STATE OF ARIZONA, Plaintiff/Petitioner, v. WILLIAM CRAIG MILLER, Defendant/Respondent.
No. CR-19-0061-PC
SUPREME COURT OF THE STATE OF ARIZONA
May 04, 2021
Appeal from the Maricopa County Superior Court
The Honorable Janet E. Barton, Judge, Retired
No. CR2006-112056-001
REVERSED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Lacey Stover
Tamara Brooks-Primera (argued), Kerri L. Chamberlin, Office of the Legal Advocate, Phoenix, Attorneys for William Craig Miller
VICE CHIEF JUSTICE TIMMER AUTHORED THE OPINION OF THE COURT, IN WHICH CHIEF JUSTICE BRUTINEL, JUSTICES BOLICK, AND PELANDER (RETIRED)* JOINED.
VICE CHIEF JUSTICE TIMMER, opinion of the Court:
¶1 A defendant is deprived of the Sixth Amendment right to counsel if his lawyer provided deficient representation, which prejudiced the defensе. Strickland v. Washington, 466 U.S. 668, 687 (1984). We are asked to decide whether the failure to challenge an incorrect jury instruction widely used by the legal community at the time of trial and appeal constitutes deficient performance. Although lawyers can be constitutionally deficient for making errors commonly made by others, the record here does not reflect that the defendаnt‘s lawyers were deficient by failing to challenge the jury instruction or that any deficiency prejudiced the defense.
BACKGROUND
¶2 In 2011, a jury convicted William Craig Miller of five counts of first-degree murder and other charges. The jury also found four aggravating circumstances: prior conviction of a serious offense,
¶3 Before trial, Miller disclosed several statutory and non-statutоry mitigating circumstances he intended to prove at any penalty phase, including that his “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution.” See
It is a mitigating circumstance that the defendant‘s capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significаntly impaired, but not so impaired as to constitute a defense to prosecution. The defendant has the burden of proving this mitigating circumstance by a preponderance of the evidence.
“Significantly impaired” means that the defendant suffered from mental illness, personality disorder, character disorder, substance abuse, and/or alcohol аbuse at or near the time of the offense, that prevented the defendant from appreciating the wrongfulness of the conduct or conforming his conduct to the requirements of the law.
If any juror finds by a preponderance of the evidence that the defendant was significantly impaired, then that juror shall consider this impairment as a mitigating circumstance when determining whether to sentence the defendant tо life imprisonment or death.
The effect you give to any mitigation is left to your sound discretion in determining whether there are mitigating circumstances sufficiently substantial to call for leniency.
(Emphasis added.)
¶4 Over a five-day span, Miller presented “a good deal of mitigation, including evidence that he suffered from Bipolar Disorder I; exhibited troubling behaviors as a child; had a family history of emotional difficulties, drug abuse, and alcohol problems; and had experienced difficulty controlling his impulses
¶5 In 2016, Miller petitioned the trial court for post-conviction relief (“PCR“) on multiple grounds. Relevant here, he claimed that trial counsel were constitutionally ineffective for failing to object to the RAJI‘s definition of “significantly impaired,” and appellate counsel was ineffective for failing to challenge the instruction on appeal.
¶6 Based solely on the petition and related filings, the PCR court agreed with Miller that the RAJI had misstated thе law by using the word “prevented,” and trial and appellate counsel were constitutionally ineffective for failing to challenge the RAJI. It noted that the RAJI was revised in 2016, five years after Miller‘s trial, to replace “prevented the defendant from appreciating” with “substantially reduced the defendant‘s ability to appreciate.” See Rev. Ariz. Jury Instr. (Crim.) Capital Case 3.2, at 626 (5th ed. 2019). The court could “find no reason” for the change to the RAJI other than “recognition that the previous instruction‘s language imposed the incorrect standard.” Because the court also found that counsel‘s ineffectiveness prejudiced Miller, it granted relief by ordering a new penalty phase trial. The court subsequently denied the State‘s motion for rеhearing, including its request for an evidentiary hearing to explore whether counsel‘s failure to challenge the RAJI fell below prevailing professional norms.
¶7 We granted the State‘s petition for review because it raises issues of statewide importance that are likely to recur. We have jurisdiction pursuant to
DISCUSSION
¶8 Whether Miller‘s lawyers provided ineffective assistance is a mixed question of fact and law. See State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). We review the PCR court‘s legal conclusions and constitutional issues de novo. Id. Ultimately, we review a court‘s ruling on a PCR petition for an abuse of discretion, which occurs if the court makes an error of law. Id.
¶9 The Sixth Amendment guarantees “the right to effective assistance of counsel.” Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). A defendant claiming deprivation of this right must make a two-pronged showing. Id. at 687. First, he must show that counsel‘s representation was deficient. Id. Second, he must demonstrate that this deficient performance prejudiced his defense. Id. To prevail, the defendant must satisfy both prongs. Id. at 697.
I. Deficiency
¶10 A defendant‘s lawyers are not deficient merely for making errors. Rather, the errors must be “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by thе Sixth Amendment.” Id. at 687. To determine deficiency, we ask “whether counsel‘s representation ‘fell below an objective standard of reasonableness,‘” which is formed by the “practice and expectations of the legal community,” Hinton v. Alabama, 571 U.S. 263, 272-73 (2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010)), at the time the lawyer provides representation, see Bobby v. Van Hook, 558 U.S. 4, 8 (2009). Representation falls below the “prevailing professional norms” of the legal community if counsel‘s performance was unreasonable under the circumstances. Hinton, 571 U.S. at 273 (quoting Padilla, 559 U.S. at 366); see also Strickland, 466 U.S. at 688 (“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.“). Deficiency must be established by a “demonstrable reality” rather than as a product of speculation. State v. Meeker, 143 Ariz. 256, 264 (1984). A “strong presumption” exists “that
¶11 The State does not contest that the RAJI given during the penalty phase incorrectly imposed a higher burden than required to prove the (G)(1) mitigator. See State v. Johnson, 247 Ariz. 166, 185 ¶ 43 (2019) (“The State concedes that limiting the definition of ‘significantly impaired’ to the defendant being prevented from appreciating the wrongfulness of the conduct was error . . . .“). Instead, it argues the PCR court errеd by finding trial and appellate counsel ineffective for failing to challenge the RAJI because Miller failed to prove that counsel‘s lapse fell below an objective standard of reasonableness. Miller counters he proved counsel‘s deficiency by demonstrating they were necessarily ignorant of the (G)(1) mitigator‘s requirement as no strategic reason existed for failing to challenge the RAJI. He asserts that ignorance of the law governing the impact of his mental health mitigation evidence necessarily fell below the professional norms of the legal community.
¶12 The record does not support a conclusion that Miller proved that his trial and appellate counsel acted unreasonably under the circumstances by failing to challenge the RAJI‘s inclusion of the “prevented” language. See Hinton, 571 U.S. at 273. In his PCR petition and reply to the State‘s response, Miller pointed only to the RAJI‘s error as proof of counsel‘s deficiency. He did not provide any evidence, such as affidavits from other defense counsel, suggesting his lawyers’ failure to challenge the RAJI fell below professional norms established by the legal community. See
¶13 In contrast, evidence exists that Miller‘s lawyers acted within prevailing professional norms. See Hinton, 571 U.S. at 273. The RAJI, although not sanctionеd by this Court, was created by the State Bar of Arizona Criminal Jury Instruction Committee, which is comprised of judicial officers, defense lawyers, and prosecutors. See Rev. Ariz. Jury Instr. (Crim.) Preface & Important Note. Although not binding, these recommended jury instructions evidence the legal profession‘s view that they accurately explain the law to jurors. Cf. Padilla, 559 U.S. at 366 (“We long have recognized that ‘[p]revailing norms оf practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable . . . .‘” (quoting Strickland, 466 U.S. at 688)). Also, the trial judge, not the parties, introduced the RAJI, thus lending it additional credibility. See State v. Trostle, 191 Ariz. 4, 22 (1997) (stating that trial judges presumably know the law and apply it in making decisions). And the State identified one other capital case that had used the RAJI without objeсtion in a 2011 trial. See PCR Petition at 102-03, State v. Naranjo, No. CR 2007-119504-001 (Maricopa Cnty. Super. Ct. Aug. 6, 2018) (No. 9587463); see also Johnson, 247 Ariz. at 185 ¶ 41 (noting defense counsel‘s failure to object to the RAJI during trial). The RAJI was not called into question until well after Miller‘s trial and appeal, when the state bar committee deleted the “prevented” language in 2016, and this Court reported in 2019 that the State conceded that the pre-2016 RAJI was error. See Johnson, 247 Ariz. at 185 ¶ 43.
¶14 We are not averse to Miller‘s argument that a lawyer‘s representation can be unreasonable under prevailing professional norms even when the legal community has uniformly made the same error. Cf. Padilla, 559 U.S. at 367 (emphasizing that although legal community standards “may be valuable measures of the prevailing professional norms of effective representation,” they are not “inexorаble commands” (quoting Bobby, 558 U.S. at 8)). But the record does not depict such circumstances here.
¶15 Use of “prevented” in the pre-2016 RAJI is not an obvious, grievous error. See Strickland, 466 U.S. at 687 (stating that the first prong requires a showing
¶16 Ultimately, the state bar committee wisely amended the RAJI to remove any uncertainty about what must be shown to prove the (G)(1) mitigator. But Miller did not present any affidavits or other evidence suggesting thаt the criminal defense attorney community had questioned the RAJI at the time of Miller‘s trial and appeal. Cf. Wade v. Brockamp, 342 P.3d 142, 152 (Or. App. 2015) (finding defense counsel‘s failure to object to a standard jury instruction deficient where the record reflected that the defense community had questioned the continued viability of the instruction in light of a published decision). On this record, trial and appellatе counsel‘s failure to challenge the RAJI given at Miller‘s trial was understandable and thus reasonable under prevailing professional norms. We therefore disagree with the PCR court that Miller proved that his lawyers were constitutionally deficient simply because the RAJI was erroneous. Although we could end our inquiry here, in light of the practical consequences of our decision, we address Strickland‘s prejudice prong.
II. Prejudice
¶17 To prove prejudice, the defendant must show that “counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. It is not enough to show that “the errors had some conceivable effect on the outcome of the proceeding,” as virtually every deficient act or оmission would meet that test. Id. at 693. Instead, the defendant must “show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
¶18 The PCR court found prejudice because “a reasonаble probability exists that the result of the penalty phase would have been different had the jury received the correct instruction.” In ruling on the motion for rehearing, the court elaborated somewhat by explaining that although jurors were not precluded from considering Miller‘s mental health mitigation evidence, the RAJI “precluded [them] from properly considering such evidence as well as [the (G)(1)] mitigator.” (Emphasis added.)
¶19 We agree with the State that the PCR court‘s rulings were incomplete and flawed. First, the court failed to “consider the totality of the evidence” as required to decide whether there was a reasonable probability that but for counsel‘s unprofessional errors Miller would have gotten a life sentence (trial lawyer deficiency) or a decision from this Court vacating the death sentence and ordering a new penalty phase (appellate lawyer deficiency). See Berghuis v. Thompkins, 560 U.S. 370, 389 (2010) (quoting Strickland, 466 U.S. at 695). The pertinent inquiry was whether, absent the error, the jury (or this Court) “would have concluded
¶20 Second, the record does not reflect that but for counsel‘s errors, a reasonable probability exists that the penalty phase verdict or the subsequent appeal would have yielded different results. In light of the RAJI‘s “prevented” language, which the prosecutor inaccurately described in closing argument as meaning “I can‘t help myself,” the worst case scenario was that all jurors quickly dismissed the (G)(1) mitigator‘s applicability because the mitigation evidence showed, at most, that Miller‘s mental health problems reduced, but did not eliminate, his ability to appreciate the wrongfulness of his conduct or conform that conduct to the law. But even without the RAJI, other instruсtions permitted jurors to conclude that Miller‘s reduced abilities served as mitigating circumstances.
¶21 The trial court instructed the jury that besides the (G)(1) mitigator, Miller offered seven other mitigators, including personality disorders, psychiatric disorders, neuro-developmental problems, and developmental handicaps. It also instructed that jurors were “not limited to [cоnsidering] these proposed mitigating circumstances” and could “consider anything related to [Miller‘s] character, propensity, history or record . . . that might justify a penalty less severe than death.” Thus, even if the RAJI precluded jurors from finding the (G)(1) mitigator, they were free to find the other mental health mitigators, which were based on the same evidence introduced to prove the (G)(1) mitigator, and conclude that although they did not render Miller unable to appreciate the wrongfulness of his actions or conform his conduct to the law‘s requirements, they reduced his capacity for doing so. Indeed, this was the thrust of the mitigation evidence and Miller‘s argument to the jury (e.g., “What had diminished his control to engage in this behavior?” “None of these [mental health problems] are William‘s to choose from, and they all color and inform his decisions. It doesn‘t act as an excuse, but it explains, in part, why it happened.“).
¶22 Yet, after considering the mental health evidence and giving it whatever weight they deemed it deserved, the jurors found it insufficient to warrant leniency when compared to the nature of the murdеrs, which included the murder of two children, and the four aggravators. Consequently, even if Miller‘s trial lawyers were deficient by not objecting to the RAJI, a reasonable probability does not exist that but for this error, the jury would have returned a life sentence verdict. And in light of this lack of prejudice, it is even less likely that had his appellate counsel challenged the RAJI, this Court would have found fundamental error and remanded for a new penalty phase. See Johnson, 247 Ariz. at 186 ¶ 44 (finding no prejudice from use of the same RAJI on fundamental error review in part because the court‘s other instructions permitted the jury to freely consider the defendant‘s “large mitigation case,” and yet the jury found it “lacking when compared to the three aggravating factors and the nature of the murder“).
¶23 In sum, even if Miller‘s lawyers were deficient for failing to challenge the RAJI, his defense was not prejudiced because a reasonable probability did not exist that but for the errors, the jury would have returned a life sentence verdict, and this Court would have remanded for a new penalty phase trial. See Strickland, 466 U.S. at 694.
CONCLUSION
¶24 For the foregoing reasons, we reverse the PCR court‘s judgment granting a new penalty phase trial.
* Justices Lopez, Beene, and Montgomery have recused themselves from this matter. Pursuant to