State v. Miller ( 2014 )


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  •                           NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
    LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Respondent,
    v.
    FREDRICK ANGUS MILLER, JR., Petitioner.
    No. 1 CA-CR 13-0352 PRPC
    FILED 11-13-2014
    Petition for Review from the Superior Court in Maricopa County
    No. CR2010-104092-001
    The Honorable Susan M. Brnovich, Judge
    REVIEW GRANTED; RELIEF DENIED
    COUNSEL
    Maricopa County Attorney’s Office, Phoenix
    By Susan L. Luder
    Counsel for Respondent
    Fredrick Angus Miller, Jr., Florence
    Petitioner In Propria Persona
    MEMORANDUM DECISION
    Judge Michael J. Brown delivered the decision of the Court, in which
    Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
    STATE v. MILLER
    Decision of the Court
    B R O W N, Judge:
    ¶1            Fredrick Angus Miller, Jr. petitions this court for review from
    the dismissal of his petition for post-conviction relief. We have considered
    the petition for review and, for the reasons stated, grant review and deny
    relief.
    ¶2            A jury convicted Miller of kidnapping, aggravated assault,
    robbery and seven counts of sexual assault. The trial court sentenced Miller
    to an aggregate term of 87.25 years’ imprisonment and this court affirmed
    his convictions and sentences on direct appeal. State v. Miller, 1 CA-CR 11-
    0283, 
    2012 WL 461426
    , (Ariz. App. Feb. 14, 2012) (mem. decision). Miller
    filed a pro se petition for post-conviction relief after his counsel found no
    colorable claims for relief. The trial court summarily dismissed the petition
    and Miller now seeks review. We have jurisdiction pursuant to Arizona
    Rule of Criminal Procedure 32.9(c).
    ¶3            Miller argues both his trial and appellate counsel were
    ineffective. To state a colorable claim of ineffective assistance of counsel, a
    defendant must show that counsel’s performance fell below objectively
    reasonable standards and that the deficient performance prejudiced the
    defendant. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). To show
    prejudice, a 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.” 
    Id. at 694
    . Regarding ineffective assistance of
    appellate counsel, appellate counsel is not required to “raise every possible
    or even meritorious issue on appeal.” State v. Herrera, 
    183 Ariz. 642
    , 647,
    
    905 P.2d 1377
    , 1382 (App. 1995). “Once the issues have been narrowed and
    presented, appellate counsel’s waiver of other possible issues binds the
    defendant. Absent any evidence that the failure to raise an issue fell below
    prevailing professional norms and would have changed the outcome of the
    appeal, the claim is not colorable.” State v. Febles, 
    210 Ariz. 589
    , 596, ¶ 19,
    
    115 P.3d 629
    , 636 (App. 2005)(internal citation omitted).
    ¶4            Miller first argues his trial counsel should have objected to
    evidence of the victim’s chastity pursuant to Arizona Revised Statutes
    (“A.R.S.”) section 13-1421, otherwise known as “The Arizona Rape Shield
    Law.” State v. Gilfillan, 
    196 Ariz. 396
    , 400-01, ¶¶ 15-16, 
    998 P.2d 1069
    , 1073-
    74 (App. 2000). We deny relief on this issue because Miller has failed to
    present a colorable claim. Section 13-1421 prohibits the admission of
    evidence relating to a victim’s “reputation for chastity and opinion
    evidence relating to a victim’s chastity” unless offered for one of five
    exceptions. The State offered no such evidence. The victim testified that
    2
    STATE v. MILLER
    Decision of the Court
    when Miller sexually assaulted her, she pleaded with him, “Please don’t do
    this. I’m Mormon. I’m a virgin. I don’t want to do it.” The purpose of
    A.R.S. § 13-1421 is “to protect victims of rape from being exposed at trial to
    harassing or irrelevant questions concerning any past sexual behavior.”
    Giflillan, 
    196 Ariz. at 400-01, ¶ 15
    , 
    998 P.2d at 1073-74
    . It does not prevent
    the admission of what the victim told her attacker during a series of sexual
    assaults. Trial counsel had no basis to object to the victim's testimony
    pursuant to A.R.S. § 13-1421.
    ¶5            Miller next argues his appellate counsel should have raised
    an issue on appeal regarding the admission of evidence that Miller was on
    probation when he committed the offenses. The trial court held that
    testimony of Miller’s probation officer was admissible in the State’s rebuttal
    case to rebut Miller’s claim he was a drug dealer who lived in motels and
    who engaged in consensual sex with the victim in exchange for drugs. The
    court further held that because the jury already knew Miller had been
    convicted of a criminal offense only weeks before the charged offenses, to
    further inform the jury that he was on probation as one part of this rebuttal
    evidence was not unfairly prejudicial.
    ¶6            We deny relief on this issue because Miller has failed to state
    a colorable claim. The jury already knew Miller had been convicted of a
    criminal offense just before he committed the instant offenses. Miller does
    not argue appellate counsel should have challenged the admission of
    evidence of that conviction. To further inform the jury that Miller was on
    probation was not unfairly prejudicial under the circumstances and was not
    reversible error. Therefore, appellate counsel’s performance did not fall
    below objectively reasonable standards when she failed to challenge the
    admission of this evidence on appeal, and Miller suffered no prejudice.
    ¶7            Finally, Miller argues his appellate counsel was ineffective
    when she failed to allege on appeal that the prosecutor engaged in three
    instances of prosecutorial vouching. “Two forms of impermissible
    prosecutorial vouching exist: (1) when the prosecutor places the prestige of
    the government behind its witness, and (2) where the prosecutor suggests
    that information not presented to the jury supports the witness’s
    testimony.” State v. Bible, 
    175 Ariz. 549
    , 601, 
    858 P.2d 1152
    , 1204 (1993)
    (citation omitted).
    ¶8            Miller has again failed to state a colorable claim. Miller first
    argues the prosecutor should not have argued in closing that the evidence
    admitted at trial was consistent with the victim’s initial disclosure to police.
    This was not impermissible vouching in any sense. Miller next argues the
    3
    STATE v. MILLER
    Decision of the Court
    prosecutor should not have argued the victim was not a bad person and/or
    was not a bad person because she was a Mormon and a virgin. Miller
    misrepresents the prosecutor’s argument. The prosecutor told the jury it
    could consider those two factors, among many, in its determination of what
    kind of person the victim was, and that this determination was an
    important part of their consideration of the case. This was not vouching.
    ¶9             Finally, Miller argues the prosecutor should not have argued
    the victim is one of the “good ones.” Miller takes the prosecutor’s statement
    out of context. Again, Miller claimed the victim engaged in consensual sex
    with him for drugs. The prosecutor merely reiterated how the victim’s
    orchestra teacher testified that there were good kids and bad kids, and that
    in her experience as a teacher, the victim was one of the “good” ones. To
    restate the testimony of a witness in this manner and in this context was not
    impermissible vouching.
    ¶10          Based on the foregoing, we grant review and deny relief.
    :gsh
    4