Nathaniel Ray Miller v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00485-COA
NATHANIEL RAY MILLER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/25/2004
HON. SHARION R. AYCOCK
ITAWAMBA COUNTY CIRCUIT COURT
JIM WAIDE
OFFICE OF THE ATTORNEY GENERAL BY:
JOHN R. HENRY
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED
AFFIRMED - 07/19/2005
BEFORE BRIDGES, P.J., IRVING AND MYERS, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
On October 13, 2003, Nathaniel Miller pled guilty to the charge of aggravated assault in the
shooting of Timothy Brewer. Miller was sentenced to twenty years with ten years suspended.
¶2.
On December 29, 2003, Miller filed a petition for post-conviction relief. The trial court entered
an order, without a hearing, denying Miller’s motion for post-conviction relief. Miller has appealed and
raised the following three issues:
I. The trial court erred in finding that there was a factual basis upon which to accept
Nathaniel Miller’s guilty plea.
II. Nathaniel Miller’s federal and state due process rights were violated by the
presentation of false testimony during his sentencing hearing and by the failure of the trial
judge to learn the circumstances of an offense before imposing sentence. This also violates
the fundamental fairness request of the due process clause of the United States Constitution
Amendment 14.
III. The trial court erred in finding that Nathaniel Miller failed to prove that his attorney
was ineffective.
We find no error we affirm the judgment of the circuit court.
FACTS
¶3.
On the night of January 18, 2003, Nathaniel Miller and several young men met on a country road
with the intention of fighting over a girl. When two of the young men got out of their vehicles, Miller pulled
a gun and started shooting. All the young men left in a hurry in several vehicles. Miller continued shooting
and one of the shots went through the back window of a truck and struck the driver’s shoulder. Miller
contends that he did not intend to shoot Timothy Brewer and that the wound was not serious. Miller
contends that he was only shooting up in the air or in the ground.
¶4.
At his guilty plea hearing, Miller was advised of his rights and those that he would be giving up as
a result of pleading guilty. After the charge was read, Miller was asked if he understood it and then was
asked if he was guilty of the charge and if he understood that the State was not making any
recommendation as to the sentence. Miller responded affirming that he understood.
¶5.
Miller expressed complete satisfaction with his attorney. Miller further stated that he had nothing
to say or ask of the court prior to the acceptance of his guilty plea. The court accepted Miller’s guilty plea
and set sentencing for two days later.
¶6.
At the sentencing hearing, the victim Brewer testified as to what had happened. He said that Miller
fired a gun at him as he was driving away and that the bullet shattered the rear window and struck him on
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the shoulder. The bullet did not penetrate Brewer’s shoulder. Two other young men who had been
present at the incident leading to the shooting also testified as to the events leading up to the shooting.
¶7.
Deputy Sheriff Tracy Howard was called to testify at the sentencing hearing. He testified that Miller
had a child with his stepdaughter, that Miller had been in youth court several times, that he had been
accused of shooting at another person on a different occasion, and that Miller had been accused of
threatening another person who was to be a witness against him. Officer David Sheffield was also called
to testify and corroborated Deputy Howard’s testimony that Miller had been involved in another shooting,
but that the parties decided not to press charges against Miller.
¶8.
Miller’s grandmother was also called to testify at the sentencing hearing. She stated that she had
been responsible for raising Miller and his brother after their parents died. She stated that she was heavily
dependent upon Miller and that he was a fine young man at home.
¶9.
The trial judge stated, “I’mstruck by the testimony that this was as senseless as anything I’ve heard,
just simply did not have to happen.” The judge then sentenced Miller to twenty years with ten years
suspended and imposed a fine of $1,000, restitution of $150 for the auto glass and court costs.
STANDARD OF REVIEW
¶10.
“In reviewing the trial court’s decision to deny a defendant’s petition for post-conviction relief, we
do not disturb the trial court’s findings of fact unless clearly erroneous; however, we apply the de novo
standard to questions of law.” Harris v. State, 757 So.2d 195, 197 (¶8) (Miss. 2000).
DISCUSSION
I. The trial court erred in finding that there was a factual basis upon which to accept
Nathaniel Miller’s guilty plea.
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¶11.
Miller contends that the court accepted his guilty plea without first ensuring that there was a factual
basis for it. Miller admits that he responded positively when asked if he did commit the crime charged in
the indictment, but contends that this was not enough.
¶12.
In her order denying post-conviction relief, the circuit court was of the opinion that the reading of
the indictment and Miller’s acknowledgment that he committed the crime stated in the indictment was
sufficient, citing Drake v. State, 823 So. 2d 593 (Miss. Ct. App. 2002). As cited by the appellant, this
Court in Drake specifically stated, “It has been held that ‘if sufficiently specific, an indictment or information
can be used as the sole source of the factual basis for a guilty plea.’” Drake, 823 So. 2d at 594 ( ¶ 6 ),
(quoting U. S. V. Hinojosa-Lopez, 130 F. 3d 691, 695 (5th Cir. 1997)). The indictment in the present
case was sufficiently specific to meet the requirements of Drake.
¶13.
Miller’s essential argument is that he did not deliberately and knowingly cause the specific injury
to Brewer. Mississippi Code Annotated section 99-3-7(2)(b)(Rev. 2000) provides:
A person is guilty of aggravated assault if he attempts to cause or purposely or knowingly
causes bodily injury to another with a deadly weapon or other means likely to produce
death or serious bodily harm . . . .
In all his arguments, Miller has not contended that he did not shoot a deadly weapon and that Brewer was
not injured. Although the injury was not life threatening or serious does not change the nature of the
offense. It is not necessary under the statute that the victim suffer “serious” bodily injury; mere “bodily
injury” is sufficient as long as it was caused with “other means likely to produce death or serious bodily
harm.” Jackson v. State, 594 So. 2d 20, 24 (Miss. 1992).
¶14.
Even if the court were fully unaware of all the circumstances surrounding the guilty plea, the
testimony at the sentencing hearing corrected this defect. The victim, Timothy Brewer, and others testified,
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giving the court additional details in support of the guilty plea. We find that this assignment of error is
without merit.
II. Nathaniel Miller’s federal and state due process rights were violated by the
presentation of false testimony during his sentencing hearing and by the failure of the
trial judge to learn the circumstances of an offense before imposing sentence. This
also violates the fundamental fairness request of the due process clause of the United
States Constitution Amendment 14.
¶15.
Miller’s contention under this assignment of error is that the testimony of Deputy Sheriff Howard
was false and deprived him of various rights. However, there is nothing in the record to show that the
deputy committed perjury. Miller did file some affidavits with his motion for post-conviction relief which
take issue with the testimony. But the trial court in denying the motion for post-conviction relief did not make
any finding that the allegations of Miller were meritorious.
¶16.
Miller does not dispute that he fathered a child with the deputy’s stepdaughter, only that this is
“misleading.” He contends only that the girl’s family has not asked for financial support.
¶17.
The deputy’s testimony concerning Miller and another shooting episode was supported and
corroborated by testimony from another police officer. There is nothing before the Court to suggest that
this testimony from two sources was false.
¶18.
Miller was given the opportunity to cross- examine Deputy Howard. There is nothing to show that
Miller did not have the opportunity to counter this testimony or that he was in any way deprived of his rights
in this regard. We find no merit to this assignment.
III. The trial court erred in finding that Nathaniel Miller failed to prove that his
attorney was ineffective.
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¶19.
Miller’s last claim is that his attorney was ineffective for failing to arrange to have witnesses at the
sentencing hearing to present mitigating testimony; for failing to adequately address the deputy’s testimony
as “false”; and for failing to make a reasonable investigation.
¶20.
The standard of review for a claim of ineffective assistance of counsel follows the two-part test
established by Strickland v. Washington, 466 U.S. 668 (1984). Under this test, “the defendant must
prove, under the totality of the circumstances, that (1) his attorney’s performance was deficient and (2) the
deficiency deprived the defendant of a fair trial.” Woodson v. State, 845 So. 2d 740, 742 (¶ 8) (Miss. Ct.
App. 2003) (citing Hiter v. State, 660 So. 2d 961, 965 (Miss. 1995)). The defendant “must show that
there is a reasonable probability that, but for his attorney’s errors, he would have received a different result
in the trial court.” Id. at (¶ 9). Our review is “highly deferential to the attorney, with a strong presumption
that the attorney’s conduct fell within the wide range of professional assistance.” Id. at (¶ 8).
¶21.
In its order denying relief, the circuit court found that the sentence would have been the same even
if the person who signed affidavits attached to the motion had testified as to the sentencing hearing. The
decision to only have one witness, the grandmother, testify at the sentencing hearing could be characterized
as a strategic choice and therefore beyond the scope of ineffective assistance of counsel.
¶22.
In order to succeed on a claim of ineffective assistance of counsel, Miller must show both the failings
of counsel and show that the result would have been different but for counsel’s errors. It is a daunting task
and one where very few can succeed. In this case, we find that Miller has failed in his burden to show that
his counsel was any where near ineffective.
¶23.
We affirm the judgment denying post-conviction relief.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO
THE APPELLANT.
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KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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