura, and Woods drove Michael Mozingo and Kenneth Whitt to Lake Houston in Harris County, Texas, where, with their hands tied, they were murdered by Miller, with a handgun, and Woods, with a shotgun.

In October 1982, Miller was convicted for capital murder, and sentenced to death, for murdering Michael Mozingo while in the course of committing, and attempting to commit, aggravated robbery. Segura testified against Miller; Woods did not testify. (Before Miller's trial, Segura pleaded guilty to aggravated robbery; Woods, to murder, receiving two life sentences. Post-trial, Segura was sentenced to 25 years in prison.) The Texas Court of Criminal Appeals affirmed. Miller v. State, 741 S.W.2d 382 (Tex.Crim.App.1987) (en banc). The Supreme Court denied a writ of certiorari. Miller v. Texas, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 935 (1988).

Miller requested state habeas relief, presenting numerous claims, but not the pending Brady-claim. The state district court entered findings of fact and conclusions of law and recommended denial of relief on each claim. Ex Parte Miller, No. 350303-A (232d Dist. Ct., Harris County, Tex. 7 May 1997). The Court of Criminal Appeals adopted those findings and conclusions and denied relief. Ex Parte Miller, No. 36140-01 (Tex.Crim.App.1998) (unpublished order).

In February 1999, Miller requested federal habeas relief, raising five claims, including a Brady-claim presented for the first time. Following an evidentiary hearing in September 2002, the district court ruled in February 2004 that the Brady-claim was not procedurally barred and conditionally granted habeas relief for it, but only for sentencing. Miller v. Johnson, H-99-0405, slip op. at 24 (S.D.Tex. 2 February 2004) ( USDC Opn.). For the other claims, including the Brady-claim for guilt/innocence, the district court awarded the State summary judgment and denied, sua sponte, a COA for those claims. The court stayed its judgment pending appeal. In short, 22 years passed between the murders and federal habeas relief being granted.

Following our denial of a COA for Miller, Miller, 404 F.3d at 920-21, oral argument was held on the State's appeal from the conditional habeas relief. At argument, we ordered supplemental briefing on the State's failure to exhaust claim.

The murders occurred in February 1982; Miller was convicted that October. During a pre-trial motion, the prosecutor claimed Brady did not require his disclosing impeachment evidence, but only evidence exculpatory to Miller's guilt. The trial court did not require disclosure of additional evidence. Miller contends the State suppressed the following material evidence that it had generated: (1) statements by Ray McCall in 5 and 20 May 1982 interviews; (2) statements by Archie Morris in a 5 May 1982 interview; and (3) affidavits of four persons who did not testify.

The district court found investigator's notes from these two interviews with McCall were suppressed. At trial, McCall testified as follows. On the night of the murders, McCall, the brother of Segura's then girlfriend, Monica McCall, visited Miller's home after the murders had been committed. Outside Miller's presence, Segura and Woods described the night's events to McCall. Miller paid McCall to go to the murder site later that night, to confirm the bodies were still there; McCall was unable to find them, but returned with Miller and did so.

In notes from the 5 May interview, an investigator acknowledged McCall's not having told the truth on prior occasions. The district court found these notes raised questions about McCall's credibility and were important because McCall corroborated testimony by Segura, who had been present at the murders and was the State's key witness. USDC Opn. at 22.

In the 20 May interview, McCall stated: on the night of the murders, Woods and Segura said nothing about them, but admitted only to the robbery; and he went home around 9:00 p.m. (mentioning nothing in the statement about going to look for the bodies either alone or with Miller). The district court noted McCall's statements during this interview differed from his trial testimony and could have been used for impeachment. Id.

Morris (the grandfather of Ray and Monica McCall, as well as of Miller's then girlfriend) was the source for the .38 caliber handgun used in the murders. The district court found prosecutor's notes of Morris' 5 May statement that he owned only a .22 caliber handgun had not been given to Miller. At trial, Morris testified: just prior to the murders (though he could not recall precisely when), Miller had borrowed from him the .38 caliber handgun used in the murders; and McCall returned it to him sometime after the murders. While not specifically addressing Morris' contradictory statements, the district court found the suppressed evidence undermined Segura's credibility, as well as the value of McCall and Morris' corroborating testimony. Id. at 24.

The State concedes suppression of affidavits from four who did not testify: Robert White, Tommy Holsinger, Tammie Jones, and Melissa Spears. They had been in a group with Woods on the evening of 2-3 February 1982, after the murders earlier that evening. In their affidavits, each affiant told police they overheard Woods brag about the murders. Detective Clampitte was one of the investigating officers; arrested Miller, Segura, and Woods; and took the four statements. Miller's counsel asked the Detective about the affidavits on cross-examination at trial (Miller's counsel knew the names of the affiants without the Detective having named them); and Detective Clampitte testified about them, but the trial court refused their being then provided to Miller.

Again, Woods did not testify. White's affidavit stated Woods told him that, after one of the victims was hit with a shotgun blast, “[e]ither Danny [Woods] or the guy with Danny then reached down into his boot and pulled a .38 pistol and shot the other guy when he started to run”. White's affidavit also stated that, when Woods visited White the day after the murders, Woods denied Miller was one of the shooters. Jones' affidavit describes Woods having possibly said a .45 caliber handgun was used in the murders. Holsinger's affidavit suggests Woods took full responsibility for the murders and left Holsinger with the impression “it was an everyday thing with him”. The district court found the affidavits indicated Woods, not Miller, killed both victims and that Segura was armed. Id. at 23.

Referring primarily to McCall and Morris' statements, and applying Brady's above-described three-part test, the district court ruled: (1) the State withheld evidence; (2) it was favorable to Miller; and (3) it was material, but only for sentencing. USDC Opn. at 26. In ruling earlier on the procedural-bar prejudice element, the district court held: although Miller's “ complicity in the killings is not seriously disputed”, Miller “ challenge[d] his portrayal as the ringleader and shooter, a role that warranted conviction for capital murder and imposition of the death sentence”. Id. at 23 (emphasis added).

In ruling on the Brady-claim, the district court noted: “The analysis for [ Brady-] materiality tracks that of [procedural-bar] prejudice”. Id. at 26. It held: “the newly disclosed evidence raises significant doubt about the outcome of the trial, particularly the punishment assessed”; and “the State's refusal to disclose material evidence ... vitiated the sentence imposed”. Id.

*****

First, the evidence from 5 and 20 May interviews with McCall lacks force in the light of other, overwhelming evidence presented at trial. For example: (1) Miller admitted to Jimmy Douglass they had “ripped off” some furniture; (2) Ronald Theiss testified Miller brought Segura's car to his shop for repair and repainting and left new furniture in his front yard at that same time; (3) Segura testified in great detail about Miller's shooting both Mozingo and Whitt; (4) Woods was seen by Robert Fletcher with the victims immediately before their murders, and Woods was seen in Segura's car with two other people around the same time; (5) Miller tried to sell the stolen furniture soon after the murders; (6) Miller's fingerprints were found on a piece of paper in the back of the furniture truck and on one of the stolen tables stored in a warehouse; (7) Miller and Segura rented a storage unit to store furniture in the same facility used by McCall soon after the murders; (8) Morris testified Miller obtained the .38 caliber handgun from him; and (9) McCall testified Woods and Segura admitted to robbing the victims. None of this evidence could be undermined by either of the May statements given by McCall.

Miller contends Stover could have impeached McCall's testimony on the basis of his prior untruthfulness. That McCall had been untruthful previously, however, was presented to the jury because McCall admitted it on direct examination. Stover also impeached McCall with this information and questioned McCall's motivations for testifying. The jury had the opportunity to weigh McCall's credibility and credit his testimony accordingly.

Miller contends McCall's failure to mention in his 20 May statement viewing the bodies either alone, or with Miller, on the night of the murders is particularly probative. However, McCall's failure to do so is understandable; and, as the State points out, it does not make it more or less likely that Miller committed the crimes for which the death penalty was warranted.

Olsen's notes of the 5 May interview of McCall are relatively brief. Most importantly, they contain McCall's admitting he had not been truthful previously and his denying having anything to do with possessing, or disposing of, the .38 caliber handgun after the murders.

Again, Miller maintains Stover could have used this evidence to impeach McCall. However, as noted, both Olsen and Stover questioned McCall about prior inconsistent statements. And, Stover elicited an admission by McCall that he only told the State about Miller's comments to him after McCall entered guilty pleas on three new charges. A review of all of McCall's testimony reveals that he was thoroughly impeached as dishonest and a criminal. Because McCall was thoroughly impeached at trial, the notes of the 5 and 20 May interviews have only incremental impeachment value.

Likewise, the 5 May notes of the Morris interview lacked force in the light of trial testimony about his .38 caliber handgun. Those notes and Morris' trial testimony were very brief. That Morris at first denied owning a .38 could not be said to have affected the outcome of sentencing, particularly in the light of evidence corroborating his trial testimony: Segura testified he and Miller stopped by Morris' house prior to the murders to obtain a gun; McCall testified he received the .38 from Miller after the murders and returned it to Morris at Miller's request; Morris' neighbor, Reyes, a witness who had no other connection to Segura, Miller or McCall, testified Morris gave him the .38 caliber handgun for safe keeping after the murders; McCall advised investigators they could find the gun at Morris' house; the gun was recovered from Reyes' garage; and bullets recovered from the bodies were consistent with the .38 recovered from Reyes' garage. In addition, as noted, Miller's then girlfriend was Morris' grandchild. In his statement, Morris also stated: “He [did] not know whether ... [Miller] was able to get a pistol from his house. Perhaps [Miller] had left or hidden one there earlier. However, he did not remember seeing [Miller] get a pistol from his house with his permission.” Obviously, this indicates Miller was, inter alia, very capable of obtaining a gun from Morris' home.

Finally, the four affidavits, in many ways, support Miller's guilt and do not contradict Segura and McCall's testimony. None of the affiants were witnesses to the robbery and murders; their only knowledge was from Woods' statements. Given the circumstances surrounding Woods' statements to the four affiants, their reliability is highly suspect. White and Holsinger's affidavits reflect most of Woods' statements were made late at night after they had smoked marijuana.

Conversations forming the basis of Jones and Spears' affidavits were in the early morning hours after drinking in a club with them, White, and Holsinger; and both Jones and Spears stated in their affidavits that Woods appeared to be high on narcotics. Moreover, the substance of the affidavits was presented to a substantial degree to the jury by Miller's cross-examination of Detective Clampitte.

Having evaluated each item of evidence, we must now evaluate the cumulative effect for purposes of materiality. Of course, in doing so, the foregoing discussion of the evidence is in play.

The first special issue required the jury to find Miller's conduct that caused Michael Mozingo's death was both deliberate and with the reasonable expectation death would occur. Miller repeatedly contends, and the district court noted, that the allegedly suppressed evidence undermines Miller's role as the ring leader. However, even if he did not have that role, there is overwhelming evidence he was deeply involved in the robbery and murders. In other words, his conduct was deliberate. And, given the overwhelming evidence of Miller's involvement in the crimes and of at least two of the participants being armed, it is completely implausible Miller could have participated and not anticipated death would occur.

Accordingly, having reviewed the record, and in the light of the evidence presented to the jury, the brutal nature of the crimes, and the callousness with which the victims were treated, we do not find a reasonable probability any juror would have answered the deliberateness special issue differently, even if all the allegedly suppressed evidence had been disclosed.

The second special issue required the jury to find Miller would both commit violent crimes and be a continuing threat to society (future dangerousness). It does not appear that Miller contends the allegedly suppressed evidence is material for this special issue. In any event, for all of such evidence, only a small portion of McCall's 20 May statement could be said to be even tangentially relevant to this issue-his statements that Miller was not violent. This statement, made by Miller's friend and admitted partner in crime, could hardly be material.

For example, prior to the murders in early 1982, Miller had pleaded guilty in March 1980 to stealing a truck, for which he was sentenced to probation. That October, his probation was revoked, and he was sentenced to three years in prison when he pleaded guilty to stealing an automobile while on probation. At the punishment phase, in addition to these two convictions, testimony was offered that, after Miller was released from the penitentiary, he had been involved in an armed robbery of illegal drugs and another planned drug robbery (additional criminal conduct).

The two convictions and additional criminal conduct occurred between when Miller was 18 years of age in 1980 and when he committed the instant murders in conjunction with armed robbery in early 1982. Accordingly, the State argued to the jury that Miller's criminal conduct had progressively become more violent. This additional criminal conduct provided a further basis on which the jury could have found against Miller on the future dangerousness special issue.

In sum, given Miller's criminal history and the nature of the murders, there is no reasonable probability any juror would have answered that special issue differently had all the allegedly suppressed evidence been disclosed; there is no reasonable probability that such disclosure of evidence would have resulted in a different outcome at sentencing. Restated, in the light of the comprehensive evidence bearing on sentencing, even if the allegedly suppressed evidence had been disclosed, this does not undermine our confidence that Miller would have still received the death penalty.