Miller v. StateMiller v. State
James Miller was convicted of unnatural intercourse as proscribed by
I.
Miller was indicted by a Rankin County Grand Jury on March 30, 1990, for violating
D.M. testified at trial that he was cleaning the restaurant kitchen on the night in question, when Miller struck up a conversation with him. During the course of the conversation, Miller provided D.M. with two rum and cola cocktails. At that time, D.M. testified there was no one present in the restaurant, except for him and Miller.
Around midnight, according to D.M., E.W., a then 16-year-old, who was employed as a cashier at the restaurant, returned to the restaurant and was admitted by Miller. All three eventually adjourned to Miller‘s office to watch television. Soon after, D.M. testified he dozed off in Miller‘s office. D.M. told the jury he regained consciousness when Miller began to fondle him. At that time, D.M. testified that Miller told E.W., who was in the office when D.M. awoke, to leave. Following E.W.‘s departure, D.M. testified that Miller performed fellatio on him.
E.W. testified that he witnessed Miller performing fellatio on D.M. by looking back into the office after being asked to leave.
Miller testified that he worked from noon until closing on February 3, 1990. Miller stated D.M. and E.W. worked the evening/night shift on that day, and D.M. remained in the store after E.W.‘s departure. The appellant testified that he did pour D.M. two rum and cola cocktails, but that he poured the minor the drinks because he knew D.M.‘s parents allowed D.M. to drink and because Miller believed D.M. would not stay and talk with Miller unless Miller poured him the drinks. He said that the second drink was a replacement for the first, which spilled.
Miller testified his conversation with D.M. began while he was closing out the cash registers, at about 11:15 p.m. According to Miller, sometime during the conversation, a glassy-eyed E.W. entered the store around midnight. Miller stated E.W. admitted to him he had consumed several ounces of pure grain alcohol. About 12:45 a.m., on February 4, 1990, Miller testified that D.M. left the restaurant. Miller and E.W. departed about five minutes later.
Miller denied “taking advantage” of D.M. after intoxicating him. Miller denied that D.M. got drunk and also denied that he provided liquor to minors on any other occasion at the restaurant. Miller claimed the State‘s case against him was a concoction based wholly on D.M.‘s need for attention and E.W.‘s desire for revenge. The revenge motive allegedly stemmed from an incident in which Miller cautioned E.W. about certain of his visitors at the restaurant and threatened to report adversely to the owners of the restaurant.
Following conviction, all post-trial motions were denied. Miller raises several challenges to his conviction, most of which are meritless, and are therefore unworthy of extended discussion. We do pause, however, to address Miller‘s first impression contentions that
II.
The United States Supreme Court has held the right of privacy embodied in the
Miller relies on one Mississippi case to support his state-based privacy argument: In Re Brown, 478 So.2d 1033, 1040 n. 7 (Miss. 1985). In Brown, this Court held a theologically-based refusal to undergo blood transfusions is embraced by a right of privacy found in
One paragraph of dicta from Brown arguably works in favor of Miller:
Though in fact her religious beliefs are the reason for her rejection decision, Brown also claims her right of privacy. This right has no necessary connection with any organized religion nor any personal religious beliefs. It is secured to each person within the constitution — saint or sinner, Christian or Jew, agnostic or atheist. It may be claimed for motives noble or base. Id. at 1040.
Miller argues that as this Court held the State had no compelling interest in keeping the witness alive, the State, similarly, has no compelling interest in Miller‘s sex contacts. Miller cites to no Mississippi authority for his privacy claim other than Brown.
In a momentous article published over 100 years ago, Justice Brandeis contended that a right to privacy exists for citizens and that right entitles citizens “to be let alone.” Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 193, 195 (1890). This Court has held that the right of privacy, whether it finds its genesis in the common law or in natural law, has been constitutionally guaranteed under
That said, however, we need not reach the question here whether a private act between consenting adults runs afoul of our right of privacy. This case does not involve consenting adults. We, therefore, decline to reach the issue of the application of a right to privacy to our sodomy statute in general, as this defendant has no standing to raise that issue. Clearly, no right of privacy attaches to sexual acts committed with children, who have been illegally supplied with alcohol.
III.
Miller also argues that
The U.S. Supreme Court differentiated vagueness and overbreadth in Zwickler v. Koota, 389 U.S. 241, 249-50, 88 S.Ct. 391, 396, 19 L.Ed.2d 444, 451 (1967). The Zwickler Court determined that a challenge for “vagueness” is a challenge that the statute “`either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application[.]” Zwickler, 389 U.S. at 249, 88 S.Ct. at 396, 19 L.Ed.2d at 451 (citing Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926)). Conversely, a challenge for overbreadth goes to “the constitutional principle that `a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.‘” Zwickler, supra (citing N.A.A.C.P. v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1313-14, 12 L.Ed.2d 325, 338 (1964)).6
Miller provides no authority for his overbreadth contention regarding
Unlike the statute in Coates7 as well as, for example, the statute at bar in Gooding v. Wilson, 405 U.S. 518, 518-19, 92 S.Ct. 1103, 1104, 31 L.Ed.2d 408, 412 (1972)8 and the ordinance at bar in the Houston v. Hill, 482 U.S. 451, 457-61, 107 S.Ct. 2502, 2507-09, 96 L.Ed.2d 398, 409-11 (1987)9, the Mississippi sodomy statute is not overbroad. The sweep of the statute does not invade an area of protected freedom. See N.A.A.C.P., supra; see also Bowers, 478 U.S. at 194-95, 106 S.Ct. at 2846, 92 L.Ed.2d at 148 (refusing to find a fundamental right to engage in sodomy). Indeed, although going more toward vagueness than overbreadth, the statute has been interpreted by this Court to embrace acts of fellatio since, at least, 1955. State v. Davis, 223 Miss. 862, 864, 79 So.2d 452, 452-53 (1955). For these reasons, Miller‘s contention that
IV.
Miller‘s other assignments of error: that the testimony of the witnesses was hopelessly
Although there were inconsistencies in the version given by D.M. and E.W., they were not so inconsistent with respect to material facts as to require dismissal or to conclude that verdict was against the overwhelming weight of the evidence.
a.
The question whether fellatio, performed by the accused, violates the statute, has not been addressed by this court. Miller cites Hill v. State, 179 Miss 732, 176 So. 719 (1937), as authority for his argument that penetration by the accused is required. In Hill, this Court affirmed a circuit court‘s decision to sustain a demurrer. The circuit court held that cunnilingus is not sodomy as no penetration occurs. This Court affirmed, stating penetration is an essential element of sodomy. In State v. Davis, however, this court recognized that the statute here in question was codified under the title “Unnatural intercourse” not “Sodomy” and reasoned that fellatio, while not sodomy, was within the scope of the act. 223 Miss. at 864, 79 So.2d 452. Later, in State v. Mays, we cited with approval a quote from the United State Supreme Court which noted a view that fellatio and cunnilingus were within the terms of a statute proscribing “crimes against nature“. 329 So.2d at 66 (Citing Rose, Warden v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).
Having abandoned the view that the range of the statute is limited to sodomy, we necessarily abandoned the view that “penetration” is required in any sense other than that an act historically considered unnatural was committed. We note that, while it is not controlling in the context of the unnatural intercourse statute, the legislature has defined “sexual penetration” to include both fellatio and cunnilingus for purposes of the sexual battery statutes.
b.
The contention that Miller was entitled to an accomplice instruction must fail because there was not a factual basis for the conclusion that D.M. was an accomplice. Miller contended that the act never happened and D.M. contended that it happened at a time when he was helpless to prevent it. Moreover, D.M.‘s testimony was corroborated in all essentials by that of E.W. No accomplice instruction was required. See, Burke v. State, 576 So.2d 1239, 1242 (Miss. 1991).
c.
Finally, Miller contends that the court erred in allowing him to be questioned concerning alleged sexual encounters with E.W. Miller had testified, over the state‘s objection, that E.W. was motivated to testify against Miller because Miller had cautioned him about associating with known homosexuals at the restaurant. The state countered with questions as to whether Miller had engaged in sexual conduct with E.W. These questions it says, were offered in response to Miller‘s allegations to tell the whole story. It notes that Miller was warned by the court about “opening the door” to this type inquiry when he attacked E.W. as he did.
It appears obvious that the state‘s inquiry into a relationship between E.W. and Miller is weak rebuttal, at best, to Miller‘s contention that he warned and threatened E.W. over association with known homosexuals.
V.
For the foregoing reasons the conviction is affirmed.
CONVICTION OF UNNATURAL INTERCOURSE AND SENTENCE OF TEN YEARS AFFIRMED.
HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and SULLIVAN, PITTMAN, McRAE and JAMES L. ROBERTS, Jr., JJ., concur.
SMITH, J., not participating.
Notes
§ 97-29-59. Unnatural intercourse.
Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years.