Miller v. State
| Decision Date | 20 April 1992 |
| Docket Number | No. 90-239,90-239 |
| Citation | 830 P.2d 419 |
| Parties | Samie Lee MILLER, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Thomas W. Harrington, Student Intern, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia Hackl, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Dennis C. Cook, Sr. Asst. Atty. Gen., for appellee.
Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.
Appellant, Samie Lee Miller, Jr. (Miller), appeals from a first degree sexual assault 1 conviction contending that the trial court erred in allowing the introduction of certain evidence; the prosecutor committed misconduct in closing comments; as defendant, he was denied effective assistance of counsel; and cumulative trial error occurred further requiring reversal.
We affirm.
Miller asks in his appeal:
I. Did the trial court err by allowing the State to introduce prior bad acts under Rule 404(b) for the purpose of attacking appellant's credibility?
II. Did a witness's testimony that defendant could have requested a DNA test, and the prosecution's closing argument on that testimony, shift the burden of proof to appellant in violation of United States and Wyoming Constitutions?
III. Was it plain error to allow the prosecutor to discuss mathematical probabilities in his closing argument?
IV. Did the court err in failing to give a limiting instruction that the fabricated alibi could only be used as consciousness of guilt [and] not evidence of guilt?
V. Was appellant denied effective assistance of counsel guaranteed by the United States and Wyoming Constitutions?
VI. Should appellant's conviction be reversed pursuant to the doctrine of cumulative error?
The State rephrases the issues as:
I. Whether the decision to allow the introduction of appellant's prior sexual assault conviction for limited purpose of attacking his credibility was proper?
II. Whether the admission of statements initially elicited by appellant about appellant's ability to obtain a DNA test improperly shifted the burden of proof?
III. Whether the prosecutor's comments about appellant's evidence in closing argument can support reversal as plain error?
IV. Whether [the] jury could consider appellant's attempts to fabricate evidence?
V. Whether appellant was denied effective assistance of counsel?
VI. Whether appellant's conviction should be reversed under the cumulative error doctrine?
Except for identification of the rape victim's assailant, the essential facts in this case are not in material dispute. As defense counsel stated in his opening remarks at trial,
Following several hours of drinking and bar hopping, the victim encountered Miller and his female date at a Laramie, Wyoming, nightclub shortly after midnight on January 13, 1990. Prior to their nightclub meeting, the victim, a young white female, did not know the appellant, a young black male. The victim walked up to Miller and asked if he was "a good kisser" and whether she could kiss him. His female friend became upset with the victim's flirting and, after a brief argument with Miller, left the bar. A short time later, the victim in anticipated goodwill went outside to find the girlfriend in order to talk about what had happened.
It is at this point that the victim's recollection and Miller's reconstruction of the night's events differ. Stating one perspective, Miller claimed that he did not leave the bar until sometime later at which time he walked home alone, and, alternatively, that he and his female friend stayed at the bar until closing at which time she gave him a ride home. 2 Directly to the contrary, the victim testified that Miller followed her out of the bar to assist in finding his girlfriend. The victim claimed that after walking a short distance from the bar, Miller grabbed her arm and dragged her more than two blocks to an alcove behind a local restaurant. She testified that once in the alcove, Miller began beating her on the head with a rock until she fell to the ground where she was raped. Penetration occurred, Miller ejaculated on her thigh, and shortly thereafter left the scene.
The victim made her way to another nearby bar where bystanders aided in securing temporary medical and police assistance. After making a statement to the police which included a description of the events preceding the rape and a description of her assailant, the victim was transported by ambulance to the hospital where she received treatment for multiple head lacerations, was screened as a rape victim and was tested for blood alcohol content.
The police searched the rape scene where they found a bloodstained rock, a large amount of blood and a shoe heel print. The blood matched the victim's blood type and the shoe print was later determined to match a similar pair of shoes owned by Miller and confiscated in a subsequent voluntary search of his residence. 3 During the investigation, the victim selected Miller as her assailant in a police photograph line-up, then identified him at a district court motion hearing and, ultimately, provided a positive identification during the trial. Her identification was clear and unequivocal.
Three days after the occurrence, Miller, his female friend and Miller's brother voluntarily went to the Laramie police station because they anticipated that Miller might be a suspect in the rape (actually, by this time, two rapes--see n. 5 infra). While on their way to the police station, Miller and his female friend concocted a fabricated alibi for Miller's actions during the early morning hours of January 13. Essentially, the alibi consisted of the female friend claiming she gave Miller a ride home from the bar after it closed on January 13. After giving a statement to that effect to the police on January 16, the female friend recanted her statement the following day. Miller later testified that he fabricated the alibi since he was afraid of problems resulting from a prior sexual assault conviction and because he was a black man and the rape victim was white. 4
The police secured a statement from Miller under a full Miranda waiver and arrested him for the alleged rape. In conjunction with that arrest, Miller voluntarily consented to a search of his residence. The police confiscated three pairs of pants, several pairs of underwear, a shirt and a pair of shoes which were subsequently found to resemble the heel print left at the rape scene. The crime laboratory examined the seized clothing for blood but found no incriminatory evidence. The accused also consented to have his blood type tested. Both he and the victim were found to have A-type blood--the same blood type identified in the spermatozoa taken from the victim's thigh. Neither the prosecution nor the defense requested DNA testing.
Miller was appointed a public defender on January 17, 1990 and then waived a preliminary hearing. The district court information charging first degree sexual assault was filed to which Miller entered pleas of not guilty, not guilty by reason of mental deficiency, and not triable by reason of mental illness or deficiency. 5 Miller was examined pursuant to his plea of mental illness and deficiency at the Wyoming State Hospital and, by trial court order, was given a second examination by Dr. Brian Miracle, a clinical psychologist from Lander, Wyoming. The insanity pleas were not pursued at trial and the case was presented and submitted by specific instruction of the trial court on the theory of defense of misidentification resulting from victim "confusion." He was convicted by a jury of first degree sexual assault and received a confinement sentence of seventeen years to life. From that sentence, he now appeals.
This issue develops from the arrest-time interview and statement of Miller where, during the course of discussion, he commented:
I, I think of myself as [an] alright looking guy, I guess, * * * I wouldn't have to rape nobody. I always have a girlfriend you know, I beat a case like this in Cheyenne, this girl tried to accuse me of raping her.
Prior to trial, Miller's defense counsel requested the disclosure of "evidence of Defendant's prior acts of misconduct [proposed] for introduction under Rule 404(b) W.R.E." Defense counsel also filed a motion in limine "to prevent the State of Wyoming from introducing at trial a previous sexual assault conviction of the Defendant under 404(b) W.R.E." At a pretrial motion hearing, the trial court ruled that while the statement could not be admitted to show identity, it could be admitted to test Miller's credibility:
[O]n the first motion before the court, the Motion in Limine to suppress or limit the prior sexual assault conviction under Rule 404(b), the court finds that the conviction should not be used for identity * * *. The court will, however, and the court finds that the statement that was given by the defendant apparently was given voluntarily, there has been no proceeding to suppress that statement, at least none cognizable by the court, the statement will come in in the state's case-in-chief, and that certainly the prior conviction goes to the credibility of that statement made by the defendant, so the prior conviction will come in in the case-in-chief on the issue of credibility, and the jury will be specifically instructed they may consider that instruction only as it relates to the defendant's statement that he had not previously been subjected to criminal liability for a similar act, however the statement reads in the transcript.
During jury voir dire, the first mention of Miller's prior second degree sexual assault guilty plea and conviction resulted from comment of...
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