Miller v. State

Decision Date17 September 2004
Docket NumberNo. D 2002-782.,D 2002-782.
Citation2004 OK CR 29,98 P.3d 738
PartiesVictor Cornell MILLER, Appellant v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Steven Sewell, William J. Musseman, Jr., Marny Kawano, Asst. District Attorneys, Tulsa, OK, Attorneys for State at trial.

Pete Silva, Public Defender, Sid Conway, Asst. Public Defender, Tulsa, OK, Attorneys for Defendant at trial.

Stephen Greubel, Asst. Public Defender, Tulsa, OK, Attorney for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, David Brockman, Assistant Attorney General, Oklahoma City, OK, Attorneys for State on appeal.

OPINION

JOHNSON, Presiding Judge:

¶ 1 Appellant, Victor Cornell Miller, was tried by a jury and convicted of two counts of First Degree Murder (Counts 1 and 2), by malice aforethought, or alternatively, felony/murder, in violation of 21 O.S.1991, § 701.7(A) and (B), in the District Court of Tulsa County, Case No. CF XXXX-XXXX.1 On both Counts, the jury found the existence of four aggravating circumstances: (1) the defendant was previously convicted of a felony involving the use or threat of violence;2 (2) the defendant knowingly created a great risk of death to more than one person;3 (3) the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution;4 and (4) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.5 The jury recommended life imprisonment without the possibility of parole on Count 1 and imposed a death sentence on Count 2. Appellant was sentenced in accordance with the jury's verdicts on June 17, 2002.6

¶ 2 Mary Bowles was abducted from the Promenade Mall in Tulsa, Oklahoma, sometime between 4:15 p.m. and 5:50 p.m. on August 31, 1999. She drove a tan Buick LeSabre. Her body was found on September 8, 1999, in a secluded area near the 9000 block of North 66th Street in Tulsa County. Her car was found on September 9, 1999, in the parking lot of the Oasis Motel in Tulsa. Bowles died from multiple gunshot wounds.

¶ 3 Around 5:50 p.m. on August 31, 1999, Jerald Thurman called his nephew Jim Moseby from a dirt pit he operated near the 6800 block of North Mingo. Thurman told Moseby he had seen a car inside the pit area and was going to lock the gate to the pit if the car was not gone by the time he finished dumping his load. Moseby drove to the dirt pit, saw his uncle's dump truck outside the gate, and discovered Thurman lying on the ground nearby. Thurman had been shot several times. He died two weeks later.

¶ 4 Sundeep Patel, owner of the Oasis Motel, saw the co-defendant John Hanson on August 31, 1999, sometime between 6:00 and 6:30 p.m. Hanson asked to borrow some tools because his car would not start. From his office window, Patel saw Hanson and another man working on a champagne-colored Buick LeSabre in the motel parking lot. Patel described the other man as 6'2" or taller and said he weighed around 240 pounds. Hanson rented a motel room and provided Patel with identification when he filled out the motel registration card. At trial, Patel was not asked to identify and did not identify Appellant as the other man whom he saw with Hanson.

¶ 5 On September 7, 1999, Brandi Wilson was robbed by two men while working at Signature Loan Service. On September 8, 1999, Bobbie Filak was robbed by two men while working at the Tulsa Federal Employees Credit Union. Both women identified Appellant as one of the men who robbed them.

¶ 6 Appellant's wife Phyllis Miller said she and Appellant lived at a Motel 6 from late August until September 9, 1999. Co-defendant John Hanson was her husband's friend and lived with them briefly before August 1999. Phyllis said Hanson always carried a paper bag with a nine millimeter gun in it. She had also seen Appellant with a silver revolver that he had taken during the robbery of the Apache Liquor Store on August 23, 1999.7 Phyllis drove Appellant and Hanson when they committed robberies. Phyllis testified she argued with Appellant on August 31, 1999, when he wanted to use the car for another robbery; then he disabled the car. Appellant and Hanson left after the argument, around 3:00 p.m., and did not return until after midnight. ¶ 7 The next morning, Appellant "put the wires back" on her car and asked Phyllis to take him and Hanson to the Oasis Motel. At the motel, she saw Appellant get into the driver's side of a beige car carrying a blue towel; he moved around some and got out with the towel and some cassette tapes. When they left, Appellant threw the cassette tapes out of the car window. She drove Appellant and Hanson to North 54th Street and Hartford, where Hanson got out and walked to a car by the side of a house.

¶ 8 When Phyllis drove Appellant and Hanson to commit a robbery in September 1999, both men had guns.8 When they returned to the car after the robbery, the envelope Hanson carried exploded with dye. Appellant told Phyllis to drive to Muskogee. There, she and Appellant had another argument about the car and Appellant again disabled the car. Phyllis had the car towed back to Tulsa. When she got back around 2:00 a.m. on September 9, 1999, Phyllis phoned the police and told them Hanson and Miller had robbed the credit union and were at the Muskogee Econolodge Motel.

¶ 9 An officer investigating Bowles' disappearance and the discovery of her vehicle overheard the police dispatch about the credit union robbery and recognized Hanson's name. Law enforcement officers from various jurisdictions coordinated this information and served warrants on Appellant and Hanson at Room 135 of the Econolodge Motel in Muskogee, Oklahoma. Appellant came out of the motel room almost immediately, but Hanson remained inside the motel room for several hours until he was driven out by tear gas.

¶ 10 Officers found Six Hundred Fifty-Five dollars ($655.00) of red dye-stained money in Appellant's shoes. In the motel room, officers found a Taurus Model 85 .38 caliber silver revolver and a Star Firestar 9 millimeter semi-automatic pistol, duct tape, plastic sacks, gloves, envelopes, ammunition and other items associated with the robberies.

¶ 11 A forensic firearms examiner examined two projectiles recovered from Jerald Thurman's body during autopsy and said they were fired from the Taurus Model 85 .38 caliber revolver. A projectile recovered from Bowles' body and two 9 millimeter bullet casings found at the scene were fired from the Star Firestar 9 millimeter.

¶ 12 A fingerprint examiner matched a single fingerprint found in Bowles' car on the driver's side seat belt to Hanson's known prints. One print found on the passenger's side seat belt matched Appellant's right thumb print.

¶ 13 Prior to trial, Appellant's motion to sever his trial from Hanson's, based on Hanson's confession and antagonistic defenses, was granted. At trial, over strenuous and repeated objections, the State called Rashad Barnes, and Barnes was allowed to testify to Hanson's confession.

¶ 14 Rashad Barnes9 said Hanson lived in an old car parked in his parents' back yard. Barnes said sometime in early September 1999, around 3:30 or 4:00 p.m., Hanson walked up to him acting nervously and said, "It went all bad." Barnes was allowed to tell the jury a number of things Hanson allegedly told him. He said Hanson said "he had to kill somebody." Hanson told Barnes he and Victor Miller went to the Promenade Mall to carjack someone. They saw an old woman, carjacked her and put her on the floor in the back seat of her car. Hanson rode in the back seat her while Victor Miller drove. Hanson told Barnes Appellant drove them to a back road and when Hanson tried to put the old woman out of the car, someone saw them and Hanson put her back in the car. Appellant said he "was going to handle it." Hanson said Appellant "got out of the car and shot the man" and "Vic got back to the car, told him he knew what he had to do. He said he shot the old lady and pulled her out and put bushes on her." Hanson told Barnes Appellant reloaded his gun when he got back into the car. "They drove the car to a hotel, and he wiped his prints out of the car and caught a ride out north." ¶ 15 Barnes admitted he only came forward with this evidence after he was subpoenaed to testify before a federal grand jury. Barnes could not remember the date Hanson told him about the carjacking and murders; he admitted he never told the grand jury Hanson lived in Barnes' car, never told them Hanson said Appellant shot and killed a man, and never told the grand jury Hanson said anything about wiping out a car or covering Bowles' body with bushes. Before he told anyone, Barnes admitted he heard twice on the street that his "homey" [Hanson] had killed somebody. Barnes gave a statement to Detective Nance on December 9, 1999, but said he did not remember telling Nance how many times Appellant shot the man (seven times); he did not recall telling Nance that Hanson said Appellant was reloading his gun when he got back into the car. Barnes did not remember telling Hanson to leave after their conversation. Barnes admitted telling Nance Hanson was telling everybody about the killing.

¶ 16 At trial, Barnes testified the conversation with Hanson happened between 3:00 and 4:00 in the afternoon and lasted fifteen to twenty minutes, but he admitted he previously testified the conversation lasted seven or eight minutes. At Hanson's trial, he testified it lasted thirty to forty-five minutes. Barnes could not recall what day Hanson told him these things, but he thought it was a Tuesday because a couple of days later, "he saw them on TV." Barnes did not remember where he was on August 31, 1999.10

¶ 17 Appellant testified and admitted he was convicted in 1981 of three counts of armed robbery. He also admitted he was recently found guilty of sixteen counts of felony crimes associated with a string of robberies he and Hanson committed....

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15 cases
  • Miller v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 6 Septiembre 2013
    ...Miller appealed his convictions and his sentences to this Court, and we reversed both his convictions and his sentences in Miller v. State, 2004 OK CR 29, 98 P.3d 738.3 ¶ 4 After various proceedings following this reversal and remand, Miller was re-tried on both first-degree murder counts i......
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    ...and reliable," and reliability can be inferred "where the evidence falls within a firmly rooted hearsay exception." Miller v. State , 98 P.3d 738, 744 (Okla. Crim. App. 2004). Pursuant to Okla. Stat. tit. 12, § 2803(3), "[a] statement of the declarant's then existing state of mind, emotion,......
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    ...a position one way or the other have actually excluded nontestimonial statements for failing to meet the test of Roberts. But see, Miller v. State, 98 P.3d 738 ...
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