IN THE COURT OF APPEALS OF IOWA
No. 16-0442 Filed July 6, 2017
THOMAS ANTHONY MILLER, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Mark E.
Kruse, Judge.
Thomas Anthony Miller appeals from the district court’s denial of his
application for postconviction relief following his conviction for second-degree
murder. AFFIRMED.
Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2
GOODHUE, Senior Judge.
Thomas Anthony Miller appeals from the district court’s denial of his
application for postconviction relief following his conviction for second-degree
murder. We affirm the district court’s denial.
I. Background Facts and Proceedings
Miller was charged with first-degree murder and was found guilty of
second-degree murder by a jury. Miller appealed, and this court affirmed his
conviction. See State v. Miller, No. 04-1785, 2006 WL 228904, at *1 (Iowa Ct.
App. Feb. 1, 2006). In the underlying criminal trial, the State had filed a motion in
limine regarding Miller’s intent to call Sister Nadine Meyer to testify as to the
Catholic Church’s formal position on suicide. The court had sustained the motion
in limine without prejudice to Miller’s right to make an offer of proof at trial. Sister
Meyer was not called as a witness, and no offer of proof was made. Thus, error
was not preserved, and there was no review of the trial court’s ruling on direct
appeal.
Miller filed this application for postconviction relief asserting his trial
counsel was ineffective in failing to make an offer of proof of Sister Meyer’s
testimony. The facts of the case are set out in Miller, 2006 WL 228904, at *1-3,
and need not be reiterated except where they specifically relate to the relevancy
of Sister Meyer’s proposed testimony. Miller contended at trial that he was
attempting suicide when the victim, Janet McCammant, interfered with his efforts,
and she was accidently stabbed and killed in the ensuing altercation.
The obvious difficulty with Miller’s defense was his failure to explain the
attempted suicide/accidental stabbing scenario in his initial calls to family 3
members and statements to the police. Miller called his parents and some of his
siblings shortly after the incident and before the police were called. He told his
relatives he had stabbed and killed someone but made no mention of the
attempted suicide/accident scenario. In his initial discussion with the police,
Miller told them he had been drinking with McCammant at a tavern, ordered a
cab to take her home, and then had the cab come back and take him to his
apartment. In fact, a cab had delivered both McCammant and Miller to his
apartment. Miller’s brother and his girlfriend had visited the apartment after Miller
and McCammant had left the tavern, and both Miller and McCammant were there
and nothing was amiss. Later on in his initial interview with the police, Miller
corrected himself and stated he and McCammant had arrived at the apartment
together, she left, and—unknown to him—she returned. He was awakened by
what he thought was an intruder. He did not turn on the light and armed himself
with a knife. He told the police he had turned quickly and fatally stabbed
McCammant.
At trial, Miller claimed he took the knife and announced to McCammant
that he was going to commit suicide by cutting his wrist, McCammant tried to
stop him, and she was accidently fatally stabbed in the ensuing struggle. Miller
also advanced a defense of intoxication and diminished responsibility. He was
interviewed by a clinical psychologist, who testified in his behalf, and a doctor,
who testified on behalf of the State. Miller had given both of the medical
professionals the attempted suicide/accident version of the events. His
explanation of his failure to give the attempted suicide/accident version to the
police or his relatives in the initial calls was his aversion to suicide due to a belief 4
in the sanctity of life as taught by the Catholic faith, to which he and his family
subscribed. His intent in calling Sister Meyer was to set out the Catholic
Church’s official position on suicide.
The postconviction-relief action was tried on stipulation. No effort was
made to call Miller’s initial trial counsel. However, a deposition of Sister Meyer
had been taken before trial. When asked specifically about the Catholic Church’s
doctrine on suicide, she asserted that suicide was considered a serious and
grave offense. She stated she did not know Miller, had no idea what his personal
beliefs were, or what he had been taught. She stated that the Catholic faith’s
aversion to suicide is based on the general opposition to killing, but the aversion
to suicide had diminished in the last several years and the training from one
parish to another varied to some degree. She further stated that she had no idea
what the training or education relative to suicide was in the parish where Miller
had been educated. Her testimony amounted to the Catholic Church’s adverse
position on suicide and nothing more. Contradicting Miller’s claim, the record
established Miller had threatened and attempted suicide other times in the past
and his family was well aware of the threats and attempts.
Miller contends Sister Nadine Meyer’s testimony was relevant, his trial
counsel was ineffective in failing to make an offer of proof, and the court erred in
denying his application for postconviction relief. The State maintains that Miller
has failed to meet his burden of establishing his trial counsel was ineffective for
not presenting an offer of proof. 5
II. Error Preservation
When an issue is raised before the court and ruled on by it, error has been
preserved. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The failure of
trial counsel to make an offer of proof was raised before and decided by the
postconviction trial court. Error has been preserved.
III. Scope of Review
Appeals from the denial of a postconviction-relief proceeding are ordinarily
reviewed for correction of errors at law, but when a constitutional issue is
involved, it is reviewed de novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa
2012).
IV. Discussion
To prevail on a claim of ineffective assistance of counsel, the claimant
must prove by a preponderance of the evidence that: (1) counsel failed to
perform an essential duty and (2) prejudice resulted. Ledezma v. State, 626
N.W.2d 134, 142 (Iowa 2001). If no prejudice is shown, a claim can be
dismissed on that ground alone. Id. A claim of ineffective assistance must
overcome the presumption that counsel is competent. Taylor v. State, 352
N.W.2d 683, 685 (Iowa 1984). An accused is not entitled to perfect
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IN THE COURT OF APPEALS OF IOWA
No. 16-0442 Filed July 6, 2017
THOMAS ANTHONY MILLER, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Mark E.
Kruse, Judge.
Thomas Anthony Miller appeals from the district court’s denial of his
application for postconviction relief following his conviction for second-degree
murder. AFFIRMED.
Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2
GOODHUE, Senior Judge.
Thomas Anthony Miller appeals from the district court’s denial of his
application for postconviction relief following his conviction for second-degree
murder. We affirm the district court’s denial.
I. Background Facts and Proceedings
Miller was charged with first-degree murder and was found guilty of
second-degree murder by a jury. Miller appealed, and this court affirmed his
conviction. See State v. Miller, No. 04-1785, 2006 WL 228904, at *1 (Iowa Ct.
App. Feb. 1, 2006). In the underlying criminal trial, the State had filed a motion in
limine regarding Miller’s intent to call Sister Nadine Meyer to testify as to the
Catholic Church’s formal position on suicide. The court had sustained the motion
in limine without prejudice to Miller’s right to make an offer of proof at trial. Sister
Meyer was not called as a witness, and no offer of proof was made. Thus, error
was not preserved, and there was no review of the trial court’s ruling on direct
appeal.
Miller filed this application for postconviction relief asserting his trial
counsel was ineffective in failing to make an offer of proof of Sister Meyer’s
testimony. The facts of the case are set out in Miller, 2006 WL 228904, at *1-3,
and need not be reiterated except where they specifically relate to the relevancy
of Sister Meyer’s proposed testimony. Miller contended at trial that he was
attempting suicide when the victim, Janet McCammant, interfered with his efforts,
and she was accidently stabbed and killed in the ensuing altercation.
The obvious difficulty with Miller’s defense was his failure to explain the
attempted suicide/accidental stabbing scenario in his initial calls to family 3
members and statements to the police. Miller called his parents and some of his
siblings shortly after the incident and before the police were called. He told his
relatives he had stabbed and killed someone but made no mention of the
attempted suicide/accident scenario. In his initial discussion with the police,
Miller told them he had been drinking with McCammant at a tavern, ordered a
cab to take her home, and then had the cab come back and take him to his
apartment. In fact, a cab had delivered both McCammant and Miller to his
apartment. Miller’s brother and his girlfriend had visited the apartment after Miller
and McCammant had left the tavern, and both Miller and McCammant were there
and nothing was amiss. Later on in his initial interview with the police, Miller
corrected himself and stated he and McCammant had arrived at the apartment
together, she left, and—unknown to him—she returned. He was awakened by
what he thought was an intruder. He did not turn on the light and armed himself
with a knife. He told the police he had turned quickly and fatally stabbed
McCammant.
At trial, Miller claimed he took the knife and announced to McCammant
that he was going to commit suicide by cutting his wrist, McCammant tried to
stop him, and she was accidently fatally stabbed in the ensuing struggle. Miller
also advanced a defense of intoxication and diminished responsibility. He was
interviewed by a clinical psychologist, who testified in his behalf, and a doctor,
who testified on behalf of the State. Miller had given both of the medical
professionals the attempted suicide/accident version of the events. His
explanation of his failure to give the attempted suicide/accident version to the
police or his relatives in the initial calls was his aversion to suicide due to a belief 4
in the sanctity of life as taught by the Catholic faith, to which he and his family
subscribed. His intent in calling Sister Meyer was to set out the Catholic
Church’s official position on suicide.
The postconviction-relief action was tried on stipulation. No effort was
made to call Miller’s initial trial counsel. However, a deposition of Sister Meyer
had been taken before trial. When asked specifically about the Catholic Church’s
doctrine on suicide, she asserted that suicide was considered a serious and
grave offense. She stated she did not know Miller, had no idea what his personal
beliefs were, or what he had been taught. She stated that the Catholic faith’s
aversion to suicide is based on the general opposition to killing, but the aversion
to suicide had diminished in the last several years and the training from one
parish to another varied to some degree. She further stated that she had no idea
what the training or education relative to suicide was in the parish where Miller
had been educated. Her testimony amounted to the Catholic Church’s adverse
position on suicide and nothing more. Contradicting Miller’s claim, the record
established Miller had threatened and attempted suicide other times in the past
and his family was well aware of the threats and attempts.
Miller contends Sister Nadine Meyer’s testimony was relevant, his trial
counsel was ineffective in failing to make an offer of proof, and the court erred in
denying his application for postconviction relief. The State maintains that Miller
has failed to meet his burden of establishing his trial counsel was ineffective for
not presenting an offer of proof. 5
II. Error Preservation
When an issue is raised before the court and ruled on by it, error has been
preserved. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The failure of
trial counsel to make an offer of proof was raised before and decided by the
postconviction trial court. Error has been preserved.
III. Scope of Review
Appeals from the denial of a postconviction-relief proceeding are ordinarily
reviewed for correction of errors at law, but when a constitutional issue is
involved, it is reviewed de novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa
2012).
IV. Discussion
To prevail on a claim of ineffective assistance of counsel, the claimant
must prove by a preponderance of the evidence that: (1) counsel failed to
perform an essential duty and (2) prejudice resulted. Ledezma v. State, 626
N.W.2d 134, 142 (Iowa 2001). If no prejudice is shown, a claim can be
dismissed on that ground alone. Id. A claim of ineffective assistance must
overcome the presumption that counsel is competent. Taylor v. State, 352
N.W.2d 683, 685 (Iowa 1984). An accused is not entitled to perfect
representation but only the level of representation that is within the normal range
of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). For relief to
be granted, there must be a determination that but for counsel’s ineffective
assistance, there is a reasonable probability the result would have been different.
Ledezma, 626 N.W.2d at 145. Counsel is not ineffective for failing to make a
meritless objection. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). 6
The only possible argument for relevancy of Sister Meyer’s testimony was
to explain that Miller did not initially tell the police or his relatives about the
suicide/accident scenario he related at trial because of his and his family’s
aversion to suicide based on their religious faith. Sister Meyer was only able to
state the general position of the Catholic Church regarding suicide. She did not
know Miller, his specific beliefs, the education he may have received on the
issue, or the beliefs of his family. She stated she had never been in the parish
where Miller received his training and training varies from parish to parish. She
further stated the Catholic Church’s opposition to suicide had softened somewhat
over her lifetime. It was Miller’s and his family’s beliefs regarding suicide, and
not the official position of the Catholic Church, that was relevant to his
inconsistency. Miller’s beliefs, his parents’ beliefs, and the teachings he received
in his Catholic training had not deterred him from threatening or attempting
suicide on prior occasions. Finally, the suicide/accident scenario presented at
trial was not only omitted in his initial discussion with his family, who were
arguably religiously sensitive to suicide, but also contradictory to what he had
told the police. Sister Meyer’s testimony was not relevant to any justiciable issue
before the court or jury. Counsel has no obligation to make a meritless offer of
proof. Id.
Also related to the relevancy issue, there was no showing Sister Meyer’s
testimony would have had any effect on the outcome of the trial. No prejudice
has been shown as the result of counsel’s failure to make an offer of proof, and
therefore, Miller’s claim fails. See Ledezma, 646 N.W.2d at 142. 7
Miller has failed to prove counsel breached a duty or that prejudice
resulted. The decision of the trial court is affirmed.
AFFIRMED.