Meis v. Wyoming Department of Corrections

9 F.3d 695
Court of Appeals for the Eighth Circuit·Decided November 15, 1993·No. No. 92-3893·Published·Cited by 3 cases

Opinion

WOLLMAN, Circuit Judge.

Daniel T. Meis appeals from the district court’s1 denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. He argues that his first-degree-murder conviction was not supported by sufficient evidence, that a suppressed statement was improperly used to impeach him, and that he was denied effective assistance of counsel. Finding all his claims meritless, we affirm.

I.

Following an afternoon and evening of drinking on November 23,1982, Meis went to the Dew Drop Inn, a bar in Neligh, Nebraska. While at the Dew Drop, Meis physically and verbally harassed several patrons. After insulting one female patron, Meis wrestled with her companion, Tom Sehuchardt. After the altercation, Meis went to his car and returned to the bar, brandishing a .357 magnum pistol. He waved the gun around and threatened that he was going to shoot someone. At one point, he aimed the gun in Schuchardt’s direction. When asked by the bartender to leave, Meis pointed the gun at the bartender’s head. After the bartender told Meis that he was going to call the police, Meis left the bar. The bartender then announced that it was closing time, whereupon Sehuchardt also exited the bar. Within a minute, a gunshot sounded from outside the Dew Drop. Sehuchardt was found fatally wounded by a .357 hollow-point bullet. No one witnessed the shooting. After being taken into custody at the scene, Meis told a police officer that “he tried to choke me, so I had to blow him away.”

Meis testified that he had accidently fired the gun while Sehuchardt had him down and was choking him. The jury convicted Meis of first-degree murder and of using a firearm to commit a felony. The Nebraska Supreme Court affirmed his convictions on direct appeal, State v. Meis, 217 Neb. 770, 351 N.W.2d 79 (1984), and twice affirmed the denial of post-conviction relief, State v. Meis, 223 Neb. 935, 395 N.W.2d 509 (1986); State v. Meis, 233 Neb. 355, 445 N.W.2d 610 (1989).

Meis filed this petition for habeas corpus relief. Adopting in part and rejecting in part the magistrate judge’s recommendation, the district court denied the petition.

II.

A. Insufficient Evidence Claim

Meis first argues that the evidence was insufficient to support his first-degree-murder conviction. To be entitled to habeas relief on this claim, Meis must show that, reviewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Applying this standard, we find that the State presented sufficient evidence to establish that Meis had committed premeditated murder.

B. Improper Impeachment Claim

Prior to trial, Meis argued that his “I had to blow him away” statement should be suppressed because it had been made involuntarily and elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964). Without making an express finding concerning whether the statement had been voluntarily given, the trial court ruled that the State could not use the statement as direct evidence in its case-in-ehief. The prosecutor used the statement on cross-examination of Meis, however, to impeach his testimony that he had accidently shot Sehuchardt.

[697] A statement by a defendant in circumstances violating the strictures of Miranda v. Arizona is admissible for impeachment purposes if the statement was made voluntarily. Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S.Ct. 2408, 2416-17, 57 L.Ed.2d 290 (1978). The trial court’s finding that the statement was voluntary must appear “from the record with unmistakable clarity.” Id. at 397 n. 12, 98 S.Ct. at 2416 n. 12 (quoting Sims v. Georgia, 385 U.S.- 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967)).

Meis argues that the suppressed statement should not have been admitted to impeach him because the trial court failed to make a specific finding that the statement had been made voluntarily.

As subsequent proceedings established, had the trial court made a specific finding at trial, it would have found that Meis had given the statement voluntarily. During Meis’s second post-conviction proceeding, the judge who had presided at Meis’s trial stated that his admission of Meis’s statement for impeachment purposes constituted an independent determination by him that the statement had been voluntarily made. Bill of Exceptions, Proceedings before the Honorable Merritt C. Warren, Judge, on September 6, 1988, Vol. I at 7. This after-the-fact recordation of a finding of voluntariness, when viewed in the light of the fact that Meis neither alleges nor points to any evidence that the statement was given involuntarily, is sufficient to satisfy the requirements of Mincey and Sims.

C. Ineffective Assistance of Counsel Claim

Meis next argues that he was denied effective assistance of counsel at trial. To establish an ineffective assistance claim, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel’s performance is deficient if “counsel’s representation [falls] below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2065. Counsel’s performance prejudices an individual’s defense if “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, 104 S.Ct. at 2068.

Meis contends that his counsel was ineffective because he failed to object during closing argument to the prosecutor’s mischaracterization of testimony concerning the amount of trigger pressure needed to fire Meis’s pistol. We find that counsel’s decision not to object was reasonable. Whether to object during closing argument to a slight mischaracterization of evidence is a strategic decision that deserves deference.

Meis next claims that trial counsel was ineffective because he failed to advise him concerning the option of resting without offering any evidence. More particularly, Meis argues that counsel should have more thoroughly explained the consequences of testifying.

After holding an evidentiary hearing on this issue, the magistrate judge recommended granting Meis habeas relief on this claim. The district court found, however, that defense counsel had not been ineffective and rejected the magistrate judge’s recommendation.

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Meis v. Wyoming Department of Corrections, 9 F.3d 695 (8th Cir. 1993).

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Meis v. Wyoming Department of Corrections
9 F.3d 695 (Eighth Circuit, 1993)