Miller v. State

• Decision Date: 26 January 2006
• Docket Number: No. 05-33.,05-33.
• Parties: Kirk J. MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 793

127 P.3d 793

2006 WY 17

Kirk J. MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 05-33.

Supreme Court of Wyoming.

January 26, 2006.

COPYRIGHT MATERIAL OMITTED

Mike Cornia, Evanston, Wyoming, for appellant.

Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General, for appellee. Argument by Mr. Causey.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, BURKE, JJ.

GOLDEN, Justice.

[¶ 1] A jury found Kirk Miller guilty of three counts of delivery of a controlled substance (methamphetamine). On appeal, Miller asks this Court to review whether he was denied his constitutional right to confront an adverse witness, whether he was denied a fair trial by the admission of a witness' out of court statements and the witness' guilty plea to a drug-related crime, and whether his convictions are supported by sufficient evidence. Finding no reversible error, we affirm the judgment and order of the district court.

ISSUES

[¶ 2] Miller presents the following issues for our review:

I. Did denying [Miller] the ability to question the State's only witness regarding his recent conviction violated [sic] [Miller's] right to confrontation?

II. Whether the admission of Justin Miller's statements to the circuit court judge implicating [Miller] was error requiring reversal?

III. Was the presentation of evidence and argument involving Justin Miller's guilty plea as [sic] plain error?

IV. Was there sufficient evidence presented to support [Miller's] convictions, under the alternate theories of delivery presented to the jury?

FACTS

[¶ 3] On January 25, 2003, Deputy Shawn Whitmore of the Lincoln County Sheriff's Office was on routine patrol on Highway 189 south of Kemmerer when he observed Justin Miller's (hereinafter Justin) car traveling in the southbound lane. Aware that Justin was wanted for a probation violation, Deputy Whitmore executed a stop of the vehicle and arrested him. A search of Justin's vehicle revealed several small baggies of methamphetamine that were hidden in the steering wheel.¹

[¶ 4] Justin was charged with possession of a controlled substance. On January 27, 2003, Justin pled guilty to the possession charge. In response to questioning by the circuit court, Justin stated that he had received the methamphetamine from his uncle, Kirk Miller. Later that day, Deputy Whitmore and Sergeant Jerry Glasscock interviewed Justin and confirmed that Miller was the source of the methamphetamine found in the vehicle. That interview also revealed that Miller had supplied the drug to Justin on prior occasions in January 2003. Based on the information provided by Justin, Deputy Whitmore obtained a search warrant for Miller's home.

[¶ 5] During the search of Miller's residence on January 27, 2003, law enforcement officers seized several items linking Miller to the drug business, including a mortar and a scale containing methamphetamine residue, a heat-sealing device, numerous small baggies of the type used to sell the drug and a few packets of methamphetamine, most of which were found in Miller's bedroom. Based on the evidence discovered during the search and Justin's statements concerning Miller's drug dealings, the State charged Miller with three counts of delivery of a controlled substance. After a two-day trial that commenced on August 30, 2004, a jury found Miller guilty of the charged offenses. The district court sentenced Miller to concurrent terms of imprisonment of three to six years but suspended execution of the sentences in favor of four years of supervised probation. This appeal followed.

[¶ 6] We will set forth as necessary additional facts as we address the issues raised by Miller.

DISCUSSION

Issue One — Denial of Right to Confrontation

[¶ 7] Miller alleges that he was denied his constitutional right to effectively confront Justin Miller during trial. Miller's constitutional claim presents a question of law. We review questions of law de novo. Hannon v. State, 2004 WY 8, ¶ 11, 84 P.3d 320, 328 (Wyo.2004).

[¶ 8] The primary right secured by the Confrontation Clause of the United States and Wyoming Constitutions is the right of cross-examination. Hannon, ¶ 16, 84 P.3d at 329 (citing Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)). In order for there to be a violation of the right of confrontation, a defendant must show more than just a denial of the ability to ask specific questions of a particular witness. Rather, a defendant must show that he was prohibited "from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness ... `to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.'" Hannon, ¶ 18, 84 P.3d at 330 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986)). The Confrontation Clause guarantees a defendant an "opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (per curiam) (emphasis in original)). A defendant's right to cross-examination of a witness is not unfettered, but is subject to the trial court's "discretion to reasonably limit cross-examination to prevent, among other things, questioning that is repetitive or of marginal relevance." Hannon, ¶ 22, 84 P.3d at 331-32 (quoting United States v. DeSoto, 950 F.2d 626, 629-30 (10th Cir.1991)); see also Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988) (per curiam).

[¶ 9] Two weeks before trial, the State filed a motion in limine to prohibit the defense from inquiring into criminal charges then pending against Justin Miller. In that motion, the State revealed that two charges of battery and one charge of assault on a peace officer had been filed against Justin on July 6, 2004. The State contended that evidence of those charges was neither admissible nor relevant to any issue at Miller's trial. During a hearing on the motion on August 26, the prosecutor indicated that the charges arose out of a domestic dispute Justin had been involved in during the 4th of July weekend. The prosecutor explained:

[PROSECUTOR]: Basically, what happened — it's alleged that [Justin] was assaulting his girlfriend. A citizen tried to intervene. It's alleged that he assaulted the citizen and then left. The police went looking for him, found him hiding under a truck. They tried to get him to come out from under the truck. When he came out, he charged the police officer. And when he hit the police officer, then they went to the ground in a fight, and he was arrested and taken to jail.

[¶ 10] The prosecutor revealed that, pursuant to a plea agreement not yet approved by the district court in charge of the case, Justin would be entering a plea of guilty to one count of felony interference with a peace office later that day, that the disposition of that charge would be pursuant to Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2005), and that he did not expect the district court to accept or reject the plea agreement until after a presentence investigation report had been completed in the case. The prosecutor also noted that, even if the district court accepted the plea agreement, Justin would not be convicted of the felony offense. Additionally, the prosecutor reported that law enforcement found no drugs on Justin when he was arrested, and there was no evidence suggesting Justin was under the influence of any drug at the time.

[¶ 11] In response, defense counsel stated:

[DEFENSE COUNSEL]: * * * Certainly, his behavior is so out of the ordinary and bizarre as to indicate a continuation of his drug habit.

That has some importance, because his allegations against his uncle, my client, Kirk Miller, is that he obtained his drugs from Mr. Miller. And he's indicated by his activities that he may be continuing his drug habit, which indicates he's getting his drugs from somewhere else. My only connection — my only concern is that this appears to me to be drug-induced activity. It certainly is out of the ordinary, and I want to be able to look at his drug habits and where he gets his drugs.

Defense counsel, however, had no direct evidence that Justin's behavior was drug induced. The district court refused to accept defense counsel's speculation as to the relevancy of Justin's criminal conduct:

THE COURT: Well, unless there is something more in the assault case that would indicate drug usage, other than the criminal activity itself of assaulting a police officer, I don't see where that would take you, [Defense Counsel]. You say it's unusual or his behavior was unusual; but unless you've got something more to tie it to drug usage, I'm failing to see how that fits into your theory that he continues to use drugs or buys his drugs from somebody else or still is — still has the habit. * * * *

So I'm going to deny the motion — or I guess I'm granting the motion for the State. That kind of testimony will not come in, unless there's something further that would lead me to change my mind. Otherwise, I just think it's too far of a stretch, and it would be highly prejudicial.

[¶ 12] On appeal, Miller contends that the district court erred in granting the State's motion. Miller argues that, given Justin's admission at trial "that methamphetamine made him violent," and given Justin's violent behavior that weekend, "the conclusion could be drawn that, contrary to his testimony, he was using drugs again." Miller also suggests that evidence of the lenient disposition of the charges against Justin under Wyo. Stat. Ann. § 7-13-301 could have "affected the...