Miller v. State, CR

• Decision Date: 14 November 1983
• Docket Number: No. CR,CR
• Citation: 660 S.W.2d 163,280 Ark. 551
• Parties: Larry Wayne MILLER, Appellant, v. STATE of Arkansas, Appellee. 82-152.
• Court: Arkansas Supreme Court

Page 163

660 S.W.2d 163

280 Ark. 551

Larry Wayne MILLER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 82-152.

Supreme Court of Arkansas.

Nov. 14, 1983.

Lessenberry & Carpenter by Thomas M. Carpenter, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Michael Wheeler, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

The death penalty decreed in this case is reduced to life without parole unless the State elects to retry Larry Wayne Miller. Prejudicial error occurred during the penalty phase of the trial. In all other respects the judgment finding Miller guilty is affirmed, the evidence being not only substantial but convincing that he killed Marilee Brewer and intended to kill James Brewer after he and a woman robbed them at their home at Little Rock, Arkansas on January 7, 1982.

After the jury found Miller guilty, the State attempted to prove as an aggravating circumstance that Miller had committed crimes on two other occasions involving an element of violence. Since the State could not produce convictions in either instance it, in effect, tried Miller for these crimes during the penalty phase of the case. The defense objected, pleading surprise and asked for a continuance to prepare for a defense to this approach by the State. The request was denied and the State proceeded. The State's efforts fell utterly short of the burden of proof; it had to prove, beyond a reasonable doubt, that Miller committed these aggravated robberies, one offense occurring in Missouri, the other in Alabama. The trial judge found the State's proof that Miller had committed the robbery in Alabama insubstantial and told the jury to disregard this evidence. He allowed the jury to consider the evidence that a crime was committed in Missouri, however. The victim of that crime testified that he not only could not identify Miller at the trial, but that he did not identify him when shown photographs by an officer after the crime. The only evidence of Miller's guilt of the Missouri crime was an officer's testimony that at the time the victim was shown the photographs he had picked out Miller as one of his assailants. That is not sufficient evidence to support a finding beyond a reasonable doubt that Miller committed the crime--a finding which the jury made.

The penalty phase of capital murder cases ought not to be turned into a separate trial for other crimes. But the legislature has made it plain that the State can offer evidence that a defendant "committed" another crime which involves an element of violence. Before 1977, the law read: "(2) [The defendant was previously convicted of another capital murder or of a felony involving the use or threat of violence to the person." [Emphasis added.]

That language was amended by Act 474, 1977, to read: "(3) [T]he person previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person." [Emphasis added.]

In the Commentary to the statute it is noted: "First, the prosecution need no longer prove that the defendant was previously convicted of another offense. The prosecution may establish an aggravating circumstance through proof that the defendant previously committed another specified type of offense."

So, it is clear the State can proceed as it did in this case. But when it attempts to prove another unrelated crime, without having evidence of a conviction, it does so at some risk and the trial court must prevent prejudicial evidence from reaching the jury. Obviously the State cannot utterly fail in its burden as it did here because the prejudice cannot be removed. The jury in this case heard evidence that merely amounted to an accusation that Miller had committed two other crimes--not substantial evidence he did so. Also, a defendant has a right to present rebutting evidence in such a case, just as in a trial. How else can a defendant be granted due process of law? That right was asked for but denied in this case. Such a procedure would not necessarily apply in a case where evidence was already before the jury that a separate but related crime was committed during the course of the commission of the capital felony charge in question. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983); See Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).

Here the State unquestionably fell short of its burden and the jury made a finding that cannot be sustained. The trial court also refused the defendant a chance to rebut the evidence, so we have double error. Those errors, however, do not taint in any way the conviction nor prevent a lawful sentence of life without parole from being entered. A reduction in sentence will cure the error. See Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981); Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. denied 434 U.S. 894, 98 S.Ct. 272, 54 L.Ed.2d 180 (1977).

Because of these errors, the death penalty is reduced to life without parole, provided the State of Arkansas may elect within 17 days to retry the appellant rather than accept the reduction.

The other arguments will be reviewed but they are meritless.

James Brewer testified that he was a salesman of tobacco products and made deliveries on a route in Little Rock, Arkansas. When delivering he was paid with cash or checks. After work on January 7, 1982, Brewer returned to his home in Little Rock at about 5:00 p.m. He and his wife had supper and when he heard his wife talking to someone in the kitchen, he went in and found a man and woman who had apparently had car trouble and they asked to use the telephone. They all talked for several minutes. Brewer noticed that the man looked familiar but he could not place him. (It was later proved Miller had worked at a service station on Brewer's route.) As the couple started to leave, the man turned with a revolver in each hand and ordered the Brewers into the living room where he told them to lay down on their stomachs. Brewer's hands were tied with a cord fish stringer. He was never blindfolded. He cooperated by telling them where his money was in the bedroom and where his wife's purse was. The man came back from the bedroom and asked Brewer to show him where the rest of the money was and Brewer went with him. Brewer was lying on the bed when he heard the man pick up a revolver off of Brewer's chest and pull it out of a holster. Brewer testified he had a .38 and .22 revolver in the bedroom. He then heard a shot and felt the bullet hit the back of his head. He did not lose consciousness however. Shortly thereafter he heard another shot in the living room. After some time, Brewer was able to get off the bed and go into the living room where he found his wife shot and killed. He managed to free his hands and cut the bond on his wife's hands and call the police.

On January 25, 1982, less than three weeks later, Brewer was in a store on Stagecoach Road. He visited with Mr. Goss, the owner of the store, who was apparently an acquaintance of Brewer's. Then he went to Goss' residence. He returned to the store with the owner's wife, who wanted to talk to him about the incident. At about 3:00 p.m., a man walked into the store and Brewer immediately recognized him as his assailant. The man walked down an aisle, stayed for just a minute, left without buying anything and then left in his car. Brewer asked Mrs. Goss who the man was and she told him it was Miller. He called the police and told them he had the name of the man who had shot his wife. He gave them a description of the car and Miller was arrested. He said he noticed that Miller had about a three week growth of beard on his face but nothing else was different. Miller's residence was searched and the police found one red nylon fish stringer, the inexpensive kind, with a ring on one end and a sharp metal piece on the other. Brewer and his wife were tied up with similar cord fish stringers, one red and one green, except the sharp metal piece was removed. Mrs. Goss corroborated Brewer's version of the confrontation in the store and said that Brewer was pale and nervous when he pointed out Miller to her. Testimony was offered that Miller had worked at a gas station on Asher...