State v. Miller

• Citation: 290 Mont. 97,966 P.2d 721
• Decision Date: 16 July 1998
• Docket Number: No. 97-212,97-212
• Parties: , 1998 MT 177 STATE of Montana, Plaintiff and Respondent, v. Scott Dale MILLER, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 721

966 P.2d 721

290 Mont. 97, 1998 MT 177

STATE of Montana, Plaintiff and Respondent, v. Scott Dale MILLER, Defendant and Appellant.

No. 97-212.

Supreme Court of Montana.

Submitted on Briefs Dec. 18, 1997.

Decided July 16, 1998.

Michael F. Bailey, Doreen D. Antenor, Bailey & Antenor, Missoula, Montana, for Appellant.

Joseph P. Mazurek, Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana; Robert L. "Dusty" Deschamps, Missoula, Montana, for Respondent.

HUNT, Justice.

¶1 Scott Dale Miller (Appellant) appeals from a jury verdict, judgment, and sentence of the Fourth Judicial District Court, Missoula County, convicting him of mitigated deliberate homicide. We affirm.

¶2 We restate the issues as follows:

¶3 1. Did the District Court err in denying Appellant's motions for dismissal and entry of judgment as a matter of law on the basis of insufficient evidence?

¶4 2. Was Appellant denied a fair trial as a result of alleged improper comments made by the prosecutor during his closing argument?

¶5 3. Did the District Court err in requiring Appellant to register as a violent offender without issuing findings concerning Appellant's violent offender status, and without providing Appellant a hearing to present contradictory evidence regarding his status?

BACKGROUND

¶6 This case arose out of the death of James Mitchell (Mitchell). During the morning hours of September 16, 1995, Mitchell, his wife Wendy, Brent Bovee (Bovee), and Pamela Songer (Songer) began drinking alcohol. At about noon, having consumed a fifth of liquor, Mitchell and Bovee decided to go to Appellant's home to borrow money for more alcohol. The Mitchells, Bovee, Songer, and Appellant all lived in the same trailer court. Appellant and the Mitchells had known each other for five years. At Appellant's home, Appellant, Mitchell, and Bovee drank beer for about an hour, and then Wendy and Songer arrived. Mitchell and Bovee then left to buy more alcohol. Appellant stayed behind and continued drinking. When Mitchell and Bovee returned an hour later, they appeared more intoxicated than when they had left. Appellant, the Mitchells, Bovee, and Songer resumed drinking together.

¶7 Later that afternoon, Appellant and Mitchell left in Appellant's car. Soon thereafter, the two women left, but Bovee remained at Appellant's home sleeping on the couch. Appellant and Mitchell returned at about 5:00 p.m. and Wendy returned 15 minutes later. Appellant sat in a chair and Mitchell sat on the couch. Bovee was passed out on the couch. Appellant then cleaned his pipe and began smoking marijuana. Mitchell leaned over, touched Appellant on the arm and asked Appellant for the pipe. Appellant responded, "Dont touch me." Mitchell pressed Appellant again for the pipe and asked him what was the matter. Appellant again told Mitchell to quit touching him. Appellant "went ballistic" and an argument erupted between the two. Appellant ordered Mitchell to get out of his house. Mitchell refused to leave. Appellant went to his bedroom and Mitchell followed apparently wanting to know why Appellant was so upset. Wendy remained in the living room.

¶8 While in the bedroom, Appellant obtained a pistol. Wendy heard scuffling in the hallway. Appellant and Mitchell ended up in the bathroom where the only means of entry and exit was the bathroom door. Wendy did not know who entered the bathroom first, but evidence suggested that Mitchell forced open the bathroom door. Wendy then went to the bathroom to convince Mitchell to leave. Several times Wendy heard Appellant order Mitchell to "get out of here." She heard Appellant exclaim, "If you dont get out of here, Im going to shoot you," and "Im going to fire a warning shot." Wendy testified that Appellant did not say these words in a way that would suggest he was begging Mitchell to leave him alone. Wendy then heard the warning shot. Evidence showed that Appellant fired the warning shot from the back wall of the bathroom, where the bathtub was located, toward the door. Again, Wendy heard Appellant tell Mitchell to leave or he would shoot Mitchell in the foot. Wendy heard the gun fire again. Appellant had shot Mitchell in the mouth at close range, killing him instantly.

¶9 After the shot was fired, Appellant left the bathroom and told Wendy to telephone 9-1-1. Appellant went next door where his mother, Rose Miller (Rose), lived. Rose testified that Appellant was upset and that he stated to her, "I couldnt let him keep hurting me ... why did he make me do this?" He also stated that he didnt know where exactly Mitchell was shot. Rose telephoned 9-1-1 and reported the incident. Appellant spoke with the 9-1-1 operator and mentioned being beaten. Officers soon arrived at Roses house and took Appellant into custody. The officers administered a blood test on Appellant and the state forensic pathologist administered a blood test on Mitchells body. Appellant's blood sample indicated a blood alcohol content(BAC) of .20 and presence of the drug tetrahydrocannabinol (THC). Mitchell's blood sample indicated a BAC of .25.

¶10 A trial by jury was held October 29-31, 1996. Wendy testified that Mitchell and Appellant experienced physical disabilities. Mitchell once had a broken neck, he had undergone three separate surgeries for herniated discs in his back, and he was about to have reconstructive surgery on his knee. Appellant had "a problem with his shoulder." Appellant was a sawyer by trade. Wendy testified that Mitchell was not working and was collecting social security disability benefits. She further testified that both Mitchell ¶11 Rose testified that although her son and Mitchell got along well, she thought Mitchell was argumentative and combative, and she did not welcome Mitchell in her home. Rose stated that Mitchell's reputation among residents of the trailer court was "not good" and that most residents would have nothing to do with him.

and Appellant drank heavily and smoked marijuana occasionally. Wendy testified that Mitchell and Appellant had argued several times in the years they had known each other, but that only one of these arguments resulted in a physical altercation. She further testified that in the months preceding the date of Mitchell's death, the friendship between Mitchell and Appellant had changed. She stated that Appellant was angry at Mitchell for "hanging out" with his ex-wife. Wendy admitted that she once had an extramarital affair with Appellant. On the day of the shooting, Appellant told Wendy he was having a bad day and everything was going wrong. Appellant mentioned that his saw was broken and that he had a problem with his ex-wife.

¶12 Songer testified that Mitchell had fought with her boyfriend and brother-in-law. She testified that Appellant's usual disposition when drunk was that he got mouthy and wanted to "roll around in the dirt." Songer stated that in a prior argument at Appellant's home, Appellant and Mitchell were engaged in pushing and shoving but Mitchell left upon Appellant's request. Songer further testified that during the afternoon on the date of Mitchell's death, Appellant and Mitchell appeared to be getting along well.

¶13 Nadine Jensen (Jensen), a resident of the same trailer court and an employee at a local bar often frequented by Appellant and Mitchell, testified that she had known Appellant and Mitchell for 8 or 9 years. She stated that on several occasions she heard the two men arguing outside her home at night. Jensen recounted one day, long before the incident at issue, when Appellant was drunk, approached her on her porch, mentioned the Mitchells, and briefly stated he should just shoot Mitchell. However, Jensen stated that Appellant's demeanor at the time he made the statement was such that she thought he was joking. Jensen testified that the Mitchells often picked fights at the bar and that they were no longer welcome there. She testified that she never had any problems with Appellant while at the bar.

¶14 Sheriff's Deputy Patrick Turner (Turner), one of the first officers to respond to the 9-1-1 call, transported Appellant to the police station. Turner testified that Appellant was cooperative, that Appellant communicated effectively, that he understood every word Appellant was saying, and that Appellant followed instructions completely. In booking Appellant, Turner took his measurements and reported that Appellant was six feet two inches tall and weighed 190 pounds.

¶15 Lynn Kurtz (Kurtz), a forensic scientist with the state crime lab, opined that Appellant's BAC of .20 impaired Appellant's judgment and reasoning functions, and created an unsafe condition for handling a firearm.

¶16 Doctor Gary Dale (Dr. Dale), a pathologist with the state forensic science division, performed the autopsy. Dr. Dale testified that Appellant's gun was in direct contact with Mitchell's skin when it discharged. The barrel of the gun was pointed at an angle of 55 degrees so that the primary direction of the bullet was upwards relative to the position of Mitchell's body. Dr. Dale stated that the gunshot wound was in an unusual location for a homicide. Appellant's attorney asked the following question of Dr. Dale:

Given the number of homicide victims that you have autopsied and the angle to the path of the bullet, is it not conceivable that the deceased, in driving himself into the upper body of the Defendant and the Defendant raising his hands to protect himself from blows, with the gun in one of those hands, that the deceased drove his face into the gun at the time of the discharge of the firearm?

Dr. Dale responded:

Based on the angle? Again, the best way to answer that is just using the--that angle. If you can create a scenario where Dr. Dale measured Mitchell's body and testified that Mitchell was six feet four and one half inches tall and weighed 202 pounds.

the firearm discharges at that angle, its possible.

¶17 Sheriff's Detective Scott McDonald (McDonald) was assigned...