Miller v. Com.
| Decision Date | 13 June 2002 |
| Docket Number | No. 2000-SC-1079-MR.,2000-SC-1079-MR. |
| Citation | 77 S.W.3d 566 |
| Parties | Wayne M. MILLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Emily Holt, Department of Public Advocacy, Frankfort, KY, for appellant.
A.B. Chandler, III, Attorney General, State Capitol, Frankfort, KY, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.
Following a one-day trial in the Taylor Circuit Court, Appellant Wayne M. Miller was convicted of 150 counts of rape in the first degree (25 Class A felonies, 125 Class B felonies), 75 counts of sodomy in the first degree (13 Class A felonies, 62 Class B felonies), and one count of intimidating a witness. He was sentenced to a total of 5,643 years in prison:
1,250 years — 50 years each for 25 counts of
Class A rape
2,500 years — 20 years each for 125 counts of
Class B rape
650 years — 50 years each for 13 counts of
Class A sodomy
1,240 years — 20 years each for 62 counts of
Class B sodomy
3 years — one count of intimidating a witness
Judgment was entered ordering the sentences for rape and sodomy to run consecutively for a total of 5,640 years and the sentence for intimidating a witness to run concurrently with the sentences for rape and sodomy. Pursuant to a post-judgment motion and KRS 532.110(1)(c), the aggregate sentence was modified to 70 years. Appellant appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). We reverse and remand for a new trial because of the erroneous admission of hearsay evidence and evidence of the habits of others. Because the case is being remanded for a new trial, we will also address unpreserved issues with respect to the sufficiency of the evidence and the jury instructions. We will not address claims of error pertaining to jury selection and use of leading questions as they are unlikely to recur upon retrial.
The victim of these alleged offenses, A.M., is Appellant's biological daughter. She was born on January 28, 1985 and was fifteen years of age when this trial was held on August 3, 2000. She testified that at approximately the end of July or the first of August when she was eleven years old (1996), Appellant came to her bedroom, put her on the bed, removed her clothes, removed his own clothes, and had sexual intercourse with her. She then testified that Appellant thereafter had sexual intercourse with her "almost every weekend," except for "about ten weeks per year," and two to four times per week during eight of those forty-two weeks when she would visit Appellant's home "when I was out there a week at a time and when I would stay there during the summer" and "during intersession." Until January 1998, Appellant and A.M., along with A.M.'s mother, Dorothy Miller, now Darst, and A.M.'s younger sister, lived together in a residence near Merrimac, Kentucky. In January 1998, Appellant and Darst separated, and Darst and the children moved to Campbellsville. Thereafter, A.M. and her sister visited with Appellant at the Merrimac residence on weekends and for extended periods during summers and school intersessions.
A.M. further testified that "not long after" the first instance of sexual intercourse, Appellant sodomized her by placing his mouth on her vagina and that he repeated that act "every other time" that he had sexual intercourse with her. Except for the first occasion of sexual intercourse and the first occasion of sodomy, A.M. did not describe any facts surrounding the 225 individual acts of rape and sodomy of which Appellant was convicted. She testified that Appellant last engaged in sexual intercourse with her four weeks prior to September 23, 1999, the date of her interview with Kentucky State Police Sergeant Linda Rudzinski. A.M. did not testify that she was sodomized on that occasion.
Sergeant Rudzinski testified that Appellant admitted to her that he had sexual intercourse with A.M. on one occasion when A.M. was eleven years old. An acquaintance, Correne Wilson, testified that Appellant once admitted to her that "[e]verything that has been said about me I have done to [A.M.]." Appellant denied at trial that he had ever engaged in sexual intercourse or sodomy with A.M.
At the conclusion of his examination of A.M., the prosecutor produced three handwritten documents and asked A.M. if she had written them. She responded affirmatively, and the documents were marked for identification as Exhibits 1, 2 and 3. As more fully discussed below, one of the documents also contained statements written by A.M.'s best friend, "Shonda" (not further identified). A.M.'s mother, Dorothy Darst, then testified that she found the documents in a dresser drawer in A.M.'s bedroom in September 1999. After Darst identified A.M.'s handwriting on each document, all three documents were formally introduced as trial exhibits. Darst then read in open court all of the statements in the documents that were in A.M.'s handwriting.
Exhibit 1 is a note apparently passed back and forth between A.M. and "Shonda" and contains handwritten statements by both children. The statements attributed to Shonda were not read in open court, but the entire exhibit was made available for the jury to consider during deliberations. The document reads as follows (spelling and punctuation errors corrected):
Shonda,
I found out Sun. night that I'm not. After I did, I called Tommie and told him the whole story and that I'm not. He got mad and hung up the phone. He called back and apologized and begged me to forgive him. I did.
[A.M.]
* * *
OK! I am glad that you're not. Don't do that anymore or you'll get in trouble by your mom.
* * *
My mom will never know nothing. My dad tried again. This time I was asleep. I did not know until I got up the next morning finding him. Shonda I'm scared.
* * *
You need to go to the guidance office! Tell them what is going on. If you don't he could end up killing you! Trust me! I had a friend that died because it had happened to her! TELL SOMEONE!
(Emphasis added.)
Exhibit 2 is a handwritten letter from A.M. to Shonda that reads as follows (spelling and punctuation errors corrected):
Shonda,
What's up? Nothing here. My mom found our letters about me and Jacob. I got grounded and I have to go to the doctor, because she thinks that I'm pregnant and when I told her that I'm not, she said that she don't believe me and I still going to the doctor. Man. She even showed the letters to my pastor's wife and I got kicked out of the youth choir and off the praise team. I'm so mad I might go live with my dad. But I still can't believe that she went through my stuff and read all my letters.
Exhibit 3 is a letter from A.M. to "Linda," A.M.'s school counselor, and reads as follows (spelling and punctuation errors corrected):
Linda,
I am writing to you because it is easier for me to write about how I feel and all instead of talking about it. Like when we were talking about my depression. It's not just normal teenage depression. It's something else that I don't like to talk about. Because I'm trying to block it out of my memory. It's so bad I haven't told anybody except for God, and I only told him once and didn't feel comfortable telling him about it. So I don't try to remember it.
I've got to ask you a question. Why do guys always lose respect for you after you have sex with them? Because, before me and Jacob split up, we had sex and he lost total respect for me. I mean I gave something special to him. I gave him my second virginity. I mean why did he do that to me? He bugged me and bugged me to do it and when I finally did, he treated me like a total bitch afterwards.
But don't you know what's strange about it is the weekend after me and Jacob broke up, I met Tommie, which I hadn't seen since I was eleven, at a National Youth Conference in Indianapolis, Indiana, and it ends up him asking me out. But don't worry. I won't do something stupid twice in a row.
[A.M.]
P.S. Do not show this letter to anyone. And I mean anyone.
(Emphasis added.)
Presumably, the letters written to Shonda and Linda were never mailed or delivered. At face value, these three documents tend more to prove that A.M. was having sexual relations with "Jacob" and, perhaps, "Tommie," than with Appellant, except for the reference in Exhibit 1 that Appellant "tried" again and that A.M. woke up and found him in her bed, and the statement in Exhibit 3 that an unidentified person had "stolen" her virginity. Nothing in these documents specifically accuses Appellant of engaging in sexual intercourse or sodomy with A.M. Darst, however, insisted that A.M. had never had a boyfriend. A.M. then returned to the witness stand and testified that "Jacob" and "Tommie" do not exist and that her references to these imaginary boyfriends were, in fact, disguised references to her sexual relationship with Appellant.
Exhibits 1, 2 and 3 were all pure hearsay, i.e., out-of-court statements offered to prove the truth of the matters asserted. KRE 801(c). There are only three circumstances when a prior hearsay statement of a witness is admissible as substantive evidence at trial: (1) when the prior statement is inconsistent with the witness's present testimony; (2) when the prior statement is consistent with the witness's present testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (3) when the prior statement is one of identification of a person made after perceiving the person. KRS 801A(a). The statements attributed to A.M. in Exhibits 1, 2 and 3 were not inconsistent with her trial testimony and did not pertain to any identification procedure. A...
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