Miller v. State
| Decision Date | 05 November 1998 |
| Docket Number | No. F,F |
| Citation | 977 P.2d 1099,1998 OK CR 59 |
| Parties | 1998 OK CR 59 George James MILLER, Appellant, v. STATE of Oklahoma, Appellee. 96-1380. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
¶1 George James Miller was tried by jury and convicted of First Degree Murder (21 O.S.1991, § 701.10) in Oklahoma County District Court Case No. CF-94-8859 before the Honorable Charles L. Owens, District Judge. The jury sentenced Miller to death after finding four aggravating circumstances. Miller is before the Court on original appeal from this Judgment and Sentence. We AFFIRM.
¶2 Twenty-five year old Kent Dodd worked as the night auditor for the Central Plaza Hotel located at the intersection of I-40 and Martin Luther King Drive in Oklahoma City. Dodd registered a guest at approximately 3:15 a.m. September 17, 1994. Shortly thereafter he was attacked by an assailant who stabbed him repeatedly, beat him with hedge shears and a paint can, and poured muriatic acid on him and down his throat. Two and a half hours later a housekeeper arrived for the morning shift. She called for Dodd when she saw he was not at the front desk. In response, she heard "animal moans" from the unused restaurant area of the hotel. She ran to a nearby restaurant and had the police summoned. Dodd was still alive when the police found him.
¶3 Dodd was able to respond to police questioning, but most of his responses were unintelligible, perhaps due to the acid burns in his mouth and throat. The police were able to understand him say his attacker was a black man who wore gray pants. Dodd died later that day at the hospital from blunt force trauma to his head.
¶4 All of the evidence against George Miller is circumstantial. Miller's sandals could have left the bloody footprints found at the scene, but could not be exclusively identified. A microscopic drop of blood found on Miller's sandal was consistent with Dodd's blood, but also could not be exclusively identified. Miller told police he was home with his wife at the time of the murder. The Millers were divorced by the time of trial, and she testified he was not home; he had taken her car keys from the place where she hid them under the mattress and left. The next day she found sand in the car. She also testified she did the family laundry, and after the murder a pair of Miller's khaki shorts and a silk shirt disappeared. She identified two buttons found at the crime scene as consistent with buttons on the missing shirt.
¶5 The evening before the murder Miller was broke and tried unsuccessfully to borrow money from several different friends including one who lived at the Central Plaza Hotel. The morning after the murder Miller gave his wife one hundred and twenty dollars. When questioned by police about this, he claimed he had cashed a paycheck. When they reminded him he was not working at the time, Miller denied he gave his wife the money.
¶6 The hotel cash drawer was open and empty when the police investigated the crime scene. Hotel policy requires each shift to begin with two hundred and fifty dollars in the drawer. At the end of the shift the desk clerk places any amount in excess of this in a deposit envelope and drops it into the hotel safe. Only desk clerks knew the amount of cash in the drawer.
¶7 Kent Dodd was an exemplary employee who followed the accounting procedures carefully, and whose money count was always correct. After the murder the hotel manager tried to determine whether any money had been taken. She discovered a deposit envelope containing one hundred dollars hidden behind registration forms in a separate drawer. The next day Miller told a friend that robbery could not have been the motive for the killing, because only one hundred fifty dollars was kept in the cash drawer.
¶8 Miller had worked as a maintenance man at the Central Plaza Hotel for two weeks about a month before the murder. Dodd knew Miller, but knew him under an alias, Jay Elkins. Photographs of the crime scene revealed what appears to be finger writing in the blood on the floor and wall which could be the letter "J" and the word, "Jay."
¶9 Miller and his wife split up shortly after the murder, and he went to stay with his mother in Sherman, Texas. When police questioned him about the Dodd murder, he cried.
¶10 Miller was serving a federal sentence at Leavenworth, Kansas at the time charges were filed against him in Oklahoma for the murder of Kent Dodd. Consequently he was brought to Oklahoma pursuant to the Interstate Agreement on Detainers Act (IADA). 22 O.S.1991, §§ 1345 et seq. Title V of that Act provides trial shall commence within 120 days of the date the defendant is brought into the jurisdiction or charges shall be dismissed. In Proposition I Miller argues the prosecutor denied him due process by filing the Bill of Particulars late and thereby forcing him to choose between a speedy trial under the IADA, and effective assistance of counsel as guaranteed by the state and federal constitutions.
¶11 This issue was raised and thoroughly addressed at a pre-trial motion hearing. Defense counsel advised the trial court he was aware of Miller's detainee status from the time of his appointment. Miller adamantly asserted his right to go to trial within the 120 days provided by the IADA, and defense counsel Barry Albert advised the trial court he would be ready for trial. The danger of an apparent forced choice between competent counsel and speedy trial was recognized and addressed by the trial judge, the prosecutor, defense counsel, and the defendant. Defense counsel made clear he would be ready for trial, and at the beginning of the jury trial, he announced he was ready. The record shows unequivocally defense counsel was prepared for trial.
¶12 In support of this argument, Miller argues the State filed the Bill of Particulars so late that he was denied due process. Miller never objected to the filing of the Bill of Particulars. On appeal he concedes the filing complied with the definition of "adequate notice" set forth in Hunter v. State, 1992 OK CR 19, p 5, 829 P.2d 64, 65, that is, it was filed at the time of arraignment. He argues this definition does not control in this special case where the IADA clock was running. To support this position Miller relies on dicta in Marquez v. State, 1995 OK CR 17, p 6, 890 P.2d 980, 983, and argues the proper time for the Bill of Particulars to be filed was when the district attorney knew he would seek the death penalty.
¶13 The adequacy of notice can only be determined within the context of the circumstances of the particular case. In this case, defense counsel advised the trial court he began amassing mitigation evidence the day he was appointed, July 17, 1996. Counsel repeatedly advised the trial court he would be ready to try the case and at no time did counsel request a continuance. This case differs significantly from Marquez in which counsel had only eighteen days notice that the State sought the death penalty; he advised the trial court he could not be ready for trial in that amount of time, and he requested a continuance on this basis which was denied by the trial court. Id. Under the circumstances of the case before us, no evidence supports a finding the notice was not adequate.
¶14 Miller also argues the prosecutor abused his discretion by filing the Bill of Particulars, and the IADA bars the State from filing a Bill of Particulars after the detainer has been filed with the custodial jurisdiction. An abuse of discretion in the filing of a Bill of Particulars will be found where the filing is based on impermissible discriminatory grounds. Carter v. State, 1994 OK CR 49, p 53, 879 P.2d 1234, 1251, cert. denied, 513 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995). The grounds cited by Miller are that he was forced to choose between effective assistance of counsel and a speedy trial. Defense counsel stated unequivocally he would be prepared for trial, and he was. The record defeats this argument.
¶15 Miller interprets the silence of the IADA on the question of filing the Bill of Particulars after filing the detainer with the custodial jurisdiction to mean the filing is not authorized. He argues the filing improperly adds a charge, or substantially changes the nature of the charges. Even if we were to accept the argument that the filing changed the charge, which we do not, Article V of the IADA defeats it. Article V, section (d) of the Act provides:
The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. (emphasis added)
¶16 Miller's final argument against the Bill of Particulars reiterates earlier arguments: he was forced to choose between a speedy trial under the Act and effective assistance of trial counsel. As we have discussed, the record is unambiguous and emphatic; counsel was prepared for trial.
¶17 During voir dire the following exchanges took place as two prospective jurors expressed concern about imposing the death penalty.
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