Miller v. State

complained acts spondent committed the narrowly es- Respondent stipulated to.

caped in Colorado. Col- being disbarred recognized that Re- Supreme Court orado law abandoned his spondent essentially had Respondent has practice and clients. nothing supports a claim that presented Supreme Court findings Colorado guilty of misconduct “does adjudging discipline in grounds for furnish sufficient 7.7, nor he of- under has Oklahoma” Rule mitigate tending to the se- fered “evidence discipline” under that rule. The verity of suspend- upon Respondent stands acts suspension like ed in Colorado warrant It is Oklahoma. so ordered. FOR RESPONDENT SUSPENDED EF- FROM THE THREE YEARS DATE OF THIS FECTIVE ¶ ALL CONCUR. JUSTICES CR 59

1998 OK MILLER, Appellant, George James Oklahoma, Appellee. STATE No. F 96-1380. Appeals of of Criminal Oklahoma. Court 5, 1998. Nov. Rehearing Granted Feb.

H03 Miller, Atty., Asst. Dist. Oklahoma Brad at trial. City, for the State Albert, III, Barry George Miskovsky, Asst. Defenders, City, for Defen- Public Oklahoma dant at trial. Miller, Digilio

Andrea Asst. Public Defend- er, Appellant appeal. City, for on Oklahoma Edmondson, Gen., Atty. Jenni- W.A. Drew Miller, Gen., Atty. Oklahoma fer B. Asst. Appellee appeal. City, for

OPINION

LANE, Judge: George Miller was tried James Degree convicted of First Murder and (21 701.10) O.S.1991, County § in Oklahoma District Court Case No. CF-94-8859 before Owens, L. District the Honorable Charles jury sentenced Miller to death Judge. The finding aggravating four circumstances. after original appeal the Court on Miller is before AF- Judgment and Sentence. We from this FIRM.

FACTS year Kent Dodd Twenty-five old night as the auditor for Central

worked I- located at the intersection of Plaza Hotel King Drive in Martin Luther Okla- 40 and guest ap- City. registered Dodd a at homa September proximately 3:15 a.m. by an Shortly thereafter he was attacked repeatedly, stabbed him beat assailant who can, paint a hedge him with shears and him down his poured muriatic acid on and a half hours later a house- throat. Two morning shift. keeper arrived for She at when she saw he was not called for Dodd response, “ani- desk. she heard the front restaurant area mal moans” from the unused nearby ran to a restaurant of the hotel. She police summoned. Dodd was and had the police found him. still alive when respond police 3 Dodd was able responses were questioning, most of perhaps due to the acid burns unintelligible, police throat. The in his mouth and fifty hundred killing, for the because one say him his attacker was able to understand gray pants. kept Dodd in the cash drawer. a black man who wore dollars day hospital at the from blunt died later that ¶ 8 Miller had worked as a maintenance trauma to his head. force man at the Central Plaza Hotel for two against George All of the evidence the murder. weeks about month before circumstantial. Miller’s sandals Miller is Miller, knew but knew under an Dodd bloody footprints found at could have left the alias, Jay Photographs Elkins. of the crime scene, exclusively identi- but could be appears finger scene revealed what be microscopic drop A of blood found on fied. floor and writing the blood on the wall with Dodd’s sandal was consistent Miller’s word, which could be the letter “J” and the blood, exclusively iden- but also could be “Jay.” police told he was home with tified. Miller split up shortly 9 Miller and his wife murder. The his wife at the time of the murder, stay after the and he went to trial, divorced the time of Millers were Sherman, police Texas. When his mother home; testified he was not he had and she murder, he questioned him about the Dodd keys place car from the where she taken her cried. and left. The hid them under mattress day next she found sand in the car. She also PRETRIAL ISSUES family laundry,

testified she did the and after pair of Miller’s khaki shorts the murder serving a federal 10 Miller was sen- disappeared. silk shirt She identified Leavenworth, at Kansas at the time tence at the crime scene as two found buttons charges against were filed him in Oklahoma missing with buttons on the shirt. consistent Consequently for the murder of Kent Dodd. evening the murder Miller before brought pursuant to the he was Oklahoma unsuccessfully was broke and tried to borrow Agreement Interstate on Detainers Act money friends includ- from several different (IADA). O.S.1991, §§ seq. 1345 et Title ing one who lived at the Central Plaza Hotel. provides that trial V of Act shall commence morning gave The after the murder Miller days of the date the defendant is within twenty dollars. his wife one hundred and brought jurisdiction charges the or into shall this, questioned by police When about argues dismissed. I Miller be paycheck. claimed he had cashed a When prosecutor process by the denied due they working him he at the reminded was filing thereby Bill the of Particulars late and time, gave Miller denied he his wife the forcing speedy him to choose between a trial money. IADA, under the and effective assistance of open 6 The hotel cash drawer was and guaranteed counsel as the state and feder- empty police investigated when the the crime al constitutions. policy requires scene. Hotel each shift to ¶ 11 This issue was raised and thor fifty begin with two hundred and dollars in oughly pre-trial addressed at a motion hear the the drawer. At the end of the shift desk ing. Defense counsel advised trial court places any clerk amount in excess of this in a he was aware of Miller’s detainee status from deposit envelope drops and it into the hotel appointment. time of Only desk the amount of Miller ada safe. clerks knew mantly right go cash in the drawer. asserted his to trial within IADA, days provided by and exemplary employ- 7 Kent Dodd anwas Barry defense counsel Albert advised the accounting procedures ee who followed the ready court for The trial he would be trial. always carefully, money and whose count was danger apparent of an forced choice between manag- correct. After the murder the hotel competent speedy counsel and trial rec was any money er to determine whether tried ognized judge, and addressed the trial deposit had been taken. She discovered a counsel, prosecutor, defense and the defen envelope containing one hundred dollars hid- dant. Defense counsel made clear he would separate registration forms in a den behind trial, ready day beginning friend be for and at the of the drawer. The next Miller told a trial, ready. robbery that could not have been the motive he announced he was The

H05 argu- he was. The record defeats this counsel unequivocally defense record shows trial. prepared for ment. was argument, Miller support of interprets Miller the silence of Bill Particulars filed the of

argues the State filing the Bill question the IADA on the process. Mil- due late that he was denied so filing the detainer with the Particulars after filing of the Bill of objected to the ler never jurisdiction filing to mean the is not custodial the fil- appeal he concedes Particulars. On argues filing improperly authorized. He “adequate complied with the definition ing charge, substantially changes or adds State, 1992 in Hunter v. OK notice” set forth charges. Even if we were to nature of the is, that it was accept argument filing changed that the arraignment. argues He at the time of filed not, charge, which we do Article V of the special not control this definition does (d) Y, IADA defeats it. Article section of the running. IADA clock was To ease where the provides: Act position relies on dicta support this 17, ¶6, Marquez temporary custody referred to in this proper time for only purpose agreement shall be for the filed was when Bill of Particulars to be permitting prosecution charge on the or would seek the attorney knew he the district charges contained in one or more untried penalty. death indictments, complaints informations or only can be adequacy of notice form the basis of the detainer or of the circum- determined within the context prosecution any other detainers or for case, In this particular case. stances charge charges arising out the same or the trial court he defense counsel advised transaction, added) (emphasis amassing mitigation day evidence the began O.S.1991, § appointed, July 1996. Counsel he was against argument 16 Miller’s final repeatedly the trial court he would advised argu- Bill of Particulars reiterates earlier at no time did ready try the case and be This case ments: he was forced to choose between a request counsel a continuance. significantly Marquez from which speedy differs the Act and effective trial under as- eighteen days had notice counsel counsel. As we have dis- sistance of trial penalty; he ad- sought the State the death cussed, unambiguous emp- the record is ready he could not vised the trial court be hatic; prepared for trial. counsel time, request- and he trial that amount of which was ed a continuance on basis JURY SELECTION by denied the trial court. Id. Under ¶ us, following During evi- 17 voir dire the ex- circumstances of the case before no supports finding prospective jurors a the notice was not changes place dence as two took adequate. imposing the death expressed concern about penalty. prosecu 14 Miller also Prospective Because I have Juror Robins: by filing Bill tor abused his discretion before, past and in the thought about this Particulars, IADA bars the State and the thought that I have hat- always Bill I’ve would filing from a of Particulars after filed with the custodial imagine somebody detainer has been I ed to be the one-when in jurisdiction. An of discretion abuse going administering coat in and in a white Bill will be found filing of a of Particulars them, always thought I I and the shot to impermissible filing is on where the based person. that would hate be discriminatory grounds. Carter I think we all would. The Court: ¶ 53, 1234, 1251, 49, P.2d 879 Prospective And Juror Robbins: denied, 1172, 1149, 115 S.Ct. cert. 513 U.S. I jury, if I on the would be one case (1995). grounds cited 130 L.Ed.2d 1107 actually admin- people 12 that would be by forced to choose Miller are that he was istering that shot. of counsel and a between effective assistance Judge, going I’m to ask Prosecutor Miller: un speedy trial. Defense counsel stated trial, up at the bench. prepared for that we take this equivocally he would be 1106 striking 21 a The standard for I think we need to.

The Court: don’t true, juror perhaps might prospective that be realis- for cause based on his or essence you capital punishment what feel to is whether tically the determines her views on by way sentencing. juror’s “prevent That proper views would or substan be duty if verdict your tially impair performance means that should be duties as by injection, that would be juror death lethal accordance with his instruction and verdict, Witt, you say your 412, Wainwright what would his oath.” 469 U.S. (1985) you That would be the 424, 105 that’s all would do. L.Ed.2d 841 S.Ct. 83 Texas, 38, 45, end of it. quoting Adams v. 448 U.S. 100 2521, 2526, (1980); S.Ct. 65 L.Ed.2d 581 2, 15, Knighton v. OK you give meaningful con- The Court: Can — U.S. —, 878, 885, denied, cert. agree to a verdict of death sideration (1996). A 136 L.Ed.2d 71 venire S.Ct. injection justi- by you if felt it was lethal willing sentencing man all who is consider by fied all the evidence? “irrevocably options and who is not commit Prospective King: No. Juror begun ted” to one before trial has is sentence Why you is it that could not The Court: fit for to serve and not vulnerable to removal that? consider 26, 21, Hain v. cause. OK CR Prospective King: Because I Juror believe — 1130, 1138, denied, cert. U.S life, right that God has the to take a I (1996). , 136 L.Ed.2d 517 . — don’t. lives, they The Court: Juries don’t take expressed Munson Venireman verdicts, they feel fits return the verdict impose a belief that he could a sentence of say you’ve that case. And as heard me death, possibil not without the life or life before, jurors reluctantly serve on death (TR2,126-27). ity parole. Following fur juries you qualified sometimes. Can explanation ther the trial court he stated that? do punishments. he could consider all three (TR2,129) Upon examination defense II Miller relies on “imagine he counsel stated could 320, 328, Mississippi, Caldwell v. 472 U.S. I agree situation where would with it.” 86 L.Ed.2d S.Ct. (TR2,135) However, when he was then asked (1985) argue these comments the trial by the trial court whether he could examine jury’s responsibil- judge reduced the sense of punishments possible and decide on the ity resulting in an unfair trial. The Caldwell appropriate, one he he an believed be “constitutionally impermissi- it Court held ‘Tes, swered, sir.” We find no abuse of ble to rest death sentence a determina- refusing discretion the trial court to re by a tion made sentencer who has been led to move this venireman for cause. responsibility that the determin- believe ing appropriateness of (Emphasis defendant’s Stephens Perry Veniremen added.) death rests elsewhere.” unequivocally they each stated could not prosecutor argued Id. In that case the penalty any consider the death under cir closing jury’s sentencing decision cumstance. The trial court asked each veni automatically was reviewed the State Su- appropriate questions plumb reman 326, preme Court. Id. at 105 S.Ct. at 2638. issue, questioning, and with further the an ¶ Judge clearly 19 Owens’ remarks indicated veniremen swers these placed sentencing squarely oath, decision they case could not follow their for would belongs-on jury. where it shoulders of the penalty. not be to consider the death able There is no error here. These veniremen were removed for cause. We find no error here. Proposition argues III Miller dismissing trial court its discretion in abused IN THE ISSUES ARISING prospective jurors for cause. He asserts Ve- GUILT/INNOCENCE nireman Munson should have been removed STAGE OF TRIAL not, for cause was while Veniremen Ste- Perry eight propositions V24 Miller raises vens and should have been re- cause, addressing alleged error error the first moved but were.

H07 ¶ 37, 338, 358, 935 P.2d cert. argues OK CR Proposition IV he trial. stage of — prove denied, —, him was insufficient the evidence U.S. Dodd. the murder of Kent guilty (1997); v. L.Ed.2d 299 Cheatham 422. The 900 P.2d OK correctly points finger- out no Miller prove evidence in this case is sufficient to him to the connects print or hair evidence guilt. conclusively places No blood evidence crime. eye-wit- were no him at the scene. There (PCR) ¶29 Polymerase Chain Reaction amount of circum- nesses. The substantial testing right san- DNA conducted on Miller’s evidence, ignores, is which Miller stantial with dal revealed human DNA consistent 1) Microscopic amounts of DNA consis- this: victim, that of the Kent Dodd. The State’s were found on tent with that of the victim expert testified the DNA could not be used 2) sandal; Footprints left at right Miller’s identify conclusively Dodd as the donor. by Miller’s could have been made the scene Caucasians, 1 in It could have come from 3) sandals; interlocking dog- The size Hispan- 1 in 1 in 16 African-Americans or prints are con- pattern of the sole and bone argues ics. Miller V this evi- 4) sistent; at the scene Two buttons found not admissible. dence was Miller’s shirt consistent with those of are 5) murder; and disappeared after the 30 Miller first the trial disappeared after the Miller’s khaki shorts Daubert/Taylor court failed to conduct a murder. admissibility. hearing to determine Such police he home with 26 Miller told was party hearing required when a seeks to time of the murder. She his wife at the through a developed admit evidence novel home; he was not he was out with testified Taylor procedure. scientific morning found sand car. The next she her ¶10, 44, At OK CR money night in her car. Miller had no trial, analysis time of PCR DNA was Miller’s murder; morning after he before the in cam procedure, a novel and an scientific twenty hundred dollars. gave his wife one admissibility hearing to determine should era missing twenty-two hundred dollars was One conducted, fail but was not. The have been Miller told from the motel cash drawer. Daubert/Taylor hearing is er ure to hold a pay money by cashing a police got he ror. police confronted with check. When the time, working at the he the fact he was Reaction Polymerase Chain money. giving his wife the denied accepted in analysis DNA has been Okla day murder told after the in criminal trials. Wood homa as admissible that the a former co-worker from the hotel ¶ 40, 1, 11. motive robbery could not have been the be- Therefore, a hear we find the failure to hold kept in the cash cause was $150.00 admissibility ing is harmless to determine Only desk clerks knew this amount. drawer. beyond a reasonable doubt. drawer, kept in In fact the cash $250.00 placed in another but Dodd had $100.00 argues the evi Miller next drawn prior drawer to the murder. Letters posi support To dence was not reliable. appear to be the letter blood at the scene Hanas, testimony by Dr. tion he relies on “Jay.” and the word Dodd knew Miller as “J” who had never worked defense witness police Jay Finally, Miller cried when Elkins. testing. Dr. Hanas the PCR method of DNA murder, questioned him about the photocopy of the test result indi testified the police griev- to the he was not made it clear cated the test was inconclusive because ing the victim. was not visible. The necessary control dot evidence which established trial court took ¶ When, here, intro as the State dot, faint, on though was visible this control evidence, only that evi duces circumstantial Dr. Hanas’ original test. The basis for if, prove guilt only dence is sufficient to when discredited, and the conclusion thus was light in the most favorable to the viewed prove presented evidence State sufficient every hypothe it rules out reasonable Bryan reliability of the PCR test. guilt. other than sis ¶33 pattern locking dog bone” of the sole was challenge to this Milldr’s-final reliability. Dr. Ha- footprints also found at the evidence addresses “consistent” with the sample to be was too small scene, nas testified not identified Miller’s sandal could be witness, Dr. Moses analyzed. The State’s conclusively print, of the for no as the source Schanfield, ability testified of PCR to. in were unique flaws the sole of the sandal extremely samples. analysis to test small footprint. expert ex- present in the The explained of four tests Dr. Schanfield plained imperfect medium for the blood is an sample DNA on the of obtained conducted footprints, of for it fills forensic identification test, sandal, only right the PCR from Miller’s very in the flaws used for exclusive identifi- test, yielded any results. the most sensitive Proposition argues cation. Miller VI seriously his own credi Dr. Hanas weakened relevance and was inadmissi- evidence lacked experience bility he admitted he had no when ble. analysis. present DNA The State with PCR above, Relevance, explained as we evidence to the relia ed sufficient establish weight of evidence. To be distinct from testing to war bility of PCR DNA sufficient “any only need have ten- relevant evidence at trial. rant admission probable any dency” to make more or less challenge final to the admissi- his consequence” to the trial. O.S. “fact case, bility analysis DNA PCR footprint § left the is a fact 2401. Who argues Miller the results are not exclusive consequence the determination of who Dr. testi- enough to be reliable. Schanfield Consistency crime. between committed the right fied the DNA found Miller’s sandal of Miller’s sandal and the crime sole produced by 1 could have in 19 Cauca- been footprint scene is sufficient to meet the evi- sians, 1 in 16 African-Americans and 1 in 55 dentiary sug- of relevance. standard Miller Hispanics. agree large pool possi- We “relevant,” gests that to be evidence must consider- ble donors weakens this evidence identify perpetrator conclusively of a ably. This, obviously, crime. is not the standard. ¶ 35 To be reliable a scientific test were, If it most of the evidence admissible purports must measure what it to measure. today longer at trial. would no be admitted suggest Miller does not the PCR DNA evi replicate sequences DNA dence does ¶ 38 In VII Miller al sequences frequency determine the of these evidentiary leges four errors. The first is a Rather, population. argues evidentiary harpoon by classic De delivered pool potential. in this case is so donors Craig when he re Gravel tective testified large, that the evidence is not This reliable. garding relationship Miller and between argument appears to address the relevance his, then, ex-wife. reliability. To of the rather than its evidence Q.: they breaking up. And Did she relevant, as evidence need be admissible you that? tell any tendency of a have to make the existence consequence probable fact more or less No, A.: tell me that. she didn’t than it would be without the evidence. Q.: you Did she tell that she told him to O.S.1991, § population frequency 2401. The go get out of the house and she told Separate statistics meet this standard. someplace else? question distinct from the of relevance and up, yes, A.: After he beat her she told him reliability, question strength of is the of the to leave. the evidence. Evidence which is both reli may relevant be weak. able and nevertheless harpoon requires reversal The PCR evidence in this case was DNA guilt stage agree of trial. We this is appropri admitted and the defense evidentiary harpoon. It an was delivered ately exposed jury. its weakness to the officer, experienced police it an was volun- is, tary—that responsive question to the Bloody footprints left at the jabbed willfully, injected it asked—it was scene could have been made sandals crimes, prejudiced information of other and it expert owned Miller. State’s careful ly Riley “inter- explained that while the size and the defendant.

H09 533; to the 51, 9, furnish State’s Exhibit No. 96 defense Robinson v. ¶ 47, P.2d 402-03. 1995 OK CR error. Court was Allen v. District Wash- of Co., ington P.2d prejudice prong weakened 39 The 1164,1169. “appropriate Allen mandates re- fact Miller’s ex-wife tes- considerably the party by discovery the entire incident completely aggrieved to lief’ to a viola- tified more by the defense. As this objection without Denying of the evidence is tions. admission admitted, properly ultimately was evidence court; a sanction to the trial so is available changed harpoon find the tim- we the forcing offending party the to disclose the evidence, of the ing, but not the substance evidence, granting party and the offended a beyond a doubt. was harmless reasonable The trial court erred continuance. Id. error; failing prosecutor’s of the to the During recognize his cross-examination however, trial, expert, defense counsel re- State’s DNA of this relief is the context peatedly witness of the asked the variations correctly warranted. trial court .not The con- question, same and was admonished the surprised by the not be cluded defense could another question. trial to move on to court content of The State the this exhibit. had the grounds a mistrial on Counsel moved for photographs to furnished the defense life-size jurors giggling laughing” and “some footprints of the and the sole Miller’s judge and that the trial commented on the sandal, as well itself. We as the sandal do trial court overruled the mo- evidence. The find an the abuse of discretion trial tion. allowing court in admission of the exhibit. scope, extent, and ¶ 44 rests the fourth and final method of cross-examination with The issue trial sound of the court whose proposition discretion raised this of error is the appeal decisions be disturbed on will not impact victim’s father introduced victim testi that discretion. Drake v. absent an abuse of the Mr. mony stage into of trial. Dodd first 27, ¶ 20, 1968 OK play to testified son was unable some judge appropriately stopped 464. The trial sports missing as child because was badgering of repetitive counsel from the wit in his of a birth muscle chest as result ness, and not comment on the did evidence. missing He explained defect. muscle findWe the trial court exercised its This, upper body strength. a lack caused managing discretion in the cross-examination sympathy argues, injects improper for Miller motion for correctly and denied the mistrial. This disagree. the victim. defense We print expert, shoe FBI The State’s brought out had no the fact Miller scratches Wiersema, an ace- criminalist Sarah created morning or after the murder. bruises the imprint overlay tate a lifesize of the sole of testimony question This is relevant to sandal, Miller’s Exhibit No. 96. Dur- State’s testimony why might The re this be so. placed it ing testimony, her she over a life sports is inability play to garding Dodd’s print bloody shoe photograph size of a found pandering jury, merely it gratuitous to the crime. The and at scene of size upper explains body lack of extent of the shape matched. prints of the The defense and strength. is relevant This evidence objected overlay grounds had not properly admitted. prior provided defendant trial. been to the objection and trial court overruled 45 Toward the close of his cross-exami- No. 96 admitted Exhibit on the State’s expert, of the nation State’s DNA Moses provided grounds had the defense the State Schanfield, Barry Albert defense counsel sandal, photograph with the the State’s asked the trial court to allow co-counsel sole, photographs sandal’s George Miskovsky III to continue bloody footprints left at the scene. trial court denied cross-examination. The request, allowed Mr. Albert con- filed 43 The defense a Motion con- tinue with cross-examination Discovery requesting, among other Miskovsky. with Mr. material, sult things, evidentiary prose and all all improperly trial court VIII that would be introduced at cution exhibits (OR 82-3). The failure of restricted cross-examination. trial. the State 1110 State, McGregor v. scope and method of discretion. 1994 OK CR 1381, cert. ¶71, 27, 1366, denied, managed

cross-examination is to be accord 885 P.2d 516 court, ing 827, 116 95, 133 (1995); to the sound discretion of the trial L.Ed.2d 50 U.S. S.Ct. appeal ¶¶ not be disturbed on absent an State, 7, 42-45, and will 1993 OK CR Woodruff 1136-37, cert. Drake, 27, abuse of discretion. 1968 OK denied, 846 P.2d 510 U.S. ¶ 20, P.2d at 464. The trial court did not (1993). 114 S.Ct. 126 L.Ed.2d 313 cross-examination, scope limit the for Mr. Photographs unduly of the victim are not questions from Albert was able to obtain co- repetitive, and find no abuse of discretion we counsel, complete and was able the cross- photo in their admission into evidence. The support argument In of the examination. graphs accurately depict of the crime scene it to the fact Mr. Albert tried to Miller alludes they mag and are The fact admissible. replaced after he be was admonished projection during nified does not introduce judge question. to move to another Mr. prejudice unfair this case. expressed the he had Albert belief lost credi closing argument 50 In final bility jury. argues with the that after prosecutor jury showed the State’s Exhibit credibility counsel lost his as a result of 55, a photograph No. of the blood on the court, admonishment the trial the court floor and walls of the crime scene. The his, ineffective, forced him to continue now prosecutor important told the the most cross-examination. overlooked, evidence had almost been for Nothing supports the record they could see the victim “went into his own question conclusion. Mr. Albert continued to ... blood and wrote his killer’s name.” The appropriate after the trial witness court’s prosecutor produced transparent then ov admonishment, supports and the record erlay “Jay” placed written on it. He effectively questioned conclusion he this wit- overlay top of State’s Exhibit No. 55 interruption any ness further without kind. up “Jay” and matched the written with the complete Counsel was able to an effective bloody image on contemporary the wall. No cross-examination, and the trial court did not objection lodged. an hour later the Over abuse its discretion. objected defense and demanded a mistrial ¶48 objected Defense counsel at which was overruled the trial court. photographs trial to the introduction of In argues X Miller hearing victim. An in camera was held at give State failed to the defense notice of this photo which the trial court reviewed the “evidence” and therefore it was not admissi- graphs and a number of them. disallowed error, plain ble. We review for for the de- Photographs of the crime scene were admit object timely way. Perry, fense did not objection. Proposi ted In without defense ¶ 20, 42, 1995 OK CR 893 P.2d at 531. tion IX Miller concedes the relevance of photographs, danger these Contrary argu to Miller’s prejudice substantially outweighs unfair rele ment, State’s Exhibit No. 55 is not evidence. vance, photographs and thus the are inadmis It was not introduced into evidence and it O.S.1991, § sible. See 2403. Miller jury. was not taken into deliberations points prejudice: to two sources of unfair Rather, it demonstrated a reasonable infer victim, multiple photographs mag properly ence from evidence disclosed to the photographs nification of the on an “overhead defense and admitted at trial. objection multiple pho Miller’s monitor.” regard transparency akin to coun tographs preserved appel of the victim is writing sel with chalk on a blackboard. review; objection late to the crime scene Counsel for both the defense and are State photographs is raised for the first time on granted wide in latitude to draw reasonable appeal, plain only. and is reviewed for error ferences from the evidence. Le v. 20, ¶ 41, Perry v. 1995 OK CR ¶55, 50, 535, 554, 947 P.2d cert. — denied, —, U.S. (1998); Spears L.Ed.2d 702 Admission of evidence is left OK ¶36, 59, denied, to the sound discretion of trial court and CR cert. 1031, 116 678, 133 will not be an disturbed absent abuse of 516 U.S. S.Ct. L.Ed.2d 527

HH (1995). prove the its facilitation escape falls were squarely No. 55 State’s Exhibit violent, is within this harmless. latitude.

¶ alleges XI Miller Proposition argues In Proposition XIII Miller he prosecutorial mis- twenty-eight of instances by denied a the introduction of was fair trial stages in and second conduct the first unadjudicated through evidence of crimes each instance and trial. We have reviewed positively identify who witnesses could not error, the the was not or found comment him at trial. it is true that two of While sustaining court was the trial error cured positively identify these failed to witnesses find no error here. objection. defense We trial, identify Miller at to and one failed crime, at the time other evidence STAGE ISSUES SECOND identify presented was to him as sufficient alleged aggra four 54 The State perpetrator the of these crimes. circumstances, including, vating “The defen unadju- first contested felony of a previously dant was convicted attempted purse dicated crime an the involving or threat of violence to the use snatching hospital waiting in a room Tex 701.12(1). O.S.1991, sup § person.” In investigating as. The officer testified Miller presented port aggravator of that State verbally, confessed this to him with the crime Judgments witnesses as well as and Sen understanding law a that under Texas verbal prove First tences to Miller was convicted of at trial. confession not admissible The Pointing a Degree Burglary in 1988 and unadjudicated stealing second crime was presented Firearm in The also State of a wallet male victim used the while the evidence of two convictions crimes Burger King urinal in a restaurant. While murder, escape and occurred after the Dodd Miller, a identify the victim restau could not facilitating Proposition escape. In XII Miller employee rant identified Miller as man of these is error be the admission murder, they the Dodd who walked the rest room immediate cause occurred after toward presented to reported no evidence was he ly patron because before the had been or show these involved the use threat robbed. person.

violence to the unadjudicated 59 The third crime “prior” does not 55 The word purse proprietor snatching was a from the “prior charged.” Nothing mean the crime to met gallery. proprietor an art The language bars the from statutory State approximately hour Miller for half an before of violent felonies com introducing evidence purse. her pushed her down and took after mitted the defendant the crime identify subsequent him at a one- She did O.S.1991, charged trial. and before show-up, seeing picture in man after 701.12(1). § also Grosso See later, newspaper four months made ¶ 25, 802, 33, 808-09. The OK CR The positive in-eourt identification. defense however, must, present evidence to State request eye-witness did not an identification prove the involved or prior felonies the use instruction. person. Cleary v. threat of violence to the ¶60 The to each of these evidence as ¶ 38, 942 P.2d 1997 OK CR identify to three incidents is sufficient — U.S. —, 746-47, denied, cert. unadjudicated perpetrator of these as (1998). 1528, 140 The did L.Ed.2d State offenses. no error here. There is so not do in this case. XIV Miller ar need not consider the ef 56 We jury continuing on the gues the instruction error, fect of for the trial court commit this aggravating relieved the threat circumstance ted an error which cured it. instructional every from element of the proving State jury The trial court instructed jury to find “a aggravator requiring prior- support ag felony conviction probability” constituted con that Miller have gravating circumstance must occurred tinuing society. threat This ar semantic prior qualifying murder. As two the Dodd statutory disregards gument the clear lan presented prior felony convictions error, guage. aggravating This circumstance is jury, failing to we find the State’s existence to his trial shall be “[t]he defined statute as admissible. This Court probability that the defendant would commit held in 111 n. Wilson acts of violence that would consti criminal § 1245 n. 1 that 701.10 does society.” continuing tute a threat to 21 O.S. require give a detailed de State 701.12(7). Thus, § must find scription of the evidence that will be offered probability beyond a reasonable doubt. stage. the second Notice is sufficient if it trial court’s is correct Haw instruction opportunity pres allows the defendant the to ¶ State, 40, 83, v. 1994 891 P.2d kins OK CR explanation alleged ent a defense or for the denied, 586, 596, 977, cert. 516 U.S. 116 State, criminal conduct. Johnson v. 1982 OK (1995). 480, S.Ct. 133 L.Ed.2d 408 ¶37, 36, 815, CR 665 P.2d 823. To this end ¶ argues continuing 62 Miller also the summary the notice must contain a of the aggravating threat circumstance is unconsti support evidence intended to be used to the vague. tutionally consistently find this We alleged aggravating circumstance as well as a aggravating circumstance narrows might of the list witnesses the State call. eligible the of death class defendants and is ¶ State, 63, 112, v. Williamson 1991 OK CR State, impermissibly vague. Johnson v. 384, 408, denied, 1115, 812 P.2d cert. 511 U.S. 36, ¶ 29, 309, 316, 1996 OK CR 928 P.2d 2122, (1994); 114 S.Ct. 128 L.Ed.2d 677 — cert.denied, U.S. —, 99, 139 ¶ State, 116, 48, Walker v. 1986 OK CR 723 State, (1997); L.Ed.2d 54 Snow v. 1994 OK 273, 285, denied, 995, P.2d cert. 479 U.S. 107 ¶39, 28, 291, 298, cert.denied, CR 876 P.2d 599, (1986). S.Ct. 93 L.Ed.2d 600 The 1179, 1165, 115 130 U.S. S.Ct. L.Ed.2d notice, artful, exemplary while not State’s or (1995). We find no reason to revisit is sufficient. holding. this ¶ arguments 66 Miller raises three in ¶ Proposition Miller XV ar Proposition jury finding XVI to contest the gues prove there is insufficient evidence to “heinous, aggrava- atrocious or cruel” predicate support crime which would a find First, ting argues ag- circumstance. he ing the murder was committed to avoid ar gravator unconstitutionally vague is prosecution. pre rest or lawful Evidence overbroad, recognizing rejects this Court this prove sented at trial was sufficient to argument. We find no reason to revisit this given victim’s wallet well ten as as dollars See, Johnson, issue at this time. 1996 OK manager missing, along him the was ¶36, 28, 316, Cheney CR 928 P.2d at v. from the motel cash drawer. Before $122.01 ¶¶ 14-15, 74, 80. died, police, Dodd told the and two offi ¶ argues 67 Miller times, evidence say cers heard him or three four “He supporting aggravator me.” this is insufficient be robbed This evidence is sufficient to prove predicate gratuitous proven. crime and the fact Dodd cause no violence He awas witness to it. overlooks the fact the victim died of blunt force trauma to the paint head inflicted argues 64 Miller also the aggra- can, poured and muriatic acid was on his face vator must be stricken State failed to and down his throat while he was alive. predicate set forth the crime the Bill of use of acid in case is an this intentional act of predi Particulars. In lieu of details of the beyond reject violence the homicidal act. We asserted, cate crime the State “[t]he State argument. this incorporate will move to evidence stage stage prove aggra one into two ¶ 68 The trial court misinstruct- vating circumstance.” The then State set “heinous, jury ed the on the definition of forth the evidence which it would use to show atrocious, or cruel.” The court should have Miller tried to eliminate a witness. The jury aggravating instructed the circum question before us is whether this notice is stance is directed to those crimes “where sufficient. death of preceded by the victim was torture of the victim physical or serious abuse.” O.S.1991, § Title 701.10 provides Jury Oklahoma Uniform during penalty phase Instructions-Crimi 2d, trial nal 4-73. The trial aggravation such evidence as the court omitted the prior “physical,” State has made known to the defendant party objected. word and neither

1H3 disagree. See 1996 OK of this inval- Johnson CR argues the omission word disagree. 36, 31, We his death sentence. P.2d idates “physical,” word while The omission of the trial court 72 Miller claims the erred error, alter the State’s burden does not impose failing jury it could life instruct Johnson, 1996 OK proof, and is harmless. parole possibility or life without even if it ¶¶ 38-42, 928 P.2d at 318. aggravating found an circumstance. This ar arguments against 69 Miller raises two rejected. gument consistently Bryson See impact victim evidence XVII. OK CR is in effect an uncon argues He the evidence 262-63, denied, cert. 513 U.S. S.Ct. “super aggravator,” and he stitutional (1995). 752, 130 L.Ed.2d 651 admitted in this impact the victim evidence challenges the instruction 73 Miller ad statutory case was definition. outside vising weigh the evidence in how “super rejected aggrava This Court has mitigation. He claims aggravation State, Hooper argument consistently. v. tor” weigh jury ag- instruction the to the allows 1104, 64, ¶ 34, 1090, P.2d 1997 OK 947 CR gravators aggregate against mitigat each — U.S. —, 2353, denied, 118 cert. S.Ct. disagree. See ing circumstance. We Allen State, (1998); Willingham 141 722 v. L.Ed.2d State, ¶ 87, 13, 79, 871 v. 1994 OK CR P.2d ¶ 1074, 62, 61-62, 1997 OK 947 P.2d CR — 101, denied, 952, 115 370, cert. 513 U.S. S.Ct. denied, —, 1086-87, U.S. 118 cert. (1994). L.Ed.2d 322 (1998); 130 2329, v. 141 L.Ed.2d 702 Toles S.Ct. ¶ 36, State, 45, 180, 947 1997 CR P.2d OK ¶ Next, 74 Oklahoma’s — —, denied, 188, cert. U.S. 118 S.Ct. penalty death scheme is unconstitutional. (1998). 2380, no 141 746 We find L.Ed.2d State, v. Again, disagree. we See Fields to this issue. reason revisit ¶ 637, 71, 624, 35, 923 P.2d cert. — denied, —, 1704, impact 137 evidence is U.S. Victim impact (1997). the supposed to be limited to of the L.Ed.2d 829 family the murder on victim. the the argument jury 75 Miller’s 701.10(C). Dodd, O.S.Supp.1992, § Mrs. the special unconstitutionally required to make victim, to two mother of testified dreams findings of fact when it determines death appeared to In in which her dead son her. rejected. has See Duckett v. sentence been one, going to he “are we trial?” She asked 61, 91, 7, P.2d 1995 OK 27. CR “just him I had testified she held because 76 We the trial court did err find nothing to him.” In the second dream tell request present denying the defense to evi expressed her son concerns about the trial. of a dence on the sentence cost-effectiveness statutory scope This is of victim outside compared possibility parole life without impact objection Inasmuch as no evidence. statement, made to this re at trial we to a sentence of death. See Smallwood plain only. body Given of State, 217, view for error 1995 OK CR — in which statement she de Mrs. Dodd’s —, denied, cert. U.S. S.Ct. limits, statutory scribed the loss within (1996). 431, 136 L.Ed.2d 330 aggravating given the fact each of the cir trial court did not err Finally, evidence, strong supported by cumstances is jury on denying an to the instruction See we find this excess harmless. Alr-M Duckett, presumption of life. See OK ¶ 66, CR 929 P.2d osawi 1996 OK ¶ 63, 919 P.2d at CR 270, 285; 1996 OK Hain v. XIX Miller claims 1130, 1149. was denied effective assistance counsel. Proposi- issues in 71 Miller raises seven alleged inadequacies cites four of counsel. He tion he concedes are settled XVIII which object did not to the The first is that counsel jurisdiction. against in this He raises filing of Bill of Particulars. As we late appeal. purposes for of federal In the them proposition, counsel discussed the first evidence argues mitigation first he is dimin- represented and the trial court to his client trial court instructs the ished when the filing ready trial. The he would be aggravation it must consider evidence procedural the normal mitigation. Bill of Particulars at may We consider evidence stance, time, “prior upon arraignment, prejudice felony involving conviction of a did not argues the Miller. Miller also failure ob- against person.” or threat of the use force ject print to the admission of DNA and shoe Therefore, failing the error of to determine evidence is evidence of ineffective assistance. these crimes whether involved the use or As we have found this evidence was threat of force had no effect on the trial. admitted, objection an it to would have been ¶ 81 Under the circumstances of this tri- object futile. Miller asserts counsel did not al, “physical” of the word omission from fact, prosecutorial misconduct. counsel heinous, atrocious, limiting definition for object did and was sustained a number of quantum or cruel is harmless. of abuse great majority times. The of statements change, proven did not and the abuse appellate counsel claims are miscon- physical. be suffered victim was Mrs. duct, are in fact within the bounds of zealous testimony appearing Dodd’s about her son representation. Finally, Miller asserts trial her in her dreams is outside the bounds of adequately investigate counsel did not However, impact victim present evidence. inasmuch mitigation Appellate evidence. coun- proper impact regard- sel does not reveal what other evidence as the victim evidence presented, might argues gen- have been ing compelling, her much loss was more erally possible all sources not checked. dream preju- information could have had no speculation, more than Without mere we will dicial effect. The identified errors do not not find error. body affect of evidence or the standard of proof They interject in this case. do not Proposition 79 In XX Miller ar passion or Consequent- doubt into the trial. gues the in cumulative error this case war ly, they gain weight aggregate. we find in no rants reversal. have in We identified error 1) judge this case: the trial did not hold a hearing admissibility to determine the MANDATORY SENTENCE REVIEW 2) evidence; evidentiary harpoon DNA an every capital In murder case this jury physically informed the Miller had been analysis Court conducts a final to determine 3) wife; presented abusive to his the State supports jury’s whether the evidence the two crimes not to shown involve the use or factors, finding aggravating of and whether against person support threat of force a to imposed the sentence of death was under the “prior felony the aggrava violent conviction” passion, prejudice, any influence of or other tor; 4) the trial court omitted the word O.S.1991, 701.13(C). arbitrary § factor. 21 “heinous, “physical” from the definition of mandatory We now conduct this sentence or cruel” atrocious as directed at those review. crimes which involve “torture or serious 5) abuse”; and, physical impact the victim jury 83 The aggravating found four cir- by statement made Mrs. Dodd contained in 1) cumstances: at the time of the crime the ap admissible her references to dead son previously defendant was convicted of a felo- pearing to in her dreams. Each of these ny involving the use or threat of violence to errors were found to be harmless. 2) person; the the especially murder was gather 80 We find these errors no force 3) heinous, atrocious, cruel; or the murder aggregate. in DNA The evidence is admissi- purpose avoiding was committed for the of or ble and therefore this error has no effect preventing prosecution; a lawful arrest or injected by whatsoever. The information 4) and, present at the time there exists a evidentiary harpoon was in admissible and probability that the defendant would commit explained fact was in some detail Mrs. criminal acts of violence that would constitute harpoon Miller when she testified. The continuing a society. threat to changed timing therefore of the introduc- support In aggravator, of the first evidence, change tion of the but did not testimony the State Judg- introduced and the content of the information known prove prior ment and Sentence to convictions jury. The trial court instructed the degree burglary for first robbery and which way in such that it did not consider escape each involved the conspiracy convictions for and to use and threat of violence es- cape support aggravating in of person. aggravating circum- to a The second circum-

H15 cases, they in all con- beyond a reasonable the evidence whether proven stance was poured evidence, acid on doubt the fact Miller tain both direct and circumstantial throat living victim and down his face of the they entirely or contain whether circumstan- physical beating and and serious inflicted a tial evidence. See 900 P.2d White the victim lived for sometime the fact that (Okl.Cr.1995) J., (Lumpkin, specially con- pain suffering. enduring while serious curring). re-urge I that here because violence sufficient to estab- gratuitous This is presents prime example why a unified case subjected the lish victim to serious approach would be more concise. clearer and physical The evidence established .abuse. addition, a part as of its discussion Dodd, money from that Miller took Kent I, incorrectly cites Court identify Mil- that Kent Dodd knew could Carter OK CR proves beyond a reason- ler. This evidence holding “[a]n that purpose avoiding pre- or able doubt the filing in a Bill of abuse of discretion prosecution. or venting lawful arrest filing is Particulars will be found where the aggravating “continuing threat” circumstance impermissible discriminating based proven the introduction of evidence grounds.” This Court in Carter did not degree burglary, rob- conviction for first in say make that statement. did We bery, conspiracy escape, and felon escape, holding accordance with our in Romano v. possession a firearm. The also State (Okl.Cr.1993), proved unadjudicated This “it was three robberies. prove “continuing evidence is sufficient obligation of a criminal defendant aggravator. threat” governments prosecu- that the demonstrate upon impermissible him was based tion of possibly error which grounds discriminating citing to United injected prejudice trial passion or into the Blitstein, (10th States v. 626 F.2d testimony was the of the victim’s mother Cir.1980).” Romano, recognized we two which she recounted dreams which presumed by “[p]rosecutors are law to act However, in appeared her dead son her. good crimes to determining faith when wrenching of emotionally fair context prosecute punishments and which to seek parents’ testimony regarding an their son, guish [citations omitted.]” the murder of their We stated: caused improper testimony any not have had could regarding The decision which criminal jury. aggrava We find the influence on the param- charge bring lies within the wide evidence, supported ting are factors Gray v. prosecutorial eters of discretion. and of death not influenced the sentence is (Okl.Cr.1982). See 882 by passion, any arbitrary prejudice, or factor. Dangerfield v. 742 P.2d 573 also (Okl.Cr.1987). However, prosecutorial dis- DECISION is not In Bordenkircher cretion unlimited. Judgment and Sentence of the trial Hayes, 434 U.S. court AFFIRMED. is (1978), Supreme 54 L.Ed.2d Court stated: CHAPEL, P.J., STRUBHAR., V.P.J., and selectivity the conscious exercise of some JOHNSON, J., concur. is a federal in enforcement not in itself LUMPKIN, J., concurs in results. long as the constitutional violation so deliberately selection was based [not] LUMPKIN, Judge: concur in results. upon unjustifiable such as an standard Appellants agree I that conviction race, religion arbitrary or classifi- other sepa- I sentence should be affirmed. write cation. rately agree I because do with stan- Romano, P.2d at 393. dard here to deter- of review Court uses evidence, sufficiency mine of the before, many I have times As stated analysis some the Court. utilized in must be accurate and consistent this Court precedent. Too often application of its previously my I have stated belief holdings or wording of slight variations adopt Spuehler- should unified Court type evaluating sufficiency improper paraphrasing holdings leads approach to unsupported conclusions that we have de-

parted prior respon- from our caselaw. Our

sibility is to be clear in our decisions. We (cid:127) obligation clarify, are with the tasked

confuse, the rule of law. Finally, disagree I the Courts finding Proposition' VII Detective

Craig response to the cross-examina- Gravels evidentiary tion an defense counsel was harpoon. entirety line When context,

questioning readily it is read apparent response germane to the asked, questions it con- while could be crimes, strued to be information other it response question inwas to the asked re- garding Appellant when had asked she night question. leave the house on the 61; 1998 OK CR McCARTY, Appellant, Curtis Edward Oklahoma, Appellee. STATE of No. F-96-503. Appeals Court of Criminal of Oklahoma. Nov. 1998. April Rehearing Denied

Case Details

Case Name: Miller v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Feb 19, 1999

Citation: 977 P.2d 1099

Docket Number: F 96-1380

Court Abbreviation: Okla. Crim. App.