Miller v. Commonwealth

• Decision Date: 21 February 2013
• Docket Number: No. 2011–SC–000340–MR.,2011–SC–000340–MR.
• Parties: John MILLER, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

391 S.W.3d 857

John MILLER, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2011–SC–000340–MR.

Supreme Court of Kentucky.

Feb. 21, 2013.

Robert Chung–Hua Yang, Assistant Public Advocate, Appellate Division, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, David Wayne Barr, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant was convicted of numerous counts of incest, rape and sodomy for his sexual relationship with his two minor stepdaughters, M.P. and C.P. Appellant raises three issues on appeal: (1) prosecutorial misconduct, (2) an ex post facto violation, and (3) the incorrect imposition of court costs and a partial public-defender fee. The Court holds that ex post facto principles which impact due process require resentencing for his incest convictions as to victim M.P., and that the trial court erred in levying costs and fees on Appellant. The Court affirms all of Appellant's convictions, remands to the trial court for resentencing consistent with this opinion, and vacates all costs and fees.

I. Background

M.P. and C.P. were Appellant John Miller's minor stepdaughters. Allegations of sexual abuse started when C.P. accused another man, Roy Cox, of raping her. A month later M.P. also accused Cox, one of Appellant's friends, of sexual abuse. A few weeks later, as police continued to investigate the allegations against Cox, M.P. claimed that other people had abused her as well, including Appellant, her mother Cynthia Miller, and another man named Bill Polston. She also claimed that her mother was present when Appellant sexually abused her. Additionally, C.P. claimed that Appellant had raped her once when she was thirteen years old.

Cynthia Miller was arrested for her role in the alleged incidents. She was interviewed by Kentucky State Police trooper Jonathan McChesney and told the officer that Appellant had sex with M.P. “too many times to count.” The tape from this interview was played at trial. During the interview, Trooper McChesney stated to Cynthia that he believed that M.P. and C.P. were telling the truth and that there was no way a jury or anybody else would not believe them, and that Appellant, as the girls' stepfather, was the one who deserved the punishment, more than Bill Polston or Roy Cox. Cynthia told the trooper that she believed that there were nude photos taken of M.P. in their home.

Based on this information, as well as information he had obtained through his investigation that the girls had been shown pornographic videos by their parents, the trooper obtained a search warrant for Appellant's home. During the search, Trooper McChesney found pictures of “extremely young looking girls” from a pornographic magazine entitled “Amateurs Do It All Just For You.” A photo of the magazine was admitted at trial by the Commonwealth. Trooper McChesney also found two rolls of undeveloped film, three disposable cameras, and a digital camera, but did not find any nude photos of M.P. or C.P. anywhere. However, from the undeveloped film he found a picture of Appellant in bed with a topless Cynthia Miller beside him. Trooper McChesney testified that he was concerned with this photo because it was on a roll of film that also contained pictures of M.P. and C.P., though those pictures were not inappropriate. He also stated that it appeared that someone else had to have taken the picture of Appellant and his wife. This photo was also admitted at trial by the Commonwealth.

On February 17, 2009, Appellant John Miller was indicted by the Hart County grand jury on 182 counts of second-degree rape, 182 counts of complicity to second-degree rape, one count of second-degree sodomy, one count of complicity to second-degree sodomy, 183 counts of incest, 183 counts of complicity to incest, one count of second-degree sexual abuse, and one count of complicity to second-degree sexual abuse. The Commonwealth proceeded to trial on only nine counts: three counts of second-degree rape, one count of second-degree sodomy, four counts of incest, and one count of second-degree sexual abuse.

At trial, Roy Cox testified that Appellant had told him that Cynthia was not having sex with him, but that M.P. and C.P. “were hot, sexy, and ready.” He also testified that Appellant told him that “he had no problem getting all the sex he wanted” and that Appellant was teaching the girls how to “pole dance” and “strip.”

Appellant testified on his own behalf that he never had sex with M.P. or C.P., never watched the girls strip or do pole dances, and did not own any pornography.

At the end of the Commonwealth's case-in-chief, it moved to dismiss one rape count, one incest count, and the second-degree sexual abuse count. The trial court ultimately instructed the jury on one count of second-degree rape, one-count of second-degree sodomy, and two counts of incest involving M.P.; and one count of second-degree rape and one count of incest involving C.P. Appellant was convicted for third-degree rape and third-degree sodomy of M.P. as lesser-included offenses, but otherwise was convicted of all remaining counts. His sentences were run consecutively for a total of seventy years in prison.

This appeal followed as a matter of right to this Court. SeeKy. Const. § 110(2)(b). Additional factual background will be provided below.

II. Analysis

Appellant raises three issues on appeal. First, he claims that the Commonwealth engaged in prosecutorial misconduct by improperly questioning witnesses. Second, he claims that the trial court used the wrong penalty range for his sentencing as to the two incest convictions, which he argues violated the Ex Post Facto Clause of the United States and Kentucky constitutions. Third, Appellant claims that the trial court erred in levying court costs and partial public-defender fees on him because he was indigent, and that the trial court erred in ordering a review of court costs and public defender fees upon his release from prison.

A. Prosecutorial Misconduct

Appellant claims generally that the Commonwealth committed prosecutorial misconduct when it asked a number of questions to a number of witnesses, including Appellant on cross-examination, that elicited irrelevant and unduly prejudicial information that rendered his trial fundamentally unfair. Appellant points to seven specific instances as grounds for reversal of his convictions.¹

Appellant concedes that all of these issues are unpreserved, and as such the Court is obliged to review for palpable error. A palpable error is one that “affects the substantial rights of a party” and will result in “manifest injustice” if not considered by the court. RCr 10.26. This Court has clarified that the key emphasis in defining such a palpable error under RCr 10.26 is the concept of “manifest injustice.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006). “[T]he required showing is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.” Id.

It should be noted that all but one of Appellant's claims of prosecutorial misconduct (discussed below) are better classified as claims that the trial court committed evidentiary error by admitting irrelevant and unduly prejudicial evidence. While Appellant correctly cites Duncan v. Commonwealth, 322 S.W.3d 81 (Ky.2010), for the proposition that “prosecutorial misconduct can assume many forms, including improper questioning and improper closing argument,” id. at 87, that case dealt with a witness being forced to characterize another witness specifically as “lying” and to testify as to the truth or falsity of DNA evidence. Appellant's claims on appeal do not focus on whether the Commonwealth's conduct was inappropriate, but rather on whether the trial court erred by admitting certain evidence at trial.

While this is not to say that the trial court did not err in admitting some of this evidence, none of the claims resulted in a “manifest injustice,” and thus any error was not palpable. Even assuming that the court committed all the complained of evidentiary errors, there is simply no showing of a probability of a different result here. Rather, Appellant's arguments focused on prejudicial error rather than manifest injustice and, given the victims' testimony, he makes no argument that the result would be different absent these evidentiary errors. This Court cannot find that the Appellant's trial was so manifestly unjust that a different result would have occurred absent the alleged errors, and we will not speculate what the result might have been had the alleged errors been preserved.

However, one of Appellant's claims—that the Commonwealth “forced” him to testify that he knew nothing about M.P. and C.P. “pole dancing” or “stripping,” and that he did not own or watch any pornography—differs from the other claims. This claim is the only one that remotely resembles a typical prosecutorial misconduct claim, because it focuses on the Commonwealth's behavior and not the propriety of the evidence itself. Appellant argues that he was compelled to essentially call the other witnesses “liars,” without necessarily using that magic word. He asserts that because the Commonwealth asked questions that spawned answers conflicting with prior testimony from other witnesses, the prosecutor committed misconduct that rendered his trial unfair.

The professional ethics rules provide the underlying basis for permissible and impermissible prosecutorial conduct. The 2009 Supreme Court Commentary to SCR 3.130(3.8) underscores these principles: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.” More specifically, the U.S....