State v. MillerState v. Miller
Rendered on the 4th day of September, 2009.
MATHIAS H. HECK, JR., by KELLY D. MADZEY, Atty. Reg. #0079994, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
RICHARD HEMPFLING, Atty. Reg. #0029986, Flanagan, Lieberman, Hoffman & Swaim, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Theresa Miller appeals from her conviction upon two counts of Murder and one count of Tampering with Evidence. Miller argues that the jury instructions on each count of the indictment and on the inferior offense of Voluntary Manslaughter were so erroneous and misleading that they deprived her of
I
{¶ 2} Shortly after midnight on February 21, 2006, Theresa Miller killed her boyfriend Kevin Beculheimer by stabbing him in the neck and back thirty-one times with an 8-inch hunting knife. She then hid the knife and went across the road to a neighboring apartment, where she asked the couple to come over and take a look at something. The woman refused, but the man accompanied Miller and saw Beculheimer‘s body face down on the floor; Beculheimer did not appear to be breathing. The neighbor immediately returned to his own apartment to call 9-1-1.
{¶ 3} During the call, the neighbor gave the phone to Miller, who told the operator that she and Beculheimer had an argument, and she left the apartment. She claimed that she returned about thirty minutes later and found Beculheimer on
{¶ 4} Another neighbor, who was moving in next door to Beculheimer, testified that she observed Miller and Beculheimer arguing on the afternoon before his murder. A couple of hours later, she overheard Miller angrily complaining that Beculheimer would not give her money for beer. Shortly before Beculheimer‘s murder, that neighbor heard loud music and arguing coming from Beculheimer‘s apartment.
{¶ 5} Three of Beculheimer‘s stab wounds would have been immediately fatal: two severed his spinal cord at his brain stem, and one punctured his lung, allowing his chest cavity to fill with blood. Beculheimer had no defensive wounds; all of his injuries were to his neck and back. Miller had no visible injuries beyond a small cut on her hand.
{¶ 6} Miller was indicted on two counts of Murder and one count of Tampering with Evidence. At trial Miller admitted that she stabbed Beculheimer, but claimed that she killed him in self-defense.
{¶ 7} Miller testified that on the night of Beculheimer‘s death, the couple had
{¶ 8} Miller testified to Beculheimer‘s abuse of her during the course of their nineteen-year relationship. Miller also called as witnesses her mother and friends, who had either seen injuries on her and/or had witnessed instances of abuse. She also presented expert testimony about Battered Woman Syndrome. In addition to an instruction on self-defense, Miller sought, and the trial court gave, an instruction on the inferior offense of Voluntary Manslaughter.
{¶ 9} A jury convicted Miller as charged. The trial court merged the two Murder convictions into one, and sentenced Miller to an aggregate sentence of seventeen years to life in prison. Miller appeals.
II
{¶ 10} Miller‘s First Assignment of Error is as follows:
{¶ 11} “INACCURATE, INCOMPLETE, AND MISLEADING JURY INSTRUCTIONS DEPRIVED APPELLANT OF A FAIR TRIAL AND DUE PROCESS OF LAW.”
{¶ 12} In her First Assignment of Error, Miller maintains that the trial court‘s instructions to the jury on each charge of the indictment and on the inferior offense of Voluntary Manslaughter were so erroneous and misleading that they deprived her of
{¶ 13} Challenged jury instructions may not be reviewed individually, but must be reviewed within the context of the entire charge. Long, supra, citing State v. Hardy (1971), 28 Ohio St.2d 89. For the following reasons, we conclude that when evaluating the jury instructions as a whole, the instructions in this case did not rise to the level of either plain error or structural error.
{¶ 14} Initially, we note that much of Miller‘s argument against the trial court‘s jury instructions centers on comparisons between those instructions and the models provided by Ohio Jury Instructions. However, strict compliance with those model instructions is not mandatory; a trial court is not required to “slavishly follow form instructions.” State v. Lollis (March 3, 1993), Clark App. No. 2897, citation omitted. Instead, the instructions are “recommended instructions *** crafted by eminent jurists to assist trial judges with correctly and efficiently charging the jury as to the law applicable to a particular case.” State v. Martens (1993), 90 Ohio App.3d 338, 343. Deviation from the model instructions does not necessarily constitute error by the trial court.
{¶ 16} Structural errors, on the other hand, are errors that affect the very framework of the trial, permeating the conduct of the trial from beginning to end, to the point that the trial cannot be a reliable means of determining guilt or innocence. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶17, citations omitted. However, unlike a plain-error analysis, the structural-error analysis is not to be applied on a case-by-case basis. State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, ¶13. Instead, “structural-error analysis is applied when a particular error permeates the trial and renders it fundamentally unfair in every case, such that, when the error occurs, ‘no criminal punishment may be regarded as fundamentally fair.‘” Id., quoting Rose v. Clark (1986), 478 U.S. 570, 577, 106 S.Ct. 3101.
{¶ 17} Miller begins by challenging the court‘s instructions on the two Murder charges under
{¶ 18} As to Count I, the court charged, “you must find beyond a reasonable doubt that on or about the 21st day of February, 2006, [in] Montgomery County, Ohio the Defendant, Theresa Miller, did cause the death of another, that being Kevin Beculheimer, as a proximate result of the offender committing the offense of Felonious Assault involving serious physical harm.” In Count II, the court charged that the jury must find that, “on or about the 21st day of February, 2006, Theresa Miller, in Montgomery County, did cause the death of another, that is Kevin Beculheimer, as a proximate result of the offender committing the offense of Felonious Assault in relation to the use of a deadly weapon.” The court then defined the words “cause” and “knowingly.”
{¶ 19} Miller contends that the court‘s next step should have been to specifically define Felonious Assault under
{¶ 20} Per Miller‘s request, the court also instructed the jury on the inferior offense of Voluntary Manslaughter. Miller claims that the trial court erred in its instruction on that charge in several respects. First, she asserts that the court omitted the mens rea element of “knowingly.” Miller points out that the court repeatedly misstated the name of the offense as Involuntary Manslaughter, and she argues that the court compounded that error by improperly treating the Voluntary Manslaughter charge as a lesser included offense in its instructions. Miller concludes that the erroneous instructions on this charge had the effect of instructing the jury to disregard the inferior offense if it found that the elements of Murder had been proven.
{¶ 21} We are troubled by the trial court‘s repeated mislabeling of the charge as Involuntary Manslaughter rather than Voluntary Manslaughter. We are similarly troubled by the court‘s inaccurate identification of Voluntary Manslaughter both as an affirmative defense and as a lesser-included offense, when in fact, Voluntary Manslaughter is an inferior degree of Murder. See, e.g., State v. Davis, Montgomery App. No. 21904, 2007-Ohio-6680, ¶21, citing State v. Shane (1992), 63 Ohio St.3d 630, 632. However, we are most concerned about the trial court‘s instructions that
{¶ 22} Before we consider the possible effect of the erroneous instruction on the inferior offense of Voluntary Manslaughter, we must first consider whether a Voluntary Manslaughter instruction was warranted. Voluntary Manslaughter is proscribed in
{¶ 24} Miller explained that she and Beculheimer had argued that evening, and he told her to leave. She testified, “I turn around and I open the door. And he was behind me, and he closed the door *** and then he pushed me to the floor and got on top of me. *** he started hitting me here -- [indicating] -- but I put my arms up *** trying to protect my face. *** And so he was hitting me in my sides *** and on my arms. I tried to roll over on my stomach so I can get out from underneath him. *** I was tryin’ to scoot my way out from under. That‘s when I seen the knife on the floor. *** I grabbed it. *** I‘m trying to get out from underneath him. *** I get on my back. *** He‘s still on top of me. *** I thought he put that knife down there to use it on me. I thought he was gonna kill me. *** I was swinging the knife.” Notably absent from Miller‘s testimony is any description of the force with which Beculheimer “pushed” her to the floor, the force with which he was “hitting” her on her sides and arms, or even the number of times he hit her.
{¶ 26} “‘For provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control.‘” State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶81, quoting Shane, supra, at 635. Beculheimer‘s behavior, as set forth in both Miller‘s testimony and Dr. Bromberg‘s, although reprehensible, does not amount to serious provocation that is reasonably sufficient to provoke an ordinary person to use deadly force. Therefore, the objective prong was not met; the trial court did not need to proceed to the subjective prong, and the court should have refused to give the Voluntary Manslaughter instruction. Shane, supra, at 631-32. Furthermore, because the instruction on Voluntary Manslaughter should not have been given, any error in the giving of that instruction was harmless. See, e.g., State v. Durkin (1981), 66 Ohio St.2d 158, 160-61. See, also, State v. Battle (May 2, 1990), Montgomery App. No. 10823 (erroneous jury instruction on Entrapment was harmless because there was insufficient evidence to warrant the instruction); State v. Amison, Cuyahoga App. No.
{¶ 27} Finally, Miller insists, without explanation, that the trial court‘s instruction on the Tampering with Evidence charge was deficient because it failed to include a definition of “knowing” and because the court did not give a complete instruction on the mental state of “purpose.” Because the court did define the word “knowingly” in the context of the Murder instructions, the court‘s failure to repeat this information was not error. Additionally, the court did give an adequate definition of the word “purpose,” and Miller fails to specify what more should have been included in that instruction. Accordingly, we find no error in the court‘s instructions in regard to the Tampering with Evidence charge.
{¶ 28} In conclusion, when all of the jury instructions given by the trial court are considered as a whole, the instructions on the charge of Murder, although inartful, did not amount to either plain or structural error. We find no error in the court‘s instruction on the Tampering with Evidence charge. Furthermore, although the court‘s instructions on Voluntary Manslaughter were incorrect, this error is harmless because Miller failed to offer sufficient evidence of provocation to warrant the giving of the instruction.
{¶ 29} Miller‘s First Assignment of Error is overruled.
III
{¶ 30} Miller‘s Third Assignment of Error is as follows:
{¶ 32} In her Third Assignment of Error, Miller insists that her trial counsel was ineffective for failing to object to the jury instructions. In order to prevail on a claim of ineffective assistance of counsel, the defendant must show both deficient performance and resulting prejudice. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. Trial counsel is entitled to a strong presumption that his conduct falls within the wide range of effective assistance, and to show deficiency the defendant must demonstrate that counsel‘s representation fell below an objective standard of reasonableness. Id.
{¶ 33} We have held, in Part II, above, with regard to Miller‘s First Assignment of Error, that there was no error in the trial court‘s instructions on the charges of Murder or Tampering with Evidence, and that any error in the instruction on the Voluntary Manslaughter charge was harmless. Therefore, we can not conclude that Miller‘s attorney was ineffective for failing to object to the jury instructions.
{¶ 34} Miller‘s Third Assignment of Error is overruled.
IV
{¶ 35} Miller‘s Second Assignment of Error is as follows:
{¶ 36} “APPELLANT‘S CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION WAS VIOLATED AS A RESULT OF THE COURT‘S RULING WITH REGARD TO EXPERT EVIDENCE OF BATTERED WOMAN SYNDROME.”
{¶ 37} In her Second Assignment of Error, Miller contends that she was
{¶ 38} The State objected to the admission of Miller‘s hearsay statements through Bromberg, arguing that
{¶ 39} Furthermore, because the burden of proving a claim of self-defense is on the defendant, it may be necessary for a defendant to testify in order to establish that defense. State v. Seliskar (1973), 35 Ohio St.2d 95, 96, citing State v. Champion (1924), 109 Ohio St. 281. By the very nature of a claim of self-defense, “no one is in a better position than the defendant to provide evidence to aid the jury in determining whether the defendant‘s acts were justified.” Id. The Supreme Court of Ohio further explained that “[i]f a defendant cannot provide evidence on the issue of self-defense other than [her] own testimony, then, in order to avail [herself] of the defense, [she] must testify. In such event, the choice is that of the defendant, and, once [she] has decided to rely on self-defense and is required by the circumstances to testify in order to prove that defense, [she] necessarily must waive [her] constitutional right to remain silent.” Id.
{¶ 40} The choice whether or not to testify was entirely Miller‘s. If she elected
{¶ 41} Because Bromberg‘s testimony was not relevant to any issue in the case until Miller offered evidence of a claim of self-defense, the trial court did not abuse its discretion in refusing to allow his testimony until evidence of that defense was offered. The trial court‘s ruling on this issue did not serve to force Miller to abandon her constitutional rights.
{¶ 42} Miller‘s Second Assignment of Error is overruled.
V
{¶ 43} All of Miller‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
BROGAN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Kelly D. Madzey
Richard Hempfling
Hon. Mary Lynn Wiseman